Derello #037292 v. Harris et al

Filing 12

ORDER: (1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 9) is granted. (2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial p artial filing fee of $113.69. (3) Plaintiff's Motion to Insert Page (Doc. 11) is granted. (4) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. (5) 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 with prejudice that states that the dismis sal may count as a "strike" under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot. (6) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Judge Michael T Liburdi on 11/17/21. (Attachments: # 1 Forms for Civil Rights Complaint) (SJF)

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MDR

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Douglas Wayne Derello, Jr.,

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No. CV 21-01288-PHX-MTL (JFM)

Plaintiff,
v.

ORDER

N. Harris, et al.,
Defendants.

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Plaintiff Douglas Wayne Derello, Jr., is confined in the Arizona State Prison

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Complex-Eyman.

He filed pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 (Doc. 1) and subsequently filed an Application to Proceed In Forma

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Pauperis (Doc. 9) and a Motion to Insert Page (Doc. 11). The Court will grant the

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Application to Proceed and the Motion to Insert Page and will dismiss the Complaint with

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leave to amend.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C.

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§ 1915(b)(1). The Court will assess an initial partial filing fee of $113.69. The remainder

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of the fee will be collected monthly in payments of 20% of the previous month’s income

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credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00.

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28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate

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The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28

government agency to collect and forward the fees according to the statutory formula.

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II.

Motion to Insert Page

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In his Motion to Insert Page, Plaintiff requests to insert a page regarding his prior

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lawsuits that was mistakenly omitted from his Complaint. The Court, in its discretion, will

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grant the Motion and will consider as part of the Complaint the information contained in

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the page attached to the Motion to Insert Page.

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III.

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 which

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

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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 does

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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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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 content

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

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

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 681.

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

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

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342

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

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standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551

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

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If the Court determines that a pleading could be cured by the allegation of other

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facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

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of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).

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Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may

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possibly be amended to state a claim, the Court will dismiss it with leave to amend.

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IV.

Complaint

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In his one-count Complaint, Plaintiff seeks monetary damages and declaratory and

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injunctive relief from Defendants Deputy Warden Lori Stickley, Sergeant N. Harris, and

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Corrections Officer III E. Carrillo.

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Plaintiff alleges he has “active litigation” against Defendant Harris; Defendants

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Harris and Carrillo, “by their actions,” deliberately destroyed his property “[a]s an act of

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blatant retaliation d[ue] to [P]laintiff’s civil litigation against Defendant Harris”; and this

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violated his Eighth and Fourteenth Amendment rights and Arizona Revised Statutes section

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31-228. He also contends Defendant Harris “claimed that policy is what he follow[ed],”

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and that when Plaintiff “tried to tell him that [the] law protect[s Plaintiff’s] right for him to

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hold [Plaintiff’s] property,” Defendant Harris “claimed that [Plaintiff] was wrong.”

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Plaintiff asserts that it appears a hearing was held, but he was never informed of it or

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allowed to attend it. He claims Defendants were aware that they could not destroy his

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property.

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V.

Failure to State a Claim

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520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,
v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a

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civil rights complaint may not supply essential elements of the claim that were not initially

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pled. Id.

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A.

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To state a valid claim under § 1983, plaintiffs must allege that they suffered a

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specific injury as a result of specific conduct of a defendant and show an affirmative link

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between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362,

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371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore,

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a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s

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constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658

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(1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and

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§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.

Defendant Stickley

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deprivation of Plaintiff’s constitutional rights, was aware of a deprivation and failed to act,

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or formed policies that resulted in Plaintiff’s injuries. Plaintiff has made no allegations at

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all against Defendant Stickley. Thus, the Court will dismiss without prejudice Defendant

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Stickley.

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B.

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A viable claim of First Amendment retaliation contains five basic elements: (1) an

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assertion that a state actor took some adverse action against an inmate (2) because of

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(3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise

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of his First Amendment rights (or that the inmate suffered more than minimal harm) and

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(5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408

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F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir.

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1997) (retaliation claim requires an inmate to show (1) that the prison official acted in

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retaliation for the exercise of a constitutionally protected right, and (2) that the action

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Plaintiff has not alleged that Defendant Stickley personally participated in a

“advanced no legitimate penological interest”).

Retaliation

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The plaintiff has the burden of

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demonstrating that his exercise of his First Amendment rights was a substantial or

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motivating factor behind the defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ.

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v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314

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(9th Cir. 1989).

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Plaintiff alleges nothing to support his conclusory allegation that the destruction of

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his property was “an act of blatant retaliation” for his lawsuit against Defendant Harris.

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Absent more, Plaintiff’s allegations are too vague and conclusory to support a retaliation

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claim. Thus, the Court will dismiss without prejudice Plaintiff’s retaliation claim,

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C.

Eighth and Fourteenth Amendment Claim

Plaintiff has not alleged any facts to support an Eighth Amendment violation. Thus,
the Court will dismiss without prejudice Plaintiff’s Eighth Amendment claim.

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Plaintiff’s property claim arises, if at all, under the Due Process Clause of the

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Fourteenth Amendment. However, the “Due Process Clause is simply not implicated by a

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negligent act of an official causing unintended loss of or injury to life, liberty, or property.”

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Daniels v. Williams, 474 U.S. 327, 328 (1986).

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deprivations of property do not constitute a violation of procedural requirements of the Due

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Process Clause if a meaningful post-deprivation remedy for the loss is available. Hudson

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v. Palmer, 468 U.S. 517, 533 (1984). The availability of a common-law tort suit against a

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state employee constitutes an adequate post-deprivation remedy. Id. at 534-35. Moreover,

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Arizona provides a meaningful and adequate post-deprivation remedy through the prison

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grievance system, specifically Department Order 909(8.0). Dennison v. Ryan, 522 F.

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App’x 414, 417-18 (9th Cir. 2013); Aldrete v. Ariz. Dep’t of Corr., 2011 WL 30959, at *7

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(D. Ariz. Jan. 3, 2011); see also Wright v. Riveland, 219 F.3d 905, 918 (9th Cir. 2000)

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(both state tort claims and prison grievance procedures provide adequate post-deprivation

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remedies).

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unauthorized and intentional destruction of his property.

Even unauthorized and intentional

Thus, Plaintiff has failed to state a claim to regarding the negligent or

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Moreover, to the extent Plaintiff is attempted to raise a claim regarding the
authorized and intentional destruction of his property, see Haygood v. Younger, 769 F.2d

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1350, 1357 (9th Cir. 1985), his allegations are completely vague, and the Court cannot

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ascertain what policy Defendant Harris purportedly followed. Thus, the Court will dismiss

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without prejudice Plaintiff’s Fourteenth Amendment claims.

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D.

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Section 1983 does not provide a cause of action for violations of state law or state

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constitutional rights. Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981). Moreover, the

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Court will not exercise supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s

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state-law claim because Plaintiff’s federal claims have been dismissed. See Ove v. Gwinn,

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264 F.3d 817, 826 (9th Cir. 2001) (“A court may decline to exercise supplemental

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jurisdiction over related state-law claims once it has ‘dismissed all claims over which it has

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original jurisdiction.’” (quoting 28 U.S.C. § 1367(c)(3))); Gini v. Las Vegas Metro. Police

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Dep’ t, 40 F.3d 1041, 1046 (9th Cir. 1994) (when federal law claims are eliminated before

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trial, the court generally should decline jurisdiction over state law claims and dismiss them

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without prejudice).

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VI.

Violation of State Law

Leave to Amend

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For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state

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a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first

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amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail

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Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails

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to use the court-approved form, the Court may strike the amended complaint and dismiss

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this action without further notice to Plaintiff.

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Plaintiff must clearly designate on the face of the document that it is the “First

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Amended Complaint.” The first amended complaint must be retyped or rewritten in its

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entirety on the court-approved form and may not incorporate any part of the original

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Complaint by reference. Plaintiff may include only one claim per count.

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963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d

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A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet,
1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint

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as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the

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original Complaint and that was voluntarily dismissed or was dismissed without prejudice

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is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693

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F.3d 896, 928 (9th Cir. 2012) (en banc).

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If Plaintiff files an amended complaint, Plaintiff must write short, plain statements

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telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name

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of the Defendant who violated the right; (3) exactly what that Defendant did or failed to

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do; (4) how the action or inaction of that Defendant is connected to the violation of

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Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of

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that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377.

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Plaintiff must repeat this process for each person he names as a Defendant. If

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Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific

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injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for

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failure to state a claim.

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Defendants has violated a constitutional right are not acceptable and will be

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dismissed.

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VII.

Conclusory allegations that a Defendant or group of

Warnings

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A.

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If Plaintiff is released while this case remains pending, and the filing fee has not

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been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court

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that he intends to pay the unpaid balance of his filing fee within 120 days of his release or

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(2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may

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result in dismissal of this action.

Release

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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B.

action.

Address Changes

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C.

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Because the Complaint has been dismissed for failure to state a claim, if Plaintiff

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fails to file an amended complaint correcting the deficiencies identified in this Order, the

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dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

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Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil

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judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a

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court of the United States that was dismissed on the grounds that it is frivolous, malicious,

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or fails to state a claim upon which relief may be granted, unless the prisoner is under

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Possible “Strike”

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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D.

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If Plaintiff fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d

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at 1260-61 (a district court may dismiss an action for failure to comply with any order of

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the Court).

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IT IS ORDERED:

Possible Dismissal

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 9) is granted.

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(2)

As required by the accompanying Order to the appropriate government

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agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee

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of $113.69.

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(3)

Plaintiff’s Motion to Insert Page (Doc. 11) is granted.

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(4)

The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff

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has 30 days from the date this Order is filed to file a first amended complaint in compliance

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with this Order.

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(5)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

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prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g)

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Court must, without further notice, enter a judgment of dismissal of this action with
and deny any pending unrelated motions as moot.

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(6)

The Clerk of Court must mail Plaintiff a court-approved form for filing a

civil rights complaint by a prisoner.
Dated this 17th day of November, 2021.

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