Sergio M. Morales, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On September 10, 2013, Plaintiff Sergio M. Morales, who is confined in the Arizona State Prison Complex-Florence in Florence, Arizona, 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 October 3, 2013, prior to the Court's screening of Plaintiff's Complaint, Plaintiff filed a "Motion to Allow First Amended Complaint One Day Late" (Doc. 5), to which he attached a copy of the proposed First Amended Complaint (Doc. 5, Attach. 1). Plaintiff's Motion will be granted insofar as the First Amended Complaint supersedes the original Complaint in its entirety. The Court will dismiss the First Amended 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 assess an initial partial filing fee of $10.49. The remainder of the 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 First Amended Complaint for failure to state a claim, but because the First Amended Complaint may possibly be saved by amendment, will dismiss the First Amended Complaint with leave to amend.
III. First Amended Complaint
Plaintiff asserts two counts of excessive force and denial of constitutionally adequate medical care. He names as Defendants Maricopa County Sheriff Arpaio and Fourth Avenue Jail Detention Officer Graffious.
In Count I, Plaintiff asserts that he has been diagnosed with bipolar schizophrenia and was being held in the Fourth Avenue Jail in Phoenix, Arizona on July 26, 2013. Around 5:49 p.m. that day, Plaintiff was "absent his prescribed medication, " Risperdal and Valproic Acid, and heard voices. Plaintiff "lost contact with the environment around him causing him fear under dementia." Plaintiff exited the jail cell to get away from the voices, and he alleges that he was "thrown spread eagle to the floor by 4 to 5 [Detention Officers] and was then repeatedly punched in the face by Defendant Graffious until [his] nose fractured." Plaintiff states that he suffers permanent, noticeable damage to his nose, that he cannot breathe through his nose without difficulty, that his senses of smell and taste have been negatively altered, and he suffers headaches because of the incident.
In Count II, Plaintiff states that "immediately after this beating, [he] was taken for x-rays and his nose fracture was confirmed." Plaintiff alleges that his nose "was never fixed by the 4th Avenue Jails medical staff, " resulting in permanent noticeable damage.
Plaintiff seeks compensatory and punitive damages, attorney's ...