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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SKC
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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael David Johnson,

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No. CV 14-2519-PHX-DGC (DMF)

Plaintiff,
v.

ORDER

Maricopa County Sheriff's Office, et al.,

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Defendants.

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On November 14, 2014, Plaintiff Michael David Johnson, who was then confined

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in the Maricopa County Lower Buckeye Jail, 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 28, 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 5, 2015, Plaintiff filed a Notice of Change of Address indicating he is

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no longer in custody, and on May 7, 2015, he filed his First Amended Complaint

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(Doc. 14). At the time Plaintiff was released, he still owed $292.00 towards his filing

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fee. In a May 15, 2015 Order, the Court gave Plaintiff 30 days to either pay the $292.00

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balance of the filing fee or file a non-prisoner Application to Proceed in District Court

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without Prepaying Fees or Costs. Plaintiff has since filed a non-prisoner Application to

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Proceed (Doc. 17) and a Motion to Appoint Counsel (Doc. 18).

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The Court will grant the non-prisoner Application to Proceed, dismiss the First

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Amended Complaint and this action, and deny the Motion to Appoint Counsel as moot.

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I.

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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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.

First Amended Complaint

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In his single-count First Amended Complaint, Plaintiff names as Defendants

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Maricopa County Sheriff Joseph M. Arpaio; Maricopa County Supervisors Denny

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Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Steve Gallardo; and the

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Scottsdale City Court.

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protection hearing/re-hearing,” and court costs.

Plaintiff seeks punitive damages, “appeal of civil order of

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Plaintiff claims that Defendants violated his due process rights by denying him

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access to a court transcript he needed to appeal an Order of Protection in Scottsdale City

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Court. Plaintiff’s claim is based on the following allegations:

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On July 3, 2014, Plaintiff was arrested for violating an Order of Protection issued

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by the Scottsdale City Court, and he was placed in the Lower Buckeye Jail to await trial.

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While in custody, Plaintiff was transported to an August 6, 2014 hearing in his Order of

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Protection case. Plaintiff lost that hearing, and he filed for an appeal and requested a

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copy of the August 6, 2014 hearing transcript. The Scottsdale City Court sent Plaintiff an

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audio CD of the hearing per their policy. This CD was intercepted by the Lower

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Buckeye Jail legal services and held by the property department.

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On August 15, 2014, Plaintiff filed an inmate request, asking to listen to the CD,

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and the request was denied on August 20, 2014. On August 22, 2014, Plaintiff wrote to

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the Scottsdale City Court requesting assistance, and his request was denied on

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September 29, 2014. In the meantime, Plaintiff filed a series of inmate grievances and

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grievance appeals regarding the denial of his request to hear the CD. On October 6,

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2014, Plaintiff’s final grievance was denied. Plaintiff wrote his memorandum appealing

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the Scottsdale City Court’s Order of Protection decision without access to the hearing

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transcript, and lost his appeal.

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Plaintiff alleges that the Order of Protection was frivolous, and he believes he

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would have won his appeal if he had been given access to the August 6, 2014 hearing
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transcript. He claims that Defendants’ denial of due process in not making the transcript

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available to him “directly interfered with and impacted [his] defense and subsequent

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incarceration.”

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III.

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)). Negligence is not sufficient to state a claim under § 1983.

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Daniels v. Williams, 474 U.S. 327, 330-31 (1986). In addition, a plaintiff must allege that

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he suffered a specific injury as a result of the conduct of a particular defendant and he

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must allege an affirmative link between the injury and the conduct of that defendant.

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Rizzo v. Goode, 423 U.S. 362, 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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Failure to State a Claim Against Any Defendant
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Arpaio

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Plaintiff fails to state a claim against Arpaio. For an individual to be liable in his

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individual capacity, “[a] plaintiff must allege facts, not simply conclusions, that show that

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the individual was personally involved in the deprivation of his civil rights.” Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

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

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

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Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691; Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989) (citation omitted). A supervisor in his individual capacity “is only liable
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Further, there is no respondeat

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for constitutional violations of his subordinates if the supervisor participated in or

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directed the violations, or knew of the violations and failed to act to prevent them.”

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Taylor, 880 F.2d at 1045. Alternatively, for an individual to be liable in his official

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capacity, a plaintiff must allege injuries resulting from a policy, practice, or custom of the

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entity for which that individual exercises final policy-making authority. Monell, 436 U.S.

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694; Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002).

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Plaintiff does not allege that Arpaio personally kept him from being able to listen

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to the CD, nor does he allege that, as a supervisor, Arpaio directed anyone else to keep

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him from doing so, or knew that Plaintiff was unable to do so, yet failed to act. Plaintiff

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also fails to allege any facts showing that the denial of his requests resulted from a policy,

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practice, or custom observed at the Lower Buckeye Jail. Accordingly, Plaintiff fails to

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state a claim against Arpaio in either his individual or official capacity.

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2.

Barney, Chucri, Kunasek, Hickman, and Gallardo

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Plaintiff also fails to state a claim against Maricopa County Supervisors Barney,

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Chucri, Kunasek, Hickman, and Gallardo. When individuals, such as members of the

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Maricopa County Board of Supervisors, are sued in an official capacity, the real party in

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interest is the entity of which the members are agents. Kentucky v. Graham, 473 U.S.

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159, 165-66 (1985) (quoting Monell, 436 U.S. at 690 n. 55). In this case, that entity is

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Maricopa County. A municipality may not be sued, however, solely because an injury

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was 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) (citation omitted). Rather, the municipality is liable only

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when the execution of its policy or custom inflicts a constitutional injury. Id. (citation

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omitted); Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005) (citation

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omitted).

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Plaintiff has not alleged that his rights were violated as the result of any policy,

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practice, or custom of Maricopa County. Moreover, official county policy may only be

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set by an official with “final policymaking authority” (Id. (citing Pembaur v. City of

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Cincinnati, 475 U.S. 469, 481-83 (1986) (plurality opinion)), and in Arizona, the
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responsibility for operating jails is placed on the county sheriff, not on a county’s board

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of supervisors. See Ariz. Rev. Stat. Ann. § 11-441(A)(5); Ariz. Rev. Stat. Ann. § 31-101.

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Therefore, even if Plaintiff had alleged facts showing his injury stemmed from a policy or

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practice observed at the Lower Buckeye Jail, the Maricopa County Board of Supervisors

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would not be liable under § 1983 because it lacks authority to establish an official policy

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with respect to the operation of the jail. Further, the Board cannot be held liable for the

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actions of the Sheriff or his deputies on a theory of respondeat superior liability. See Los

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Angeles Police Prot. League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990) (citation

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omitted). Accordingly, Plaintiff fails to state a claim against Barney, Chucri, Kunasek,

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Hickman, and Gallardo.

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3.

Scottsdale City Court

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Finally, Plaintiff fails to state a claim against the Scottsdale City Court. Claims

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under § 1983 may be directed at “bodies politic and corporate.” Monell, 436 U.S. at 688-

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89. “[A] municipality can be sued under § 1983, but it cannot be held liable unless a

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municipal policy or custom caused the constitutional injury.” Leatherman v. Tarrant

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County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993). “A

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municipality may be liable for actions resulting in violations of constitutional rights only

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when the conduct of its official or agent is executed pursuant to a government policy or

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custom.” Lewis v. Sacramento County, 98 F.3d 434, 446 (9th Cir. 1996), rev’d on other

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grounds, 523 U.S. 833 (1998). Although the Scottsdale City Court is an arm or agency of

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the City of Scottsdale, which is subject to suit under § 1983, Plaintiff does not allege that

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his rights were violated due to a policy or custom of the City of Scottsdale. There is also

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no respondeat superior liability under § 1983; thus, the City of Scottsdale’s position as

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the employer or supervisor of someone who may have violated Plaintiff’s constitutional

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rights does not impose liability. Monell, 436 U.S. at 691-92. Accordingly, Plaintiff fails

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to state a claim against the Scottsdale City Court.

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B.

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Even if Plaintiff had named a proper Defendant – someone who, through his own,

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individual actions, kept Plaintiff from being able to listen to the CD of his Scottsdale City

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Court hearing – Plaintiff fails to state a constitutional claim based on the loss of his

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appeal in the Scottsdale City Court.

Failure to State a Constitutional Claim

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As the Court noted in its January 28, 2015 Order, the right of meaningful access to

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the courts prohibits officials from actively interfering with inmates’ attempts to prepare

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or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to

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the courts is only a right to bring petitions or complaints to court, however, and not a

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right to discover such claims or even to ligate them effectively once filed with a court.

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Id. at 354. The right “guarantees no particular methodology but rather the conferral of a

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capability – the capability of bringing contemplated challenges to sentences or conditions

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of confinement before the courts.” Id. at 356.

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For an access-to-courts claim, a plaintiff must show that he suffered an “actual

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injury” with respect to contemplated litigation. Id. at 349. To show actual injury, the

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plaintiff must demonstrate that the defendants’ conduct frustrated or impeded him from

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bringing to court a nonfrivolous claim that he wished to present. Id. at 352-53.

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Moreover, “the injury requirement is not satisfied by just any type of frustrated

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legal claim.” Id. at 354. The right of access to the courts “does not guarantee inmates the

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wherewithal to transform themselves into litigating engines capable of filing everything

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from shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous

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claim must be a direct or collateral attack on the inmate’s sentence or a challenge to the

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conditions of his confinement. Id. “Impairment of any other litigating capacity is simply

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one of the incidental (and perfectly constitutional) consequences of conviction and

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incarceration.” Id. (emphasis in original).

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Plaintiff’s claim fails for a number of reasons. First, Plaintiff does not allege facts

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showing he was impaired in his ability to bring a direct or collateral attack on his

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sentence or a challenge to the conditions of his confinement. Plaintiff alleges that his
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inability to listen to the CD of his August 6, 2014 Order of Protection hearing “directly

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interfered with and impacted [his criminal] defense and subsequent incarceration.” But

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based on the facts alleged, Plaintiff was arrested for violating the Order of Protection on

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July 3, 2014, a month before the date of the hearing in which he purportedly challenged

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that order and lost. Thus, the facts alleged do not plausibly show that an appeal of that

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decision, even if successful, would have impacted Plaintiff’s arrest and incarceration for a

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criminal violation that had already taken place.

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Additionally, Plaintiff has not alleged facts showing he had a nonfrivolous reason

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for appealing the Scottsdale City Court’s ruling. Although Plaintiff baldly asserts that

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“with access to the transcript and other legal materials regarding this case” he would have

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won his appeal, he does not identify any claims the transcript and these “other legal

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materials” would have allowed him to make. To the extent Plaintiff implies that access to

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the Scottsdale City Court transcript would have allowed him to discover appealable errors

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in that court’s decision that he was otherwise unable to identify, this supposition is too

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speculative to form the basis of an access-to-the-courts claim. In short, Plaintiff fails to

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allege any facts that plausibly show that being permitted to listen to the CD would have

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allowed him to make a nonfrivolous claim, and, even if it did, that his ability to make that

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claim would have either directly or indirectly impacted his criminal sentence.

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IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his First Amended Complaint, the

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Court will dismiss his First Amended Complaint. “Leave to amend need not be given if a

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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. The Court

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finds that further opportunities to amend would be futile. Therefore, the Court, in its

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discretion, will dismiss Plaintiff’s First Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s non-prisoner Application to Proceed (Doc. 17) is granted.

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(2)

Plaintiff’s Motions to Add Counts (Docs. 5 and 6) are granted, and his

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Motion for Disclosure (Doc. 7) is denied pursuant to the Court’s January 28, 2015 Order.

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(3)

Plaintiff Motion to Appoint Counsel (Doc. 18) is denied as moot.

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(4)

Plaintiff’s First Amended Complaint (Doc. 14) and this action are

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

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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 2nd day of July, 2015.

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