Colletti v. Arpaio et al

Filing 8

ORDER Defendants Paval and Garcia are dismissed without prejudice. Defendants A6542 and Alger must answer the First Amended Complaint. The Clerk of Court must send Plaintiff a service packet including the First Amended Complaint (Doc. 7 ), this Orde r, and both summons and request for waiver forms for Defendants A6542 and Alger. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Steven P. Logan pursuant toRules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Senior Judge Robert C Broomfield on 10/23/2013. (KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Salvatori Joseph Colletti,

10

Plaintiff,

11
12

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

vs.

ORDER

Joseph M. Arpaio, et al.,

13
14

Defendants.

15
16

On February 1, 2013, Plaintiff Salvatori Joseph Colletti, who is confined in the

17

Arizona State Prison Complex-Florence, filed a pro se civil rights Complaint pursuant to

18

42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a May 13, 2013

19

Order, the Court granted the Application to Proceed and dismissed the Complaint with

20

leave to amend.

21

On June 12, 2013, Plaintiff filed a First Amended Complaint (Doc. 7). The Court

22

will order Defendants A6542 and Alger to answer the First Amended Complaint and will

23

dismiss the remaining claims and Defendants without prejudice.

24

I.

Statutory Screening of Prisoner Complaints

25

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

26

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

27

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

28

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

TERMPSREF

1

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

2

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

3

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

4

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

5

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

6

defendant-unlawfully-harmed-me accusation.”

7

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

8

conclusory statements, do not suffice.” Id.

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

at 681.

19

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

20

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

21

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

22

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

23

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

24

II.

First Amended Complaint

25

Plaintiff names the following Defendants in the First Amended Complaint:

26

Maricopa County Fourth Avenue Jail Sergeants A6542 and Alger 7344; Chaplain Paval;

27

and Lieutenant Garcia.

28

TERMPSREF

-2-

1

Plaintiff raises one claim for relief in which he claims his rights under the

2

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) were violated when

3

Defendant A6542 confiscated his religious medallion, an item essential to Plaintiff’s

4

every day religious practice. Plaintiff claims that he filed a grievance on the issue with

5

Defendant Paval, who informed Plaintiff that he needed the Jail Commander’s approval

6

to have the medallion and “made other comments about [Plaintiff’s] religion . . . stating

7

that he [didn’t] care about [Plaintiff’s] religion and that he’s never heard of [Plaintiff’s]

8

religion.” Plaintiff further claims that Defendant Alger approved for Plaintiff a plastic

9

medallion similar to a rosary. Plaintiff explained that his religion did not make plastic or

10

rubber medallions. Plaintiff was told that he could have a wooden medallion if it was

11

approved by Jail Commander Harmon.

12

Plaintiff states that he proceeded to take steps to obtain the wooden medallion, but

13

that Defendant Alger intercepted Plaintiff’s letter to Commander Harmon and responded

14

to the letter by stating that “it was a grievance issue.” Plaintiff claims that because of

15

Defendant Alger’s actions, he was unable to proceed with obtaining a wooden medallion.

16

Plaintiff also alleges that he received responses during the grievance process from

17

Sergeant Wade, Defendant Garcia, and the external grievance referee and that the

18

responses contradicted each other.

19
20

Plaintiff seeks injunctive relief and damages.
III.

Failure to State a Claim

21

Under RLUIPA, a government may not impose a substantial burden on the

22

religious exercise of a confined person unless the government establishes that the burden

23

furthers a “compelling governmental interest” and does so by “the least restrictive

24

means.” 42 U.S.C. § 2000cc-1(a)(1)-(2).

25

With respect to Defendant Paval, Plaintiff alleges only that Defendant Paval

26

explained to Plaintiff that he would have to obtain approval for a medallion from the jail

27

commander and that Defendant Paval made negative comments about Plaintiff’s religion.

28

Plaintiff does not allege that Defendant Paval denied Plaintiff possession of the medallion

TERMPSREF

-3-

1

or burdened the practice of Plaintiff’s religion in some other way. Plaintiff has failed to

2

state a claim against Defendant Paval.

3

With respect to Defendant Garcia, Plaintiff claims that Defendant Garcia

4

responded unfavorably to Plaintiffs grievance. The mere denial of a grievance does not

5

give rise to the inference of active unconstitutional behavior. Where a defendant’s only

6

involvement in the allegedly unconstitutional conduct is the denial of administrative

7

grievances, the failure to intervene on a prisoner’s behalf to remedy alleged

8

unconstitutional behavior does not amount to active unconstitutional behavior for

9

purposes of § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Plaintiff has

10

therefore failed to state a claim against Defendant Garcia.

11

IV.

Claims for Which an Answer Will be Required

12

Liberally construed, Plaintiff has adequately stated a claim under RLUIPA against

13

Defendants A6542 and Alger and the Court will require these Defendants to answer the

14

First Amended Complaint.

15

V.

Warnings

16

A.

17

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

18

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

19

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

20

comply may result in dismissal of this action.

Release

21

B.

22

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

23

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

24

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

25

dismissal of this action.

Address Changes

26

C.

27

Plaintiff must serve Defendants, or counsel if an appearance has been entered, a

28

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

TERMPSREF

Copies

-4-

1

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

2

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

3

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

4

Plaintiff.

5

D.

6

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

7

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

8

Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action

9

for failure to comply with any order of the Court).

10

Possible Dismissal

IT IS ORDERED:

11

(1)

Defendants Paval and Garcia are dismissed without prejudice.

12

(2)

Defendants A6542 and Alger must answer the First Amended Complaint.

13

(3)

The Clerk of Court must send Plaintiff a service packet including the First

14

Amended Complaint (Doc. 7), this Order, and both summons and request for waiver

15

forms for Defendants A6542 and Alger.

16

(4)

Plaintiff must complete and return the service packet to the Clerk of Court

17

within 21 days of the date of filing of this Order. The United States Marshal will not

18

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

19

(5)

If Plaintiff does not either obtain a waiver of service of the summons or

20

complete service of the Summons and First Amended Complaint on a Defendant within

21

120 days of the filing of the Complaint or within 60 days of the filing of this Order,

22

whichever is later, the action may be dismissed as to each Defendant not served. Fed. R.

23

Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).

24
25
26

(6)

The United States Marshal must retain the Summons, a copy of the First

Amended Complaint, and a copy of this Order for future use.
(7)

The United States Marshal must notify Defendants of the commencement

27

of this action and request waiver of service of the summons pursuant to Rule 4(d) of the

28

Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this

TERMPSREF

-5-

1

Order.

2

summons. If a waiver of service of summons is returned as undeliverable or is not

3

returned by a Defendant within 30 days from the date the request for waiver was

4

sent by the Marshal, the Marshal must:

The Marshal must immediately file signed waivers of service of the

5

(a)

personally serve copies of the Summons, First Amended Complaint,

6

and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of

7

Civil Procedure; and

8

(b)

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

9

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

10

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

11

upon Defendant. The costs of service must be enumerated on the return of service

12

form (USM-285) and must include the costs incurred by the Marshal for

13

photocopying additional copies of the Summons, First Amended Complaint, or

14

this Order and for preparing new process receipt and return forms (USM-285), if

15

required. Costs of service will be taxed against the personally served Defendant

16

pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise

17

ordered by the Court.

18

(8)

A Defendant who agrees to waive service of the Summons and First

19

Amended Complaint must return the signed waiver forms to the United States

20

Marshal, not the Plaintiff.

21

(9)

Defendants must answer the First Amended Complaint or otherwise

22

respond by appropriate motion within the time provided by the applicable provisions of

23

Rule 12(a) of the Federal Rules of Civil Procedure.

24

(10)

Any answer or response must state the specific Defendant by name on

25

whose behalf it is filed. The Court may strike any answer, response, or other motion or

26

paper that does not identify the specific Defendant by name on whose behalf it is filed.

27

...

28

TERMPSREF

-6-

1

(11)

This matter is referred to Magistrate Judge Steven P. Logan pursuant to

2

Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as

3

authorized under 28 U.S.C. § 636(b)(1).

4

DATED this 23rd day of October, 2013.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

TERMPSREF

-7-