Sykes v. Ryan et al

Filing 10

ORDER (Service Packet) - IT IS ORDERED: Defendants Doe 1-25, Sammons, Mullen, Schrodt, and Houck are dismissed without prejudice. (Doc. 9.). The Clerk of Court must send Plaintiff a service packet including the Second Amended Complaint (Doc. 9), this Order, and both summons and request for waiver forms for Defendant Polland. This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). (See document for further details). Signed by Senior Judge Robert C Broomfield on 4/13/12. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Charles Delanders Sykes, Plaintiff, 11 12 vs. 13 Charles L. Ryan, et al., 14 Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 11-8156-PCT-RCB (MEA) ORDER 15 16 Plaintiff Charles Delanders Sykes, who is confined in the Arizona State Prison- 17 Kingman, Cerbat Unit, in Kingman, Arizona,1 filed a pro se civil rights Complaint pursuant 18 to 42 U.S.C. § 1983, which the Court dismissed with leave to amend. (Doc. 1, 5.) Plaintiff 19 filed a First Amended Complaint, which the Court also dismissed with leave to amend. (Doc. 20 7, 8.) Plaintiff has filed a Second Amended Complaint. (Doc. 9.) The Court will order 21 Defendant Polland to answer Count I of the Second Amended Complaint and will dismiss 22 the remaining Defendants without prejudice. 23 I. Statutory Screening of Prisoner Complaints 24 The Court is required to screen complaints brought by prisoners seeking relief against 25 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 27 28 TERMPSREF 1 The Arizona State Prison is operated by Management and Training Corporation (MTC) for the Arizona Department of Corrections (ADC). 1 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 2 be granted, or that seek monetary relief from a defendant who is immune from such relief. 3 28 U.S.C. § 1915A(b)(1), (2). 4 A pleading must contain a “short and plain statement of the claim showing that the 5 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 6 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 7 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 8 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements, do not suffice.” Id. 10 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 11 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 12 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 13 that allows the court to draw the reasonable inference that the defendant is liable for the 14 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 15 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 17 allegations may be consistent with a constitutional claim, a court must assess whether there 18 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 19 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 20 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 21 Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards 22 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 23 94 (2007) (per curiam)). 24 II. Second Amended Complaint 25 Plaintiff alleges one count for threat to safety. Plaintiff sues Assistant Deputy Warden 26 Robert Polland; Sergeant Sammons; Officers Mullen, Schrodt, and Houck; and John and Jane 27 Doe 1-25. Plaintiff seeks injunctive, compensatory, and punitive relief. 28 TERMPSREF Plaintiff alleges the following facts: Plaintiff was one of approximately 95 African -2- 1 American inmates who were viciously attacked by about 300 Caucasian inmates using 2 stones, locks, fists, and other objects. After the attack began, ADC officers, who were 3 equipped and ready to intervene to break up the melee, did not. Plaintiff, among other 4 inmates, was told by officers that Deputy Warden Polland ordered the officers to stand down 5 and not intervene in any way. As a result, not until much later, did officers intercede to assist 6 the African American inmates. Plaintiff saw officers “cowering” in an empty dormitory 7 during the riot. Plaintiff was severely beaten and injured during the riot. According to 8 Plaintiff, Polland knew of racial tensions at the prison and threats to security but failed to act 9 on that knowledge. 10 III. Failure to State a Claim 11 To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the 12 conduct about which he complains was committed by a person acting under the color of state 13 law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. 14 Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A “‘plaintiff generally must assert his own 15 legal rights and interests, and cannot assert the legal rights or interests of third parties.’” 16 Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 610 (9th Cir. 2005) (quoting 17 Warth v. Seldin, 422 U.S. 490, 499 (1975)). In addition, to state a valid constitutional claim, 18 a plaintiff must allege that he suffered a specific injury as a result of the conduct of a 19 particular defendant and he must allege an affirmative link between the injury and the 20 conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 21 A. Doe Defendants 22 Plaintiff sues John and Jane Doe 1-25. Rule 10(a) of the Federal Rules of Civil 23 Procedure requires the plaintiff to include the names of the parties in the action. As a 24 practical matter, it is impossible in most instances for the United States Marshal or his 25 designee to serve a summons and complaint or amended complaint upon an anonymous 26 defendant. 27 28 TERMPSREF The Ninth Circuit has held that where identity is unknown prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the -3- 1 unknown defendants, unless it is clear that discovery would not uncover the identities, or that 2 the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 F.3d 3 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 4 The fictitiously-named Defendants will be dismissed. However, Plaintiff may use the 5 discovery process to obtain the names of fictitiously-named defendants whom he believes 6 violated his constitutional rights and seek leave to amend to name those defendants. 7 B. Sammons, Mullen, Schrodt, and Houck 8 Plaintiff sues Officers Sammons, Mullen, Schrodt, and Houck. While these officers 9 may be sued under § 1983, Plaintiff fails to state a claim against any of them. To state a 10 claim against a defendant, “[a] plaintiff must allege facts, not simply conclusions, that show 11 that an individual was personally involved in the deprivation of his civil rights.” Barren v. 12 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official 13 capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or 14 custom. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). Further, 15 there is no respondeat superior liability under § 1983, so a defendant’s position as the 16 supervisor of someone who allegedly violated a plaintiff’s constitutional rights does not 17 make him liable. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 18 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his individual capacity, “is only liable 19 for constitutional violations of his subordinates if the supervisor participated in or directed 20 the violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d 21 at 1045. 22 23 violated his constitutional rights. At most, Plaintiff makes only vague and conclusory 24 allegations that they acted with deliberate indifference to threats to his safety. Although pro 25 se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), 26 conclusory and vague allegations will not support a cause of action. Ivey v. Board of 27 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal 28 TERMPSREF Plaintiff fails to allege any facts to support how each of these Defendants allegedly interpretation of a civil rights complaint may not supply essential elements of the claim that -4- 1 were not initially pled. Id. Because Plaintiff fails to allege any facts to support how each of 2 these Defendants violated his constitutional rights, these Defendants will be dismissed. 3 IV. Claim for Which an Answer Will be Required 4 Plaintiff alleges that Defendant Polland ordered officers, who were equipped and 5 ready, not to intervene to prevent assaults on 95 African American inmates by approximately 6 300 Caucasian inmates. He further alleges on information and belief, that Polland knew or 7 should have known of racial tensions and security issues at the prison, but failed to act on 8 that knowledge. Plaintiff sufficiently states a claim against Polland for failure to protect or 9 threats to safety in violation of the Eighth Amendment. Polland will be required to respond 10 to Count I of the Second Amended Complaint. 11 V. Warnings 12 A. Release 13 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 14 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 15 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 16 in dismissal of this action. 17 B. Address Changes 18 Plaintiff must file and serve a notice of a change of address in accordance with Rule 19 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 20 relief with a notice of change of address. Failure to comply may result in dismissal of this 21 action. 22 23 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy 24 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 25 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit 26 an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply 27 may result in the filing being stricken without further notice to Plaintiff. 28 TERMPSREF C. / / Copies / -5- 1 D. 2 If Plaintiff fails to timely comply with every provision of this Order, including these 3 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 4 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 5 comply with any order of the Court). 6 IT IS ORDERED: 7 8 (1) Possible Dismissal Defendants Doe 1-25, Sammons, Mullen, Schrodt, and Houck are dismissed without prejudice. (Doc. 9.) 9 (2) Defendant Polland must answer Count I. 10 (3) The Clerk of Court must send Plaintiff a service packet including the Second 11 Amended Complaint (Doc. 9), this Order, and both summons and request for waiver forms 12 for Defendant Polland. 13 (4) Plaintiff must complete2 and return the service packet to the Clerk of Court 14 within 21 days of the date of filing of this Order. The United States Marshal will not provide 15 service of process if Plaintiff fails to comply with this Order. 16 (5) If Plaintiff does not either obtain a waiver of service of the summons or 17 complete service of the Summons and Second Amended Complaint on a Defendant within 18 120 days of the filing of the Complaint or within 60 days of the filing of this Order, 19 whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. 20 P. 4(m); LRCiv 16.2(b)(2)(B)(i). 21 22 23 24 (6) The United States Marshal must retain the Summons, a copy of the Second Amended Complaint, and a copy of this Order for future use. (7) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal 25 26 27 28 TERMPSREF 2 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. -6- 1 Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. The 2 Marshal must immediately file signed waivers of service of the summons. If a waiver 3 of service of summons is returned as undeliverable or is not returned by a Defendant 4 within 30 days from the date the request for waiver was sent by the Marshal, the 5 Marshal must: 6 (a) personally serve copies of the Summons, Second Amended Complaint, and 7 this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil 8 Procedure; and 9 (b) within 10 days after personal service is effected, file the return of service 10 for Defendant, along with evidence of the attempt to secure a waiver of service of the 11 summons and of the costs subsequently incurred in effecting service upon Defendant. 12 The costs of service must be enumerated on the return of service form (USM-285) and 13 must include the costs incurred by the Marshal for photocopying additional copies of 14 the Summons, Second Amended Complaint, or this Order and for preparing new 15 process receipt and return forms (USM-285), if required. Costs of service will be 16 taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal 17 Rules of Civil Procedure, unless otherwise ordered by the Court. 18 (8) A Defendant who agrees to waive service of the Summons and Second 19 Amended Complaint must return the signed waiver forms to the United States Marshal, 20 not the Plaintiff. 21 (9) Defendant must answer the Second Amended Complaint or otherwise respond 22 by appropriate motion within the time provided by the applicable provisions of Rule 12(a) 23 of the Federal Rules of Civil Procedure. 24 (10) 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 (11) This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized -7- 1 2 under 28 U.S.C. § 636(b)(1). DATED this 13th day of April, 2012. 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 -8-

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