Feldmeier v. Hauser et al

Filing 9

ORDER (Service Packet): Plaintiff's 7 APPLICATION to Proceed In Forma Pauperis is granted. Plaintiff must pay the $350.00 filing fee. Plaintiff's 3 MOTION to Join State Tort Action and Federal 42 U.S.C. 1983 Action is deni ed. Defendant Unknown Emergency Call Box Staff is dismissed without prejudice. The Clerk of Court must send Plaintiff a service packet including the 1 Complaint, this Order, and both summons and request for waiver forms for Defendants P. Hause r and R. Williams. 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 Bridget S. Bade for all pretrial proceedings. Signed by Judge David G Campbell on 12/30/2013. (LFIG)

1
2

KAB

WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Ronald M. Feldmeier,

10
11
12

No. CV 13-2027-PHX-DGC (BSB)

Plaintiff,
v.

ORDER

P. Hauser, et al.,

13

Defendants.

14
15

On October 4, 2013, Plaintiff Ronald M. Feldmeier, who is confined in the La

16

Palma Correctional Center in Eloy, Arizona, filed a pro se civil rights Complaint

17

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

18

Motion to Join State Tort Action and Federal 42 U.S.C. § 1983 Action. On November 4,

19

2013, the Court denied Plaintiff’s Application to Proceed In Forma Pauperis and gave

20

Plaintiff 30 days to pay the filing and administrative fees or file a complete Application

21

to Proceed In Forma Pauperis. On November 22, 2013, Plaintiff filed a complete

22

Application to Proceed In Forma Pauperis. The Court will grant Plaintiff’s Application

23

to Proceed In Forma Pauperis, deny the Motion to Join State Tort Action and Federal 42

24

U.S.C. § 1983 Action, dismiss Defendant Unknown Emergency Call Box Staff, and order

25

the remaining Defendants to answer the Complaint.

26

I.

Application to Proceed In Forma Pauperis and Filing Fee

27

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

28

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

TERMPSREF

1

The Court will assess an initial partial filing fee of $13.53. The remainder of the fee will

2

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

3

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

4

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

5

fees according to the statutory formula.

6

II.

Statutory Screening of Prisoner Complaints

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand

15

detailed factual allegations, “it demands more than an unadorned, the-defendant-

16

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

17

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

18

conclusory statements, do not suffice.” Id. (citation omitted).

19

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

20

claim to relief that is plausible on its face.’” Id. (citation omitted). A claim is plausible

21

“when the plaintiff pleads factual content that allows the court to draw the reasonable

22

inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

23

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

24

specific task that requires the reviewing court to draw on its judicial experience and

25

common sense.” Id. at 679 (citation omitted). Thus, although a plaintiff’s specific

26

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

27

whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681.

28

TERMPSREF

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

-2-

1

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

2

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

3

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

4

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

5

III.

Complaint

6

In his Complaint, Plaintiff alleges one count. Defendants are P. Hauser, Case

7

Manager of the La Palma Correctional Center, R. Williams, Unit Manager of the La

8

Palma Correctional Center, and Unknown Emergency Call Box Staff on duty on October

9

5, 2011 at the La Palma Correctional Center, named as Unknown John Doe(s) staffers of

10

the CCA at LaPalma Correctional Center.

11

Plaintiff alleges that his Eighth Amendment right to be free from cruel and

12

unusual punishment was violated as follows: In late July 2011, Plaintiff was assigned a

13

new cellmate, M.K. Wilson (“Wilson”), at La Palma Correctional Center. That same

14

day, Wilson exhibited anger and hostility toward Plaintiff, making “demands and

15

threatening postures.” A housing unit correctional officer told Plaintiff to speak with

16

Defendant Hauser about his problems with Wilson. Plaintiff then met with Defendant

17

Hauser and told him that his cellmate had “a big chip on his shoulder,” was willing to use

18

threatening postures, and that Wilson’s youth and “enormous muscles” intimidated

19

Plaintiff.

20

problems with cellmates and requested that either Plaintiff or Wilson be moved to

21

another cell. Hauser told Plaintiff to let him know if the problem worsened.

At that time, Plaintiff asked Defendant Hauser if Wilson previously had

22

Wilson’s “intimidation, tantrums, and threatening ways continued through

23

August.” Wilson told Plaintiff of his problems with “anger issues” and stated that his

24

own family feared his violent rages.

25

In September 2011, Wilson threatened to kill Plaintiff. Plaintiff told Defendant

26

Hauser of Plaintiff’s growing fear of a violent attack by Wilson, who was twice

27

Plaintiff’s strength and half his age. Defendant Hauser told Plaintiff he was too busy and

28

sent him away. Dissatisfied with that answer, Plaintiff decided to take his complaint “up

TERMPSREF

-3-

1

the chain of command.”

2

On September 21, 2011, Plaintiff met with Defendant Williams. Williams listened

3

to Plaintiff’s complaints and told him to put the details of the complaints in writing on a

4

CDCR Form-22 (the “Form”).

5

September 22, 2011, Plaintiff saw Defendant Hauser.

6

Plaintiff and told Plaintiff that he would hand-deliver the Form to Defendant Williams.

That same day, Plaintiff prepared the Form.

On

Hauser took the Form from

7

During the next two days, Wilson’s behavior worsened. Plaintiff told Defendant

8

Hauser about the worsening behavior and asked if there was an answer to his complaint

9

and if there would be a cell change. Defendant Hauser told Plaintiff that there was no

10

answer to the complaint yet and that a cell change would not occur that day.

11

On September 26, 2011, Plaintiff told Defendant Hauser that he was afraid and

12

described Wilson’s “escalating threats and verbal assaults.” At that time, Plaintiff again

13

requested a new cell for either him or Wilson. Plaintiff saw his Form on Defendant

14

Hauser’s desk and asked Defendant Hauser the status of the complaint he filed with

15

Defendant Williams.

16

Defendant Hauser with handling the problem. Defendant Hauser said he would look into

17

Plaintiff’s request for a new cell, but that no cells were available. Plaintiff requested that

18

he switch cells with any other inmate, but Defendant Hauser did not respond.

Defendant Hauser explained that Defendant Williams tasked

19

On two more occasions, Plaintiff attempted to speak with Defendant Hauser about

20

his problems with Wilson, but Defendant Hauser refused to speak with Plaintiff and sent

21

him away, stating that he was “too busy.”

22

On October 5, 2011, Wilson attacked Plaintiff while Plaintiff was lying in his bed.

23

The attack lasted between ten to twenty minutes and Plaintiff was beaten until he was

24

unconscious. Twice during the beating, Plaintiff tried to summon help via the in-cell

25

emergency call box, but no staff answered and there was no response to Plaintiff’s

26

repeated calls for help. As a result of the attack, Plaintiff suffered a concussion, a

27

fractured eye orbit/cheekbone, fractured nasal bones, fractured septal cartilage,

28

deformation of the nose and eye orbit, lacerations, contusions, abrasions, hearing loss in

TERMPSREF

-4-

1

his right ear, headaches/sinus pain, vertigo, loss of sleep, mental focus and memory,

2

social adjustment difficulties, emotional trauma, right posterior/lateral rib fractures,

3

dorsal/lumbar

4

tissue/musculature damage to his right wrist, tissue/musculature damage to his right

5

forearm, and tissue/musculature damage to his left forearm, hand, and wrist. As a result

6

of these allegations, Plaintiff seeks compensatory and punitive damages and unspecified

7

declaratory relief.

8

IV.

spinal

subluxations,

limited

movement

in

his

right

wrist,

Failure to State a Claim

9

“[P]rison officials have a duty . . . to protect prisoners from violence at the hands

10

of other prisoners.’” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quotation and

11

citations omitted). “It is not, however, every injury suffered by one prisoner at the hands

12

of another that translates into constitutional liability for prison officials responsible for

13

the victim’s safety.” Id. at 834. To state a claim under § 1983 for failure to protect

14

inmates from attacks by other inmates, an inmate must allege facts to support that he was

15

incarcerated under conditions posing a substantial risk of harm and that prison officials

16

were “deliberately indifferent” to those risks. Id. at 834-35. To adequately allege

17

deliberate indifference, a plaintiff must allege facts to support that a defendant knew of,

18

but disregarded, an excessive risk to inmate safety. Id. at 837. That is, “the official must

19

both [have been] aware of facts from which the inference could be drawn that a

20

substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference.”

21

Id.

22

In this case, Plaintiff failed to allege facts demonstrating that Unknown

23

Emergency Call Box Staff were deliberately indifferent to an excessive risk to Plaintiff’s

24

safety. Plaintiff has not alleged facts demonstrating that Defendant Unknown Emergency

25

Call Box Staff heard Plaintiff’s summons on the in-cell call box.

26

demonstrate, at best, that Defendant Unknown Staff were negligent in monitoring the call

27

box. Negligence is insufficient to state an Eighth Amendment claim and the Court will

28

dismiss Defendant Unknown Emergency Call Box Staff.

TERMPSREF

-5-

Plaintiff’s facts

1

V.

Claim for which an Answer will be Required

2

Liberally construed, Plaintiff has adequately stated an Eighth Amendment claim

3

for failure to protect against Defendants Williams and Hauser and the Court will require

4

Defendants Williams and Hauser to respond to Plaintiff’s § 1983 claim.

5

VI.

Motion to Join State Tort Action and Federal 42 U.S.C. § 1983 Action

6

Plaintiff filed a Motion to Join State Tort Action and Federal 42 U.S.C. § 1983

7

Action. In his Motion, Plaintiff asserts that he filed a “State of Arizona tort claim in the

8

County Court of Pinal, Arizona” and also filed the instant § 1983 complaint. Plaintiff

9

asserts that these are “distinct filings based on the same events, facts and persons; [a]nd

10

that, judicial expediency and economy may best be served by the joining of the two

11

complaints.” (Doc. 3 at 1).

12

To the extent Plaintiff requests that the Court exercise supplemental jurisdiction

13

over state tort claims based on its federal jurisdiction over Plaintiff’s § 1983 claims,

14

Plaintiff should have set forth both sets of claims in the complaint he filed in this action.

15

Because Plaintiff filed his state tort claims in state court, the state court has jurisdiction

16

over those claims and this Court does not have jurisdiction to “join” those claims with the

17

claims currently pending before this Court. See Ortolf v. Silver Bar Mines, Inc., 111 F.3d

18

85, 87 (9th Cir. 1997) (“In a subsequent lawsuit involving claims with no independent

19

basis for jurisdiction, a federal court lacks the threshold jurisdictional power that exists

20

when ancillary claims are asserted in the same proceeding as the claims conferring

21

federal jurisdiction.”) (quoting Peacock v. Thomas, 516 U.S. 349, 355 (1996)).

22

Accordingly, Plaintiff’s Motion to Join State Tort Action and Federal 42 U.S.C. § 1983

23

Action will be denied.

24

VII.

Warnings

25

A.

26

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

27

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

28

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

TERMPSREF

Release

-6-

1

comply may result in dismissal of this action.

2

B.

3

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

4

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

5

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

6

dismissal of this action.

Address Changes

7

C.

8

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

9

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

10

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

11

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

12

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

13

Plaintiff.

14

D.

15

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

16

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

17

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

18

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

19

IT IS ORDERED:

Copies

Possible Dismissal

20

(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 7) is granted.

21

(2)

As required by the accompanying Order to the appropriate government

22

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

23

fee of $13.53.

24
25
26
27
28

TERMPSREF

(3)

Plaintiff’s Motion to Join State Tort Action and Federal 42 U.S.C. § 1983

Action (Doc. 3) is denied.
(4)

Defendant Unknown Emergency Call Box Staff is dismissed without

prejudice.
(5)

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

-7-

1

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

2

Defendants P. Hauser and R. Williams.

3

(6)

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

4

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

5

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

6

(7)

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

7

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

8

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

9

the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m);

10

LRCiv 16.2(b)(2)(B)(i).

11
12

(8)

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

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

13

(9)

The United States Marshal must notify Defendants of the commencement

14

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

15

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

16

Order.

17

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

18

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

19

sent by the Marshal, the Marshal must:

The Marshal must immediately file signed waivers of service of the

20

(a)

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

21

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

22

and

23

(b)

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

24

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

25

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

26

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

27

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

28

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

TERMPSREF

-8-

1

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

2

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

3

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

4

Court.

5

(10)

A Defendant who agrees to waive service of the Summons and

6

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

7

the Plaintiff.

8
9
10
11

(11)

Defendants must answer the Complaint or otherwise respond by

appropriate motion within the time provided by the applicable provisions of Rule 12(a) of
the Federal Rules of Civil Procedure.
(12)

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

12

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

13

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

14

(13)

This matter is referred to Magistrate Judge Bridget S. Bade pursuant to

15

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

16

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

17

Dated this 30th day of December, 2013.

18
19
20
21
22
23
24
25
26
27
28

TERMPSREF

-9-