Hoops v. Arpaio et al

Filing 5

ORDER Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2 ) is granted. As required by the accompanying Order to the appropriate governmentagency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $8.00. The Complaint (Doc. 1 ) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. If Plaintiff fails to file an amended com plaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action withprejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Senior Judge Robert C Broomfield on 3/6/2014. (Attachments: # 1 Prisoner Civil Rights Complaint)(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tracy Douglas Hoops,

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Plaintiff,

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No. CV 14-00043-PHX-RCB (BSB)

vs.

ORDER

Joseph M. Arpaio, et al.,

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Defendants.

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Plaintiff Tracy Douglas Hoops, who is confined in the Maricopa County Lower

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Buckeye Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1)

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and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the

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Complaint with leave to amend.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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

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The Court will assess an initial partial filing fee of $8.00. The remainder of the fee will

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

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

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

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fees according to the statutory formula.

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

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II.

Statutory Screening of Prisoner Complaints

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

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

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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). While Rule 8 does not demand

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

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

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

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

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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. (citation omitted). A claim is plausible

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

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

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

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

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

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

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

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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)). If the Court determines that a pleading

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

could be cured by the allegation of other facts, a pro se litigant is entitled to an

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opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203

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F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Here, Plaintiff fails to state a claim upon

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which relief can be granted in his Complaint, but it appears that the Complaint could be

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cured by allegations of other facts. Accordingly, Plaintiff’s Complaint will be dismissed

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without prejudice and Plaintiff will be given an opportunity to amend.

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III.

Complaint

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In his Complaint, Plaintiff alleges one count against Sheriff Joseph Arpaio and

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John Doe, a floor officer during the second shift detention at Lower Buckeye Jail.

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Plaintiff alleges as follows: On or before August 6, 2013, Plaintiff sent privileged legal

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mail to his criminal defense attorney. The mail was photocopied by Inmate Legal

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Services and the copy was returned through inmate mail. John Doe, without verifying the

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inmate name against the inmate identification handed Plaintiff’s legal mail to another

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inmate. The contents of the letter contained facts about Plaintiff’s extensive involvement

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with law enforcement and jail intelligence, including details about cases for which

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Plaintiff is a state’s witness. This is the second time this has occurred with Plaintiff’s

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legal mail. This put Plaintiff’s life in danger from three separate prison gangs and

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members of the Russian mafia. This could have been avoided if John Doe had verified

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the inmate name on the name band. Sheriff Joseph Arpaio directs policy within the

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Maricopa County Jails. Plaintiff claims he has suffered “[t]hreat of death,” possible

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unknown damages to his criminal case, slander, and loss of freedom. As relief, Plaintiff

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seeks monetary damages.

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IV.

Failure to State a Claim

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

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

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

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

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

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

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

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

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A.

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Plaintiff fails to state a claim against Defendant Arpaio in his Complaint. “A

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plaintiff must allege facts, not simply conclusions, that show that an individual was

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personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152

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F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a

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plaintiff must allege that the official acted as a result of a policy, practice, or custom. See

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Cortez, 294 F.3d at 1188 (citation omitted). Further, there is no respondeat superior

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liability under § 1983, so a defendant’s position as the supervisor of someone who

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allegedly violated a plaintiff’s constitutional rights does not make him liable. Monell v.

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Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978); Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). A supervisor, in his individual

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capacity, “is only liable for constitutional violations of his subordinates if the supervisor

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participated in or directed the violations, or knew of the violations and failed to act to

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prevent them.” Taylor, 880 F.2d at 1045.

Sheriff Joseph Arpaio

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The only fact in Plaintiff’s Complaint about Defendant Arpaio is that he sets

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policy for the Maricopa County Jails. However, Plaintiff does not allege facts to support

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that Plaintiff’s constitutional rights were violated as a result of a specific policy or custom

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promulgated or endorsed by Arpaio. Moreover, Plaintiff does not allege that Arpaio

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directly violated his constitutional rights. Accordingly, Plaintiff fails to state a claim

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against Arpaio and he will be dismissed.

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Plaintiff designates his claim as a threat to safety claim. Typically, to state a claim

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for threat to safety, an inmate must allege facts to support that he was incarcerated under

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conditions posing a substantial risk of harm and that prison officials were “deliberately

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indifferent” to those risks. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To

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

John Doe

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defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837. That

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is, “the official must both [have been] aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n]

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the inference.” Id.

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

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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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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).

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Plaintiff does not allege facts to support that Defendant Doe was deliberately

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indifferent to a risk to Plaintiff’s safety. Plaintiff’s allegations that Defendant Doe gave

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one piece of his legal mail to another inmate may state a claim for negligence, but there

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are no facts alleged demonstrating the Defendant Doe was deliberately indifferent to a

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risk to Plaintiff’s safety. Plaintiff does not allege facts demonstrating that Defendant Doe

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deliberately gave Plaintiff’s mail to the wrong inmate, that Defendant Doe knew the

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contents of the mail, that Defendant Doe knew that Plaintiff’s safety could be endangered

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by the contents of the mail, or any other facts demonstrating that Defendant Doe acted

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with deliberate indifference to Plaintiff’s safety. Moreover, Plaintiff does not allege facts

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demonstrating that his safety was actually threatened. Plaintiff appears to speculate that

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the contents of the mail could put his life in danger from other inmates, but includes no

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factual allegations that he was threatened or that other inmates discovered the contents of

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Plaintiff’s mail and threatened him or injured him based on the contents of that mail.

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Accordingly, Plaintiff fails to state a claim against Defendant Doe in his Complaint and

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Defendant Doe will be dismissed.

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V.

Leave to Amend

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For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to
state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a

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first amended complaint to cure the deficiencies outlined above. The Clerk of Court will

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mail Plaintiff a court-approved form to use for filing a first amended complaint. If

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Plaintiff fails to use the court-approved form, the Court may strike the amended

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complaint and dismiss this action without further notice to Plaintiff.

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

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

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

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Complaint by reference. Plaintiff may include only one claim per count.

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If Plaintiff files an amended complaint, Plaintiff must write short, plain statements

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telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name

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of the Defendant who violated the right; (3) exactly what that Defendant did or failed to

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do; (4) how the action or inaction of that Defendant is connected to the violation of

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Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of

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that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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Plaintiff must repeat this process for each person he names as a Defendant. If

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Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific

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injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for

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failure to state a claim.

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Defendants has violated a constitutional right are not acceptable and will be

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dismissed.

Conclusory allegations that a Defendant or group of

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963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896

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F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original

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

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in the original complaint and that was voluntarily dismissed or was dismissed without

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prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa

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

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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet,

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VI.

Warnings

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A.

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

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

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

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comply may result in dismissal of this action.

Release

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B.

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

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

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

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dismissal of this action.

Address Changes

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C.

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

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

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notice to Plaintiff.

Copies

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D.

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Because the Complaint has been dismissed for failure to state a claim, if Plaintiff

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fails to file an amended complaint correcting the deficiencies identified in this Order, the

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dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

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Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil

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judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more

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prior occasions, while incarcerated or detained in any facility, brought an action or appeal

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in a court of the United States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

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is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

Possible “Strike”

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

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E.

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

Possible Dismissal

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

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order of the Court).

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

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(2)

As required by the accompanying Order to the appropriate government

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

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fee of $8.00.

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(3)

The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff

has 30 days from the date this Order is filed to file a first amended complaint in
compliance with this Order.
(4)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

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

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prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).

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(5)

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

civil rights complaint by a prisoner.
DATED this 6th day of March, 2014.

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