Miel v. Maricopa County Sheriff's Office et al

Filing 12

ORDER (Service Packet): Counts Two and Three and the allegations in Count One unrelated to Plaintiff's food claims are dismissed without prejudice; Defendants John Doe, John Doe #2 and John Doe #3 are dismissed without prejudice; Defendant Ar paio must answer the food-related allegations in Count One; The Clerk of Court must send Plaintiff a service packet including the Second Amended Complaint 10 , this Order, and both summons and request for waiver forms for Defendant Arpaio; Plainti ff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order; If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Second Amended C omplaint on a Defendant within 120 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served; This matter is referred to Magistrate Judge Michelle H. Burns 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 Stephen M McNamee on 7/1/2014. (See Order for details)(ALS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Terry Miel,

10
11
12

No. CV 13-2125-PHX-RCB (MHB)
Plaintiff,

vs.

ORDER

Maricopa County Sheriff, et al.,

13
14

Defendants.

15
16

On October 18, 2013, Plaintiff Terry Miel, who is confined in the Federal

17

Correctional Institution Phoenix, filed a pro se civil rights Complaint pursuant to 42

18

U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a December 27,

19

2013 Order, the Court granted the Application to Proceed and dismissed the Complaint

20

because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an

21

amended complaint that cured the deficiencies identified in the Order.

22

On January 16, 2014, Plaintiff filed his First Amended Complaint. In an April 9,

23

2014 Order, the Court dismissed the First Amended Complaint because Plaintiff had

24

failed to state a claim. The Court gave Plaintiff 30 days to file a second amended

25

complaint that cured the deficiencies identified in the Order.

26

On April 25, 2014, Plaintiff filed a Second Amended Complaint (Doc. 10). The

27

Court will order Defendant Arpaio to answer the insufficient food allegations in Count

28

TEMPSREF

1

One of the Second Amended Complaint and will dismiss the remaining claims and

2

Defendants without prejudice.

3

I.

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

II.

Second Amended Complaint

4

In his Second Amended Complaint, Plaintiff names the following Defendants:

5

Maricopa County Sheriff Joseph M. Arpaio; Maricopa County Jail Captain John Doe;

6

Maricopa County Jail Physician John Doe #2; and Maricopa County Jail Dentist John

7

Doe #3. Plaintiff seeks damages.

8

Plaintiff asserts three claims for alleged unconstitutional conditions of

9

confinement and denial of medical care while he was incarcerated in the “Maricopa

10

County Jail”1 from September 25, 2013 to January 24, 2014.

11

Plaintiff alleges the following facts in support of Count One: During the time he

12

was incarcerated in the Maricopa County Jail, Plaintiff did not receive enough food,

13

causing him to lose over 70 pounds. Plaintiff suffered severe weight loss which caused

14

him a great deal of physical pain and health complications that he is currently addressing

15

at a medical facility. Plaintiff was told that “the amount of food and its type is [] under

16

the policies, procedures and control of Defendant Arpaio.”

17

Plaintiff also alleges in Count One that he was forced to live with two other

18

inmates “without any hygiene items, no showers for long periods of time,” and on lock

19

down “for months at a time with no meaningful exercise.” Plaintiff was told that “the

20

rules, policies and procedures for putting 3 men in a 2 man cell (overcrowding) has also

21

been approved under the command of Defendant Arpaio and the Captain of the jail,

22

Defendant John Doe,” and that both Arpaio and John Doe made the decisions regarding

23

lock downs, showers, and hygiene. Plaintiff states that he suffered “emotional trauma”

24

for which he takes medication and he is being treated by a psychologist.

25
26
1

27
28

TERMPSREF

The Court notes that at the time Plaintiff filed his original Complaint, he was
confined in the Maricopa County Towers Jail and he named the Towers Jail as a
Defendant in that Complaint. In his First Amended Complaint, Plaintiff asserts that the
alleged violations occurred at the Towers Jail. The Court presumes Plaintiff is still
referring to Towers Jail in his Second Amended Complaint.
-3-

1

Plaintiff alleges the following facts in Count Two: Defendants Arpaio and Captain

2

John Doe #1 “set up the policies and procedures and control the food and medical care

3

given at the Maricopa County Jail.” Plaintiff was not given enough food as a pre-trial

4

detainee between September 25, 2013 and January 24, 2014, causing him to lose over 70

5

pounds and resulting in “severe physical injury.” Plaintiff requested help “from the

6

medical staff,” but Defendant John Doe #2 “denied help.” Plaintiff notified Defendants

7

Arpaio and John Doe but “still did not receive medical help for these issues.”

8

Plaintiff alleges the following facts in Count Three: On or about November 15,

9

2013, Plaintiff bit into a piece of food that contained a foreign object that broke his lower

10

denture. Plaintiff notified Defendant John Doe #3, and “after not being treated for [his]

11

issues,” he notified Defendants Arpaio, John Doe, and John Doe #2, but “was not given

12

treatment for this dental issue.”

13

requests for help, nor looked into the matter.” Eating without a lower denture “was so

14

painful that most [of] the time [Plaintiff] couldn’t b[ear] to eat what little food [he] was

15

given.” Plaintiff suffered “painful mouth injuries, bleeding gums, cuts to [his] gums,

16

severe weight loss and physical pain from lack of food.”

17

III.

None of the Defendants “responded to Plaintiff’s

Failure to State a Claim

18

To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

19

(2) under color of state law (3) deprived him of federal rights, privileges or immunities

20

and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th

21

Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d

22

1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific

23

injury as a result of the conduct of a particular defendant and he must allege an

24

affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode,

25

423 U.S. 362, 371-72, 377 (1976).

26

A.

27

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

28

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

TERMPSREF

Conditions of Confinement

-4-

1

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

2

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

3

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

4

1128 (9th Cir. 1998) (citation omitted).

5

Deliberate indifference is a higher standard than negligence or lack of ordinary

6

due care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To

7

state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, the

8

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

9

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

10

life’s necessities.” Id. at 834 (citations omitted). Second, the prison official must have a

11

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

12

inmate health or safety. Id. (citations omitted). In defining “deliberate indifference” in

13

this context, the Supreme Court has imposed a subjective test: “the official must both be

14

aware of facts from which the inference could be drawn that a substantial risk of serious

15

harm exists, and he must also draw the inference.” Id. at 837 (emphasis added).

16

To state a claim for unconstitutional conditions of confinement, a plaintiff must

17

allege that a defendant’s acts or omissions have deprived the inmate of “the minimal

18

civilized measure of life’s necessities” and that the defendant acted with deliberate

19

indifference to an excessive risk to inmate health or safety. Allen v. Sakai, 48 F.3d 1082,

20

1087 (9th Cir. 1994) (quoting Farmer, 511 U.S. at 834); see Estate of Ford v. Ramirez–

21

Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). Whether conditions of confinement rise

22

to the level of a constitutional violation may depend, in part, on the duration of an

23

inmate’s exposure to those conditions. Keenan v. Hall, 83 F.3d 1083, 1089, 1091 (9th

24

Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). “The circumstances,

25

nature, and duration of a deprivation of [ ] necessities must be considered in determining

26

whether a constitutional violation has occurred.” Hearns v. Terhune, 413 F.3d 1036,

27

1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)).

28

TERMPSREF

-5-

1

Allegations of overcrowding, without more, do not state a claim under the Eighth

2

and Fourteenth Amendments. See Hoptowit v. Ray, 682 F.2d 1237, 1248-49 (9th Cir.

3

1982). A plaintiff may, however, state a cognizable claim where he or she alleges that

4

overcrowding results in some unconstitutional condition. See, e.g., Akao v. Shimoda, 832

5

F.2d 119, 120 (9th Cir. 1987) (reversing district court’s dismissal of claim that

6

overcrowding caused increased stress, tension and communicable disease among inmate

7

population); see also Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming

8

that an Eighth Amendment violation may occur as a result of overcrowded prison

9

conditions causing increased violence, tension and psychiatric problems).

10

With respect to meals, “[t]he Eighth [and Fourteenth] Amendment[s] require[]

11

only that prisoners receive food that is adequate to maintain health; it need not be tasty or

12

aesthetically pleasing.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (citation

13

omitted); see Frost, 152 F.3d at 1128 (applying Eighth Amendment standard to a pretrial

14

detainee’s Fourteenth Amendment claims regarding his conditions of confinement).

15

“The fact that the food occasionally contains foreign objects or sometimes is served cold,

16

while unpleasant, does not amount to a constitutional deprivation.” LeMaire, 12 F.3d at

17

1456 (citations omitted). An inmate may, however, state a claim where he alleges that he

18

is served meals with insufficient calories for long periods of time. Id.

19

In this case, Plaintiff sufficiently states a claim to require an answer from

20

Defendant Arpaio with respect to the food he was served and the weight loss he allegedly

21

suffered while he was incarcerated in a Maricopa County jail. However, Plaintiff fails to

22

state a claim regarding the other alleged unconstitutional conditions of confinement. It is

23

unclear whether Plaintiff was actually one of three inmates housed in a cell designed for

24

two inmates, and, if so, for how long, and the effects of the alleged overcrowding. He

25

also fails to state when he was on lockdown, for how long, and for how long he was

26

denied the ability to exercise. He also fails to state when he was denied the ability to

27

shower or when he was denied hygiene items. Thus, the Court will not require an answer

28

to those allegations and those allegations are dismissed.

TERMPSREF

-6-

1

B.

2

Not every claim by a prisoner relating to inadequate medical treatment states a

3

violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a

4

plaintiff must show that the defendants acted with “deliberate indifference to serious

5

medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v.

6

Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need”

7

by demonstrating that failure to treat the condition could result in further significant

8

injury or the unnecessary and wanton infliction of pain and (2) the defendant’s response

9

was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).

Counts Two and Three

10

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

11

1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must

12

both know of and disregard an excessive risk to inmate health; “the official must both be

13

aware of facts from which the inference could be drawn that a substantial risk of serious

14

harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,

15

837 (1994).

16

purposeful act or failure to respond to a prisoner’s pain or possible medical need and

17

harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may

18

also be shown when a prison official intentionally denies, delays, or interferes with

19

medical treatment or by the way prison doctors respond to the prisoner’s medical needs.

20

Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

Deliberate indifference in the medical context may be shown by a

21

Deliberate indifference is a higher standard than negligence or lack of ordinary

22

due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor

23

gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of

24

Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs.,

25

622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or

26

“medical malpractice” do not support a claim under § 1983). “A difference of opinion

27

does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.”

28

Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care,

TERMPSREF

-7-

1

without more, is insufficient to state a claim against prison officials for deliberate

2

indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407

3

(9th Cir. 1985). The indifference must be substantial. The action must rise to a level of

4

“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

5

Plaintiff fails to state a claim for denial of medical care in Counts Two and Three.

6

In Count Two, Plaintiff makes the vague allegation that “after requesting help from the

7

medical staff, John Doe #2, I was denied help.” He then alleges that “after notifying both

8

Defendants Joseph M. Arpaio and Captain John Doe[,] I still did not receive medical help

9

for these issues[.]” Plaintiff fails to state when he requested help from any of these

10

Defendants, how he made his requests for help, or what their responses were.

11

Similarly, in Count Three, Plaintiff alleges that he “after notifying John Doe #3

12

the dentist of the Maricopa County Jail, and after not being treated for my issues[,] I

13

further notified Defendants Joseph Arpaio, Captain John Doe, Medical Doctor John Doe

14

#2[.] I was not given treatment for this dental issue.” Again, Plaintiff fails to state when

15

he requested help, how, or what response(s) he received to support that Defendants were

16

aware that Plaintiff had a serious medical need and failed to respond to that need.

17

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-

18

21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v.

19

Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a

20

liberal interpretation of a civil rights complaint may not supply essential elements of the

21

claim that were not initially pled. Id.

22
23

Accordingly, Counts Two and Three will be dismissed without prejudice.
IV.

Claims for Which an Answer Will be Required

24

Plaintiff sufficiently states a claim for lack of adequate food against Defendant

25

Arpaio and Defendant Arpaio will be required to answer the allegations regarding the

26

lack of food and Plaintiff’s alleged injuries in Count One.

27

....

28

....

TERMPSREF

-8-

1

V.

Warnings

2

A.

3

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

4

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

5

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

6

comply may result in dismissal of this action.

Release

7

B.

8

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

9

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

10

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

11

dismissal of this action.

Address Changes

12

C.

13

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

14

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

15

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

16

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

17

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

18

Plaintiff.

19

D.

20

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

21

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

22

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

23

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

24

IT IS ORDERED:

25
26

(1)

Copies

Possible Dismissal

Counts Two and Three and the allegations in Count One unrelated to

Plaintiff’s food claims are dismissed without prejudice.

27

(2)

28

prejudice.

TERMPSREF

Defendants John Doe, John Doe #2 and John Doe #3 are dismissed without

-9-

1

(3)

Defendant Arpaio must answer the food-related allegations in Count One.

2

(4)

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

3

Second Amended Complaint (Doc. 10), this Order, and both summons and request for

4

waiver forms for Defendant Arpaio.

5

(5)

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

6

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

7

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

8

(6)

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

9

complete service of the Summons and Second Amended Complaint on a Defendant

10

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

11

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

12

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

13
14

(7)

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

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

15

(8)

The United States Marshal must notify Defendant of the commencement of

16

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

17

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

18

Order.

19

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

20

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

21

sent by the Marshal, the Marshal must:

22

The Marshal must immediately file signed waivers of service of the

(a)

personally serve copies of the Summons, Second Amended

23

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

24

Rules of Civil Procedure; and

25

(b)

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

26

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

27

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

28

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

TERMPSREF

- 10 -

1

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

2

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

3

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

4

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

5

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

6

ordered by the Court.

7

(9)

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

8

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

9

Marshal, not the Plaintiff.

10

(10)

Defendant Arpaio must answer the insufficient food allegations in Count

11

One of the Second Amended Complaint or otherwise respond by appropriate motion

12

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

13

of Civil Procedure.

14

(11)

This matter is referred to Magistrate Judge Michelle H. Burns 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 1st day of July, 2014.

18
19
20
21
22
23
24
25
26
27
28

TERMPSREF

- 11 -