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Steven L. Shook v. Officer Bristow

May 31, 2011

STEVEN L. SHOOK,
PLAINTIFF,
v.
OFFICER BRISTOW, ET AL.,
DEFENDANTS.



ORDER

Plaintiff Steven L. Shook, who is confined in the Arizona State Prison Complex, South Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, which the Court dismissed with leave to amend for failure to comply with the Federal Rules of Civil Procedure and this District's Local Rules. (Doc. 1, 6.) Plaintiff has filed a First Amended Complaint. (Doc. 8.) The Court will dismiss the First Amended Complaint, with leave to amend, for failure to comply with the Federal Rules of Civil Procedure, this District's Local Rules, and this Court's previous Order.

I. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 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 2 pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 3 demand detailed factual allegations, "it demands more than an unadorned, the-defendant-4 unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 5 "Threadbare recitals of the elements of a cause of action, supported by mere conclusory 6 statements, do not suffice." Id. 7 "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a 8 claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 9 550 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, 94 (2007) (per curiam)).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's First Amended Complaint will be dismissed for failure to comply with the Rules and this Court's prior Order, with leave to amend, because the First Amended Complaint may possibly be saved by amendment.

II. First Amended Complaint

Plaintiff alleges 34 counts asserting denial of constitutionally adequate medical care, retaliation, use of excessive force, and privacy violations. Plaintiff sues the following employees of the Arizona Department of Corrections (ADC): Director Charles Ryan;

Officers Bristow, Swanda, St. George, Hernandez, Chamberlain, and Scinvo; Drs. Sharp, Kendell, Baird, and Adututu; Nurses Judy, Rosa, Marge, and Marty; Sergeant Evans;

Director of Inmate Services Baylor; and South Unit Records Clerk Joan. Plaintiff seeks compensatory relief.

III. Failure to Comply with Instructions and Rules

As the Court previously informed Plaintiff: Local Rule 3.4(a) requires prisoners to use court-approved form complaints. The Instructions for completing the court-approved form complaint state in relevant part that:

Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.

(Instructions at ¶ 1) (italics added). The Instructions further provide that:

1. Counts. You must identify which civil right was violated. You may allege the violation of only one civil right per count.

2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. You may check only one box per count. If you check the box marked "Other," you must identify the specific issue involved.

3. Supporting Facts. After you have identified which civil right was violated, you must state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you must identify which defendant did what act. You also should state the date(s) on which the act(s) occurred, if possible.

4. Injury. State precisely how you were injured by the alleged violation of your rights. (Instructions, part C) (italics added).

While Plaintiff used the court-approved form complaint and corrected some 2 previously cited deficiencies, he still failed to comply with the page limit requirement and 3 again substantially exceeded the page limit. In many counts, Plaintiff fails to adequately 4 allege facts to support how each individual Defendant violated his rights, when, and where. 5 Finally, Plaintiff's hand-writing is frequently impossible to read. Local Rule 3.4(a) provides 6 that a complaint filed by an incarcerated person "shall be signed and legibly written" or 7 typed. In a second amended complaint, Plaintiff should ensure that every word is legibly 8 written. Because Plaintiff failed to comply with the Instructions for completing the court-9 approved form complaint, his First Amended Complaint will be dismissed with leave to amend in compliance with the Instructions.

IV. Standard to State a Claim Under § 1983

As discussed above, the Court will dismiss the First Amended Complaint for failure to comply with the Instructions for completing the court-approved form. The Court again informs Plaintiff of the standard to state particular types of claims under § 1983.

Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the United States Constitution and federal law. 42 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A "'plaintiff generally must assert his own legal rights and interests, and cannot assert the legal rights or interests of third parties.'" Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 610 (9th Cir. 2005) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). A plaintiff must also allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Plaintiff is additionally informed that to state a claim against a particular individual 2 Defendant, a "plaintiff must allege facts, not simply conclusions, that show that [the] 3 individual was personally involved in the deprivation of his civil rights." Barren v. 4 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official 5 capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or 6 custom. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). In 7 addition, there is no respondeat superior liability under § 1983, so a defendant's position as 8 the supervisor of someone who allegedly violated a plaintiff's constitutional rights does not 9 make him liable. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor, 880 F.2d at 1045. A supervisor in his individual capacity, "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045.

A. Medical Care

Plaintiff again asserts several counts alleging unconstitutional medical care. Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).

"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 2 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally 3 denies, delays, or interferes with medical treatment or by the way prison doctors respond to 4 the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 5 Deliberate indifference is a higher standard than negligence or lack of ordinary due 6 care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross 7 negligence will constitute deliberate indifference." Clement v. California Dep't of 8 Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter 9 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference," "negligence," or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105.

B. Retaliation

Plaintiff also alleges several counts of retaliation. To state a constitutional claim for retaliation, a plaintiff must allege that a defendant acting under color of state law took adverse action against him because he engaged in constitutionally-protected conduct, the adverse action was not narrowly tailored to advance legitimate goals, and the adverse action chilled the plaintiff's exercise of his First Amendment rights or caused him to suffer more than minimal harm. Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an inmate must show (1) that the prison official acted in retaliation for the exercise of a constitutionally-protected right, and (2) that the action "advanced no legitimate penological interest").

C. Americans with Disabilities Act (ADA)

Plaintiff also asserts violation or discrimination against him based on a disability. The 3 Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-34, is applicable in the prison 4 context. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 213 (1998). Under Title II 5 of the ADA, "no qualified individual with a disability shall, by reason of such disability, be 6 excluded from participation in or be denied the benefits of the services, programs, or 7 activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 8 § 12132. A "public entity" is "any State or local government; [or] (B) any department, 9 agency, special purpose district, or other instrumentality of a State or States or local government...." 42 U.S.C. § 12131. Individuals, however, may only be sued under the ADA in their official, rather than, their individual capacities. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (plaintiff cannot sue state officials in their individual capacities to vindicate rights created by Title II of the ADA). To state an ADA claim, a plaintiff must allege facts to support that he: "(1) is a handicapped person; (2) that he is otherwise qualified; and that [prison officials'] actions either (3) excluded his participation in or denied him the benefits of a service, program, or activity; or (4) otherwise subjected him to discrimination on the basis of his physical handicap." Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996).

If Plaintiff wishes to bring a claim for ADA violations, he should allege facts to support that he is a handicapped person who is otherwise qualified, that particular Defendants' actions excluded his participation in or denied him the benefits of any service, program, or activity, or otherwise discriminated against him based on a physical handicap. Plaintiff should specifically allege when and what service, program, or activity he was denied due to his disability.

D. Privacy

Plaintiff also asserts violation of his privacy rights concerning disclosures by and to non-medical staff about Plaintiff's medical conditions, including suffering from Tourette's Syndrome, kidney stones, and gall bladder flare-ups. Plaintiff appears to be attempting to assert a claim pursuant to the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. §§ 1320d-1 to d-8. As the Court previously informed Plaintiff, HIPAA does not 2 provide for a private cause of action. Webb v. Smart Document Solutions, 499 F.3d 1078, 3 1080 (9th Cir. 2007). For that reason, Plaintiff can not state a claim for violation of HIPAA. 4 V. Leave to Amend 5 As discussed above, Plaintiff's First Amended Complaint will be dismissed for failure 6 to comply with the Rules. Within 30 days, Plaintiff may submit a second amended complaint 7 to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-8 approved form to use for filing a second amended complaint. If Plaintiff fails to use the 9 court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.

Plaintiff must clearly designate on the face of the document that it is the "Second Amended Complaint." The second amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of any prior complaint by reference. Plaintiff may include only one claim per count.

A second amended complaint supersedes any prior complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat any prior complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in a prior complaint is waived if it is not raised in a second amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

VI. Warnings

A. Release

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.

B. Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 2 relief with a notice of change of address. Failure to comply may result in dismissal of this action.

C. Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See 6 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.

D.Possible "Strike"

The Complaint and First Amended Complaint have been dismissed for failure to comply with the rules and the Instructions, thereby failing to state a claim. If Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

E. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) The First Amended Complaint is dismissed for failure to comply with the Rules. (Doc. 8.) Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.

(2) 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).

(3) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.

Instructions for a Prisoner Filing a Civil Rights Complaint in the United States District Court for the District of Arizona

1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated persons prepare a complaint seeking relief for a violation of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement. This form should not be used to challenge your conviction or sentence. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.

2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.

3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.

4. The Filing Fee. The filing fee for this action is $350.00. If you are unable to immediately pay the filing fee, you may request leave to proceed in forma pauperis. Please review the "Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. § 1915" for additional instructions.

5. Original and Judge's Copy. You must send an original plus one copy of your complaint and of any other documents submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten.

6. Where to File. You should file your complaint in the division where you were confined when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson Division. Mail the original and one copy of the complaint with the $350 filing fee or the application to proceed in forma pauperis to:

Revised 3/9/07

Phoenix & Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010

7. Change of Address. You must immediately notify the Court and the defendants in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case.

8. Certificate of Service. You must furnish the defendants with a copy of any document you submit to the Court (except the initial complaint and application to proceed in forma pauperis). Each original document (except the initial complaint and application to proceed in forma) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the defendants and the address to which it was mailed.

Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. A certificate of service should be in the following form:

I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: ...


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