Velasquez # 254610 v. Ryan et al

Filing 6

ORDER: Plaintiff's Application to Proceed In Forma Pauperis 2 is granted; Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $37.86; The Complaint 1 is dismissed for failure to state a cl aim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with 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 with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915 (g); The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Judge Steven P Logan on 9/5/2014. (Attachments: # 1 Prisoner Civil Rights Complaint)(ALS)

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ASH

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hector Velasquez,

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No. CV 14-08136-PCT-SPL (BSB)
Plaintiff,

vs.

ORDER

Charles L. Ryan, et al.,

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Defendants.

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Plaintiff Hector Velasquez, who is confined in the Arizona State Prison Complex-

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Lewis in Buckeye, Arizona, has filed a pro se civil rights Complaint pursuant to 42

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U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The

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Court will dismiss the Complaint with leave to amend.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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

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The Court will assess an initial partial filing fee of $37.86. The remainder of the fee will

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be collected monthly in payments of 20% of the previous month’s income credited to

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Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C.

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§ 1915(b)(2). The Court will enter a separate Order requiring the appropriate government

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

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

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II.

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

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

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immune from 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

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

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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

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

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

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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

Pardus, 551 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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III.

Complaint

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In his three-count Complaint, Plaintiff names as Defendants: Charles Ryan, the

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Director of the Arizona Department of Corrections (“ADOC”); “John Doe,” the Deputy

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Warden at the Arizona State Prison Complex-Kingman (“ASPC-Kingman”); and

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multiple John/Jane Does, who are described as classification officers at ADOC’s Central

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Office. For his alleged injuries, Plaintiff seeks injunctive relief in the form of an addition

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to his “Do Not House” list, as well as monetary relief and punitive damages.

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In his Complaint, Plaintiff alleges that on October 2, 2012, he was transferred to

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ASPC-Kingman, where, within hours, he was beaten by four or five other inmates. As a

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result of the beating, Plaintiff was in a coma for 12 days, suffered brain trauma, has had

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to re-learn how to walk and talk, and will require therapy for the remainder of his life.

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Plaintiff alleges that the beating occurred because he was placed in a unit with his victim,

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and that the victim should have been on Plaintiff'’s “Do Not House” list. Plaintiff further

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alleges that he was “almost” assaulted again while he was in the infirmary.

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In Count One, Plaintiff alleges that Defendant Ryan is liable because, “even

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though [Defendant Ryan] was not told personally [about] the situation,” his staff failed to

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ensure Plaintiff’s safety by allowing Plaintiff to be housed in the same unit as his victim,

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in violation of the Eighth Amendment.

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In Count Two, Plaintiff alleges that Defendant Doe, the Deputy Warden at ASPC-

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Kingman, is liable because, “even though [Defendant Doe] was not directly advised,” his

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staff failed to ensure Plaintiff’s safety by allowing Plaintiff to be housed in the same unit

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as his victim, in violation of the Eighth Amendment.

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In Count Three, Plaintiff alleges that the John/Jane Doe Defendant classification

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officers are liable because they failed to ensure Plaintiff’s safety by allowing Plaintiff to

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be housed in the same unit as his victim, in violation of the Eighth Amendment.

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IV.

Failure to State a Claim

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To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

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(2) under color of state law (3) deprived him of federal rights, privileges or immunities

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and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th

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Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d

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1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific

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injury as a result of the conduct of a particular defendant and he must allege an

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affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode,

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423 U.S. 362, 371-72, 377 (1976).

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

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

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v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a

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liberal interpretation of a civil rights complaint may not supply essential elements of the

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claim that were not initially pled. Id.

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suffered a specific injury as a result of specific conduct of a defendant and show an

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affirmative link between the injury and the conduct of that defendant. See Rizzo v.

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

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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.

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New York City Dep’t of Soc. Servs., 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

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

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Additionally, to state a valid claim under § 1983, plaintiffs must allege that they

actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.

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An Eighth Amendment threat-to-safety claim for requires a sufficiently culpable

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state of mind by the Defendants, known as “deliberate indifference.” Farmer v. Brennan,

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511 U.S. 825, 834 (1994). Deliberate indifference is a higher standard than negligence or

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lack of ordinary due care for the prisoner’s safety. Id. at 835. To state a claim of

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deliberate indifference, plaintiffs must meet a two-part test.

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

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act or omission must result in the denial of the minimal civilized measure of life’s

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necessities.” Id. at 834 (internal quotations omitted). Second, the prison official must

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have a “sufficiently culpable state of mind,” i.e., he must act with “deliberate indifference

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to inmate health or safety.” Id. (internal quotations omitted). In defining “deliberate

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

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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.

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As stated above, a vicarious liability or respondeat superior theory is not a

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cognizable § 1983 claim. However, Plaintiff’s claims against both Defendant Ryan and

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Defendant Doe are based on a respondeat superior theory. Accordingly, Plaintiff has

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failed to state a claim against these defendants for which relief could be granted.

“First, the alleged

Defendants Ryan and Doe (Deputy Warden)

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B.

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Generally, the use of anonymous type appellations to identify defendants is not

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favored. Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to

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include the names of the parties in the action. As a practical matter, it is impossible in

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most instances for the United States Marshal or his designee to serve a summons and

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complaint or amended complaint upon an anonymous defendant.

Defendants John/Jane Doe (Classification Officers)

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complaint, the plaintiff should be given an opportunity through discovery to identify the

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The Ninth Circuit has held that where identity is unknown prior to the filing of a

unknown defendants, unless it is clear that discovery would not uncover the identities, or

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that the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177

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F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

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1980)). However, the plaintiff must still plead facts sufficient to demonstrate that the

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unknown defendants have violated the plaintiff’s rights.

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Here, Plaintiff has failed to state a claim against the John/Jane Doe classification

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officer defendants. Plaintiff has not alleged that these defendants were, for instance,

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aware that Plaintiff’s victim was on his “Do Not House” list (indeed, it is unclear whether

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the victim was on Plaintiff’s “Do Not House” list, or whether ADOC officials were even

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aware who Plaintiff’s victim was). Plaintiff has not indicated what information, if any,

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these defendants were aware of, when they became aware of that information, and why

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their responses (or lack of responses) to that information constitutes “deliberate

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indifference.” Accordingly, Plaintiff has failed to state a claim against these defendants

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for which relief could be granted.

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V.

Leave to Amend

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Because Plaintiff has failed to state a claim against any named Defendant for

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which relief could be granted, the Complaint will be dismissed. Within 30 days, Plaintiff

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may submit a first amended complaint to cure the deficiencies outlined above. The Clerk

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of Court will mail Plaintiff a court-approved form to use for filing a first amended

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complaint. If Plaintiff fails to use the court-approved form, the Court may strike the

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amended complaint and dismiss 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

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F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original

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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet,

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

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in the original complaint and that was voluntarily dismissed or was dismissed without

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prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa

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County, 693 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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VI.

Conclusory allegations that a Defendant or group of

Warnings

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A.

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If released from custody, Plaintiff must pay the unpaid balance of the filing fee

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within 120 days of his release. Also, within 30 days of his release, he must either (1)

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notify the Court that he intends to pay the balance or (2) show good cause, in writing,

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why he cannot. Failure to comply may result in dismissal of this action.

Release

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If Plaintiff’s address changes, Plaintiff must file and serve a notice of a change of

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address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff

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must not include a motion for other relief with a notice of change of address. Failure to

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comply may result in dismissal of this action.

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B.

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Address Changes

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C.

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Because Plaintiff is currently confined in an Arizona Department of Corrections

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unit subject to General Order 14-17, Plaintiff is not required to submit an additional copy

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of every filing for use by the Court, as would ordinarily be required by Local Rule of

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Civil Procedure 5.4. If Plaintiff is transferred to a unit other than one subject to General

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Order 14-17, he will be notified of the requirements regarding copies for the Court that

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are required for inmates whose cases are not subject to General Order 14-17.

Copies

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D.

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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

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

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

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

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

Possible “Strike”

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E.

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

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these warnings, the Court may dismiss this action without further notice. See Ferdik, 963

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F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any

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order of 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. 2) is granted.

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(2)

As required by the accompanying Order to the appropriate government

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fee of $37.86.

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

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(3)

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

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compliance with this Order.

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(4)

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

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

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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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(5)

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

civil rights complaint by a prisoner.
Dated this 5th day of September, 2014.

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Honorable Steven P. Logan
United States District Judge

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