Colletti v. Arpaio et al

Filing 5

ORDER Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2 ) is granted. As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filin g fee of $10.25. The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. If Plaintiff fails to file an amended com plaint within 30 days, 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 of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Senior Judge Robert C Broomfield on 5/10/2013. (Attachments: # 1 Instructions and form for a prisoner filing a civil rights complaint)(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Salvatori Joseph Colletti,

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Plaintiff,

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No. CV 13-222-PHX-RCB (SPL)

vs.

ORDER

Joseph M. Arpaio, et al.,

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Defendants.

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Plaintiff Salvatori Joseph Colletti, who is confined in the Maricopa County Fourth

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

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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 $10.25. 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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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.

Complaint

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Plaintiff names the following Defendants in the Complaint: Maricopa County

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Sheriff Joseph M. Arpaio, Chaplain G. Millard, Sergeant Wade, Chaplain Paval, Jail

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Sergeant Alger, Captain Harmon, and Lieutenant Garcia.

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Plaintiff raises one claim for relief in which alleges that his First Amendment

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rights are violated because he is denied a religious medallion. Plaintiff claims that when

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he was transferred to the Maricopa County Jail, he was told that he would have to remove

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his necklace. Plaintiff explained that the necklace was a religious item, but he was

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nevertheless forced to relinquish it. Plaintiff filed grievances requesting the medallion.

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Plaintiff claims that Sergeant A7344 approved the medallion if the chaplain would

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provide it, but the jail chaplain responded by saying that he didn’t care about Plaintiff’s

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religion and was not going to approve the medallion.

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Plaintiff seeks declaratory and injunctive relief as well as money damages.
IV.

Failure to State a Claim

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that a defendant burdened the practice of plaintiff=s religion by preventing him from

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engaging in a sincerely held religious belief and that the defendant did so without any

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justification reasonably related to legitimate penological interests. Shakur v. Schriro, 514

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To state a First Amendment, free-exercise-of-religion claim, a plaintiff must allege

F.3d 878 (9th Cir. 2008).

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Plaintiff does not allege that the denial of his religious medallion burdened the

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practice of his religion by preventing him from engaging in a sincerely held religious

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belief, nor does he allege that Defendants denied the medallion without a penological

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justification. Plaintiff has therefore failed to state a claim.

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

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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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dismissed.

Conclusory allegations that a Defendant or group of

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

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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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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.

Release

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B.

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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.

Address Changes

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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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D.

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

Possible “Strike”

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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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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

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fee of $10.25.

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(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 10th day of May, 2013.

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