August 12, 2013
SJoshua Erik Bowler, Plaintiff,
Charles L. Ryan, et al., Defendants.
ROBERT C. BROOMFIELD, Senior District Judge.
Plaintiff Joshua Erik Bowler, who is now confined in the Arizona State Prison Complex-Eyman, Browning Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, which the Court dismissed for failure to state a claim with leave to amend. (Doc. 6.) Plaintiff has filed a First Amended Complaint. (Doc. 11.) The Court will dismiss the First Amended Complaint with leave to amend.
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 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 First Amended Complaint for failure to state a claim, but because it may possibly be saved by amendment, the Court will dismiss the First Amended Complaint with leave to amend.
II. First Amended Complaint
Plaintiff alleges one count for threat to safety. He sues the following current or former employees of the Arizona Department of Corrections (ADC): Lieutenant Sanchez; Corrections Officer (CO) IV Contrell; and CO IIIs Cardenes and Lister. Plaintiff seeks injunctive relief.
Plaintiff alleges the following facts in his First Amended Complaint: since being housed in Special Management Unit II (SMU II or Browning Unit), Plaintiff has sought to be housed alone. Plaintiff has tried to write to the warden and deputy warden, but has not received responses. Plaintiff has sent inmate letters to CO III Cardenes also requesting to be housed alone. On April 12, 2013, Plaintiff was assaulted and his nose broken by his then-new cell mate, Mike Oliver. The day before the assault, Plaintiff sent an inmate letter to CO IV Contrell asking to be moved due to a threat to his safety. Plaintiff tried to refuse to house, but Lieutenant Sanchez told Plaintiff to house or he would be moved. Plaintiff contends that he has not been given an opportunity to go through the process to be housed in protective custody under Director's Order (DO) 805.
According to Plaintiff, under DO 805, if an inmate has been convicted of charges that are likely to cause general population (GP) inmates to target him, the inmate should be placed in protective segregation (PS). Plaintiff contends that he has three prostitution charges, which makes him a target of GP inmates, but that the DO 805 policy is not being followed. Plaintiff claims that everywhere he has been housed, he has been targeted by White GP inmates and he fears future assaults, but he does not allege facts to support that assertion, such as where he has been housed and when and how he has been targeted, as well as facts to support that any named Defendant knew of such targeting. Plaintiff claims that he requested PS in the Manzanita Unit in the Tucson Complex, the Meadows Unit in the Florence Complex, and the Cimarron Unit in the Tucson Complex, but all three requests were denied. At some point, Plaintiff asked to go through the DO 805 process, but CO III Lister told him that he had to house on the yard before he could go through the DO 805 process. Plaintiff fails to allege other supporting circumstances such as where he was housed at the time and facts to support that Lister knew or should have known housing on the yard posed a substantial threat to Plaintiff's safety. Plaintiff also contends that Defendants Contrell and Cardenes know that he "has prostitution charges, " which GP inmates view as sex offenses, but Plaintiff continues to be housed with GP inmates.
III. 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).
In addition, 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 alleges a claim for threat to safety. To state a claim under § 1983 for failure to protect or threats to safety, an inmate must allege facts to support that he was incarcerated under conditions posing a substantial risk of harm and that prison officials were "deliberately indifferent" to those risks. Farmer v. Brennan , 511 U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837. That is, "the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference." Id.
Plaintiff alleges that he was assaulted by his cell mate on April 12, 2013, and that one day before, he submitted an inmate letter to Defendant Contrell. Plaintiff does not allege that he informed Contrell that his cell mate posed a substantial threat to his safety and why he believed so. Nor does Plaintiff allege facts to support that Contrell, or any other Defendant, knew or should have known, that Oliver posed a substantial threat to Plaintiff's safety but nevertheless failed to act to alleviate the threat. To the extent that Plaintiff complains that his requests to be housed in PS were denied, he fails to allege when and from whom he sought placement in PS and facts to support that such persons denied his requests despite knowing or having reason to know that the failure to do so posed a substantial threat to Plaintiff's safety. Plaintiff also fails to allege what he informed any Defendant about the reasons he sought PS placement and the reasons given, if any, for not placing him in PS. Plaintiff should allege both facts to support the existence of a substantial threat to his safety and facts to support that a properly named defendant knew of such facts, including how or what Plaintiff told such defendant, and that the defendant failed to act to protect Plaintiff. Because Plaintiff has failed to do so in his First Amended Complaint, he fails to state a constitutional claim for failure to protect or threat to safety against any Defendant.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second 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 the original Complaint or First Amended Complaint by reference. Plaintiff may include only one claim per count.
A second amended complaint supersedes the original Complaint and First Amended 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 the original Complaint and First Amended Complaint as nonexistent. Ferdik , 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or First Amended complaint is waived if it is not raised in a second 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 First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second 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 (Doc. 11) is dismissed for failure to state a claim. 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 a second 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.