De La Rosa v. Arpaio et al

Filing 14

ORDER: Plaintiff's Second Amended Complaint (Doc. 12 ) and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. The Clerk of Court must make an entry on the docket stating that the di smissal 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 09/18/2015. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rodney Cabrera De La Rosa,

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Plaintiff,

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v.

No. CV 15-0715-PHX-DGC (JFM)

ORDER

Joseph M. Arpaio, et al.,

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Defendants.

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On April 20, 2015, Plaintiff Rodney Cabrera De La Rosa, who is confined in the

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Arizona State Prison Complex-Florence, filed a pro se civil rights Complaint pursuant to

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42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a May 15, 2015

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Order, the Court granted the Application to Proceed and dismissed the Complaint

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

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amended complaint that cured the deficiencies identified in the Order.

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On June 8, 2015, Plaintiff filed his First Amended Complaint. In a July 7, 2015

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Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to

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

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cured the deficiencies identified in the Order.

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On July 24, 2015, Plaintiff filed a Second Amended Complaint (Doc. 12). The
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 three-count Second Amended Complaint, Plaintiff names the following

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Defendants: Maricopa County Sheriff Joseph M. Arpaio and Maricopa County Jail

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Detention Officers A5115, A6501, A4860, A8013, A2759, and B1492.

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In Count One, Plaintiff claims that while he was confined in the Maricopa County

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Jail, he was only provided two meals per day. Plaintiff claims Defendant Arpaio

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approved this practice and that Defendants A5115, A4860, A8013, and A2759 denied his

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grievances related to the issue and told him that he received 2000-2600 calories per day,

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which had been approved as nutritionally sufficient. Plaintiff claims the diet was not

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balanced and compromised his health.

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In Count Two, Plaintiff claims temperatures in the jail were “extremely cold.”

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Specifically, Plaintiff claims that 73.6 degrees is an average room temperature, but that

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temperatures in the jail were typically between 69 and 70 degrees. Plaintiff claims this

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threatened his safety by triggering his PTSD.

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In Count Three, Plaintiff claims Defendant B1492 questioned him about a

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grievance and during the questioning was manipulative and lied to Plaintiff. Plaintiff

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further states, “my confidence on disciplinary proceedings handled by B1492 has been

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compromised.”

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Plaintiff seeks injunctive relief and money damages.
III.

Failure to State a Claim
Section 1983 provides a cause of action against persons acting under color of state

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

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law. 42 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir.

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1995). As with the original Complaint and First Amendment Complaint, Plaintiff has

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failed to allege any constitutional or federal-law violations in the Second Amended

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Complaint.

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Further, a pretrial detainee’s claim for unconstitutional conditions of confinement
arises from the Fourteenth Amendment Due Process Clause rather than from the Eighth

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

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520, 535 and n.16 (1979). Nevertheless, the same standards are applied, requiring proof

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

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1128 (9th Cir. 1998).

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Deliberate indifference is a higher standard than negligence or lack of ordinary

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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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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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Even if the Court construes Plaintiff’s claims as raised pursuant to the Fourteenth

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Amendment, Plaintiff has not alleged sufficient facts to state a Fourteenth Amendment

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claim in any of his grounds for relief. In Count One, Plaintiff alleges that each of the

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Defendants he complained to regarding food told him that the meals contained sufficient

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calories and nutrients. Plaintiff does not allege that any of the Defendants were aware of

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a serious risk of harm to his health as a result of receiving only two meals per day.

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Accordingly, Plaintiff has failed to state a claim in Count One.

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In Count Two, Plaintiff alleges that his housing unit was typically 69 to 70 degrees

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and that the “extreme cold” triggered his PTSD. The Court finds Plaintiff’s claim

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implausible. Iqbal, 556 U.S. at 679. Further, Plaintiff’s allegations simply do rise to the

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level of a constitutional violation. “It cannot be said that all . . . conditions . . . even if

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discomforting or undesirable, amount to deprivations of constitutional dimensions . . . [A]

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federal court is not the proper forum for challenging or changing every aspect of the

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harsh realities of confinement unless conditions cannot be tolerated under the

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Constitution.” Thomas v. Smith, 559 F.Supp. 223, 224 (W.D.N.Y. 1983) (citing Griffin v.

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Smith, 493 F.Supp. 129 (W.D.N.Y. 1980)).

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In Count Three, Plaintiff claims Defendant B1492 was manipulative and lied.
Plaintiff does not explain how this violates his constitutional rights.

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Plaintiff has failed to state a claim in Counts One, Two, or Three of the Second

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Amended Complaint.

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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. 12) 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).

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(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 18th day of September, 2015.

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