October 16, 2013
Cedric R. Jordan, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On June 12, 2013, Plaintiff Cedric R. Jordan, who is confined in the Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis (Doc. 2). On August 5, 2013, he filed a Notice for Status (Doc. 5). On August 13, 2013, he filed a Motion to Expedite Service (Doc. 6). On September 23, 2013, he filed a First Amended Complaint (Doc. 7).
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. First Amended Complaint
In his three-count First Amended Complaint, Plaintiff sues the following Defendants: Maricopa County Sheriff Joseph M. Arpaio, the Phoenix Police Department, Phoenix Police Chief Daniel V. Garcia and Homicide Detective Jan Butcher, St. Joseph's Hospital, Community Bridges, Correctional Health Services, Maricopa County, the Arizona Department of Corrections, Arizona Governor Jan Brewer, and the United States of America.
In Count One, Plaintiff alleges that his Eighth Amendment rights have been violated. Plaintiff asserts that the "New World Order Crime Syndicate" has placed a "contract" or "hit" on Plaintiff's life "because of the Plaintiff's knowledge of their' illegal operations in Arizona." Plaintiff asserts that the New World Order Crime Syndicate consists of, among others, Defendants Butcher, Garcia, and the Phoenix Police Department; a group of doctors, nurses, and other professionals at Defendant St. Joseph's Hospital; other professionals all over "the State of Arizona and beyond"; and Defendant Community Bridges. Plaintiff contends that Defendants Butcher, Garcia, Phoenix Police Department, St. Joseph's Hospital, and Community Bridges conspired to have Plaintiff murdered in Maricopa County by placing a contract on Plaintiff's life in February 2013 because he had infiltrated many of their illegal business.
Plaintiff states that he was arrested on April 18, 2013, and is housed in the Maricopa County Fourth Avenue Jail. Plaintiff asserts that he informed a classification specialist at the jail that he needed to be "housed' in the double doors for safety reasons" because there was a contract on his life, but the classification specialist failed to house Plaintiff in a safe environment. Plaintiff claims he was "assaulted because of that negligence." Plaintiff claims he was housed for weeks "in harms way' with other inmates who wanted to kill' the Plaintiff... so [they] could collect the money for the contract (hit'), " and that Plaintiff submitted several "tank orders" to Defendant Arpaio so that he would be aware of a threat to Plaintiff's safety. Plaintiff asserts that he faced imminent danger because he was housed with known members of the Aryan Brotherhood, a prison gang that is "close associates' with the New World Order."
Plaintiff also claims that a jail commander, a sergeant, two floor officers, and a tower officer conspired to have Plaintiff killed by the Aryan Brotherhood on "[razor] night." Plaintiff asserts that on the night closed-custody inmates are permitted to shave with a razor while locked in their cell, the tower officer opened Plaintiff's cell door and the cell door of a member of the Aryan Brotherhood. Plaintiff asserts that he was "almost killed'" but managed to escape from the attack. Plaintiff claims that four days later, he contacted his attorney, "informed him of the murder attempt, " and his attorney contacted the jail and had Plaintiff "moved to the safer double-doors." Plaintiff contends that Defendant Arpaio "failed to prevent his [rogue] jail officials from collaborating with the [New World Order]" and that Plaintiff was "nearly killed'" by the Aryan Brotherhood.
In Count Two, Plaintiff alleges a violation of the Eighth Amendment prohibition against cruel and unusual punishment. He claims it was cruel and unusual for Defendant Brewer to subject him to an organized crime syndicate that includes officials and employees of the State, County, and City. Plaintiff asserts that Defendant Brewer has knowledge of the crime syndicate, condoned its existence, and condoned criminal enterprises at Defendant St. Joseph's Hospital, Defendant Community Bridges, Defendant Arizona Department of Corrections, urgent care, and other State agencies. Plaintiff asserts that Defendant Arizona Department of Corrections is a named defendant because it "is in correlation with prison gangs that are under the [New World Order]." Plaintiff asserts that the "Maricopa County Board of Directors" also knew about and condoned the New World Order and that Defendant United States of America is "using the Plaintiff as bait to catch [all] the fish."
In Count Three, Plaintiff contends that his Eighth Amendment rights were violated. He claims Defendant Correctional Health Services has failed to provide him with adequate health care. Plaintiff asserts that a doctor examined Plaintiff and diagnosed him as having a ruptured eardrum, informing Plaintiff that it appeared that someone had stuck something down Plaintiff's ear. Plaintiff contends that Defendant Correctional Health Services failed to provide a surgery for the ear drum and that this was "deliberate indifference." Plaintiff also claims that during a surgery in September 2012 at Defendant St. Joseph's Hospital, a doctor maliciously and sadistically jammed an object in Plaintiff's ear.
In his Request for Relief, Plaintiff seeks injunctive relief, 16 million dollars to "create safe havens for (sex-slaves) across the country, " and for the case to be "under seal."
IV. Failure to State a Claim
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
A. Defendants Phoenix Police Department, Garcia, Butcher, St. Joseph's Hospital, and Community Bridges
Plaintiff's allegations regarding the New World Order Crime Syndicate against Defendants Phoenix Police Department, Garcia, Butcher, St. Joseph's Hospital, and Community Bridges are implausible and frivolous. See Iqbal; O'Loughlin v. John Doe, 920 F.2d 614, 617 (9th Cir. 1990) ("An in forma pauperis complaint is frivolous if it has no arguable basis in fact or law.") (citation and internal quotation marks omitted)). The Court will therefore dismiss Plaintiff's claims in Counts One and Two against these Defendants.
In Count Three, Plaintiff alleges that a doctor performed a surgery at Defendant St. Joseph's Hospital. This is insufficient to state a claim against Defendant St. Joseph's Hospital. To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Defendant St. Joseph's Hospital is not liable simply because a doctor performed a surgery at the hospital. Thus, the Court will dismiss Plaintiff's claim in Count Three against Defendant St. Joseph's Hospital.
B. Defendant Arpaio
Plaintiff alleges that he submitted "tank orders" to Defendant Arpaio so Defendant Arpaio would be aware of a threat to Plaintiff's safety by inmates who wanted to kill Plaintiff and collect on the New World Order Crime Syndicate's alleged "contract" on his life, and that Defendant Arpaio failed to prevent his employees from collaborating with the New World Order Crime Syndicate. Plaintiff's allegations regarding the New World Order Crime Syndicate are implausible and frivolous and his claim against Defendant Arpaio is too vague and conclusory to rise to the level of deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834-37 (1994).
C. Defendants Correctional Health Services
Defendant Correctional Health Services is an improper Defendant. Municipalities and other local governing bodies are included among those "persons" who may be sued under § 1983. Monell, 436 U.S. at 690-91. Because Correctional Health Services is an administrative subdivision of Maricopa County and not a municipal corporation, a local governing body or a private corporation, it is not a "person" amenable to suit under § 1983. Maricopa County is responsible for providing medical care to county jail inmates. See Ariz. Rev. Stat. § 11-291(A). Any actions concerning a county policy must be brought against the county itself and not against an administrative subdivision of the county. Thus, Defendant Correctional Health Services is an improper defendant and will be dismissed from this action.
D. Maricopa County
The Court will dismiss as implausible and frivolous Plaintiff's allegation in Count Two that Defendant Maricopa County or the "Maricopa County Board of Directors" knew about and condoned the New World Order Crime Syndicate.
In Count Three, Plaintiff alleges that Defendant Correctional Health Services was deliberately indifferent because it failed to provide a surgery for Plaintiff's ruptured eardrum. To the extent this allegation can be construed as a claim against Defendant Maricopa County, Plaintiff has failed to state a claim.
A municipality cannot be held liable unless its "policy or custom caused the constitutional injury." See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993). Thus, a municipality may not be sued solely because an injury was inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Rather, the municipality is liable only when the execution of its policy or custom inflicts the constitutional injury. Id. Thus, a § 1983 claim against a municipal defendant "cannot succeed as a matter of law" unless the plaintiff: (1) contends that the municipal defendant maintains a policy or custom pertinent to the plaintiff's alleged injury; and (2) explains how such policy or custom caused the plaintiff's injury. See Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant to Fed.R.Civ.P. 12(b)(6)). Plaintiff's claim fails because he has not alleged that the failure to provide him with a surgery was a result of an official policy or custom of Defendant Maricopa County. Thus, the Court will dismiss without prejudice Defendant Maricopa County.
E. Defendant Arizona Department of Corrections
The Arizona Department of Corrections is not a proper Defendant. Under the Eleventh Amendment to the Constitution of the United States, a state or state agency may not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor, 880 F.2d at 1045. Furthermore, "a state is not a person' for purposes of section 1983. Likewise arms of the State' such as the Arizona Department of Corrections are not persons' under section 1983." Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted). Therefore, the Court will dismiss Defendant Arizona Department of Corrections.
F. Defendant Brewer
Plaintiff alleges that Defendant Brewer has knowledge of the New World Order Crime Syndicate, condoned its existence, and condoned criminal enterprises at Defendant St. Joseph's Hospital, Defendant Community Bridges, Defendant Arizona Department of Corrections, urgent care, and other State agencies. Plaintiff's claim is implausible and frivolous and, therefore, the Court will dismiss it.
G. Defendant United States of America
The United States, its agencies, and its employees acting within their official capacities, are immune from suit unless the United States waives its sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997). "Any waiver of immunity must be unequivocally expressed, ' and any limitations and conditions upon the waiver must be strictly observed and exceptions thereto are not to be implied.'" Hodge, 107 F.3d at 707 (quoting Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981)). Plaintiff has the burden of asserting specific provisions that unequivocally waive sovereign immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983). Plaintiff has not asserted any basis for a waiver of sovereign immunity. Thus, the Court will dismiss Defendant United States of America.
V. Leave to Amend
Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Counts 1 and 2 are dismissed with prejudice because they are frivolous; Plaintiff is not granted leave to amend them. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above in Count 3. 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).
VI. Notice for Status
In his Notice for Status, Plaintiff "moves with notice for status." To the extent Plaintiff is seeking information regarding the status of his case, this Order provides Plaintiff with the status of his case. To the extent Plaintiff is making allegations against the Maricopa County Sheriff's Office Inmate Legal Services (ILS) and an ILS staff member and alleging that there is a conspiracy between ILS, the staff member, and Defendant Phoenix Police Department, the Court will not grant any relief regarding these allegations.
VII. Motion to Expedite Service
Plaintiff's Motion to Expedite Service is premature. Plaintiff's First Amended Complaint has been dismissed. If he files a second amended complaint, the Court will screen it pursuant to 28 U.S.C. § 1915A. If the Court determines that an answer is required, the Court will direct the Clerk of Court to send Plaintiff a service packet containing summonses and request for waiver forms for Plaintiff to complete and return to the Court. The United States Marshal will effect service if Plaintiff timely completes the service packet and returns it to the Court.
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) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(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 First Amended Complaint (Doc. 7) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint on Count 3 in compliance with this Order.
(4) 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).
(5) Plaintiff's Notice of Status (Doc. 5) is granted in part, to the extent this Order provides Plaintiff with the status of his case, and is denied in part as to any other relief Plaintiff may be requesting.
(6) Plaintiff's Motion to Expedite Service (Doc. 6) is denied as premature.
(7) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.