Rivera v. Brennan et al

Filing 6

ORDER Plaintiff's Application to Proceed In Forma Pauperis (Doc. 4 ) 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 $15.22. Count Two is dismissed without prejudice. Defendant #2124 is dismissed without prejudice. Defendant Brennan must answer Count One. The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Or der, and both summons and request for waiver forms for Defendant Brennan. 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 James F. Metcalf pursuant to Rules 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 2/25/2014. (KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Ramon Manuel Rivera,

10

Plaintiff,

11
12

No. CV 13-1292-PHX-RCB (JFM)

vs.

ORDER

Detention Officer Brennan, et al.,

13

Defendants.

14
15

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

16

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

17

September 26, 2013 Order, the Court directed Plaintiff to pay the $400.00 administrative

18

and filing fees or file an Application to Proceed In Forma Pauperis. On October 18,

19

2013, Plaintiff filed an Application to Proceed In Forma Pauperis (Doc. 4). The Court

20

will order Defendant Brennan to answer Count One of the Complaint and will dismiss the

21

remaining claim and Defendant without prejudice.

22

I.

Application to Proceed In Forma Pauperis and Filing Fee

23

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

24

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

25

The Court will assess an initial partial filing fee of $15.22. The remainder of the fee will

26

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

27

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

28

TERMPSREF

1

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

2

fees according to the statutory formula.

3

II.

Statutory Screening of Prisoner Complaints

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

defendant-unlawfully-harmed-me accusation.”

14

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

15

conclusory statements, do not suffice.” Id.

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

at 681.

26

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

27

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

28

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

TERMPSREF

-2-

1

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

2

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

3

III.

4
5

Complaint
Plaintiff names Maricopa County Detention Officers Brennan and #2124 as

Defendants in the Complaint. Plaintiff raises two claims for relief.

6

In Count One, Plaintiff claims his Fourteenth Amendment rights were violated

7

when Defendant Brennan failed to protect him from an attack by another inmate.

8

Plaintiff claims he is in protective custody because he is elderly and in a wheelchair. On

9

January 6, 2013, Plaintiff was placed in the recreation yard for his “hour out” and notified

10

Defendant Brennan that another inmate, who was also in the yard at the same time, had

11

threatened Plaintiff’s life and appeared to be intoxicated and was displaying volatile

12

behavior. Plaintiff alleges that Defendant Brennan disregarded the warning and Plaintiff

13

was subsequently assaulted. Plaintiff claims that Defendant Brennan also used mace on

14

Plaintiff, rather than Plaintiff’s attacker.

15

In Count Two, Plaintiff claims his Fourteenth Amendment rights were violated

16

when Defendant #2124 failed “to control the traffic between a violent subject and a

17

vulnerable target, subjecting [Plaintiff] to risk of serious harm by an unreasonable

18

protected observation.” Plaintiff alleges that Defendant #2124 allowed “free reign” in the

19

jail and allowed Plaintiff’s attacker easy access to Plaintiff.

20

Plaintiff seeks money damages and injunctive relief.

21

IV.

Failure to State a Claim

22

The Supreme Court has held that mere negligent failure to protect an inmate from

23

another inmate is not actionable under § 1983. Davidson v. Cannon, 474 U.S. 344

24

(1986). A prison official violates the Eighth and Fourteenth Amendments in failing to

25

protect one inmate from another only when two conditions are met. First, the alleged

26

constitutional deprivation must be, objectively, “sufficiently serious;” the official’s act or

27

omission must result in the denial of “the minimal civilized measure of life’s necessities.”

28

Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the prison official must have a

TERMPSREF

-3-

1

“sufficiently culpable state of mind,” i.e., he must act with deliberate indifference to

2

inmate health or safety. Id. In defining “deliberate indifference” in this context, the

3

Supreme Court has imposed a subjective test:

4

the official must both be aware of the facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.

5
6
7

Id. at 839.
Plaintiff has not alleged facts sufficient to demonstrate Defendant #2124 acted

8
9
10
11
12
13
14

with deliberate indifference; Plaintiff does not demonstrate that Defendant #2124 was
aware of serious risk of harm to Plaintiff’s safety and failed to act. At most, Plaintiff’s
facts suggest Defendant #2124 was negligent in controlling inmate movement. As noted
above, negligence is not sufficient to support a claim for deliberate indifference. The
Court will dismiss Count Two and Defendant #2124.
V.

Liberally construed, Plaintiff has adequately stated a failure to protect claim

15
16
17
18
19
20
21
22
23
24
25
26
27
28

TERMPSREF

Claims for Which an Answer Will be Required

against Defendant Brennan in Count One. The Court will require Defendant Brennan to
answer Count One.
VI.

Warnings
A.

Release

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his
release. Also, within 30 days of his release, he must either (1) notify the Court that he
intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to
comply may result in dismissal of this action.
B.

Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with
Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion
for other relief with a notice of change of address. Failure to comply may result in
dismissal of this action.

-4-

1

C.

2

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

3

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

4

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

5

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

6

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

7

Plaintiff.

8

D.

9

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

10

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

11

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

12

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

13

IT IS ORDERED:

Copies

Possible Dismissal

14

(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 4) is granted.

15

(2)

As required by the accompanying Order to the appropriate government

16

agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing

17

fee of $15.22.

18

(3)

Count Two is dismissed without prejudice.

19

(4)

Defendant #2124 is dismissed without prejudice.

20

(5)

Defendant Brennan must answer Count One.

21

(6)

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

22

Complaint (Doc. 1), this Order, and both summons and request for waiver forms for

23

Defendant Brennan.

24

(7)

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

25

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

26

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

27
28

TERMPSREF

(8)

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

complete service of the Summons and Complaint on Defendant within 120 days of the

-5-

1

filing of the Complaint or within 60 days of the filing of this Order, whichever is later,

2

the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).

3
4

(9)

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

Complaint, and a copy of this Order for future use.

5

(10)

The United States Marshal must notify Defendant of the commencement of

6

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

7

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

8

Order.

9

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

10

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

11

sent by the Marshal, the Marshal must:

The Marshal must immediately file signed waivers of service of the

12

(a)

personally serve copies of the Summons, Complaint, and this Order

13

upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure;

14

and

15

(b)

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

16

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

17

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

18

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

19

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

20

photocopying additional copies of the Summons, Complaint, or this Order and for

21

preparing new process receipt and return forms (USM-285), if required. Costs of

22

service will be taxed against the personally served Defendant pursuant to Rule

23

4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the

24

Court.

25

(11)

If Defendant agrees to waive service of the Summons and Complaint,

26

Defendant must return the signed waiver forms to the United States Marshal, not

27

the Plaintiff.

28

TERMPSREF

-6-

1

(12)

Defendant must answer the Complaint or otherwise respond by appropriate

2

motion within the time provided by the applicable provisions of Rule 12(a) of the Federal

3

Rules of Civil Procedure.

4

(13)

This matter is referred to Magistrate Judge James F. Metcalf pursuant to

5

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

6

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

7

DATED this 25th day of February, 2014.

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

TERMPSREF

-7-