Rivera v. Maricopa County Lower Buckeye Jail et al

Filing 5

ORDER that Plaintiff's 2 Application to Proceed In Forma Pauperis is granted. Plaintiff must pay the $350.00 filing fee. The 1 Complaint is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order i s filed to file a first amended complaint in compliance with this Order. If Plaintiff fails to comply, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). The Clerk must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Senior Judge Robert C Broomfield on 2/5/2013. (Attachments: # 1 PCR-Form)(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ramon Manuel Rivera,

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Plaintiff,

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No. CV 12-2567-PHX-RCB (JFM)

vs.

ORDER

Maricopa County Lower Buckeye Jail,
et al.,

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Defendants.

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Plaintiff Ramon Manuel Rivera, who is confined in the Maricopa County Lower

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Buckeye Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983

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(Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will

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dismiss the Complaint with leave to amend.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

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The Court will assess an initial partial filing fee of $41.96. The remainder of the fee will

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be collected monthly in payments of 20% of the previous month’s income each time the

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amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a

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separate Order requiring the appropriate government agency to collect and forward the

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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

fees according to the statutory formula.

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II.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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But as the United States Court of Appeals for the Ninth Circuit has instructed,

Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other

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facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

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of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The

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Court should not, however, advise the litigant how to cure the defects. This type of

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advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v.

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Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to

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decide whether the court was required to inform a litigant of deficiencies). The Court

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will dismiss Plaintiff’s Complaint for failure to state a claim, but because the Complaint

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may possibly be saved by amendment, will dismiss the Complaint with leave to amend.

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III.

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Complaint
Plaintiff names the Maricopa County Lower Buckeye Jail and the Maricopa

County Sheriff’s Office as Defendants in the Compliant.

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Plaintiff raises three claims for relief in which he alleges his right to be free from

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cruel and unusual punishment was violated when he was required to use an upstairs

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visitation room despite the fact that he is disabled and uses a wheelchair. In Count One,

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Plaintiff claims he was forced to use the upstairs visitation room or miss his visit and was

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not provided with assistance from jail staff. In Count Two, Plaintiff alleges that after the

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visit he was asked to return to his cell but was not given assistance. Plaintiff claims he

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attempted to climb down the stairs himself, but fell. In Count Three, Plaintiff claims that

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the Maricopa County Sheriff’s Office failed to comply with the guidelines set forth in the

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American’s with Disabilities Act.

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Plaintiff seeks money damages.
IV.

Failure to State a Claim

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Claims under § 1983 are directed at “bodies politic and corporate.” Monell v. Dept. of

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Soc. Serv. of City of N.Y., 436 U.S. 658, 688-89 (1978). Under the Civil Rights Act of

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1871, Congress intended municipalities and other local government units to be included

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The Maricopa County Lower Buckeye Jail is not a proper Defendant to this action.

among those persons to whom § 1983 applies. Id. at 689-690. Because a jail is neither a

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corporation nor a body politic, it is not a person for purposes of § 1983, and accordingly,

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the Maricopa County Lower Buckeye Jail will be dismissed.

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The Maricopa County Sheriff’s Department is not a proper defendant. In Arizona,

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the responsibility of operating jails and caring for prisoners is placed by law upon the

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sheriff. See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. § 31-101. A sheriff’s office

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is simply an administrative creation of the county sheriff to allow him to carry out his

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statutory duties and not a “person” amenable to suit pursuant to § 1983. Accordingly, the

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Maricopa County Sheriff’s Department will be dismissed from this action.

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As no proper Defendant remains, the Court will dismiss the Complaint.
V.

Leave to Amend

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For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to

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state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a

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first amended complaint to cure the deficiencies outlined above. The Clerk of Court will

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mail Plaintiff a court-approved form to use for filing a first amended complaint. If

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Plaintiff fails to use the court-approved form, the Court may strike the amended

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complaint and dismiss this action without further notice to Plaintiff.

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If Plaintiff files an amended complaint, Plaintiff must write short, plain statements

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telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name

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of the Defendant who violated the right; (3) exactly what that Defendant did or failed to

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do; (4) how the action or inaction of that Defendant is connected to the violation of

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Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of

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that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific

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injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for

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failure to state a claim.

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Defendants have violated a constitutional right are not acceptable and will be

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Plaintiff must repeat this process for each person he names as a Defendant. If

dismissed.

Conclusory allegations that a Defendant or group of

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Plaintiff should note that pretrial detainee’s claim for unconstitutional conditions

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of confinement arises from the Fourteenth Amendment Due Process Clause rather than

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from the Eighth Amendment prohibition against cruel and unusual punishment. Bell v.

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Wolfish, 441 U.S. 520, 535 and n.16 (1979). Nevertheless, the same standards are

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applied, requiring proof that the defendant acted with deliberate indifference. See Frost

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v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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Deliberate indifference is a higher standard than negligence or lack of ordinary

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due care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To

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state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, the

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alleged constitutional deprivation must be, objectively, “sufficiently serious”; the

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official’s act or omission must result in the denial of “the minimal civilized measure of

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life’s necessities.” Id. at 834. Second, the prison official must have a “sufficiently

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culpable state of mind,” i.e., he must act with deliberate indifference to inmate health or

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safety. Id. In defining “deliberate indifference” in this context, the Supreme Court has

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imposed a subjective test: “the official must both be aware of facts from which the

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inference could be drawn that a substantial risk of serious harm exists, and he must also

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draw the inference.” Id. at 837 (emphasis added). Accordingly, Plaintiff identify and

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name as defendants the individuals who violated his constitutional rights and must

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describe whether each individual acted with deliberate indifference to a threat to his

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safety.

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Plaintiff must clearly designate on the face of the document that it is the “First

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Amended Complaint.” The first amended complaint must be retyped or rewritten in its

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entirety on the court-approved form and may not incorporate any part of the original

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Complaint by reference. Plaintiff may include only one claim per count.

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963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896

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F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original

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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet,

complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised

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in the original complaint is waived if it is not raised in a first amended complaint. King v.

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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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VI.

Warnings

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A.

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his

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release. Also, within 30 days of his release, he must either (1) notify the Court that he

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intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to

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comply may result in dismissal of this action.

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B.

Release

Address Changes

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Plaintiff must file and serve a notice of a change of address in accordance with

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Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

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C.

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further

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notice to Plaintiff.

Copies

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Because the Complaint has been dismissed for failure to state a claim, if Plaintiff

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fails to file an amended complaint correcting the deficiencies identified in this Order, the

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dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

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Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil

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judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more

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prior occasions, while incarcerated or detained in any facility, brought an action or appeal

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in a court of the United States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

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is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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D.

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Possible “Strike”

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E.

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If Plaintiff fails to timely comply with every provision of this Order, including

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these warnings, the Court may dismiss this action without further notice. See Ferdik, 963

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F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any

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order of the Court).

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IT IS ORDERED:

Possible Dismissal

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

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(2)

As required by the accompanying Order to the appropriate government

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agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing
fee of $41.96.
(3)

The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff

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has 30 days from the date this Order is filed to file a first amended complaint in

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compliance with this Order.

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(4)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

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Court must, without further notice, enter a judgment of dismissal of this action with

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prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).

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(5)

The Clerk of Court must mail Plaintiff a court-approved form for filing a

civil rights complaint by a prisoner.
DATED this 5th day of February, 2013.

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