Martin v. Arpaio et al

Filing 9

ORDER - The First Amended Complaint (Doc. 7 ) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order. If Plaintiff fails to file a second amended complaint 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). Plaintiffs "Motion for Preliminary Injunction Prohibiting Continuance of Acts of Unconstitutional Jail Policy" (Doc. 8 ) is denied without prejudice. (See document for full details). Signed by Judge David G Campbell on 5/8/14. (LAD)

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MD

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lewis A. Martin,

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No. CV 13-02639-PHX-DGC (SPL)
Plaintiff,

vs.

ORDER

Joseph M. Arpaio, et al.,

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Defendants.

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On December 27, 2013, Plaintiff Lewis A. Martin, who is confined in the

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Maricopa County Fourth Avenue Jail, filed a pro se civil rights complaint pursuant to 42

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U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a February 18, 2014

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

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

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amended complaint that cured the deficiencies identified in the Order.

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On March 6, 2014, Plaintiff filed his First Amended Complaint (Doc. 7). On

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March 14, 2014, Plaintiff filed a “Motion for Preliminary Injunction Prohibiting

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Continuance of Acts of Unconstitutional Jail Policy” (Doc. 8). The Court will deny the

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Motion and will dismiss the First Amended Complaint with leave to amend.

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I.

Statutory Screening of Prisoner Complaints

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

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JDDL-K

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

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

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

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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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If the Court determines that a pleading could be cured by the allegation of other

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). Plaintiff’s

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First Amended Complaint will be dismissed for failure to state a claim, but because it

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may possibly be amended to state a claim, the Court will dismiss it with leave to amend.

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II.

First Amended Complaint

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Plaintiff sues the following Defendants in his five-count First Amended

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Complaint: Maricopa County; “Maricopa County Sheriffs’,” employed as the “Maricopa

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County Sheriff’s Department”; and Sheriff Joseph M. Arpaio. Plaintiff seeks damages

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and an injunction requiring the “discontinuation of all unwarranted, unlawful and illegal

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‘blanket’ strip searching of inmates being held” in Maricopa County jails.

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by “illegal strip searches” and he alleges the following facts: upon being detained and

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incarcerated at the Fourth Avenue Jail, Plaintiff and all arrestees are strip searched

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“regardless of misdemeanor or felony arrest and without any reasonable suspicion that

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we, as a category of offenders, or individually might possess weapons or contraband.”

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The strip searches continue “throughout the detainment process, specifically and on all

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court dates (prior as well as after) solely by procedure and rules implemented by

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Maricopa County’s Sheriff’s Department under the jurisdiction of Joseph M. Arpaio.”

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The searches subject each detainee “to a complete body and cavity search which consists

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of facing a wall, lifting each foot in turn, then while facing away from detention officers,

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bending completely forward at the waist, spreading both butt cheeks for anal cavity

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search, then having to squat and cough, then facing forward and moving genitalia to

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allow visual inspection.” “Upon housing placement, groups of approx. 10-15 people

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must be completely naked while placing all ‘street clothes’ into a plastic bag and waiting

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for name to be called in order to trade for facility issued clothing.” Similar searches are

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conducted before and after an inmate’s court proceeding “regardless of housing status or

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In Count I, Plaintiff alleges that his Fourth Amendment rights have been violated

bond availability and without any reasonable suspicion of contraband or weapons, but

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apparently solely on the reasons of being detained and housed in a Maricopa County

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facility for custodial housing and care, and for transportation of any and all court hearings

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as required, as well as allowed by the unconstitutional policy of Sheriff Joseph M.

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Arpaio’s Maricopa County Sheriff’s Department.” According to Plaintiff, the searches

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are degrading and humiliating and cause emotional as well as psychological distress.

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In Count II, Plaintiff alleges that the searches violate his Eighth Amendment rights

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and that he “as well as all pre-arraignment/pre-trial detainees are initially strip searched

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as well as continually strip searched without reasonable individualized suspicions but for

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the sole reason of being detained and housed in the general jail population.”

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In Count III, Plaintiff alleges that the searches violate his Fourteenth Amendment

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rights and that the “‘blanket’ strip searching of all persons, male and female, regardless of

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any misdemeanor or felony infraction without individual suspicion or indication of

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possessing weapons or contraband is excessive, harassing and vindictive since it

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apparently applies to being detained as a possible violator of an alleged crime.” Plaintiff

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asserts that the searches “are unrelated to any legitimate penological interests as they are

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not done randomly or for specific institutional ‘security concerns’ but solely for the

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reason of being detained and upon being housed custodially at Maricopa County’s [4th

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Avenue] jail and (as required) in order to attend any and all types of court proceedings

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and appearances.”

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the following facts: on August 20, 2013, Plaintiff was detained and booked at the

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“Maricopa County Jail” and “subsequently placed in a padded ‘security’ room without

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any clothing.” Plaintiff was “in an unstable mental state of mind due to psychological

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issues” and only remembers waking up on the floor with his hands under his head while

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lying on his stomach. Detention officers were yelling at Plaintiff to remove his hands

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from under his head. Plaintiff was not aggressive or refusing to obey orders but did not

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have “any reasonable understanding of situation or cause.” As Plaintiff tried to remove

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In Count IV, Plaintiff asserts a claim of excessive force by an officer and alleges

his hands, and while still lying on his stomach, he was shot with a Taser by unknown

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detention officers. According to Plaintiff, “this excessive force was unwarranted as well

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as unnecessary due to attempting to cooperate with detention officers[’] demands.”

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Plaintiff suffered “physical as well as emotional and psychological damage, pains and

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discomfort from tazers, insecurities to self as well as to mental and physical well being

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due to post-traumatic stress.”

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In Count V, Plaintiff alleges that he was denied medical care and alleges the

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following facts:

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approximately six months and has requested “medical as well as mental health support

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and assistance.” Plaintiff has on numerous occasions submitted health needs requests

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(“HNR”) forms “to be seen by a healthcare provider and/or by any mental health advisor

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and/or psychiatrist.”

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seriously.” Plaintiff has complained of hearing voices and being unable to sleep. He also

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has extreme and severe nightmares which cause anxiety and fear of his surroundings.

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Because of “Maricopa County’s continued denial of care and negligence, symptoms of

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mental distress, psychological trauma and mental health continue to worsen.”

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III.

Plaintiff has been incarcerated at the Fourth Avenue Jail for

To date, these requests have not been “adhered to or taken

Failure to State a Claim

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct about which he complains was committed by a person acting under the color of

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state law and (2) the conduct deprived him of a federal constitutional or statutory right.

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Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also allege that

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he suffered a specific injury as a result of the conduct of a particular defendant and he

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must allege an affirmative link between the injury and the conduct of that defendant.

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

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Plaintiff fails to state a claim against the county. A municipality, such as a city or

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county, is a “person” for purposes of § 1983 and may be sued. See Leatherman v.

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Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993);

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JDDL-K

A.

Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 686, 694 (1978). To

Maricopa County

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state a claim against a municipality under § 1983, a plaintiff must allege facts to support

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that his constitutional rights were violated pursuant to a policy or custom of the

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municipality. Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001)

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(citing Monell, 436 U.S. at 690-91); Thompson v. City of Los Angeles, 885 F.2d 1439,

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1443 (9th Cir. 1989)). A municipality may not be sued solely because an injury was

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inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d

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1178, 1185 (9th Cir. 2006). Therefore, a § 1983 claim against a municipal defendant

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“cannot succeed as a matter of law” unless a plaintiff: (1) contends that the municipal

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defendant maintains a policy or custom pertinent to the plaintiff’s alleged injury; and (2)

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explains how such policy or custom caused the plaintiff’s injury. Sadoski, 435 F.3d at

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1080 (affirming dismissal of a municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)).

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Plaintiff fails to allege facts to support that Maricopa County maintained a policy

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or custom that resulted in the violation of his federal constitutional rights. Accordingly,

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Plaintiff fails to state a claim against Maricopa County.

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It appears that Plaintiff is attempting to sue the Maricopa County Sheriff’s Office

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(“MCSO”). MCSO is not a proper defendant. Claims under § 1983 are directed at

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“bodies politic and corporate.” Monell, 436 U.S. at 688-89. Under the Civil Rights Act

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of 1871, Congress intended municipalities and other local government units to be

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included among those persons to whom § 1983 applies. Id. at 689-690. In Arizona, the

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responsibility for operating jails and caring for prisoners is placed by law upon the sheriff

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and the County. See Ariz. Rev. Stat. §§ 11-251(8), 11-291(A), 11-441(A)(5), 31-101.

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MCSO is simply an administrative creation of the sheriff to allow him to carry out his

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statutory duties; it is not a “person” amenable to suit pursuant to § 1983. See, e.g.,

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Petaway v. City of New Haven Police Dep’t, 541 F. Supp. 2d 504 (D. Conn. 2008); Pahle

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v. Colebrookdale Twp., 227 F. Supp. 2d 361 (E.D. Pa. 2002). Accordingly, to the extent

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Plaintiff is attempting to sue MCSO, it will be dismissed from this action as a Defendant.

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JDDL-K

B.

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Maricopa County Sheriff’s Office

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C.

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Plaintiff alleges in Count I that the strip searches at the Fourth Avenue Jail violate

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his rights under the Fourth Amendment. Detainees, like convicted prisoners, do not

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possess “the full range of freedoms of an unincarcerated individual.” Bell v. Wolfish, 441

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U.S. 520, 546 (1979). The applicability of the Fourth Amendment turns on whether the

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person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate

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expectation of privacy” that has been “invaded by government action.”

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Palmer, 468 U.S. 517, 525 (1984) (quotation omitted); see also Bell, 441 U.S. at 557

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(“any reasonable expectation of privacy that a detainee retained necessarily would be of a

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diminished scope”). “A right of privacy in traditional Fourth Amendment terms is

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fundamentally incompatible with the close and continual surveillance of inmates and

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their cells required to ensure institutional security and internal order.” Hudson, 468 U.S.

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at 527-28. Furthermore, any restriction on a plaintiff’s privacy interests is justified to the

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extent that it is “reasonably related to legitimate penological interests.” See Turner v.

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Safley, 482 U.S. 78, 89 (1987). The investigation and prevention of illegal inmate

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activity, including the prevention of contraband and circulation of threats, is a legitimate

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penological objective. See Thornburgh v. Abbott, 490 U.S. 401, 411-12 (1989).

Count I (Fourth Amendment)

Hudson v.

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Generally, strip searches do not violate the Fourth Amendment rights of prisoners.

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See Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir. 1988). Whether a search is

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reasonable under the Fourth Amendment requires a case-by-case “balancing of the need

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for the particular search against the invasion of personal rights that the search entails

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. . . .” Bell, 441 U.S. at 559. “The required factors for courts to consider include: (1) the

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scope of the particular intrusion, (2) the manner in which it is conducted, (3) the

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justification for initiating it, and (4) the place in which it is conducted.”

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Maricopa County Sheriff’s Dept., 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc)

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(quotations omitted).

Byrd v.

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That being said, the Fourth Amendment guarantees the right of the people to be
secure against unreasonable searches, and its protections are not extinguished upon

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incarceration. Michenfelder, 860 F.2d at 332-33. Further, the Fourth Amendment has

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been held to apply to the invasion of bodily privacy. Id. at 333. Thus, strip searches that

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are excessive, vindictive, harassing, or unrelated to any legitimate penological interest

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may violate the Fourth Amendment. Id. at 332. Nevertheless, a policy of routinely strip

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searching arrestees for contraband has been held not to be unreasonable where there is no

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physical contact and the searches are professionally conducted in relative privacy. Bull v.

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City and County of San Francisco, 595 F.3d 964, 973 (9th Cir. 2010) (en banc).

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Moreover, an arrestee can be “strip searched without individualized suspicion if the

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arrestee would be introduced into the general jail population.” Edgerly v. City and

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County of San Francisco, 599 F.3d 946, 957 (9th Cir. 2010) (citing Bull, 595 F.3d at

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977). However, jail officials must have “reasonable suspicion to strip search arrestees

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charged with minor offenses who are not classified for housing in the general

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population.” Id. Finally, the Supreme Court upheld as constitutional strip searches of

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arrestees, which were conducted by county jails as a standard part of the intake process

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and required male prisoners to lift their genitals and cough in a squatting position,

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because the searches were “designed to uncover contraband that can be undetected by a

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pat down, metal detector, and other less invasive searches.” Florence v. Bd. of Chosen

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Freeholders of County of Burlington, 132 S. Ct. 1510, 1520 (2012).

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to allege any specific facts about the strip searches at the Fourth Avenue Jail, such as

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when he was strip searched, by whom, or where, his housing status, or any facts to

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support that the search or searches were excessive, vindictive, harassing, or unrelated to a

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legitimate penological interest. Plaintiff does not allege facts to support that there was

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any physical contact or that the searches were unprofessionally conducted or not

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conducted in relative privacy. Although pro se pleadings are liberally construed, Haines

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v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not

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support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266,

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Plaintiff’s allegations are too vague and conclusory to state a claim. Plaintiff fails

268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not

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supply essential elements of the claim that were not initially pled. Id. In short, Plaintiff

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fails to allege sufficient facts to state a Fourth Amendment claim, and Count II will be

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dismissed.

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D.

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Plaintiff alleges in Count II that the strip searches violate his Eighth Amendment

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right to be free from cruel and unusual punishment. A pretrial detainee=s claim for

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unconstitutional conditions of confinement arises from the Fourteenth Amendment’s Due

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Process Clause rather than from the Eighth Amendment prohibition against cruel and

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unusual punishment.

Count II (Eighth Amendment)

Bell, 441 U.S. at 531.

Nevertheless, the same standards are

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applied, requiring proof that the defendant acted with deliberate indifference. See Frost

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v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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

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

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

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1087 (9th Cir. 1994) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)); see Estate

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

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of confinement rise to the level of a constitutional violation may depend, in part, on the

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duration of an inmate’s exposure to those conditions. Keenan v. Hall, 83 F.3d 1083,

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1089, 1091 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). “The

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

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in determining whether a constitutional violation has occurred.” Hearns v. Terhune, 413

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F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000)). Thus, for example, to state a claim regarding personal security, the detainee must

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show that the defendant was deliberately indifferent. Redman v. County of Los Angeles,

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942 F.2d 1435, 1443 (9th Cir. 1991) (en banc), cert. denied, 502 U.S. 1074 (1992). To

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adequately allege deliberate indifference, a plaintiff must allege facts to support that a

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JDDL-K

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

defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S.

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at 832-33. That is, “the official must both [have been] aware of facts from which the

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inference could be drawn that a substantial risk of serious harm exist[ed], and he must

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also [have] draw[n] the inference.” Id.

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Plaintiff has failed to allege any facts showing that any Defendant was deliberately

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indifferent to an excessive risk to his health or safety. Accordingly, Count II will be

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dismissed.

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E.

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Plaintiff alleges in Count III that the strip searches violate his Fourteenth

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Amendment rights. Under the Due Process Clause, “a detainee may not be punished

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prior to an adjudication of guilt.” Bell, 441 U.S. at 536 (citations omitted). However, the

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government may subject a pretrial detainee “to the restrictions and conditions of the

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detention facility so long as those conditions and restrictions do not amount to

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punishment, or otherwise violate the Constitution.” Id. at 536-37. Here, Plaintiff has

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failed to allege facts to support that the strip searches are conducted with the intent to

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punish pretrial detainees. Bell, 441 U.S. at 540 (no unconstitutional punishment occurs

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when the government imposes restrictions as part of legitimate operational concerns to

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ensure security and order).

Count III (Fourteenth Amendment)

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violated. The Equal Protection Clause of the Fourteenth Amendment provides that a state

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may not “deny to any person within its jurisdiction the equal protection of the laws,”

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which is essentially a direction that all persons similarly situated should be treated alike.

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U.S. Const., amend. XIV; see City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.

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432, 439 (1985).

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discriminates against a suspect class of individuals is subject to strict scrutiny.

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Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976); see City of Cleburne, 473

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U.S. at 441.

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fundamental right has been violated, a plaintiff must allege facts to support that he has

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JDDL-K

Plaintiff also alleges that his rights under the Equal Protection Clause have been

been intentionally treated differently from others who are similarly situated without a

A state practice that interferes with a fundamental right or that

Absent allegations that he is a member of a suspect class, or that a

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reasonable basis therefor. See Village of Willowbrook v. Olech, 528 U.S. 562, 564

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(2000). Conclusory allegations do not suffice. See Village of Arlington Heights v.

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Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977). Plaintiff does not allege that

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he is a member of a suspect class or that he has been treated differently from other

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similarly situated individuals.

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Accordingly, Plaintiff fails to state a Fourteenth Amendment claim and Count III
will be dismissed.

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F.

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Plaintiff has not named as a Defendant any individual who allegedly used

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Count IV (Excessive Force)

excessive force on him. Accordingly, Count IV will be dismissed without prejudice.1

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Plaintiff should be aware that the Fourteenth Amendment Due Process clause, not

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the Eighth Amendment, protects pretrial detainees from excessive force that amounts to

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punishment. Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002). “[T]he

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Fourth Amendment sets the ‘applicable constitutional limitations’ for considering claims

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of excessive force during pretrial detention.” Id. (quoting Pierce v. Multnomah County,

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76 F.3d 1032, 1043 (9th Cir. 1996).

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The Fourth Amendment does not prohibit the use of reasonable force. Tatum v.

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City & County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). Whether the force

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was excessive depends on “whether the officers’ actions [were] ‘objectively reasonable’

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in light of the facts and circumstances confronting them, without regard to their

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underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989); Tatum,

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441 F.3d at 1095; Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003). The

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Court must balance the nature and quality of the intrusion against the countervailing

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governmental interests at stake. Graham, 490 U.S. at 396; Lolli, 351 F.3d at 415.

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Moreover, [t]he “reasonableness” of a particular use of force must be judged from the

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JDDL-K

If Plaintiff files an amended complaint and does not know the name of a
defendant who allegedly used excessive force against him, he may refer to the individual
unknown defendant(s) as Defendant John Doe 1, Defendant John Doe 2, Defendant John
Doe 3, and so on, and allege facts to support how each particular Doe defendant violated
his constitutional rights.
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perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

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hindsight. . . . . “Not every push or shove, even if it may later seem unnecessary in the

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peace of a judge’s chambers,” violates the Fourth Amendment. Graham, 490 U.S. at 396

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(citations omitted).

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G.

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

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

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

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

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

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

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

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

Count V (Medical Care)

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

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

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

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

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harm exists, and he must also draw the inference.” Farmer, 511 U.S.at 837. Deliberate

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indifference in the medical context may be shown by a purposeful act or failure to

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respond to a prisoner’s pain or possible medical need and harm caused by the

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indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a

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prison official intentionally denies, delays, or interferes with medical treatment or by the

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way prison doctors respond to the prisoner’s medical needs. Estelle, 429 U.S. at 104-05;

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Jett, 439 F.3d at 1096.

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

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

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JDDL-K

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

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

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

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

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

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

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

6

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

7

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

8

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

9

In Count V, Plaintiff alleges that he has been in jail approximately six months, and

10

he has “continuously and on numerous occasions” submitted HNR forms to be seen by a

11

“healthcare provider and/or by any mental health advisor and/or psychiatrist.” Plaintiff

12

alleges that he has complained of hearing voices, being unable to sleep, and severe

13

nightmares which cause anxiety and fear of his surroundings. Plaintiff alleges that his

14

requests have not been “adhered to or taken seriously.” Plaintiff, however, fails to allege

15

when he submitted these HNRs or any details about them or any responses he received.

16

He does attach exhibits to his First Amended Complaint, including two HNRs dated

17

September 16, 2013 and September 20, 2013, and two other undated HNRs.2 In the

18

September 16, 2013 HNR, which is date stamped the same day, Plaintiff states that he

19

needs to see the doctor about his back pain and getting a new mattress.

20

September 20, 2013 HNR, which is date stamped September 22, 2013, Plaintiff wrote

21

that his feet are “cracking and hurt” and he is still having back pain. Neither of the other

22

two undated HNRs is date stamped. In one, Plaintiff wrote “need to see the psyciatrist

23

(sic) A.S.A.P.” In the other, Plaintiff wrote “I am hearing voices and can not sleep need

24

to see the Phyk. Please & Thank you.” It is unclear whether these two undated HNRs

25

were ever submitted to anyone.

In the

26
27
2

28

JDDL-K

Plaintiff failed to follow the instructions for filing a civil rights complaint which
specifically state: “You should not submit exhibits with the complaint or amended
complaint. Instead, the relevant information should be paraphrased.” Instructions, ¶ 10.
- 13 -

1

Moreover, Plaintiff has not named as a Defendant any individual who was

2

allegedly deliberately indifferent to a serious medical need.

3

Plaintiff fails to state a claim. In addition, Plaintiff fails to allege facts, and his exhibits

4

do not support, that anyone was deliberately indifferent to a serious medical need or even

5

who allegedly denied him medical care. Accordingly, Plaintiff has failed to state a claim

6

of deliberate indifference to a serious medical need in Count V and it will be dismissed.

7

IV.

For that reason alone,

Leave to Amend

8

For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed

9

for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff

10

may submit a second amended complaint to cure the deficiencies outlined above. The

11

Clerk of Court will mail Plaintiff a court-approved form to use for filing a second

12

amended complaint. If Plaintiff fails to use the court-approved form, the Court may

13

strike the second amended complaint and dismiss this action without further notice to

14

Plaintiff.

15

Plaintiff must clearly designate on the face of the document that it is the “Second

16

Amended Complaint.” The second amended complaint must be retyped or rewritten in

17

its entirety on the court-approved form and may not incorporate any part of the original

18

Complaint or First Amended Complaint by reference. Plaintiff may include only one

19

claim per count.

20
21

Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal

22

Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After

23

amendment, the Court will treat the original Complaint and First Amended Complaint as

24

nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the

25

original complaint or first amended complaint and that was voluntarily dismissed or was

26

dismissed without prejudice is waived if it is not alleged in a second amended complaint.

27

Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

28

JDDL-K

A second amended complaint supersedes the original Complaint and First

///

- 14 -

1

V.

Motion for Preliminary Injunction

2

Plaintiff’s Motion for Preliminary Injunction asks the court to enjoin Defendants

3

“from enforcing ‘unconstitutional’ jail policies to the petitioner, as well as all others

4

similarly situated . . . being the actual act of ‘blank strip searching’ all detainees housed

5

at Maricopa County(s) [Fourth Avenue] Jail(s) without any reasonable suspicion of

6

containing weapons or contraband[.]”

7

A preliminary injunction is an extraordinary and drastic remedy and will not be

8

granted absent a clear showing of likely success in the underlying claim and possible

9

irreparable injury. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam).

10

An injunction or temporary restraining order is appropriate to grant intermediate relief of

11

the same character as which may be granted finally, and relief is not proper when

12

requested on matters lying wholly outside the issues in suit. See DeBeers Consol. Mines

13

v. United States., 325 U.S. 212, 220 (1945); Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43

14

(11th Cir.), amended, 131 F.3d 950 (11th Cir. 1997). To obtain injunctive relief, the

15

party “must necessarily establish a relationship between the injury claimed in the party’s

16

motion and the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d 470,

17

471 (8th Cir. 1994). In other words, Plaintiff must seek injunctive relief related to the

18

merits of his underlying claim. Because Plaintiff’s First Amended Complaint has been

19

dismissed, there are currently no claims pending before this Court.

20
21

“specific facts in an affidavit or verified complaint clearly show that immediate and

22

irreparable injury, loss, or damage will result to the movant before the adverse party can

23

be heard” and the movant certifies to the court in writing any efforts made to give notice

24

and the reasons that notice should not be required. Fed. R. Civ. P. 65(b)(1). A “court

25

may only issue a preliminary injunction on notice to the adverse party.” Fed. R. Civ. P.

26

65(a)(1). Plaintiff has not provided notice nor does he explain why notice should not be

27

required. Based on the foregoing, Plaintiff’s Motion will be denied without prejudice.

28

JDDL-K

In addition, a temporary restraining order without notice may be granted only if

///

- 15 -

1

VI.

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

14

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

15

notice to Plaintiff.

Copies

16
17

Because the First Amended Complaint has been dismissed for failure to state a

18

claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies

19

identified in this Order, the dismissal may count as a “strike” under the “3-strikes”

20

provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring

21

a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the

22

prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,

23

brought an action or appeal in a court of the United States that was dismissed on the

24

grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be

25

granted, unless the prisoner is under imminent danger of serious physical injury.” 28

26

U.S.C. § 1915(g).

27

///

28

JDDL-K

D.

///

Possible “Strike”

- 16 -

1

E.

2

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

3

these warnings, the Court may dismiss this action without further notice. See Ferdik, 963

4

F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any

5

order of the Court).

6

IT IS ORDERED:

7

(1)

Possible Dismissal

The First Amended Complaint (Doc. 7) is dismissed for failure to state a

8

claim. Plaintiff has 30 days from the date this Order is filed to file a second amended

9

complaint in compliance with this Order.

10

(2)

If Plaintiff fails to file a second amended complaint within 30 days, the

11

Clerk of Court must, without further notice, enter a judgment of dismissal of this action

12

with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C.

13

§ 1915(g).

14

(3)

15
16
17
18

Plaintiff’s “Motion for Preliminary Injunction Prohibiting Continuance of

Acts of Unconstitutional Jail Policy” (Doc. 8) is denied without prejudice.
(4)

The Clerk of Court must mail Plaintiff a court-approved form for filing a

civil rights complaint by a prisoner.
Dated this 8th day of May, 2014.

19
20
21
22
23
24
25
26
27
28

JDDL-K

- 17 -

Instructions for a Prisoner Filing a Civil Rights Complaint
in the United States District Court for the District of Arizona
1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated
persons prepare a complaint seeking relief for a violation of their federal civil rights. These
complaints typically concern, but are not limited to, conditions of confinement. This form should
not be used to challenge your conviction or sentence. If you want to challenge a state conviction
or sentence, you should file a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a
person in state custody. If you want to challenge a federal conviction or sentence, you should file
a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.

2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by
incarcerated persons must be filed on the court-approved form. The form must be typed or
neatly handwritten. The form must be completely filled in to the extent applicable. All questions
must be answered clearly and concisely in the appropriate space on the form. If needed, you may
attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper.
You must identify which part of the complaint is being continued and number all pages. If you do
not fill out the form properly, you will be asked to submit additional or corrected information, which
may delay the processing of your action. You do not need to cite law.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a
material fact, you may be prosecuted for perjury.
4. The Filing and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing fee
plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may request
leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave
to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28
U.S.C. § 1915” for additional instructions.
5. Original and Judge’s Copy. You must send an original plus one copy of your complaint and of
any other documents submitted to the Court. You must send one additional copy to the Court if you
wish to have a file-stamped copy of the document returned to you. All copies must be identical to
the original. Copies may be legibly handwritten.
6. Where to File. You should file your complaint in the division where you were confined when
your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in
Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined
in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you
were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson
Division. Mail the original and one copy of the complaint with the $400 filing and
administrative fees or the application to proceed in forma pauperis to:

Revised 5/1/2013

1

Phoenix & Prescott Divisions:
OR
U.S. District Court Clerk
U.S. Courthouse, Suite 130
401 West Washington Street, SPC 10
Phoenix, Arizona 85003-2119

Tucson Division:
U.S. District Court Clerk
U.S. Courthouse, Suite 1500
405 West Congress Street
Tucson, Arizona 85701-5010

7. Change of Address. You must immediately notify the Court and the defendants in writing of any
change in your mailing address. Failure to notify the Court of any change in your mailing
address may result in the dismissal of your case.
8. Certificate of Service. You must furnish the defendants with a copy of any document you submit
to the Court (except the initial complaint and application to proceed in forma pauperis). Each
original document (except the initial complaint and application to proceed in forma pauperis) must
include a certificate of service on the last page of the document stating the date a copy of the
document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ.
P. 5(a), (d). Any document received by the Court that does not include a certificate of service may
be stricken. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed
this
(month, day, year) to:
Name:
Address:
Attorney for Defendant(s)
(Signature)
9. Amended Complaint. If you need to change any of the information in the initial complaint, you
must file an amended complaint. The amended complaint must be written on the court-approved
civil rights complaint form. You may file one amended complaint without leave (permission) of
Court before any defendant has answered your original complaint. See Fed. R. Civ. P. 15(a). After
any defendant has filed an answer, you must file a motion for leave to amend and lodge (submit) a
proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate
by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants
not included in the amended complaint are considered dismissed. All amended complaints are
subject to screening under the Prison Litigation Reform Act; screening your amendment will take
additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead,
the relevant information should be paraphrased. You should keep the exhibits to use to support or
oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of
any judge. The only appropriate way to communicate with the Court is by filing a written pleading
or motion.
2

12. Completing the Civil Rights Complaint Form.
HEADING:
1. Your Name. Print your name, prison or inmate number, and institutional mailing address
on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name
more than four defendants, print the name of the first defendant on the first line, write the
words “and others” on the second line, and attach an additional page listing the names of all
of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in
the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may
result in the loss of the right to a jury trial. A jury trial is not available if you are seeking
only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983
for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for
federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights
occurred.
3. Defendants. Print all of the requested information about each of the defendants in the
spaces provided. If you are naming more than four defendants, you must provide the
necessary information about each additional defendant on separate pages labeled “2-A,” “2B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in either state or federal court while you
were a prisoner. Print all of the requested information about each lawsuit in the spaces provided.
If you have filed more than three lawsuits, you must provide the necessary information about each
additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the
page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION:
You must identify what rights each defendant violated. The form provides space to allege
three separate counts (one violation per count). If you are alleging more than three counts, you
must provide the necessary information about each additional count on a separate page. Number
the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that
you are limited to a total of fifteen additional pages.

3

1. Counts. You must identify which civil right was violated. You may allege the violation
of only one civil right per count.
2. Issue Involved. Check the box that most closely identifies the issue involved in your
claim. You may check only one box per count. If you check the box marked “Other,” you
must identify the specific issue involved.
3. Supporting Facts. After you have identified which civil right was violated, you must state
the supporting facts. Be as specific as possible. You must state what each individual
defendant did to violate your rights. If there is more than one defendant, you must identify
which defendant did what act. You also should state the date(s) on which the act(s)
occurred, if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.
5. Administrative Remedies. You must exhaust any available administrative remedies
before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should
disclose whether you have exhausted the inmate grievance procedures or administrative
appeals for each count in your complaint. If the grievance procedures were not available for
any of your counts, fully explain why on the lines provided.
Part D. REQUEST FOR RELIEF:
Print the relief you are seeking in the space provided.
SIGNATURE:
You must sign your name and print the date you signed the complaint. Failure to sign the
complaint will delay the processing of your action. Unless you are an attorney, you may not bring
an action on behalf of anyone but yourself.

FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your complaint
being stricken or dismissed. All questions must be answered concisely in the proper space on the
form. If you need more space, you may attach no more than fifteen additional pages. But the form
must be completely filled in to the extent applicable. If you attach additional pages, be sure to
identify which section of the complaint is being continued and number the pages.

4

Name and Prisoner/Booking Number

Place of Confinement

Mailing Address

City, State, Zip Code

(Failure to notify the Court of your change of address may result in dismissal of this action.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

(Full Name of Plaintiff)

Plaintiff,
vs.

(1)
(Full Name of Defendant)

(2)
(3)
(4)
Defendant(s).

G

Check if there are additional Defendants and attach page 1-A listing them.

)
, )
)
)
) CASE NO.
)
(To be supplied by the Clerk)
, )
)
, )
)
CIVIL RIGHTS COMPLAINT
, )
BY A PRISONER
)
, )
G Original Complaint
G First Amended Complaint
)
)
G Second Amended Complaint

A. JURISDICTION
1.

2.

This Court has jurisdiction over this action pursuant to:
G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983
G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
G Other:

.

Institution/city where violation occurred:

.

Revised 5/1/2013

1

550/555

B. DEFENDANTS
1.

Name of first Defendant:

. The first Defendant is employed as:
at

.

(Position and Title)
2.

(Institution)
. The second Defendant is employed as:

Name of second Defendant:
at

.

(Position and Title)
3.

(Institution)

Name of third Defendant:

. The third Defendant is employed as:
at

.

(Position and Title)
4.

(Institution)

Name of fourth Defendant:
at
(Position and Title)

. The fourth Defendant is employed as:
.
(Institution)

If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.

C. PREVIOUS LAWSUITS
1.

Have you filed any other lawsuits while you were a prisoner?

2.

If yes, how many lawsuits have you filed?

G Yes

G No

. Describe the previous lawsuits:

a. First prior lawsuit:
1. Parties:
v.
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

b. Second prior lawsuit:
v.
1. Parties:
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

c. Third prior lawsuit:
1. Parties:
v.
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page.

2

D. CAUSE OF ACTION

1.

COUNT I
State the constitutional or other federal civil right that was violated:
.

2.

Count I. Identify the issue involved. Check only one. State additional issues in separate counts.
G Basic necessities
G Mail
G Access to the court
G Medical care
G Disciplinary proceedings
G Property
G Exercise of religion
G Retaliation
G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what each
Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal
authority or arguments.

.
4.

Injury. State how you were injured by the actions or inactions of the Defendant(s).

.
5.

Administrative Remedies:
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your
G Yes G No
institution?
b. Did you submit a request for administrative relief on Count I?
G Yes G No
c. Did you appeal your request for relief on Count I to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.
3

1.

COUNT II
State the constitutional or other federal civil right that was violated:
.

2.

Count II. Identify the issue involved. Check only one. State additional issues in separate counts.
G Basic necessities
G Mail
G Access to the court
G Medical care
G Disciplinary proceedings
G Property
G Exercise of religion
G Retaliation
G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each
Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal
authority or arguments.

.
4.

Injury. State how you were injured by the actions or inactions of the Defendant(s).

.
5.

Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your
institution?
G Yes G No
b. Did you submit a request for administrative relief on Count II?
G Yes G No
c. Did you appeal your request for relief on Count II to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.
4

1.

COUNT III
State the constitutional or other federal civil right that was violated:
.

2.

Count III. Identify the issue involved. Check only one. State additional issues in separate counts.
G Basic necessities
G Mail
G Access to the court
G Medical care
G Disciplinary proceedings
G Property
G Exercise of religion
G Retaliation
G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what each
Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal
authority or arguments.

.
4.

Injury. State how you were injured by the actions or inactions of the Defendant(s).

.
5.

Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your
G Yes G No
institution?
b. Did you submit a request for administrative relief on Count III?
G Yes G No
c. Did you appeal your request for relief on Count III to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.

If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page.

5

E. REQUEST FOR RELIEF
State the relief you are seeking:

.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on
DATE

SIGNATURE OF PLAINTIFF

(Name and title of paralegal, legal assistant, or
other person who helped prepare this complaint)

(Signature of attorney, if any)

(Attorney’s address & telephone number)

ADDITIONAL PAGES
All questions must be answered concisely in the proper space on the form. If you need more space, you may attach
no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you
attach additional pages, be sure to identify which section of the complaint is being continued and number all pages.

6