Mauer v. Mohave County Sheriff et al

Filing 10

ORDER denying as moot 8 Motion to proceed. The First Amended Complaint (Doc. 9) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order. I f Plaintiff fails to file a second amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice. The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Judge Robert C Broomfield on 4/14/11. (Attachments: # 1 prisoner civil rights complaint, even though plaintiff is not a prisoner)(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stephen Eugene Mauer,
Plaintiff,

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vs.

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Mohave County Sheriff, et al.,
Defendants.

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No. CV 11-8029-PCT-RCB (JRI)
ORDER

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On February 15, 2011, Plaintiff Stephen Eugene Mauer filed a pro se Prisoner Civil

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Rights Complaint pursuant to 42 U.S.C. § 1983 and an “Application for In Forma Pauperis

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Status.”

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In a March 7, 2011 Order, the Court noted that Plaintiff had not signed his Complaint

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or Application and gave Plaintiff 30 days to submit a completed and signed Certificate,

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certifying that Plaintiff’s signature on the Certificate would serve as an original signature on

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his Complaint and Application for the purposes of Rule 3.4(a) of the Local Rules of Civil

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Procedure and Rule 11 of the Federal Rules of Civil Procedure. The Court also noted that

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it was unclear whether Plaintiff was confined when he filed this lawsuit and gave Plaintiff

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30 days to submit a “Notice of Status of Confinement” that clearly indicated whether

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Plaintiff was confined when he filed his lawsuit, whether he is currently confined, and, if he

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is currently confined, where he is confined.

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On March 14, 2011, Plaintiff filed a Notice of Status of Confinement, indicating that
he was not confined when he filed his lawsuit and is not currently confined. He also

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submitted a signed Certificate, certifying that his signature on that document would serve as

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an original signature on his Complaint and Application.

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In a March 17, 2011 Order, the Court granted Plaintiff’s Application for In Forma

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Pauperis status and dismissed his Complaint for failure to state a claim. The Court gave

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Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the

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Order.
On April 7, 2011, Plaintiff filed a “Motion to Proceed” (Doc. 8) and a First Amended

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Complaint (Doc. 9).

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I.

Motion to Proceed

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In his Motion to Proceed, Plaintiff states that he wishes to proceed pro se and that he

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is “not sure about forma pauperis status of filing rules.” The Court will deny as moot

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Plaintiff’s Motion to Proceed; Plaintiff needs no special permission to proceed pro se and the

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Court has already permitted him to proceed in forma pauperis.

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II.

Section 1915(e)(2), 28 U.S.C.

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When a plaintiff is permitted to proceed in forma pauperis, the Court must dismiss a

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complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or

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malicious, that fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(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 not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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

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 1950. 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 1951.

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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 (9th

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

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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

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a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the

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

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should not, however, advise the litigant how to cure the defects. This type of advice “would

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undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225,

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231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was

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required to inform a litigant of deficiencies). Plaintiff’s First Amended Complaint will be

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dismissed for failure to state a claim, with leave to amend because the First Amended

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Complaint may possibly be saved by amendment.

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III.

First Amended Complaint

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Mohave County Sheriff Tom Sheahan and Mohave County Jail Captain-Director Bruce

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Brown. Plaintiff alleges a violation of “[p]rotected interests in conditions, reasonable care,

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safety, sanitary confinement conditions.” He claims that “jail person[n]el . . . altered the

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holding cells . . . by removing the bunks that were welded or secured to the walls,” thereby

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causing individuals who wanted to sleep or lay down to have to lay on the bare floors.

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Plaintiff contends that he fell asleep on the floor and that an abrasion on his leg got infected.

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In his one-count First Amended Complaint, Plaintiff sues the following Defendants:

In his Request to Relief, Plaintiff seeks compensation and “discovery.”
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IV.

Failure to State a Claim

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A.

Failure to Link Defendants with Injuries

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As the Court stated in its March 17, 2011 Order, to state a valid claim under § 1983,

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plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a

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

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See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior

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liability under § 1983, and therefore, a defendant’s position as the supervisor of persons who

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allegedly violated Plaintiff’s constitutional rights does not impose liability. Monell v. New

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York City Department of Social Services, 436 U.S. 658, 691-92 (1978); Hamilton v. Endell,

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981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead

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that each Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Iqbal, 129 S. Ct. at 1948.

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Plaintiff has not alleged that Defendant Sheahan or Defendant Brown personally

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participated in a deprivation of Plaintiff’s constitutional rights, were aware of a deprivation

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and failed to act, or formed policies that resulted in Plaintiff’s injuries. Thus, the Court will

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dismiss without prejudice Defendants Sheahan and Brown.

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B.

Failure to State a Constitutional Violation

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As the Court stated in its March 17, 2011 Order, § 1983 provides a cause of action

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against persons acting under color of state law who have violated rights guaranteed by the

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United States Constitution and federal law. 42 U.S.C. § 1983; see also Buckley v. City of

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Redding, 66 F.3d 188, 190 (9th Cir. 1995). Plaintiff has failed to allege any constitutional

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or federal-law violations in his Complaint. Thus, the Court will dismiss without prejudice

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Plaintiff’s First Amended Complaint because Plaintiff has failed to state a violation of a

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constitutional right.

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V.

Leave to Amend

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For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed for
failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may
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submit a second amended complaint to cure the deficiencies outlined above. As an aid to

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Plaintiff, the Clerk of Court will mail Plaintiff a court-approved form to use for filing a

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second amended complaint.

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

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Amended Complaint.” The second 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 or First Amended Complaint by reference. Plaintiff may include only one claim

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per count.

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If Plaintiff files a second amended complaint, Plaintiff must write short, plain

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

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

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failed to 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 that

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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 Plaintiff

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

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

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state a claim. Conclusory allegations that a Defendant or group of Defendants have

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violated a constitutional right are not acceptable and will be dismissed.

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pretrial detainee’s claim for unconstitutional conditions of confinement arises from the

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Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment

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prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 and

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n.16 (1979). Nevertheless, the same standards are applied, requiring proof that the defendant

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acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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

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care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To state a claim

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As the Court stated in its March 17, 2011 Order, Plaintiff should take note that a

of deliberate indifference, plaintiffs must meet a two-part test.
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First, the alleged

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constitutional deprivation must be, objectively, “sufficiently serious”; the official’s act or

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omission must result in the denial of “the minimal civilized measure of life’s necessities.”

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Id. at 834. Second, the prison official must have a “sufficiently culpable state of mind,” i.e.,

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he must act with deliberate indifference to inmate health or safety. Id. In defining

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“deliberate indifference” in this context, the Supreme Court has imposed a subjective test:

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“the official must both be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837

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(emphasis added).

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A second amended complaint supersedes the original Complaint and First Amended

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Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v.

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Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will

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treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d

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at 1262. Any cause of action that was raised in the original Complaint and First Amended

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Complaint is waived if it is not raised in a second amended complaint. King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987).

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VI.

Warnings

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A.

Address Changes

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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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action.

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B.

Copies

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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to Plaintiff.

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

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C

Possible Dismissal

warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at
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1260-61 (a district court may dismiss an action for failure to comply with any order of the

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Court).

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IT IS ORDERED:

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(1)

Plaintiff’s Motion to Proceed (Doc. 8) is denied as moot.

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(2)

The First Amended Complaint (Doc. 9) is dismissed for failure to state a claim.

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

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compliance with this Order.

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(3)

If Plaintiff fails to file a second amended complaint within 30 days, the Clerk

of Court must, without further notice, enter a judgment of dismissal of this action with

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prejudice.

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(4)

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

rights complaint by a prisoner.1
DATED this 14th day of April, 2011.

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Although Plaintiff is not a prisoner, the Court will suggest that Plaintiff use this form
to assist him in coherently presenting his claims to the Court.
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