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Bowler v. Ryan

United States District Court, Ninth Circuit

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.[1] 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 ...

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