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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1 2 ASH WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Samuel Louis Fuller, 10 11 12 No. CV 14-0217-PHX-DGC (JFM) Plaintiff, v. ORDER Ryan Donald Powell, et al., 13 14 Defendants. 15 16 On November 18, 2013, Plaintiff Samuel Louis Fuller, who is confined in the 17 Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint in the Superior 18 Court of Maricopa County, Arizona. On February 5, 2014, Defendants Ryan D. Powell, 19 Jordyn Raimondo, and Sergeant Gary Miller filed a Notice of Removal of the case from 20 the Superior Court. By Order dated August 15, 2014, this Court accepted jurisdiction, 21 but dismissed the Complaint because it was not on the Court’s approved form and 22 because the Court was unable to determine the precise number and nature of Plaintiff’s 23 claims. Plaintiff was granted 30 days in which to file an amended complaint that cured 24 the deficiencies described in the Order. 25 On September 17, 2014, Plaintiff filed a First Amended Complaint. In a 26 January 14, 2015 Order, the Court dismissed the First Amended Complaint because 27 Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second 28 amended complaint that cured the deficiencies identified in the Order. 1 On February 2, 2015, Plaintiff filed a Second Amended Complaint (Doc. 15). The 2 Court will dismiss the Second Amended Complaint and this action. 3 I. 4 Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 8 which relief may be granted, or that seek monetary relief from a defendant who is 9 immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 12 does not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable 20 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 21 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 22 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 23 specific factual allegations may be consistent with a constitutional claim, a court must 24 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 25 at 681. 26 But as the United States Court of Appeals for the Ninth Circuit has instructed, 27 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 28 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less -2- 1 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 2 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 3 II. 4 Second Amended Complaint In his two-count Second Amended Complaint, Plaintiff names as Defendants: 5 Sergeant De La Rosa, the central mailing unit supervisor at Fourth Avenue Jail; Joseph 6 M. Arpaio, the Sheriff of Maricopa County; and “MCSO Sergeants, agents or policy, 7 Administrative staff, regulation” at “Fourth Avenue Jail, LBJ, etc.” Plaintiff appears to 8 seek declaratory and monetary relief. 9 Plaintiff describes Count One as relating to “inspect[ion] and examin[ation of] 10 discover[y].” Plaintiff’s allegations are largely incomprehensible, but appear to suggest 11 that the Fourth Avenue Jail maintains a “pro-per file” for each inmate. Plaintiff seems to 12 allege that Jail staff will only verbally verify whether items are in the “pro per file,” but 13 will not provide written verification. For reasons unclear, Plaintiff appears to allege that 14 the failure to provide written verification has “prejudiced” Plaintiff and impeded his 15 “rights to inspect and cross-examin[e] discover[y].” 16 Plaintiff describes Count Two as relating to mail. According to Plaintiff, the 17 Fourth Avenue Jail has a “post card only” policy that prevents him from sending or 18 receiving anything other than postcards. Plaintiff alleges that he has received non-post 19 card letters from his bank on two previous occasions, but that the Jail – and Defendant De 20 La Rosa in particular – no longer allow him to receive such letters. Plaintiff also alleges 21 that he is no longer able to send anything other than postcards, and when he tries to send 22 non-postcards to his bank, they are returned to him. Plaintiff states that he has no other 23 way of contacting his bank because when he attempts to call the bank it “is normally 24 rejected by any financial bank.” Plaintiff avers that he “need[s] to have continuous 25 communication with his financial institution” in order to prosecute his cases, and that the 26 “post card only” policy is preventing him from doing so. 27 III. 28 Failure to State a Claim To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants -3- 1 (2) under color of state law (3) deprived him of federal rights, privileges or immunities 2 and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 3 Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 4 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific 5 injury as a result of the conduct of a particular defendant and he must allege an 6 affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 7 423 U.S. 362, 371-72, 377 (1976). 8 9 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 10 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 11 liberal interpretation of a civil rights complaint may not supply essential elements of the 12 claim that were not initially pled. Id. A. 13 14 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 15 16 the third Defendant in his Second Amended Complaint. To the extent Plaintiff is 17 attempting to bring suit against the Maricopa County Sheriff’s Office, Plaintiff has been 18 previously warned that the Maricopa County Sheriff’s Department is not a proper 19 defendant. In Arizona, the responsibility of operating jails and caring for prisoners is 20 placed by law upon the sheriff. See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. 21 § 31-101. A sheriff’s office is simply an administrative creation of the county sheriff to 22 allow him to carry out his statutory duties and not a “person” amenable to suit pursuant to 23 § 1983. To the extent Plaintiff is attempting to bring suit against any other individual or 24 entity, he has not provided sufficient information to identify that individual or entity, or 25 provided facts to support that such an individual or entity has violated his rights. 26 Accordingly, the “MCSO Sergeants, agents or policy, Administrative staff, regulation” at 27 “Fourth Avenue Jail, LBJ, etc.” will be dismissed. 28 .... -4- 1 B. 2 The Court is unable to determine the nature of Plaintiff’s allegations in Count One. Count One 3 Other than stating that his Fourth, Fifth, Sixth, Fourteenth, and “Ex Post Facto” rights 4 have been violated, Plaintiff has not explained exactly what he is complaining of, how his 5 federal rights have been violated, or how any of the Defendants is responsible for that 6 violation. Accordingly, Count One will be dismissed. 7 C. 8 As explained in its January 14 Order, Plaintiff’s allegations regarding the “post 9 Count Two card only” policy fail to state a claim. In Covell v. Arpaio, 662 F. Supp. 2d 1146, 1153 10 (D. Ariz. 2009), the Court found that the same postcard policy at issue here had a rational 11 connection to legitimate governmental interests to prevent or limit the smuggling of 12 contraband -- such as drugs, handcuff keys, and weapons -- into the jails via incoming 13 mail, particularly in light of the thousands of pieces of mail subject to inspection each 14 day. Further, the Court found that inmates had alternative means of exercising the right 15 at issue, such as telephone calls and visitation. Id. Finally, the Court found that the 16 plaintiff had not identified obvious, easy alternatives to the regulation that would 17 accommodate the right at de minimis cost to penological goals. Other cases have reached 18 analogous conclusions concerning the postcard policy. See Gamble v. Arpaio, No. 19 CV 12-790-PHX-GMS (LOA), 2013 WL 5890730, at *2, *3, *4 (D. Ariz. Nov. 4, 2013); 20 Gieck v. Arpaio, No. CV 07-1143-PHX-NVW, 2008 WL 2604919, at *4-8 (D. Ariz. June 21 23, 2008) (rejecting facial challenge to policy and finding policy constitutional); see also 22 Prison Legal News v. Babeu, 933 F. Supp. 2d 1188, 1203 (D. Ariz. 2013) (one page limit 23 on incoming mail to inmates was not unconstitutional where Prison Legal News had 24 alternative avenues to communicate with inmates at the jail). Accordingly, to the extent 25 Plaintiff again alleges that the “post card only” policy violates his First Amendment 26 rights, he has failed to state a claim and Count Two will be dismissed. 27 .... 28 .... -5- 1 2 IV. Dismissal without Leave to Amend Because Plaintiff has failed to state a claim in his Second Amended Complaint, the 3 Court will dismiss his Second Amended Complaint. “Leave to amend need not be given 4 if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 5 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 6 particularly broad where Plaintiff has previously been permitted to amend his complaint. 7 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 8 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 9 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 10 Plaintiff has made three efforts at crafting a viable complaint and appears unable 11 to do so despite specific instructions from the Court. The Court finds that further 12 opportunities to amend would be futile. Therefore, the Court, in its discretion, will 13 dismiss Plaintiff’s Second Amended Complaint without leave to amend. 14 IT IS ORDERED: 15 (1) Plaintiff’s Second Amended Complaint (Doc. 15) and this action are 16 dismissed for failure to state a claim, and the Clerk of Court must enter judgment 17 accordingly. 18 19 20 (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. 21 § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of 22 this decision would not be taken in good faith. 23 Dated this 13th day of April, 2015. 24 25 26 27 28 -6-

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