Bishop v. Reyes

Filing 9

ORDER granting Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs (Doc. 2 ). IT IS FURTHER ORDERED dismissing Plaintiff's Complaint (Doc. 1 ) for failure to state a cause of action. Plaintiff shall fil e a First Amended Complaint within thirty days of the filing of this Order. If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice. Signed by Magistrate Judge Eileen S Willett on 5/19/16. (KGM)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Shirley Bishop, Plaintiff, 10 11 ORDER v. 12 No. CV-16-00009-PHX-ESW Frank Reyes, 13 Defendant. 14 15 16 Plaintiff has consented to the exercise of Magistrate Judge jurisdiction. (Doc. 7). 17 Pending before the Court is Plaintiff’s Application to Proceed in District Court without 18 Prepaying Fees or Costs (Doc. 2). For good cause shown, the Application is granted, and 19 Plaintiff is allowed to proceed in forma pauperis. The Court, however, must screen the 20 Complaint (Doc. 1) before it is allowed to be served. 28 U.S.C. § 1915(e)(2). As the 21 Ninth Circuit Court of Appeals has explained, “section 1915(e) not only permits but 22 requires a district court to dismiss an in forma pauperis complaint that fails to state a 23 claim.” Lopez v. Smith, 203 F. 3d 1122, 1127 (9th Cir. 2000). 24 I. Statutory Screening of In Forma Pauperis Complaint 25 The Court must dismiss a complaint or portion thereof if a plaintiff has raised 26 claims that are legally frivolous or malicious, that fail to state a claim upon which relief 27 may be granted, or that seek monetary relief from a defendant who is immune from such 28 relief. 28 U.S.C. § 1915A(b)(1)–(2). A pleading must contain a “short and plain 1 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 2 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it 3 demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” 4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 5 cause of action, supported by mere conclusory statements, do not suffice.” Id. “[A] 6 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 7 relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 8 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that 9 allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 12 judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific 13 factual allegations may be consistent with a constitutional claim, a court must assess 14 whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681. 15 But as the United States Court of Appeals for the Ninth Circuit has instructed, 16 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 17 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less 18 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 19 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 20 If the Court determines that a pleading could be cured by the allegation of other 21 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 22 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 23 II. Complaint 24 A. Conditions of Confinement Claim 25 To prevail in a 42 U.S.C. § 1983 claim, a plaintiff must show that (1) acts by the 26 defendant (2) under color of state law (3) deprived her of federal rights, privileges or 27 immunities and (4) caused her damage. Thornton v. City of St. Helens, 425 F.3d 1158, 28 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game -2- 1 Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that she 2 suffered a specific injury as a result of the conduct of a particular defendant, and she must 3 allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. 4 Goode, 423 U.S. 362, 371-72, 377 (1976). 5 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 6 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 7 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 8 liberal interpretation of a civil rights complaint may not supply essential elements of the 9 claim that were not initially pled. Id. 10 Plaintiff appears to be seeking relief for allegedly unconstitutional conditions of 11 confinement. A pretrial detainee’s claim for unconstitutional conditions of confinement 12 arises from the Fourteenth Amendment’s Due Process Clause rather than from the Eighth 13 Amendment’s prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 14 U.S. 520, 535 n.16 (1979). Nevertheless, the same standards are applied, requiring proof 15 that the defendant acted with “deliberate indifference.” See Frost v. Agnos, 152 F.3d 16 1124, 1128 (9th Cir. 1998). 17 “Deliberate indifference” is a higher standard than negligence or lack of ordinary 18 due care for the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 835 19 (1994). To state a claim of deliberate indifference, plaintiff must meet a two-part test. 20 First, the alleged constitutional deprivation must objectively be “sufficiently serious”; 21 that is, the official’s act or omission must result in the denial of “the minimal civilized 22 measure of life’s necessities.” Id. at 834 (citations omitted). Second, the prison official 23 must have a “sufficiently culpable state of mind”; that is, “the official must be both aware 24 of facts from which the inference could be drawn that a substantial risk of serious harm 25 exists, and he must also draw that inference.” Id. at 837 (emphasis added). “The 26 circumstances, nature, and duration of a deprivation of [] necessities must be considered 27 in determining whether a constitutional violation has occurred.” Hearns v. Terhune, 413 28 -3- 1 F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2 2000)). 3 Allegations of overcrowding, without more, do not state a claim under the Eighth 4 and Fourteenth Amendments. See Hoptowit v. Ray, 682 F.2d 1237, 1248-49 (9th Cir. 5 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). A 6 plaintiff may, however, state a cognizable claim where she alleges that overcrowding 7 results in some unconstitutional condition. See, e.g., Akao v. Shimoda, 832 F.2d 119, 120 8 (9th Cir. 1987) (reversing district court’s dismissal of claim that overcrowding caused 9 increased stress, tension and communicable disease among inmate population); see also 10 Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming that an Eighth 11 Amendment violation may occur as a result of overcrowded prison conditions causing 12 increased violence, tension and psychiatric problems). 13 B. Defendant Sheriff Frank Reyes 14 To state a valid claim under § 1983, plaintiff must allege that she suffered a 15 specific injury as a result of specific conduct by a specific defendant and show an 16 affirmative link between the injury and the conduct of that defendant. See Rizzo v. 17 Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior liability 18 under § 1983, and therefore, a defendant’s position as the supervisor of persons who 19 allegedly violated Plaintiff’s constitutional rights does not impose liability. Monell v. 20 New York City Dep’t of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 21 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 22 “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must 23 plead that each Government-official defendant, through the official’s own individual 24 actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 25 Plaintiff has failed to allege any facts regarding Defendant Reyes in her 26 Complaint. Plaintiff does not allege that Defendant Reyes directly violated Plaintiff’s 27 constitutional rights. Moreover, Plaintiff does not allege facts that Defendant Reyes 28 violated Plaintiff’s constitutional rights pursuant to a policy, practice, or custom, or that -4- 1 Defendant Reyes participated in or directed any violations of Plaintiff’s rights, or knew of 2 any violations of Plaintiff’s rights but failed to act to prevent them. 3 Plaintiff fails to state a claim against Defendant Reyes, and all claims as to Defendant 4 Reyes will be dismissed. Because the Court has determined that Plaintiff has not stated a 5 claim against any named Defendant for which relief could be granted, the Complaint will 6 be dismissed. Accordingly, 7 III. Leave to Amend 8 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to 9 state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 10 first amended complaint to cure the deficiencies outlined above. Plaintiff must clearly 11 designate on the face of the document that it is the “First Amended Complaint.” 12 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 13 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 14 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 15 complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 16 in the original complaint and that was voluntarily dismissed or was dismissed without 17 prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa 18 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). If Plaintiff files an amended 19 complaint, Plaintiff must write short, plain statements telling the Court: (1) the 20 constitutional right Plaintiff believes was violated; (2) the name of the Defendant who 21 violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action 22 or inaction of that Defendant is connected to the violation of Plaintiff’s constitutional 23 right; and (5) what specific injury Plaintiff suffered because of that Defendant’s conduct. 24 See Rizzo, 423 U.S. at 377. Plaintiff must repeat this process for each person she names 25 as a Defendant. 26 Defendant with the specific injury suffered by Plaintiff, the allegations against that 27 Defendant will be dismissed for failure to state a claim. Conclusory allegations that a If Plaintiff fails to affirmatively link the conduct of each named 28 -5- 1 Defendant or group of Defendants has violated a constitutional right are not acceptable 2 and will be dismissed. 3 IV. Possible Dismissal 4 If Plaintiff fails to timely comply with every provision of this Order, the Court 5 may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a 6 district court may dismiss an action for failure to comply with any order of the Court). 7 V. Conclusion 8 For the reasons set forth herein, 9 IT IS ORDERED granting Plaintiff’s Application to Proceed in District Court 10 11 12 13 14 without Prepaying Fees or Costs (Doc. 2). IT IS FURTHER ORDERED dismissing Plaintiff’s Complaint (Doc. 1) for failure to state a cause of action. IT IS FURTHER ORDERED that Plaintiff shall file a First Amended Complaint within thirty (30) days of the filing of this Order. 15 IT IS FURTHER ORDERED that if Plaintiff fails to file an amended complaint 16 within 30 days, the Clerk of Court must, without further notice, enter a judgment of 17 dismissal of this action without prejudice. 18 Dated this 19th day of May, 2016. 19 20 21 22 23 24 25 26 27 28 -6-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?