Williams v. Cisneros et al

Filing 12

ORDER - IT IS ORDERED: (1) Plaintiffs Second Amended Complaint (Doc. 11 ) and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. (2) The Clerk of Court must make an entry on the docket st ating 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. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. See document for further details. Signed by Judge David G Campbell on 06/09/15. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Berry Williams,

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No. CV 14-2231-PHX-DGC (DKD)
Plaintiff,

v.

ORDER

Unknown Cisneros, et al.,

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Defendants.

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On October 8, 2014, Plaintiff Berry Williams, who is confined in the Arizona

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State Prison Complex -Yuma in San Luis, Arizona, filed a pro se civil rights Complaint

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pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a

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January 14, 2015 Order, the Court granted the Application to Proceed and dismissed the

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Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days

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to file an amended complaint that cured the deficiencies identified in the Order.

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On March 13, 2015, Plaintiff filed his First Amended Complaint. In an April 24,

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2015 Order, the Court dismissed the First Amended Complaint because Plaintiff had

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

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complaint that cured the deficiencies identified in the Order.

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On May 14, 2015, Plaintiff filed a Second Amended Complaint (Doc. 11). The

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Court will dismiss the Second Amended Complaint and this action.

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I.

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Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).

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A pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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But as the United States Court of Appeals for the Ninth Circuit has instructed,

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courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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

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II.

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Second Amended Complaint
In his one-count Second Amended Complaint, Plaintiff sues the Arizona

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Department of Corrections (“ADOC”) and ADOC Correctional Officers Unknown

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Cisneros, Unknown Badsted, and Unknown Reigie. Plaintiff seeks monetary damages.

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Plaintiff asserts a failure to protect claim and alleges the following facts: On

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November 22, 2013, Defendants Cisneros, Badsted, and Reigie were working in the

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maximum security housing unit where Plaintiff was housed. Defendants Cisneros,

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Badsted, and Reigie failed to follow procedure by moving unrestrained inmates outside

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of the cells and having more than one inmate out of a cell at a time. As a result of this

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failure to comply with procedure, Plaintiff was assaulted by another inmate identified as

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“Nobles.” Defendant Cisneros walked Plaintiff, who was unrestrained, to the shower.

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Defendants Reigie and Badsted failed to “act by not objecting to behavior [that]

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knowingly plac[ed], not only [Plaintiff], but any other officer at risk.” Defendant

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Badsted held Plaintiff outside of his cell while Defendant Cisneros led another

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unrestrained inmate past Plaintiff and “allowed [Nobles] to attack [Plaintiff].” Plaintiff

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claims that all of the “most violent offenders” are housed in maximum security housing,

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and that the inmates are not allowed any contact with other inmates. Plaintiff further

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claims that Defendant Cisneros failed to comply with “procedure” on three occasions,

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and that “her fellows . . . . turned a blind eye to policy” on those three occasions.

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Plaintiff contends that Defendants are “specifically trained to guard against” the risk

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involved when moving unrestrained inmates outside of the cells and having more than

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one inmate out of a cell at a time. Plaintiff further contends that ADOC is responsible for

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training its employees and ensuring that its employees act in compliance with that

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training. Plaintiff claims he has been injured as follows: he suffers from anxiety, pain in

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his leg and back, and takes a “plethora of medication in an attempt to cope with

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every[]day existence.”

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III.

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

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(2) under color of state law (3) deprived him of federal rights, privileges or immunities

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and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th

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Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d

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1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific

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injury as a result of the conduct of a particular defendant and he must allege an

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affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode,

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423 at 371-72, 377 (1976).

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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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A.

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The Arizona Department of Corrections is not a proper Defendant. Under the

ADOC

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Eleventh Amendment to the Constitution of the United States, a state or state agency may

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not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v.

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Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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Furthermore, “a state is not a ‘person’ for purposes of section 1983. Likewise ‘arms of

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the State’ such as the Arizona Department of Corrections are not ‘persons’ under section

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1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citation

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omitted). Therefore, the Court will dismiss Defendant Arizona Department of

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Corrections.

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B.

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To state a claim for failure to protect or threat to safety, an inmate must allege

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facts to support that he was incarcerated under conditions posing a substantial risk of

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harm and that prison officials were “deliberately indifferent” to those risks. Farmer, 511

Failure to Protect

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U.S. at 832-33. To adequately allege deliberate indifference, a plaintiff must allege facts

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to support that a defendant knew of, but disregarded, an excessive risk to inmate safety.

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Id. at 837. That is, “the official must both [have been] aware of facts from which the

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inference could be drawn that a substantial risk of serious harm exist[ed], and he must

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also [have] draw[n] the inference.” Id. Thus, Plaintiff must allege facts to support when

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and how any particular defendant knew of a substantial risk of harm to Plaintiff and that

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the defendant disregarded or failed to take steps to protect Plaintiff.

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Plaintiff’s allegations are too vague and conclusory to state a failure to protect

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claim under the Eighth Amendment. Plaintiff has not adequately alleged facts showing

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that Defendants Cisneros, Badsted, and Reigie knew of any excessive risk to Plaintiff’s

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safety. Although Plaintiff states that due to Defendants failure to follow procedure, he

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was assaulted, he does not allege adequate factual support to show that Defendants acted

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with deliberate indifference. Other than broadly asserting that all inmates housed in the

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maximum security housing unit are the most violent offenders, Plaintiff does not allege

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how any Defendant could have known that he was at risk when he was out of his cell on

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November 22, 2013. For example, Plaintiff does not indicate whether any verbal or

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physical threats were made against him or whether there was any indication that Nobles

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or any other inmate intended to hurt him. Accordingly, Plaintiff has failed to allege that

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Defendants knew or should have known that Nobles posed a substantial threat to Plaintiff

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but nevertheless allowed both Plaintiff and Nobles to be out of their cells unrestrained.

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Therefore, Plaintiff has failed to state a claim for failure to protect in Count One, and the

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Court will dismiss Count One.

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IV.

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

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

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

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

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

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

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

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

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

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

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

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

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IT IS ORDERED:

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(1)

Plaintiff’s Second Amended Complaint (Doc. 11) and this action are

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

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accordingly.

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(2)

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

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

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

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

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this decision would not be taken in good faith.

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Dated this 9th day of June, 2015.

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