Garcia v. Arpaio et al

Filing 5

ORDER that Plaintiff's 2 APPLICATION to Proceed In Forma Pauperis is granted. Plaintiff must pay the $350.00 filing fee. The 1 Complaint is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order i s filed to file a first amended complaint in compliance with this Order. If Plaintiff fails to comply, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may co unt as a "strike" under 28 U.S.C. § 1915(g). The Clerk must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Senior Judge Stephen M McNamee on 4/17/2014. (Attachments: # 1 PCR Form)(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Adam Narciso Garcia,

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Plaintiff,

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No. CV 14-286-PHX-RCB (DKD)

vs.

ORDER

Joseph M. Arpaio, et al.,

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Defendants.

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Plaintiff Adam Narciso Garcia, who is confined in the Maricopa County Durango

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

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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 $26.00. The remainder of the fee will

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be collected monthly in payments of 20% of the previous month’s income credited to

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Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C.

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§ 1915(b)(2). The Court will enter a separate Order requiring the appropriate government

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agency to collect and forward the 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) (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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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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But as the United States Court of Appeals for the Ninth Circuit has instructed,

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

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

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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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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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Complaint will be dismissed for failure to state a claim, but because it may possibly be

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

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III.

Complaint

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In his three-count Complaint, Plaintiff sues Maricopa County Sheriff Joseph

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Arpaio and the Maricopa County Sheriff’s Office for alleged unconstitutional conditions

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of confinement at the Durango Jail. He seeks damages.

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Plaintiff alleges the following in Count I: The “air conditioning is on and cold no

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matter what [the] temperature is,” and the temperature is never above 69 degrees.

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Someone “will not turn on heat” and “will not give extra blankets” or clothes. There is

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“improper ventilation air exchange,” “staff infections,” and “multiple people with cold[s]

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in pods.” Plaintiff is sick, “uncomfortable at all times,” suffers loss of sleep and “P.T.S.”

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In Count II, Plaintiff alleges the following: “They say there are (2500) calories

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served per day that is from 2005.” Plaintiff requested measurement but received no

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response. “Most of the food is lost during transportation from building to building” and it

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is not edible. There are two meals a day, no drink at dinner, and the “mysterious meat []

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is very greasy.” Plaintiff suffers from “malnutrition, no energy, loss of muscle mass, sick

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or getting sick,” weakness, headaches, “loss of proper vitamins and minerals,” and he is

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“not sure on long term effect.”

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done away with 3 & 4 men cells”; “no room between bunks to move”; “fire hazard”; “64

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In Count III, Plaintiff alleges the following: “all county jails across the U.S. have

men to two toilets, with no disinfectants”; and “64 men to two showers with no

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disinfectants.” Someone has to “eat on bunk” and there are “not enough tables [and]

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chairs to eat.” There are “over 40 men in holding tank when going to court” and “chains

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on our feet when we[’]re not guilty for an offense.” Plaintiff has been injured by “no

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sleep, unable to get out easily to leave room, [and] untold of amount of illnesses.” He

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says “total effect will be unknown.”

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IV.

Failure to State a Claim

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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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A.

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Plaintiff sues Maricopa County Sheriff Arpaio. While Arpaio may be sued for

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constitutional violations, Plaintiff fails to state a claim against him. “A plaintiff must

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allege facts, not simply conclusions, that show that an individual was personally involved

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in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th

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Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege

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that the official acted as a result of a policy, practice, or custom. See Cortez v. County of

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Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002) (citation omitted). Further, there is no

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respondeat superior liability under § 1983, so a defendant’s position as the supervisor of

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someone who allegedly violated a plaintiff’s constitutional rights does not make him

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

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List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted).

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

Arpaio

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A supervisor in his

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supervisor participated in or directed the violations, or knew of the violations and failed

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

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Plaintiff fails to allege any facts regarding Arpaio in his Complaint. Plaintiff does

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not allege that Arpaio directly violated his constitutional rights. Moreover, Plaintiff does

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not allege facts to support that Plaintiff’s constitutional rights were violated as a result of

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a policy or custom promulgated or endorsed by Arpaio. Accordingly, Plaintiff fails to

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state a claim against Defendant Arpaio and he will be dismissed.

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B.

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The Maricopa County Sheriff’s Office is not a proper defendant. In Arizona, the

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

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See Ariz. Rev. Stat. Ann. § 11-441(A)(5); Ariz. Rev. Stat. Ann. § 31-101. A sheriff’s

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office is simply an administrative creation of the county sheriff to allow him to carry out

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his statutory duties and is not a “person” amenable to suit pursuant to § 1983.

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Accordingly, the Maricopa County Sheriff’s Office will be dismissed as a Defendant.

Maricopa County Sheriff’s Office

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C.

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Because Plaintiff has failed to state a claim against a properly named Defendant,

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his Complaint will be dismissed with leave to amend. If Plaintiff files an amended

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Complaint, he should be aware that a pretrial detainee’s claim for unconstitutional

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conditions of confinement arises from the Fourteenth Amendment Due Process Clause

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rather than from the Eighth Amendment prohibition against cruel and unusual

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punishment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Nevertheless, the same

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standards are applied, requiring proof that the defendant acted with deliberate

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indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (citation omitted).

Conditions of Confinement

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

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

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

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

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

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

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

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

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this context, the Supreme Court has imposed a subjective test: “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.” Id. at 837 (emphasis added).

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

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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, 511 U.S. at 834); see Estate of Ford v. Ramirez–

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

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

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

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

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

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

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

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

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

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

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

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

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overcrowding caused increased stress, tension and communicable disease among inmate

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

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

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conditions causing increased violence, tension and psychiatric problems).

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

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

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

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

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

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

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

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

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

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Plaintiff fails to allege any specific facts such as when he was held in the alleged

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unconstitutional conditions of confinement or the duration of his confinement in such

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conditions. In addition, Plaintiff fails to allege that any individual was aware of the

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alleged unconditional conditions but failed to act. That is, Plaintiff fails to allege facts to

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support that Arpaio or anyone else acted with deliberate indifference to the alleged

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conditions. Moreover, in Count I, Plaintiff fails to allege when, or for how long, he was

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cold, if he requested heat, extra blankets or clothes, and, if so, to whom he directed those

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requests. In Count II, Plaintiff fails to allege what food he was served, or when or how

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often he was served food that was “damaged” or inedible. In Count III, Plaintiff fails to

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allege how many men were in his cell, and for how long, the size of his cell, or other facts

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to support a claim of overcrowding. For these reasons, Plaintiff fails to state a claim of

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unconstitutional conditions of confinement.

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V.

Leave to Amend

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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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For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to

complaint and dismiss this action without further notice to Plaintiff.

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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, 423 U.S. at 371-72, 377.

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

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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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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

Release

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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.

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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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E.

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

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

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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)

Possible Dismissal

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 $26.00.

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(3)

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

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has 30 days from the date this Order is filed to file a first amended complaint in

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compliance with this Order.

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(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 17th day of April, 2014.

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