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Wittboldt v. Arpaio

United States District Court, Ninth Circuit

May 28, 2013

Douglas Wittboldt, Plaintiff,
v.
Joseph Arpaio, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Plaintiff Douglas Wittboldt, who is confined in the Fourth Avenue Jail in Phoenix, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to amend.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. 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 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, 556 U.S. 662, 678 (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 679. 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 681.

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). The Court will dismiss Plaintiff's Complaint for failure to state a claim, but because the Complaint may possibly be saved by amendment, will dismiss the Complaint with leave to amend.

III. Complaint

Plaintiff alleges one count for threat to safety. Plaintiff sues Maricopa County Sheriff Joseph Arpaio and a third-shift detention officer working at the Fourth Avenue Jail on December 24, 2012. Plaintiff seeks compensatory and punitive damages.

Plaintiff alleges the following facts in his Complaint: in November 2012, Plaintiff informed the jail's classification unit that he had a leg injury and a urinary tract issue that caused him to urinate ten to twelve times a night. Because of his health conditions, Plaintiff was assigned to a bottom bunk in the housing unit for pre-trial detainees. On December 25, 2012, [1] a detention officer brought in a new cell mate and told Plaintiff to move to the top bunk. Plaintiff responded that he was assigned to the bottom bunk, but the officer told him the new inmate had a stomach injury and needed a bottom bunk. Plaintiff explained that he, too, needed the bottom bunk, but the officer became irate and ordered Plaintiff to move to the top bunk. Plaintiff had no choice but to comply. The top bunk lacked a ladder or steps for climbing up and down, so Plaintiff had to use a table and a stool with a stainless steel surface to get up and down from his bunk. On February 20, 2013, Plaintiff got up in the night to urinate. He was wearing socks to keep his feet warm, and his foot slipped when he stepped onto the stool, causing Plaintiff to fall and bounce off the table and onto the floor. Plaintiff was able to urinate and get back into bed, but he woke up two hours later, unable to move. Medical staff took his vitals and a urine sample, and the following day Plaintiff saw a doctor, who ordered x-rays. The x-rays revealed two broken ribs. ...


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