Vice v. Arpaio et al

Filing 7

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 Orde r is 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 m ay count 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 Judge Steven P Logan on 10/24/2014. (Attachments: # 1 PCR Form)(LFIG)

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1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Randy Allen Vice, 10 11 12 No. CV 14-01855-PHX-SPL (JZB) Plaintiff, vs. ORDER Joseph M. Arpaio, et al., 13 Defendants. 14 15 Plaintiff Randy Allen Vice, who is confined in the Maricopa County Durango Jail, 16 has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an 17 Application to Proceed In Forma Pauperis (Doc. 2). 18 Complaint with leave to amend. 19 I. The Court will dismiss the Application to Proceed In Forma Pauperis and Filing Fee 20 21 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 22 The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be 23 collected monthly in payments of 20% of the previous month’s income credited to 24 Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 25 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 26 agency to collect and forward the fees according to the statutory formula. 27 .... 28 JDDL-K Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. .... 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 6 which relief may be granted, or that seek monetary relief from a defendant who is 7 immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 10 does not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable 18 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 19 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 20 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 21 specific factual allegations may be consistent with a constitutional claim, a court must 22 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 23 at 681. 24 25 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 26 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 27 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 28 JDDL-K But as the United States Court of Appeals for the Ninth Circuit has instructed, Pardus, 551 U.S. 89, 94 (2007) (per curiam)). -2- 1 If the Court determines that a pleading could be cured by the allegation of other 2 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 3 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 4 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 5 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 6 III. Complaint 7 In his three-count Complaint, Plaintiff sues Defendants Joseph M. Arpaio, 8 Maricopa County, the Durango Jail Commander, the Towers Jail Commander, the 9 Maricopa County Detention Center, and the Towers Jail. In Count One, Plaintiff raises a 10 claim regarding “food/nutrition”; in Count Two, he raises a claim regarding 11 “heating/cooling”; and in Count Three, he raises a claim regarding “housing/clothing.” 12 Each claim consists of a laundry list of protestations regarding Plaintiff’s conditions of 13 confinement. In his Request for Relief, Plaintiff seeks monetary damages. 14 IV. Failure to State a Claim 15 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 16 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 17 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 18 liberal interpretation of a civil rights complaint may not supply essential elements of the 19 claim that were not initially pled. Id. 20 21 specific injury as a result of specific conduct of a defendant and show an affirmative link 22 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 23 371-72, 377 (1976). 24 therefore, a defendant’s position as the supervisor of persons who allegedly violated 25 Plaintiff’s constitutional rights does not impose liability. Monell v. New York City Dep’t 26 of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 27 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious 28 JDDL-K To state a valid claim under § 1983, plaintiffs must allege that they suffered a liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each There is no respondeat superior liability under § 1983, and -3- 1 Government-official defendant, through the official’s own individual actions, has 2 violated the Constitution.” Iqbal, 556 U.S. at 676. “A plaintiff must allege facts, not 3 simply conclusions, that show that an individual was personally involved in the 4 deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 5 1998). 6 A. 7 Defendants Arpaio, Durango Jail Commander, and Towers Jail Commander 8 Plaintiff has not alleged that Defendants Arpaio, Durango Jail Commander, and 9 Towers Jail Commander personally participated in a deprivation of Plaintiff’s 10 constitutional rights, were aware of a deprivation and failed to act, or formed policies that 11 resulted in Plaintiff’s injuries. Plaintiff has made no allegations at all against these 12 Defendants. Thus, the Court will dismiss without prejudice Defendants Arpaio, Durango 13 Jail Commander, and Towers Jail Commander. 14 B. Defendant Maricopa County 15 A municipality may not be sued under § 1983 solely because an injury was 16 inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d 17 1178, 1185 (9th Cir. 2006). To state a claim against a municipality under § 1983, a 18 plaintiff must allege facts to support that his constitutional rights were violated pursuant 19 to an official policy or custom of the municipality. Cortez v. County of Los Angeles, 294 20 F.3d 1186, 1188 (9th Cir. 2002) (citing Monell, 436 U.S. at 690-91). A § 1983 claim 21 against a municipal defendant “cannot succeed as a matter of law” unless a plaintiff: 22 (1) contends that the municipal defendant maintains a policy or custom pertinent to the 23 plaintiff’s alleged injury; and (2) explains how such policy or custom caused the 24 plaintiff’s injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006). 25 Plaintiff makes no allegations against Defendant Maricopa County and, therefore, 26 fails to allege facts to support that Defendant Maricopa County maintained a policy or 27 custom that resulted in the violation of his federal constitutional rights. Accordingly, 28 JDDL-K -4- 1 Plaintiff has failed to state a claim against Defendant Maricopa County, and the Court 2 will dismiss without prejudice Defendant Maricopa County. 3 C. 4 Defendants Maricopa County Detention Center and Towers Jail are not proper 5 Defendants. Section 1983 imposes liability on any “person” who violates an individual’s 6 federal rights while acting under color of state law. 7 Detention Center and Towers Jail are buildings or collections of buildings, neither is a 8 person or legally created entity capable of being sued. Therefore, the Court will dismiss 9 Defendants Maricopa County Detention Center and Towers Jail. 10 V. Defendants Maricopa County Detention Center and Towers Jail Defendants Maricopa County Leave to Amend 11 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to 12 state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 13 first amended complaint to cure the deficiencies outlined above. The Clerk of Court will 14 mail Plaintiff a court-approved form to use for filing a first amended complaint. If 15 Plaintiff fails to use the court-approved form, the Court may strike the amended 16 complaint and dismiss this action without further notice to Plaintiff. 17 Plaintiff must clearly designate on the face of the document that it is the “First 18 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 19 entirety on the court-approved form and may not incorporate any part of the original 20 Complaint by reference. Plaintiff may include only one claim per count. 21 22 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 23 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 24 complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 25 in the original complaint and that was voluntarily dismissed or was dismissed without 26 prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa 27 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 28 JDDL-K A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, .... -5- 1 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 2 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 3 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 4 do; (4) how the action or inaction of that Defendant is connected to the violation of 5 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 6 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 7 Plaintiff must repeat this process for each person he names as a Defendant. If 8 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 9 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 10 failure to state a claim. 11 Defendants has violated a constitutional right are not acceptable and will be 12 dismissed. Conclusory allegations that a Defendant or group of 13 In addition, if Plaintiff files an amended complaint, he should take note that 14 § 1983 provides a cause of action against persons acting under color of state law who 15 have violated rights guaranteed by the United States Constitution and federal law. 42 16 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). A 17 pretrial detainee’s claim for unconstitutional conditions of confinement arises from the 18 Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment 19 prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 and 20 n.16 (1979). Nevertheless, the same standards are applied, requiring proof that the 21 defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 22 (9th Cir. 1998). 23 24 due care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To 25 state a claim of deliberate indifference, plaintiffs must meet a two-part test. “First, the 26 alleged constitutional deprivation must be, objectively, sufficiently serious”; and the 27 “official’s act or omission must result in the denial of the minimal civilized measure of 28 JDDL-K Deliberate indifference is a higher standard than negligence or lack of ordinary life’s necessities.” Id. at 834 (internal quotations omitted). Second, the prison official -6- 1 must have a “sufficiently culpable state of mind,” i.e., he must act with “deliberate 2 indifference to inmate health or safety.” Id. (internal quotations omitted). In defining 3 “deliberate indifference” in this context, the Supreme Court has imposed a subjective 4 test: “the official must both be aware of facts from which the inference could be drawn 5 that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 6 837 (emphasis added). 7 The specific inquiry with respect to pretrial detainees is whether the prison 8 conditions amount to “punishment” without due process in violation of the Fourteenth 9 Amendment. Bell, 441 U.S. at 535. A jail or prison must provide prisoners with 10 “adequate food, clothing, shelter, sanitation, medical care, and personal safety.” 11 Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). However, this does not mean that 12 federal courts can, or should, interfere whenever prisoners are inconvenienced or suffer 13 de minimis injuries. See Bell, 441 U.S. at 539 n.21 (noting that a de minimis level of 14 imposition does not rise to a constitutional violation). 15 confinement rises to the level of a constitutional violation may depend, in part, on the 16 duration of an inmate’s exposure to that condition. See Keenan v. Hall, 83 F.3d 1083, 17 1089 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). Whether a condition of 18 With respect to food, the Eighth and Fourteenth Amendments require “only that 19 prisoners receive food that is adequate to maintain health; it need not be tasty or 20 aesthetically pleasing. ‘The fact that the food occasionally contains foreign objects or 21 sometimes is served cold, while unpleasant, does not amount to a constitutional 22 deprivation.’” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (citation omitted) 23 (quoting Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985)). Spoiled food 24 and foul water are inadequate to maintain health. Keenan, 83 F.3d at 1091. An inmate 25 may state a claim where he alleges that he is served meals with insufficient calories for 26 long periods of time. LeMaire, 12 F.3d at 1456. 27 28 JDDL-K In addition, overcrowding alone does not violate the Eighth or Fourteenth Amendments. Hoptowit, 682 F.2d at 1249. A plaintiff may, however, state a cognizable -7- 1 claim where he or she alleges that overcrowding results in some unconstitutional 2 condition. See, e.g., Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987) (reversing 3 district court’s dismissal of claim that overcrowding caused increased stress, tension, and 4 communicable diseases, and confrontations between inmates); see also Toussaint v. 5 Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (constitutional violation may occur as a 6 result of overcrowded prison conditions causing increased violence, tension and 7 psychiatric problems). 8 VI. 9 Warnings A. Release 10 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his 11 release. Also, within 30 days of his release, he must either (1) notify the Court that he 12 intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to 13 comply may result in dismissal of this action. 14 B. 15 Plaintiff must file and serve a notice of a change of address in accordance with 16 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 17 for other relief with a notice of change of address. Failure to comply may result in 18 dismissal of this action. Address Changes 19 C. 20 Plaintiff must submit an additional copy of every filing for use by the Court. See 21 LRCiv 5.4. Failure to comply may result in the filing being stricken without further 22 notice to Plaintiff. Copies 23 24 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 25 fails to file an amended complaint correcting the deficiencies identified in this Order, the 26 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 27 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 28 JDDL-K D. judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more Possible “Strike” -8- 1 prior occasions, while incarcerated or detained in any facility, brought an action or appeal 2 in a court of the United States that was dismissed on the grounds that it is frivolous, 3 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 4 is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 5 E. 6 If Plaintiff fails to timely comply with every provision of this Order, including 7 these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 8 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any 9 order of the Court). 10 IT IS ORDERED: Possible Dismissal 11 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 12 (2) As required by the accompanying Order to the appropriate government 13 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial 14 filing fee. 15 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 16 has 30 days from the date this Order is filed to file a first amended complaint in 17 compliance with this Order. 18 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 19 Court must, without further notice, enter a judgment of dismissal of this action with 20 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g). 21 22 23 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Dated this 24th day of October, 2014. 24 25 Honorable Steven P. Logan United States District Judge 26 27 28 JDDL-K -9-

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