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Jonathan Mcallister, Sr v. Arizona Department of Corrections

February 24, 2011



On December 9, 2010, Plaintiff Jonathan McAllister, Sr., who is confined in the Arizona State Prison Complex-Tucson in Tucson, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a December 14, 2010 Order, the Court granted Plaintiff's Application to Proceed and dismissed the Complaint, without prejudice, for failure to comply with Local Rule of Civil Procedure 3.4(a). The Court gave Plaintiff 30 days to file an amended complaint that complied with Local Rule 3.4(a).

On December 23, 2010, Plaintiff filed a "Motion to Exceed Page Limit for Amended Civil Rights Complaint." On January 6, 2011, he filed a "Motion for Enlargement of Time to File (First) Amended Civil Rights Complaint." In a January 25, 2011 Order, the Court denied Plaintiff's Motion to Exceed and granted his Motion for Enlargement of Time. The Court gave Plaintiff an additional 15 days within which to file his first amended complaint.

1 On February 15, 2011, Plaintiff filed his First Amended Complaint (Doc. 10). The

2 Court will require Defendant Preston to answer Count Two of the First Amended Complaint

3 and will dismiss the remaining claims and Defendants.

4 I. 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.

28 U.S.C. § 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 2 94 (2007) (per curiam)). II. First Amended Complaint Plaintiff should take note that all causes of action alleged in his original Complaint that are not alleged in his First Amended Complaint are waived. Hal Roach Studios v. 6 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Accordingly, the Court will consider only those claims and facts specifically asserted in Plaintiff's First 9 Amended Complaint with respect to only those Defendants specifically named in the First Amended Complaint.

In his six-count First Amended Complaint, Plaintiff sues the following Defendants: the Arizona Department of Corrections (ADOC); ADOC Director Charles L. Ryan, ADOC Inspector General Rita Frigo; Arizona State Prison Complex (ASPC)-Eyman Facility Health Administrator Dennis Kendall, Nurse Practitioner Preston, Deputy Warden K. Curran, Librarian T. Hernandez, Disciplinary Hearing Officer Captain Kurtz, and Counselor/Case Manager Correctional Officer (CO) III Penney; ASPC-Lewis Mailroom Supervisor G. Coranado and Deputy Warden Anne Reeder; ASPC-Alhambra Primary Care Provider Dr. Baird; ASPC-Tucson Assistant Deputy Warden D. Lunberg, Librarian Jon Meade, Paralegal French, Grievance Coordinator CO IV Mackenzie, Mail and Property Room CO IIs Talley and Carrillo, Registered Nurse/Supervisor Brenda McMullen, Counselor/Case Manager CO III Merrifield, Grievance Coordinator CO IVs Johnson and R. Schmidt, and Housing Unit CO II Villa; and Corrections Corporation of America's Huerfano County Correctional Center "Arizona Liason" Betty Barnes, Paralegal/Notary Public Pattie Rowe, and Security Threat Group Supervisor Sergeant Montoya. In his Request for Relief, Plaintiff seeks declaratory and injunctive relief, monetary damages, and his costs.

III. Discussion of First Amended Complaint

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. A. Improper Defendant The Arizona Department of Corrections is not a proper Defendant. Under the Eleventh Amendment to the Constitution of the United States, a state or state agency may not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, "a state is not a 'person' for purposes of section 1983. Likewise 'arms of the State' such as the Arizona Department of ...

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