Johnson v. Maricopa County Sheriff's Office et al

Filing 19

ORDER - Plaintiff's non-prisoner Application to Proceed (Doc. 17 ) is granted. Plaintiff's Motions to Add Counts (Docs. 5 and 6 ) are granted, and his Motion for Disclosure (Doc. 7 ) is denied pursuant to the Court's January 28, 2015 Order. Plaintiff Motion to Appoint Counsel (Doc. 18 ) is denied as moot. Plaintiff's First Amended Complaint (Doc. 14 ) and this action are dismissed for failure to state a claim, and the Clerk must enter judgment accordingly. The Cler k must make an entry on the docket stating that the dismissal for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). The docket shall reflect that the Court certifies, 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. Signed by Judge David G Campbell on 07/02/15. (ATD)

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1 2 SKC WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael David Johnson, 10 11 12 No. CV 14-2519-PHX-DGC (DMF) Plaintiff, v. ORDER Maricopa County Sheriff's Office, et al., 13 Defendants. 14 15 On November 14, 2014, Plaintiff Michael David Johnson, who was then confined 16 in the Maricopa County Lower Buckeye Jail, filed a pro se civil rights Complaint 17 pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a 18 January 28, 2015 Order, the Court granted the Application to Proceed and dismissed the 19 Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days 20 to file an amended complaint that cured the deficiencies identified in the Order. 21 On March 5, 2015, Plaintiff filed a Notice of Change of Address indicating he is 22 no longer in custody, and on May 7, 2015, he filed his First Amended Complaint 23 (Doc. 14). At the time Plaintiff was released, he still owed $292.00 towards his filing 24 fee. In a May 15, 2015 Order, the Court gave Plaintiff 30 days to either pay the $292.00 25 balance of the filing fee or file a non-prisoner Application to Proceed in District Court 26 without Prepaying Fees or Costs. Plaintiff has since filed a non-prisoner Application to 27 Proceed (Doc. 17) and a Motion to Appoint Counsel (Doc. 18). 28 JDDL-K 1 The Court will grant the non-prisoner Application to Proceed, dismiss the First 2 Amended Complaint and this action, and deny the Motion to Appoint Counsel as moot. 3 I. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 8 which relief may be granted, or that seek monetary relief from a defendant who is 9 immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 12 does not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable 20 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 21 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 22 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 23 specific factual allegations may be consistent with a constitutional claim, a court must 24 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 25 at 681. 26 But as the United States Court of Appeals for the Ninth Circuit has instructed, 27 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 28 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less JDDL-K -2- 1 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 2 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 3 II. First Amended Complaint 4 In his single-count First Amended Complaint, Plaintiff names as Defendants 5 Maricopa County Sheriff Joseph M. Arpaio; Maricopa County Supervisors Denny 6 Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Steve Gallardo; and the 7 Scottsdale City Court. 8 protection hearing/re-hearing,” and court costs. Plaintiff seeks punitive damages, “appeal of civil order of 9 Plaintiff claims that Defendants violated his due process rights by denying him 10 access to a court transcript he needed to appeal an Order of Protection in Scottsdale City 11 Court. Plaintiff’s claim is based on the following allegations: 12 On July 3, 2014, Plaintiff was arrested for violating an Order of Protection issued 13 by the Scottsdale City Court, and he was placed in the Lower Buckeye Jail to await trial. 14 While in custody, Plaintiff was transported to an August 6, 2014 hearing in his Order of 15 Protection case. Plaintiff lost that hearing, and he filed for an appeal and requested a 16 copy of the August 6, 2014 hearing transcript. The Scottsdale City Court sent Plaintiff an 17 audio CD of the hearing per their policy. This CD was intercepted by the Lower 18 Buckeye Jail legal services and held by the property department. 19 On August 15, 2014, Plaintiff filed an inmate request, asking to listen to the CD, 20 and the request was denied on August 20, 2014. On August 22, 2014, Plaintiff wrote to 21 the Scottsdale City Court requesting assistance, and his request was denied on 22 September 29, 2014. In the meantime, Plaintiff filed a series of inmate grievances and 23 grievance appeals regarding the denial of his request to hear the CD. On October 6, 24 2014, Plaintiff’s final grievance was denied. Plaintiff wrote his memorandum appealing 25 the Scottsdale City Court’s Order of Protection decision without access to the hearing 26 transcript, and lost his appeal. 27 Plaintiff alleges that the Order of Protection was frivolous, and he believes he 28 would have won his appeal if he had been given access to the August 6, 2014 hearing JDDL-K -3- 1 transcript. He claims that Defendants’ denial of due process in not making the transcript 2 available to him “directly interfered with and impacted [his] defense and subsequent 3 incarceration.” 4 III. Failure to State a Claim 5 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 6 (2) under color of state law (3) deprived him of federal rights, privileges or immunities 7 and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 8 Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 9 1278, 1284 (9th Cir. 1994)). Negligence is not sufficient to state a claim under § 1983. 10 Daniels v. Williams, 474 U.S. 327, 330-31 (1986). In addition, a plaintiff must allege that 11 he suffered a specific injury as a result of the conduct of a particular defendant and he 12 must allege an affirmative link between the injury and the conduct of that defendant. 13 Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 14 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 15 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 16 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 17 liberal interpretation of a civil rights complaint may not supply essential elements of the 18 claim that were not initially pled. Id. 19 A. 20 Failure to State a Claim Against Any Defendant 1. Arpaio 21 Plaintiff fails to state a claim against Arpaio. For an individual to be liable in his 22 individual capacity, “[a] plaintiff must allege facts, not simply conclusions, that show that 23 the individual was personally involved in the deprivation of his civil rights.” Barren v. 24 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 25 superior liability under § 1983, so a defendant’s position as the supervisor of someone 26 who allegedly violated a plaintiff’s constitutional rights does not make him liable. 27 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691; Taylor v. List, 880 F.2d 1040, 1045 28 (9th Cir. 1989) (citation omitted). A supervisor in his individual capacity “is only liable JDDL-K -4- Further, there is no respondeat 1 for constitutional violations of his subordinates if the supervisor participated in or 2 directed the violations, or knew of the violations and failed to act to prevent them.” 3 Taylor, 880 F.2d at 1045. Alternatively, for an individual to be liable in his official 4 capacity, a plaintiff must allege injuries resulting from a policy, practice, or custom of the 5 entity for which that individual exercises final policy-making authority. Monell, 436 U.S. 6 694; Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). 7 Plaintiff does not allege that Arpaio personally kept him from being able to listen 8 to the CD, nor does he allege that, as a supervisor, Arpaio directed anyone else to keep 9 him from doing so, or knew that Plaintiff was unable to do so, yet failed to act. Plaintiff 10 also fails to allege any facts showing that the denial of his requests resulted from a policy, 11 practice, or custom observed at the Lower Buckeye Jail. Accordingly, Plaintiff fails to 12 state a claim against Arpaio in either his individual or official capacity. 13 2. Barney, Chucri, Kunasek, Hickman, and Gallardo 14 Plaintiff also fails to state a claim against Maricopa County Supervisors Barney, 15 Chucri, Kunasek, Hickman, and Gallardo. When individuals, such as members of the 16 Maricopa County Board of Supervisors, are sued in an official capacity, the real party in 17 interest is the entity of which the members are agents. Kentucky v. Graham, 473 U.S. 18 159, 165-66 (1985) (quoting Monell, 436 U.S. at 690 n. 55). In this case, that entity is 19 Maricopa County. A municipality may not be sued, however, solely because an injury 20 was inflicted by one of its employees or agents. Long v.County of Los Angeles, 442 F.3d 21 1178, 1185 (9th Cir. 2006) (citation omitted). Rather, the municipality is liable only 22 when the execution of its policy or custom inflicts a constitutional injury. Id. (citation 23 omitted); Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005) (citation 24 omitted). 25 Plaintiff has not alleged that his rights were violated as the result of any policy, 26 practice, or custom of Maricopa County. Moreover, official county policy may only be 27 set by an official with “final policymaking authority” (Id. (citing Pembaur v. City of 28 Cincinnati, 475 U.S. 469, 481-83 (1986) (plurality opinion)), and in Arizona, the JDDL-K -5- 1 responsibility for operating jails is placed on the county sheriff, not on a county’s board 2 of supervisors. See Ariz. Rev. Stat. Ann. § 11-441(A)(5); Ariz. Rev. Stat. Ann. § 31-101. 3 Therefore, even if Plaintiff had alleged facts showing his injury stemmed from a policy or 4 practice observed at the Lower Buckeye Jail, the Maricopa County Board of Supervisors 5 would not be liable under § 1983 because it lacks authority to establish an official policy 6 with respect to the operation of the jail. Further, the Board cannot be held liable for the 7 actions of the Sheriff or his deputies on a theory of respondeat superior liability. See Los 8 Angeles Police Prot. League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990) (citation 9 omitted). Accordingly, Plaintiff fails to state a claim against Barney, Chucri, Kunasek, 10 Hickman, and Gallardo. 11 3. Scottsdale City Court 12 Finally, Plaintiff fails to state a claim against the Scottsdale City Court. Claims 13 under § 1983 may be directed at “bodies politic and corporate.” Monell, 436 U.S. at 688- 14 89. “[A] municipality can be sued under § 1983, but it cannot be held liable unless a 15 municipal policy or custom caused the constitutional injury.” Leatherman v. Tarrant 16 County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993). “A 17 municipality may be liable for actions resulting in violations of constitutional rights only 18 when the conduct of its official or agent is executed pursuant to a government policy or 19 custom.” Lewis v. Sacramento County, 98 F.3d 434, 446 (9th Cir. 1996), rev’d on other 20 grounds, 523 U.S. 833 (1998). Although the Scottsdale City Court is an arm or agency of 21 the City of Scottsdale, which is subject to suit under § 1983, Plaintiff does not allege that 22 his rights were violated due to a policy or custom of the City of Scottsdale. There is also 23 no respondeat superior liability under § 1983; thus, the City of Scottsdale’s position as 24 the employer or supervisor of someone who may have violated Plaintiff’s constitutional 25 rights does not impose liability. Monell, 436 U.S. at 691-92. Accordingly, Plaintiff fails 26 to state a claim against the Scottsdale City Court. 27 ... 28 ... JDDL-K -6- 1 B. 2 Even if Plaintiff had named a proper Defendant – someone who, through his own, 3 individual actions, kept Plaintiff from being able to listen to the CD of his Scottsdale City 4 Court hearing – Plaintiff fails to state a constitutional claim based on the loss of his 5 appeal in the Scottsdale City Court. Failure to State a Constitutional Claim 6 As the Court noted in its January 28, 2015 Order, the right of meaningful access to 7 the courts prohibits officials from actively interfering with inmates’ attempts to prepare 8 or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to 9 the courts is only a right to bring petitions or complaints to court, however, and not a 10 right to discover such claims or even to ligate them effectively once filed with a court. 11 Id. at 354. The right “guarantees no particular methodology but rather the conferral of a 12 capability – the capability of bringing contemplated challenges to sentences or conditions 13 of confinement before the courts.” Id. at 356. 14 For an access-to-courts claim, a plaintiff must show that he suffered an “actual 15 injury” with respect to contemplated litigation. Id. at 349. To show actual injury, the 16 plaintiff must demonstrate that the defendants’ conduct frustrated or impeded him from 17 bringing to court a nonfrivolous claim that he wished to present. Id. at 352-53. 18 Moreover, “the injury requirement is not satisfied by just any type of frustrated 19 legal claim.” Id. at 354. The right of access to the courts “does not guarantee inmates the 20 wherewithal to transform themselves into litigating engines capable of filing everything 21 from shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous 22 claim must be a direct or collateral attack on the inmate’s sentence or a challenge to the 23 conditions of his confinement. Id. “Impairment of any other litigating capacity is simply 24 one of the incidental (and perfectly constitutional) consequences of conviction and 25 incarceration.” Id. (emphasis in original). 26 Plaintiff’s claim fails for a number of reasons. First, Plaintiff does not allege facts 27 showing he was impaired in his ability to bring a direct or collateral attack on his 28 sentence or a challenge to the conditions of his confinement. Plaintiff alleges that his JDDL-K -7- 1 inability to listen to the CD of his August 6, 2014 Order of Protection hearing “directly 2 interfered with and impacted [his criminal] defense and subsequent incarceration.” But 3 based on the facts alleged, Plaintiff was arrested for violating the Order of Protection on 4 July 3, 2014, a month before the date of the hearing in which he purportedly challenged 5 that order and lost. Thus, the facts alleged do not plausibly show that an appeal of that 6 decision, even if successful, would have impacted Plaintiff’s arrest and incarceration for a 7 criminal violation that had already taken place. 8 Additionally, Plaintiff has not alleged facts showing he had a nonfrivolous reason 9 for appealing the Scottsdale City Court’s ruling. Although Plaintiff baldly asserts that 10 “with access to the transcript and other legal materials regarding this case” he would have 11 won his appeal, he does not identify any claims the transcript and these “other legal 12 materials” would have allowed him to make. To the extent Plaintiff implies that access to 13 the Scottsdale City Court transcript would have allowed him to discover appealable errors 14 in that court’s decision that he was otherwise unable to identify, this supposition is too 15 speculative to form the basis of an access-to-the-courts claim. In short, Plaintiff fails to 16 allege any facts that plausibly show that being permitted to listen to the CD would have 17 allowed him to make a nonfrivolous claim, and, even if it did, that his ability to make that 18 claim would have either directly or indirectly impacted his criminal sentence. 19 IV. Dismissal without Leave to Amend 20 Because Plaintiff has failed to state a claim in his First Amended Complaint, the 21 Court will dismiss his First Amended Complaint. “Leave to amend need not be given if a 22 complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 23 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 24 particularly broad where Plaintiff has previously been permitted to amend his complaint. 25 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 26 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 27 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. The Court 28 JDDL-K -8- 1 finds that further opportunities to amend would be futile. Therefore, the Court, in its 2 discretion, will dismiss Plaintiff’s First Amended Complaint without leave to amend. 3 IT IS ORDERED: 4 (1) Plaintiff’s non-prisoner Application to Proceed (Doc. 17) is granted. 5 (2) Plaintiff’s Motions to Add Counts (Docs. 5 and 6) are granted, and his 6 Motion for Disclosure (Doc. 7) is denied pursuant to the Court’s January 28, 2015 Order. 7 (3) Plaintiff Motion to Appoint Counsel (Doc. 18) is denied as moot. 8 (4) Plaintiff’s First Amended Complaint (Doc. 14) and this action are 9 10 11 12 13 dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. (5) 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). (6) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. 14 § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of 15 this decision would not be taken in good faith. 16 Dated this 2nd day of July, 2015. 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K -9-

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