Corral v. Maricopa County Sheriff's Office et al

Filing 44

ORDER (Service Packet) that Plaintiff's Motion for Leave to Amend 29 is granted; That Defendants Vasquez, Karac, and Mora must answer the First Amended Complaint; The Clerk of Court shall send Plaintiff a service packet for defendant Mora; Plaintiff shall complete and return the service packet to the Clerk of Court within 21 days of the date this Order is filed. Signed by Judge G Murray Snow on 10/23/13. (TLJ)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Maricopa County Sheriff's Office, et al., )
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Defendants.
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Gabriel Canales Corral,

No. CV-13-00054-PHX-GMS (SPL)
ORDER

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Before the Court is Plaintiff’s Motion to Amend Complaint (Doc. 29). Defendants

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have filed a response (Doc. 32), to which Plaintiff has filed a reply (Doc. 37). The motion

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will be granted, and the Court will call for an answer from Defendants Karac, Vasquez,

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and Mora.1

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I.

Motion for Leave to Amend

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On January 9, 2013, Plaintiff, who is confined in the Maricopa County Lower

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Buckeye Jail, filed a pro se civil rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983.

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The Court screened Plaintiff’s Complaint in an Order (Doc. 7) filed on April 17, 2013. In

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the screening order, the Court found that Plaintiff stated a claim against Defendants

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Vasquez and Karac (id.), and Defendants filed an Answer on July 19, 2013 (Doc. 16). On

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September 17, 2013, Plaintiff moved for leave to file an amended complaint pursuant to

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The Court notes that although Plaintiff’s First Amended Complaint (Doc. 29, pp.
8-15) is captioned “Gabriel Corral” vs. “Maricopa County Sheriffs Office et. al. [sic],”
Plaintiff does not name the Maricopa County Sheriff’s Office as a defendant.

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Rule 15(a) of the Federal Rules of Civil Procedure, and has lodged a proposed First

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Amended Complaint (Doc. 29).

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Rule 15(a) of the Federal Rules of Civil Procedure provides that “leave [to amend

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a pleading] shall be freely given when justice so requires.” “In deciding whether justice

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requires granting leave to amend, factors to be considered include the presence or

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absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies

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by previous amendments, undue prejudice to the opposing party and futility of the

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proposed amendment.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th

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Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A court need not prolong

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litigation by permitting further amendment where such amendment would be futile.

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Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). “However, a

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proposed amendment is futile only if no set of facts can be proved under the amendment

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to the pleadings that would constitute a valid and sufficient claim or defense.” Miller v.

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Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Granting or denying a motion to

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amend is a matter within the court’s discretion. See, e.g., Ventress v. Japan Airlines, 603

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F.3d 676, 680 (9th Cir. 2010); Chappel v. Laboratory Corp. of Amer., 232 F.3d 719, 725

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(9th Cir. 2000).

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In the proposed First Amended Complaint, Plaintiff alleges two counts for relief

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seeking monetary damages. For the reasons below, the Court finds that Plaintiff’s claims,

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liberally construed, state a claim for relief. Therefore, the motion for leave will be

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granted. Further, to the extent that Plaintiff requests to amend his complaint without

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indicating in what respect the amended complaint “differs from the pleading which it

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amends, by bracketing or striking through the text to be deleted and underlining the text

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to be added” pursuant to Rule 15.1 of the Local Rules of Civil Procedure, the Court finds

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good cause and grants his request in this instance only.

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Granting leave to amend, Plaintiff’s First Amended Complaint supersedes the

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original complaint in its entirety. See Hal Roach Studios v. Richard Feiner & Co., 896

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F.2d 1542, 1546 (9th Cir. 1990); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987);

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir. 1992) (after amendment, the court

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treats the original complaint as nonexistent). Any cause of action raised in the original

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complaint but not raised in the first amended complaint is deemed waived. See King, 814

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F.2d at 567.

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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 does

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

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defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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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.

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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.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint

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states a plausible claim for relief [is] . . . a context-specific task that requires the

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reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus,

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although a plaintiff’s specific factual allegations may be consistent with a constitutional

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claim, a court must assess whether there are other “more likely explanations” for a

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defendant’s conduct. Id. at 680.

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

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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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Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Nonetheless, while pro se pleadings are

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liberally construed, Haines v. Kerner, 404 U.S. 519, 520-521 (1972), conclusory and

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vague allegations will not support a cause of action. Ivey v. Board of Regents of the Univ.

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of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled. Id.

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III.

First Amended Complaint

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To state a valid claim under § 1983, plaintiffs must allege that they suffered a

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specific injury as a result of specific conduct of a defendant and show an affirmative link

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between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362,

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371-72, 377 (1976). “[A] plaintiff must plead that each Government-official defendant,

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through the official’s own individual actions, has violated the Constitution.” Iqbal, 556

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U.S. at 676.

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A pretrial detainee’s claim for unconstitutional conditions of confinement arises

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from the Fourteenth Amendment Due Process Clause rather than from the Eighth

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Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S.

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520, 535 and n.16 (1979). Nevertheless, the same standards are applied, requiring proof

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that the defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124,

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1128 (9th Cir. 1998). Deliberate indifference is a higher standard than negligence or lack

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of ordinary due care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835

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(1994). To state a claim of deliberate indifference, plaintiffs must meet a two-part test.

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

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

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of 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).

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In Count One, Plaintiff sues Detention Officers Fabian Vasquez and Vehid Karac.

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Plaintiff claims that Defendants Vasquez and Karac failed to protect him and acted with

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deliberate indifference to his safety and personal security in violation of the Fourteenth

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Amendment when he was assaulted by a cellmate on October 27, 2012. The factual

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allegations in Count One are essentially the same as those previously raised in the

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original complaint, which this Court found stated a claim. (See Doc. 7 at 3.)

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Consequently, the Court will require Defendants Vasquez and Karac to answer the First

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Amended Complaint.

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In Count Two, Plaintiff sues Detention Officer Mora. Plaintiff alleges that

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Defendant Mora failed to protect him and acted with deliberate indifference to his safety

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and personal security in violation of the Fourteenth Amendment. Plaintiff alleges that, on

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February 22, 2013, Defendant Mora was assigned to Plaintiff’s housing unit, and released

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Plaintiff from his cell to take a shower, alone. While Plaintiff was showering, Defendant

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Mora opened the door to another cell, at which point “another inmate ran out of the open

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cell to the shower and began assaulting the Plaintiff. Plaintiff was knocked to the

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concrete floor, beaten and was injured.” (Doc. 29 at 13.) Plaintiff claims that Defendant

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Mora was “aware of the heightened risk to Plaintiff by observing the house alone and

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dayroom status of Plaintiff,” but nonetheless opened the cell door, resulting in Plaintiff’s

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injury. (Id.)

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First, Defendants argue in response that Plaintiff fails to state a claim against

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Defendant Mora. (Doc. 32.) To the extent that Plaintiff alleges Defendant Mora acted

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negligently, the Court agrees, and finds that such claim is insufficient to state a cause of

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action. See Farmer, 511 U.S. at 835. However, in so far as Plaintiff alleges Defendant

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Mora was “subjectively aware of the heightened risk to Plaintiff” and acted or failed to

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act in a manner that resulted in his injuries (Doc. 29 at 13), liberally construed, Plaintiff

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has stated a Fourteenth Amendment deliberate indifference claim against Defendant

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Mora.

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Second, Defendants contend that Defendant Mora is not a proper party to be

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joined under Rule 20 of the Federal Rules of Civil Procedure. Despite Defendants’

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objection, the Court finds that interests of justice are served by joinder of Defendant

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Mora in this case, and will require him to answer the First Amended Complaint. See

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Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) (“Rule 20 is designed to

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promote judicial economy, and reduce inconvenience, delay, and added expense.”).

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IV.

Service of Defendants

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Because the First Amended Complaint states a claim against the three named

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defendants, the Court will require service on and an answer from each of them. The court

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docket reflects that two of the defendants, Defendants Vasquez and Karac, have already

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appeared in this action, through counsel, by answering the Complaint (Doc. 16). Plaintiff

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will therefore be ordered to serve his First Amended Complaint on Defendants Vasquez

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and Karac pursuant to Rule 5(b) of the Federal Rules of Civil Procedure by sending a

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copy to their attorney, along with a copy of this Order. The Court will direct the Clerk of

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Court to send Plaintiff a new service packet for Defendant Mora.

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V.

Warnings

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A.

Possible Dismissal

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Plaintiff should take note that if he fails to timely comply with every provision of

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this Order, this action may be dismissed without further notice. See Ferdik, 963 F.2d at

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1260-61 (district court may dismiss action for failure to comply with any order of the

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Court).

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B.

Address Changes

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

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

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

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of this action.

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C.

Copies

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Plaintiff must serve the Defendant, or counsel if appearance has been entered, a

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copy of every document he files. Fed. R. Civ. P. 5(a). Each filing must include a

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certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff

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must submit an additional copy of every filing for use by the Court. See LRCiv. 5.4.

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Failure to comply may result in the filing being stricken without further notice to

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Plaintiff.

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D.

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Any additional amendments require the Defendants’ written consent or leave of

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the Court. Fed. R. Civ. P. 15(a)(2); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1051 (9th Cir. 2003). Filing of a second amended complaint without leave of court

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or the Defendants’ consent may result in the filing being stricken.

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IT IS THEREFORE ORDERED:

Further Amendments

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(1)

That Plaintiff’s Motion for Leave to Amend (Doc. 29) is granted;

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(2)

That Defendants Vasquez, Karac, and Mora must answer the First

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Amended Complaint, or otherwise respond by appropriate motion within the time

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provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil

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Procedure;

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(3)

That the Clerk of Court shall send Plaintiff a service packet including the

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First Amended Complaint, this Order, and both a summons and request for waiver form

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for Defendant Mora;

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(4)

That Plaintiff shall complete and return the service packet to the Clerk of

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Court within 21 days of the date this Order is filed. The United State Marshal will not

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provide service of process if Plaintiff fails to comply with this Order;

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(5)

That if Plaintiff does not either obtain a waiver of service of the summons

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or complete service of the summons and First Amended Complaint on Defendant Mora

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within 120 days of the filing of the First Amended Complaint or within 60 days of the

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filing of this Order, whichever is later, the action may be dismissed against him pursuant

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to Fed. R. Civ. P. 4(m) and LRCiv 16.2(b)(2)(B)(i);
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That the United States Marshal shall retain the Summons, a copy of the

First Amended Complaint and a copy of this Order for future use;
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That the United States Marshal shall notify Defendant Mora of the

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commencement of this action and request waiver of service of the summons pursuant to

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Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants shall include

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a copy of this Order. The Marshal shall file a waiver of service of the summons or

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request for waiver that was returned as undeliverable as soon as received. If a

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waiver of service of summons is not returned by Defendant within 30 days from the

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date the request for waiver was sent by the Marshal, the Marshal shall:

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(a) personally serve copies of the summons, First Amended Complaint and this

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Order upon on Defendant Mora pursuant to Rule 4(e)(2) of the Federal

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Rules of Civil Procedure;

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(b) within 10 days after personal service is effected, file the return of service

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for Defendant, along with evidence of the attempt to secure a waiver of

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service of the summons and of the costs subsequently incurred in effecting

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service upon Defendant. The costs of service shall be enumerated on the

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return of service form (USM-285) and shall include the costs incurred by

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the Marshal for photocopying additional copies of the summons, First

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Amended Complaint, or this Order and for preparing new process receipt

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and return forms (USM-285), if required. Costs of service will be taxed

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against the personally served Defendant pursuant to Rule 4(d)(2) of the

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Federal Rules of Civil Procedure, unless otherwise ordered by the Court;

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(8)

That if Defendant agrees to waive service of the summons and First

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Amended Complaint, he/she shall return the signed waiver forms to the United

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States Marshal, not the Plaintiff; and

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(9)

That any answer or responsive pleading shall state the specific Defendant(s)

by name on whose behalf it is filed. The Court may strike an answer or responsive

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pleading that does not identify the specific Defendant(s) by name on whose behalf it is

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filed.

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Dated this 23rd day of October, 2013.

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