Dreier v. Mortenson et al

Filing 7

ORDER (Service Packet) Plaintiff's Application to Proceed In Forma Pauperis is granted. (Doc. 5.) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an i nitial partial filing fee. Defendants Mohave County Jail, Mohave County Sheriff's Office, Mohave County, and Howard are dismissed without prejudice. Defendant Mortenson must answer Counts I and II. The Clerk of Court must send Plaintiff a servic e packet including the Complaint (Doc. 1), this Order, and both summons and request for waiver forms for Defendant Mortenson. This matter is referred to Magistrate Judge Jay R. Irwin pursuant to Rules 72.1and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge David G Campbell on 7/12/2011. (KMG)

1
2

SC

WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

Derald Wayne Dreier,

11
Plaintiff,
12
13

vs.

14
Kirsten Mortenson, et al.,
15
Defendants.

16
17

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. CV 11-08082-PCT-DGC (JRI)
ORDER

18

Plaintiff Derald Wayne Dreier, who is confined in the Arizona State Prison Complex-

19

Eyman, in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C.

20

§ 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 5.) The Court will order

21

Defendant Mortenson to answer Counts I and II of the Complaint and will dismiss the

22

remaining Defendants without prejudice.

23

I.

Application to Proceed In Forma Pauperis and Filing Fee

24

Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

25

§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

26

The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory

27

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

TERMPSREF 28

1

the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a

2

separate Order requiring the appropriate government agency to collect and forward the fees

3

according to the statutory formula.

4

II.

Statutory Screening of Prisoner Complaints

5

The Court is required to screen complaints brought by prisoners seeking relief against

6

a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

7

§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

8

claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

9

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

10

28 U.S.C. § 1915A(b)(1), (2).

11

A pleading must contain a “short and plain statement of the claim showing that the

12

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

13

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

14

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

15

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

16

statements, do not suffice.” Id.

17

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

18

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

19

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

20

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

21

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

22

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

23

experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

24

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

25

are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

26
27

must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

28
TERMPSREF

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

Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards
-2-

1

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

2

94 (2007) (per curiam)).

3

III.

Complaint

4

Plaintiff alleges two counts for denial of constitutionally adequate medical care.

5

Plaintiff sues the Mohave County Jail, the Mohave County Sheriff’s Office (MCSO),

6

Mohave County, and the Doctor Kirsten Mortenson and Grievance Co-ordinator E. Howard,

7

who both worked at the Mohave County Jail. Plaintiff seeks compensatory relief.

8

Plaintiff alleges the following facts: Prior to being jailed in the Mohave County Jail,

9

Plaintiff had back surgery and an electrical impulse stimulator was implanted. To work, the

10

stimulator requires a charging and control unit to keep it charged. In addition, to use the

11

stimulator, Plaintiff had to be able to turn the unit on and off. During his incarceration at the

12

Jail, Defendant Mortenson refused to allow Plaintiff access to the stimulator control unit as

13

an inconvenience to staff. Defendant Howard refused to intercede regarding Mortenson’s

14

decision after Plaintiff filed a grievance. As a result of the inability to activate the stimulator,

15

Plaintiff was in uncontrolled pain and had limited use of his left leg. Further, Plaintiff will

16

require another surgery to replace the implant due to its not being charged.

17

At some point while confined at the Jail, Plaintiff was attacked by another inmate,

18

resulting in injury to his right hand. Since the injury, Plaintiff is in constant pain and has

19

very limited range of motion. Dr. Mortenson had x-rays of the hand made. Although a bone

20

was sticking up three-quarters of an inch, Mortenson refused to treat the hand because it was

21

not life-threatening and therefore not their responsibility. According to Plaintiff, Grievance

22

Co-ordinator Howard refused to correct the situation.

23

IV.

Failure to State a Claim

24
25

conduct about which he complains was committed by a person acting under the color of state

26

law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v.

27

Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid constitutional

28
TERMPSREF

To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of
-3-

1

a particular defendant and he must allege an affirmative link between the injury and the

2

conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

3

A.

Improper Defendants

4

Plaintiff sues names the Mohave County Jail and MCSO as Defendants. Neither is

5

a proper Defendant under § 1983. Claims under §1983 are directed at “bodies politic and

6

corporate.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 688-89 (1978). Under the Civil

7

Rights Act of 1871, Congress intended municipalities and other local government units to

8

be included among those persons to whom § 1983 applies. Id. at 689-690. However,

9

because a jail is neither a corporation nor a body politic, it is not a “person” for purposes of

10

§1983. Similarly, a sheriff’s office is not a “person” within the meaning of § 1983. See e.g.,

11

Petaway v. City of New Haven Police Dep’t, 541 F. Supp.2d 504 (D. Conn. 2008); Pahle v.

12

Colebrookdale Tp., 227 F. Supp.2d 361 (E.D. Pa. 2002). Accordingly, both the Mohave

13

County Jail and MCSO will be dismissed.

14
15

Plaintiff also sues Mohave County. Mohave County is a municipality, and as

16

discussed above, is a “person” for purposes of § 1983, which may be sued. See Leatherman

17

v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993);

18

Monell, 436 U.S. at 694. However, to state a claim against a municipality under § 1983, a

19

plaintiff must allege facts to support that his constitutional rights were violated pursuant to

20

a policy or custom of the municipality. Cortez v. County of Los Angeles, 294 F.3d 1186,

21

1188 (9th Cir. 2001) (citing Monell, 436 U.S. at 690-91); Thompson v. City of Los Angeles,

22

885 F.2d 1439, 1443 (9th Cir. 1989)). Thus, a municipality may not be sued solely because

23

an injury was inflicted by one of its employees or agents, i.e., pursuant to respondeat

24

superior. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also

25

Board of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Further, “it is only when

26

the ‘execution of the government’s policy or custom inflicts the injury’ that the municipality

27

may be held liable under § 1983.” City of Springfield v. Kibbe, 480 U.S. 257, 267 (1987)

28
TERMPSREF

B.

Mohave County

(citing Monell, 436 U.S. at 694). But see City of Canton v. Harris, 489 U.S. 378, 389 (1989)
-4-

1

(holding local governments may be held liable if it has a policy of inaction and such a policy

2

results in failure to protect a constitutional right). Therefore, a § 1983 claim against a

3

municipal defendant “cannot succeed as a matter of law” unless a plaintiff: (1) alleges that

4

the municipal defendant maintains a policy or custom pertinent to the plaintiff’s alleged

5

injury; and (2) explains how such policy or custom caused the plaintiff’s injury. Sadoski v.

6

Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant

7

pursuant to Fed. R. Civ. P. 12(b)(6)).

8

Plaintiff predicates liability against Mohave County solely based on respondeat

9

superior. Plaintiff fails to allege facts to support that Mohave County promulgated or

10

endorsed a policy, custom, or practice resulting in a violation of Plaintiff’s rights. For that

11

reason, Mohave County Jail be dismissed.

12
13

Plaintiff also sues Grievance Co-ordinator Howard for allegedly failing to intercede

14

regarding medical care. To state a claim against a defendant, a “plaintiff must allege facts,

15

not simply conclusions, that show that an individual was personally involved in the

16

deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

17

For an individual to be liable in his official capacity, a plaintiff must allege that the official

18

acted as a result of a policy, practice, or custom or that the official promulgated a policy,

19

practice or custom resulting in the violation. See Cortez v. County of Los Angeles, 294 F.3d

20

1186, 1188 (9th Cir. 2001). In addition, there is no respondeat superior liability under §

21

1983, so a defendant’s position as the supervisor of someone who allegedly violated a

22

plaintiff’s constitutional rights does not make him liable. Monell v. Dep’t of Soc.Servs., 436

23

U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in

24

his individual capacity, “is only liable for constitutional violations of his subordinates if the

25

supervisor participated in or directed the violations, or knew of the violations and failed to

26

act to prevent them.” Taylor, 880 F.2d at 1045. Moreover, where a defendant’s only

27

involvement in allegedly unconstitutional conduct is the denial of administrative grievances,

28
TERMPSREF

C.

Howard

the failure to intervene on a prisoner’s behalf to remedy the alleged unconstitutional behavior
-5-

1

does not amount to active unconstitutional behavior for purposes of § 1983. Shehee v.

2

Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); accord Mintun v. Blades, No. CV-06-139-BLW,

3

2008 WL 711636, at *7 (D. Idaho Mar. 14, 2008); Stocker v. Warden, No.

4

1:07-CV-00589LJODLBP, 2009 WL 981323, at *10 (E.D. Cal. Apr. 13, 2009).

5

Plaintiff appears to predicate liability against Howard solely on grievances filed by

6

Plaintiff regarding the allegedly unconstitutional medical care provided by Mortenson.

7

Plaintiff does not allege facts to support that Howard was directly involved in the decision

8

not to treat his conditions and Howard’s mere denial of Plaintiff’s grievances is not sufficient

9

to make him liable for Mortenson’s conduct. Accordingly, Howard will be dismissed.

10

V.

Claims for Which an Answer Will be Required

11

In Count I, Plaintiff alleges that Dr. Mortenson denied him access to a control unit

12

required to charge his stimulator to relieve back pain because it was inconvenient. As a

13

result, Plaintiff alleges that he suffered uncontrolled pain. In Count II, he alleges that Dr.

14

Mortenson refused to treat the hand because the injury was not life-threatening, despite the

15

obvious damage and pain. Plaintiff sufficiently states a claim against Mortenson in these two

16

counts and she will be required to respond.

17

VI.

Warnings

18

A.

Release

19

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

20

Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

21

the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

22

in dismissal of this action.

23

B.

Address Changes

24

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

25

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

26

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

27

action.

28
TERMPSREF

-6-

1

C.

Copies

2

Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy

3

of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate

4

stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit

5

an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply

6

may result in the filing being stricken without further notice to Plaintiff.

7

D.

Possible Dismissal

8

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

9

warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,

10

963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

11

comply with any order of the Court).

12

IT IS ORDERED:

13

(1)

Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 5.)

14

(2)

As required by the accompanying Order to the appropriate government agency,

15
16
17

Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3)

Defendants Mohave County Jail, Mohave County Sheriff’s Office, Mohave

County, and Howard are dismissed without prejudice.

18

(4)

Defendant Mortenson must answer Counts I and II.

19

(5)

The Clerk of Court must send Plaintiff a service packet including the

20

Complaint (Doc. 1), this Order, and both summons and request for waiver forms for

21

Defendant Mortenson.

22

(6)

If Plaintiff does not either obtain a waiver of service of the summons or

23

complete service of the Summons and Complaint on a Defendant within 120 days of the

24

filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the

25

action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv

26

16.2(b)(2)(B)(i).

27

(7)

28
TERMPSREF

The United States Marshal must retain the Summons, a copy of the Complaint,

and a copy of this Order for future use.
-7-

1

(8)

The United States Marshal must notify Defendants of the commencement of

2

this action and request waiver of service of the summons pursuant to: Rule 4(d) of the

3

Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this

4

Order. The Marshal must immediately file signed waivers of service of the summons.

5

If a waiver of service of summons is returned as undeliverable or is not returned by a

6

Defendant within 30 days from the date the request for waiver was sent by the Marshal,

7

the Marshal must:

8
9

(a) personally serve copies of the Summons, Complaint, and this Order upon
Defendant pursuant to: Rule 4(e)(2) of the Federal Rules of Civil Procedure; and

10

(b) within 10 days after personal service is effected, file the return of service

11

for Defendant, along with evidence of the attempt to secure a waiver of service of the

12

summons and of the costs subsequently incurred in effecting service upon Defendant.

13

The costs of service must be enumerated on the return of service form (USM-285) and

14

must include the costs incurred by the Marshal for photocopying additional copies of

15

the Summons, Complaint, or this Order and for preparing new process receipt and

16

return forms (USM-285), if required. Costs of service will be taxed against the

17

personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil

18

Procedure, unless otherwise ordered by the Court.

19

(9)

20
21

A Defendant who agrees to waive service of the Summons and Complaint

must return the signed waiver forms to the United States Marshal, not the Plaintiff.
(10)

Defendant must answer the Complaint or otherwise respond by appropriate

22

motion within the time provided by the applicable provisions of Rule 12(a) of the Federal

23

Rules of Civil Procedure.

24

(11)

Any answer or response must state the specific Defendant by name on whose

25

behalf it is filed. The Court may strike any answer, response, or other motion or paper that

26

does not identify the specific Defendant by name on whose behalf it is filed.

27
28
TERMPSREF

(12)

This matter is referred to Magistrate Judge Jay R. Irwin pursuant to Rules 72.1

and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized
-8-

1
2

under 28 U.S.C. § 636(b)(1).
DATED this 12th day of July, 2011.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TERMPSREF

-9-