June 26, 2013
Jason Ahmed Parker, Plaintiff,
Joseph M. Arpaio, Defendant.
DAVID G. CAMPBELL, District Judge.
Plaintiff Jason Ahmed Parker, who is confined in the Maricopa County Tent City Jail in Phoenix, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. 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 , 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, 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, the Court will dismiss the Complaint with leave to amend.
Plaintiff alleges three counts for denial of necessities and retaliation. He sues only Maricopa County Sheriff Joseph M. Arpaio. Plaintiff seeks compensatory relief.
On August 28, 2012, Plaintiff was sentenced in Maricopa County Superior Court case CR2009-138046 to serve 195 days in jail beginning that day, and not to be released until March 11, 2013, with probation also to expire on March 11, 2013.
IV. Failure to State a Claim
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. Outlander , 879 F.2d 583, 587 (9th Cir. 1989). Negligence is not sufficient to state a claim under § 1983. Daniels v. Williams , 474 U.S. 327, 330-31 (1986). In addition, a plaintiff must 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 sues only Sheriff Arpaio. While Arpaio may be sued, Plaintiff fails to state a claim against him.
To state a claim against a defendant, "[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington , 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles , 294 F.3d 1186, 1188 (9th Cir. 2001). Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone who allegedly violated a plaintiff's constitutional rights does not make him liable. Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 691 (1978); Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989). 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. In addition, where a defendant's only involvement in allegedly unconstitutional conduct is the denial of administrative grievances, the failure to intervene on a prisoner's behalf to remedy the alleged unconstitutional behavior does not amount to active unconstitutional behavior for purposes of § 1983. See Shehee v. Luttrell , 199 F.3d 295, 300 (6th Cir. 1999); accord Proctor v. Applegate , 661 F.Supp.2d 743, 765 (W.D. Mich. 2009); Stocker v. Warden, No. 1:07-CV-00589 , 2009 WL 981323, at *10 (E.D. Cal. Apr. 13, 2009); Mintun v. Blades, No. CV-06-139 , 2008 WL 711636, at *7 (D. Idaho Mar. 14, 2008); see also Gregory v. City of Louisville , 444 F.3d 725, 751 (6th Cir. 2006) (a plaintiff must allege that a supervisor defendant did more than play a passive role in an alleged violation or mere tacit approval thereof; a plaintiff must allege that the supervisor defendant somehow encouraged or condoned the actions of their subordinates).
Plaintiff fails to allege facts to support that Arpaio directly violated his constitutional rights. Plaintiff also fails to allege facts to support that his constitutional rights were violated as a result of a policy or practice endorsed or promulgated by Arpaio. Accordingly, Plaintiff fails to state a claim against Arpaio and he will be dismissed.
B. Count I
Plaintiff designates Count I as a claim for denial of basic necessities based on the following allegations: at some point during his incarceration since September 2012, detention officers woke Plaintiff early using vulgar and threatening language to rouse him and other inmates. After working eight hours, Plaintiff and other inmates were locked down and lost telephone and day room privileges. Certain second shift officers were abusive and "parade[d] around with intent to use excessive force." (Doc. 1 at 3.) Second shift sergeants allowed "many of these occurrences" on second shift. (Id.) During his incarceration, Plaintiff was subject to harassment, unfairness, disrespect, intimidation, and abuse of authority by officers.
Plaintiff fails to allege facts that rise to the level of a constitutional violation. Verbal threats or abuse, absent more, do not rise to the level of a constitutional violation. Somers v. Thurman , 109 F.3d 614, 624 (9th Cir.1997); Oltarzewski v. Ruggiero , 830 F.2d 136, 139 (9th Cir. 1987)).
Further, while Plaintiff designates Count I as a claim for denial of basic necessities, he fails to allege facts to support such a claim. A prison inmate's claim for unconstitutional conditions of confinement arises under the Eighth Amendment's prohibition against cruel and unusual punishment, Bell v. Wolfish , 441 U.S. 520 (1979), while a pretrial detainee's claim for unconstitutional conditions arises under the Fourteenth Amendment, Frost v. Agnos , 152 F.3d 1124, 1128 (9th Cir. 1998). Nevertheless, the same standard is applied. See Frost , 152 F.3d at 1128. To state a claim for unconstitutional conditions of confinement, a plaintiff must allege that a defendant's acts or omissions have deprived the inmate of "the minimal civilized measure of life's necessities" and that the defendant acted with deliberate indifference to an excessive risk to inmate health or safety. Allen v. Sakai , 48 F.3d 1082, 1087 (9th Cir. 1994) (citing Farmer v. Brennan , 511 U.S. 825, 834 (1994)); see Estate of Ford v. Ramirez-Palmer , 301 F.3d 1043, 1049-50 (9th Cir. 2002). That is, a plaintiff must allege a constitutional deprivation that is objectively "sufficiently serious" to result in the denial of "the minimal civilized measure of life's necessities." Farmer , 511 U.S. at 834. "Indigent inmates have the right to personal hygiene supplies such as toothbrushes and soap, " but whether conditions of confinement rise to the level of a constitutional violation may depend, in part, on the duration of an inmate's exposure to those conditions. Keenan v. Hall , 83 F.3d 1083, 1089, 1091 (9th Cir. 1996) (citing Hutto v. Finney , 437 U.S. 678, 686-87 (1978)).
Plaintiff has not alleged facts to support when, where, how, by whom, and what necessities he was denied. Plaintiff also has not alleged facts to support that any defendant acted with deliberate indifference to an excessive risk to his health or safety caused by the denial of any necessity. Accordingly, Plaintiff fails to state a claim in Count I and it will be dismissed.
C. Count II
Plaintiff designates Count II as a claim for retaliation. A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson , 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez , 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an inmate to 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"). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants' conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan , 874 F.2d 1310, 1314 (9th Cir. 1989).
In Count II, Plaintiff alleges the following: under jail rules, inmates who engage in a group demonstration will be disciplined. On January 1, 2013, Plaintiff and several other inmates did not "volunteer" to work and were disciplined for engaging in a group demonstration. Plaintiff was placed in segregation for seven days. According to Plaintiff, Sergeant 16493 and Lieutenant Coy failed to properly process Plaintiff's grievances to conceal their own wrongdoing.
Plaintiff fails to allege facts to support that jail officials retaliated against him for exercising his constitutional rights. Nor does Plaintiff allege facts to support that such alleged retaliation chilled the exercise of his free speech, or other constitutional rights. Moreover, as discussed above, Plaintiff fails to allege facts to connect the only named Defendant to the claimed violation. For all of these reasons, Plaintiff fails to state a claim for retaliation and Count II will be dismissed.
D. Count III
Plaintiff designates Count III as a claim for violation of his First Amendment free speech rights. An inmate retains First Amendment free speech rights not inconsistent with his status as a prisoner and with the legitimate penological objectives of the corrections system. See Shaw v. Murphy , 532 U.S. 223, 231 (2001); Clement v. California Dep't of Corr. , 364 F.3d 1148, 1151 (9th Cir. 2004). However, jail personnel may regulate speech if such restriction is reasonably related to legitimate penological interests and an inmate is not deprived of all means of expression. Valdez, 302 F.3d at 1048 (citing Turner v. Safley , 482 U.S. 78, 92 (1986)). In this case, Plaintiff fails to allege facts to support that his free speech rights were violated in a way inconsistent with his status and legitimate penological objectives. He accordingly fails to state a First Amendment violation.
Plaintiff asserts that he was reprimanded, harassed or intimidated, then disciplined and lost privileges, after he chose not to participate in the Inmate Work Program, which resulted in his placement in segregation for participating in a demonstration. (Doc. 1, attach at 7.) He also asserts that inmates are shouted at and cursed for expressing opinions and even physically assaulted. According to Plaintiff, on January 9, 2013, he was placed in the Lower Buckeye Jail with unsentenced inmates to silence him. Although not without ambiguity, Plaintiff appears to be asserting that he was disciplined after he failed or refused to "volunteer" for work and participated in a group action with other inmates.
As an initial matter, under state law, a county sheriff may "require prisoners who have been sentenced to imprisonment in the county jail to perform such labor as he deems necessary, even if the prisoner was not sentenced to hard labor." Ariz. Rev. St. § 31-141(C). Further, absent more, forced physical labor itself is not a constitutional violation. When officials force sentenced inmates to work, the Eighth Amendment is not implicated unless the work itself is beyond the physical strength of the inmate; endangers the life or health of the inmate; or causes the inmate undue pain. Berry v. Bunnell , 39 F.3d 1056, 1057 (9th Cir. 1994) (citing Howard v. King , 707 F.2d 215, 219 (5th Cir. 1983); Ray v. Mabry , 556 F.2d 881, 882 (8th Cir. 1977)).
Rather than a free speech claim, Plaintiff may be attempting to assert a violation of due process. A pretrial detainee has a substantive due process right against restrictions that amount to punishment for a criminal offense. Valdez v. Rosenbaum , 302 F.3d 1039, 1045 (9th Cir. 2002) (citing United States v. Salerno , 481 U.S. 739, 746 (1987)); Bell v. Wolfish , 441 U.S. 520, 535 (1979); Redman v. County of San Diego, 942 F.2d 1435, 1440-41 (9th Cir.1991) ( en banc )). This right is violated if restrictions are "imposed for the purpose of punishment." Bell , 441 U.S. at 535. But jail officials are entitled to impose restrictions to effect confinement, and detention will necessarily affect a detainee's ability to live as comfortably as he might like; a de minimis level of imposition is permissible. Id. at 539 n.21. Thus, no unconstitutional punishment occurs when the government imposes restrictions as part of legitimate operational concerns to ensure security and order. Id. at 540. However, imposition of punishment for violation of rules does require the procedural protections described by the Supreme Court in Wolff v. McDonnell , 418 U.S. 539, 565-66 (1974). Mitchell v. Dupnik , 75 F.3d 517, 524 (9th Cir. 1996). These safeguards are: (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) a written statement by the fact-finder as to the evidence relied on and reasons for the disciplinary action; and (3) a limited right to call witnesses and present documentary evidence when it would not be unduly hazardous to institutional safety or correctional goals to allow the inmate to do so. Wolff , 418 U.S. at 565-66.
Liberty interests that entitle a convicted inmate to due process are "generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner , 515 U.S. 472, 484 (1995) (internal citations omitted). Thus, a prisoner may challenge a disciplinary action which deprives or restrains a state-created liberty interest in some "unexpected manner." Ramirez v. Galaza , 334 F.3d 850, 860 (9th Cir. 2003) (citing Sandin , 515 U.S. at 483-84)). Second, a prisoner may challenge a state action that does not restrain a protected liberty interest, but that "nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin , 515 U.S. at 484. In analyzing whether a hardship is atypical and significant, three guideposts to consider are: (1) the conditions of confinement; (2) the duration of the condition and the degree of restraint imposed; and (3) whether the sanction will affect the duration of the prisoner's sentence. Ramirez , 334 F.3d at 861; Keenan v. Hall , 83 F.3d 1083, 1088-89 (9th Cir. 1996). "Atypicality" requires not merely an empirical comparison, but turns on the importance of the right taken away from the prisoner. See Carlo v. City of Chino , 105 F.3d 493, 499 (9th Cir. 1997); see, e.g., Sandin , 515 U.S. at 472 (30 days disciplinary segregation is not atypical and significant); Torres v. Fauver , 292 F.3d 141, 151 (3d Cir. 2002) (4 months in administrative segregation is not atypical and significant); Griffin v. Vaughn , 112 F.3d 703, 706-708 (3d Cir. 1997) (15 months administrative segregation is not atypical and significant); Beverati v. Smith , 120 F.3d 500, 504 (4th Cir. 1997) (6 months of confinement in especially disgusting conditions that were "more burdensome than those imposed on the general prison population were not atypical... in relation to the ordinary incidents of prison life."); Jones v. Baker , 155 F.3d 810 (6th Cir. 1998) (2 years in administrative segregation is not atypical and significant); Jacks v. Crabtree , 114 F.3d 983 (9th Cir. 1997) (denial of year sentence reduction is not an atypical and significant hardship). "As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject a convicted inmate's treatment by prison authorities to judicial oversight." Montanye v. Haymes , 427 U.S. 236, 242 (1976). Therefore, to determine whether a convicted inmate is entitled to the procedural protections afforded by the Due Process Clause, the Court must look to the particular restrictions imposed and ask whether they "present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.'" Mujahid v. Meyer , 59 F.3d 931, 932 (9th Cir. 1995) (quoting Sandin , 515 U.S. at 486). If a protected liberty interest was implicated, a plaintiff must also have alleged the due process safeguards he was denied and by whom. Wolff , 418 U.S. at 565-66.
Attachments to the Complaint reflect that Plaintiff was sanctioned for disobeying a direct order - apparently to work - and was sanctioned with seven days in segregation and removed from tent city. Plaintiff fails to allege facts to support how, when, or by whom he was denied due process. To the extent that he was sanctioned while serving his criminal sentence, he fails to allege an atypical and significant hardship. For these reasons, Plaintiff fails to state a claim for violation of due process. For the reasons discussed, Plaintiff fails to state a claim in Count III and it will be dismissed.
V. Leave to Amend
For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the 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 "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original 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 an original complaint as nonexistent. Ferdik , 963 F.2d at 1262. Any cause of action that was raised in the original complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh , 814 F.2d 565, 567 (9th Cir. 1987).
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 relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the Complaint has been dismissed for failure 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) Plaintiff's Application to Proceed In Forma Pauperis is granted. (Doc. 2.)
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3) The Complaint is dismissed for failure to state a claim. (Doc. 1.) Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(4) 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).
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.