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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Randy Allen Vice,

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No. CV 14-01855-PHX-SPL (JZB)
Plaintiff,

vs.

ORDER

Joseph M. Arpaio, et al.,

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Defendants.

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Plaintiff Randy Allen Vice, who is confined in the Maricopa County Durango Jail,

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

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Application to Proceed In Forma Pauperis (Doc. 2).

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Complaint with leave to amend.

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I.

The Court will dismiss the

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 not assess an initial partial filing fee. Id. The statutory filing fee will be

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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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....

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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).

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Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may

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possibly be 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 Defendants Joseph M. Arpaio,

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Maricopa County, the Durango Jail Commander, the Towers Jail Commander, the

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Maricopa County Detention Center, and the Towers Jail. In Count One, Plaintiff raises a

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claim regarding “food/nutrition”; in Count Two, he raises a claim regarding

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“heating/cooling”; and in Count Three, he raises a claim regarding “housing/clothing.”

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Each claim consists of a laundry list of protestations regarding Plaintiff’s conditions of

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confinement. In his Request for Relief, Plaintiff seeks monetary damages.

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IV.

Failure to State a Claim

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

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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.

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specific injury as a result of specific conduct of a defendant and show an affirmative link

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between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362,

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371-72, 377 (1976).

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therefore, a defendant’s position as the supervisor of persons who allegedly violated

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Plaintiff’s constitutional rights does not impose liability. Monell v. New York City Dep’t

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of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067

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(9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious

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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

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Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Iqbal, 556 U.S. at 676. “A plaintiff must allege facts, not

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simply conclusions, that show that an individual was personally involved in the

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

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1998).

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A.

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Defendants Arpaio, Durango Jail Commander, and Towers Jail
Commander

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Plaintiff has not alleged that Defendants Arpaio, Durango Jail Commander, and

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Towers Jail Commander personally participated in a deprivation of Plaintiff’s

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constitutional rights, were aware of a deprivation and failed to act, or formed policies that

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resulted in Plaintiff’s injuries. Plaintiff has made no allegations at all against these

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Defendants. Thus, the Court will dismiss without prejudice Defendants Arpaio, Durango

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Jail Commander, and Towers Jail Commander.

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B.

Defendant Maricopa County

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A municipality may not be sued under § 1983 solely because an injury was

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inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d

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1178, 1185 (9th Cir. 2006). To state a claim against a municipality under § 1983, a

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plaintiff must allege facts to support that his constitutional rights were violated pursuant

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to an official policy or custom of the municipality. Cortez v. County of Los Angeles, 294

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F.3d 1186, 1188 (9th Cir. 2002) (citing Monell, 436 U.S. at 690-91). A § 1983 claim

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against a municipal defendant “cannot succeed as a matter of law” unless a plaintiff:

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(1) contends that the municipal defendant maintains a policy or custom pertinent to the

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plaintiff’s alleged injury; and (2) explains how such policy or custom caused the

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plaintiff’s injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006).

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Plaintiff makes no allegations against Defendant Maricopa County and, therefore,

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fails to allege facts to support that Defendant Maricopa County maintained a policy or

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custom that resulted in the violation of his federal constitutional rights. Accordingly,

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Plaintiff has failed to state a claim against Defendant Maricopa County, and the Court

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will dismiss without prejudice Defendant Maricopa County.

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C.

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Defendants Maricopa County Detention Center and Towers Jail are not proper

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Defendants. Section 1983 imposes liability on any “person” who violates an individual’s

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federal rights while acting under color of state law.

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Detention Center and Towers Jail are buildings or collections of buildings, neither is a

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person or legally created entity capable of being sued. Therefore, the Court will dismiss

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Defendants Maricopa County Detention Center and Towers Jail.

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V.

Defendants Maricopa County Detention Center and Towers Jail

Defendants Maricopa County

Leave to Amend

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

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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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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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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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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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In addition, if Plaintiff files an amended complaint, he should take note that

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§ 1983 provides a cause of action against persons acting under color of state law who

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have violated rights guaranteed by the United States Constitution and federal law. 42

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U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). A

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pretrial detainee’s claim for unconstitutional conditions of confinement arises from the

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Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment

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prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 and

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n.16 (1979). Nevertheless, the same standards are applied, requiring proof that the

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defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128

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(9th Cir. 1998).

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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”; and the

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

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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

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

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indifference to inmate health or safety.” Id. (internal quotations omitted). In defining

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“deliberate indifference” in this context, the Supreme Court has imposed a subjective

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test: “the official must both be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at

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837 (emphasis added).

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The specific inquiry with respect to pretrial detainees is whether the prison

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conditions amount to “punishment” without due process in violation of the Fourteenth

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Amendment. Bell, 441 U.S. at 535. A jail or prison must provide prisoners with

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“adequate food, clothing, shelter, sanitation, medical care, and personal safety.”

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Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). However, this does not mean that

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federal courts can, or should, interfere whenever prisoners are inconvenienced or suffer

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de minimis injuries. See Bell, 441 U.S. at 539 n.21 (noting that a de minimis level of

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imposition does not rise to a constitutional violation).

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confinement rises to the level of a constitutional violation may depend, in part, on the

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duration of an inmate’s exposure to that condition. See Keenan v. Hall, 83 F.3d 1083,

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1089 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)).

Whether a condition of

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With respect to food, the Eighth and Fourteenth Amendments require “only that

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

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aesthetically pleasing. ‘The fact that the food occasionally contains foreign objects or

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sometimes is served cold, while unpleasant, does not amount to a constitutional

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deprivation.’” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (citation omitted)

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(quoting Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985)). Spoiled food

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and foul water are inadequate to maintain health. Keenan, 83 F.3d at 1091. An inmate

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may state a claim where he alleges that he is served meals with insufficient calories for

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long periods of time. LeMaire, 12 F.3d at 1456.

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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

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claim where he or she alleges that overcrowding results in some unconstitutional

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condition. See, e.g., Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987) (reversing

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district court’s dismissal of claim that overcrowding caused increased stress, tension, and

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communicable diseases, and confrontations between inmates); see also Toussaint v.

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Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (constitutional violation may occur as a

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result of overcrowded prison conditions causing increased violence, tension and

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psychiatric problems).

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VI.

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Warnings
A.

Release

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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.

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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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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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D.

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

Possible “Strike”

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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).

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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:

Possible Dismissal

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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 not assessed an initial partial

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filing fee.

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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 24th day of October, 2014.

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Honorable Steven P. Logan
United States District Judge

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