Fuller v. Powell et al

Filing 17

ORDER that Plaintiff's 15 Second Amended Complaint and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. The Clerk must make an entry on the docket stating that the dismissal for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). The docket shall reflect that the Court certifies that any appeal of this decision would not be taken in good faith. Signed by Judge David G Campbell on 4/13/2015. (LFIG)

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ASH
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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Samuel Louis Fuller,

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No. CV 14-0217-PHX-DGC (JFM)

Plaintiff,
v.

ORDER

Ryan Donald Powell, et al.,

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Defendants.

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On November 18, 2013, Plaintiff Samuel Louis Fuller, who is confined in the

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Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint in the Superior

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Court of Maricopa County, Arizona. On February 5, 2014, Defendants Ryan D. Powell,

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Jordyn Raimondo, and Sergeant Gary Miller filed a Notice of Removal of the case from

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the Superior Court. By Order dated August 15, 2014, this Court accepted jurisdiction,

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but dismissed the Complaint because it was not on the Court’s approved form and

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because the Court was unable to determine the precise number and nature of Plaintiff’s

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claims. Plaintiff was granted 30 days in which to file an amended complaint that cured

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the deficiencies described in the Order.

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On September 17, 2014, Plaintiff filed a First Amended Complaint. In a

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January 14, 2015 Order, the Court dismissed the First Amended Complaint because

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

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amended complaint that cured the deficiencies identified in the Order.

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On February 2, 2015, Plaintiff filed a Second Amended Complaint (Doc. 15). The

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Court will dismiss the Second Amended Complaint and this action.

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I.

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Statutory Screening of Prisoner Complaints
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) (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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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.

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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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II.

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Second Amended Complaint
In his two-count Second Amended Complaint, Plaintiff names as Defendants:

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Sergeant De La Rosa, the central mailing unit supervisor at Fourth Avenue Jail; Joseph

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M. Arpaio, the Sheriff of Maricopa County; and “MCSO Sergeants, agents or policy,

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Administrative staff, regulation” at “Fourth Avenue Jail, LBJ, etc.” Plaintiff appears to

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seek declaratory and monetary relief.

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Plaintiff describes Count One as relating to “inspect[ion] and examin[ation of]

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discover[y].” Plaintiff’s allegations are largely incomprehensible, but appear to suggest

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that the Fourth Avenue Jail maintains a “pro-per file” for each inmate. Plaintiff seems to

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allege that Jail staff will only verbally verify whether items are in the “pro per file,” but

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will not provide written verification. For reasons unclear, Plaintiff appears to allege that

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the failure to provide written verification has “prejudiced” Plaintiff and impeded his

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“rights to inspect and cross-examin[e] discover[y].”

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Plaintiff describes Count Two as relating to mail. According to Plaintiff, the

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Fourth Avenue Jail has a “post card only” policy that prevents him from sending or

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receiving anything other than postcards. Plaintiff alleges that he has received non-post

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card letters from his bank on two previous occasions, but that the Jail – and Defendant De

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La Rosa in particular – no longer allow him to receive such letters. Plaintiff also alleges

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that he is no longer able to send anything other than postcards, and when he tries to send

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non-postcards to his bank, they are returned to him. Plaintiff states that he has no other

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way of contacting his bank because when he attempts to call the bank it “is normally

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rejected by any financial bank.” Plaintiff avers that he “need[s] to have continuous

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communication with his financial institution” in order to prosecute his cases, and that the

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“post card only” policy is preventing him from doing so.

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III.

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

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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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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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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,
520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey

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

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

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claim that were not initially pled. Id.
A.

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Defendants “MCSO Sergeants, agents or policy, Administrative staff,
regulation” at “Fourth Avenue Jail, LBJ, etc.”

The Court is unable to determine who or what Plaintiff has attempted to name as

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the third Defendant in his Second Amended Complaint. To the extent Plaintiff is

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attempting to bring suit against the Maricopa County Sheriff’s Office, Plaintiff has been

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previously warned that the Maricopa County Sheriff’s Department is not a proper

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defendant. In Arizona, the responsibility of operating jails and caring for prisoners is

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placed by law upon the sheriff. See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat.

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§ 31-101. A sheriff’s office is simply an administrative creation of the county sheriff to

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allow him to carry out his statutory duties and not a “person” amenable to suit pursuant to

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§ 1983. To the extent Plaintiff is attempting to bring suit against any other individual or

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entity, he has not provided sufficient information to identify that individual or entity, or

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provided facts to support that such an individual or entity has violated his rights.

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Accordingly, the “MCSO Sergeants, agents or policy, Administrative staff, regulation” at

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“Fourth Avenue Jail, LBJ, etc.” will be dismissed.

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B.

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The Court is unable to determine the nature of Plaintiff’s allegations in Count One.

Count One

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Other than stating that his Fourth, Fifth, Sixth, Fourteenth, and “Ex Post Facto” rights

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have been violated, Plaintiff has not explained exactly what he is complaining of, how his

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federal rights have been violated, or how any of the Defendants is responsible for that

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violation. Accordingly, Count One will be dismissed.

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C.

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As explained in its January 14 Order, Plaintiff’s allegations regarding the “post

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Count Two

card only” policy fail to state a claim. In Covell v. Arpaio, 662 F. Supp. 2d 1146, 1153

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(D. Ariz. 2009), the Court found that the same postcard policy at issue here had a rational

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connection to legitimate governmental interests to prevent or limit the smuggling of

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contraband -- such as drugs, handcuff keys, and weapons -- into the jails via incoming

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mail, particularly in light of the thousands of pieces of mail subject to inspection each

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day. Further, the Court found that inmates had alternative means of exercising the right

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at issue, such as telephone calls and visitation. Id. Finally, the Court found that the

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plaintiff had not identified obvious, easy alternatives to the regulation that would

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accommodate the right at de minimis cost to penological goals. Other cases have reached

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analogous conclusions concerning the postcard policy. See Gamble v. Arpaio, No.

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CV 12-790-PHX-GMS (LOA), 2013 WL 5890730, at *2, *3, *4 (D. Ariz. Nov. 4, 2013);

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Gieck v. Arpaio, No. CV 07-1143-PHX-NVW, 2008 WL 2604919, at *4-8 (D. Ariz. June

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23, 2008) (rejecting facial challenge to policy and finding policy constitutional); see also

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Prison Legal News v. Babeu, 933 F. Supp. 2d 1188, 1203 (D. Ariz. 2013) (one page limit

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on incoming mail to inmates was not unconstitutional where Prison Legal News had

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alternative avenues to communicate with inmates at the jail). Accordingly, to the extent

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Plaintiff again alleges that the “post card only” policy violates his First Amendment

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rights, he has failed to state a claim and Count Two will be dismissed.

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IV.

Dismissal without Leave to Amend
Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given

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if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express,

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Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996).

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Repeated failure to cure deficiencies is one of the factors to be considered in deciding

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whether justice requires granting leave to amend. Moore, 885 F.2d at 538.

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Plaintiff has made three efforts at crafting a viable complaint and appears unable

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to do so despite specific instructions from the Court. The Court finds that further

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opportunities to amend would be futile. Therefore, the Court, in its discretion, will

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dismiss Plaintiff’s Second Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s Second Amended Complaint (Doc. 15) and this action are

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dismissed for failure to state a claim, and the Clerk of Court must enter judgment

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accordingly.

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(2)

The Clerk of Court must make an entry on the docket stating that the

dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of

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this decision would not be taken in good faith.

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Dated this 13th day of April, 2015.

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