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Ortiz v. Mascher

United States District Court, Ninth Circuit

November 8, 2013

Anthony Ortiz, Plaintiff,
v.
Scott Mascher, et al., Defendants.

ORDER

G. MURRAY SNOW, District Judge.

On April 22, 2013, Plaintiff Anthony Ortiz, who is confined in the Yavapai County Jail in Camp Verde, Arizona, filed a pro se civil rights Complaint. On April 25, 2013, Plaintiff filed a First Amended Complaint, which superseded the original Complaint. Plaintiff did not file an Application to Proceed In Forma Pauperis with either his original or First Amended Complaint. In an Order dated June 14, 2013, the Court required Plaintiff to either pay the $350.00 filing fee or file a complete Application to Proceed. Plaintiff paid the filing fee on July 11, 2013. In an Order dated August 14, 2013, the Court dismissed the First Amended Complaint because Plaintiff had failed to use the court-approved form. The Court gave Plaintiff 30 days to file an amended complaint on the court-approved form. On September 17, 2013, Plaintiff filed his Second Amended Complaint (Doc. 7). The Court will dismiss the Second 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, 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). Plaintiff's Second Amended Complaint will be dismissed for failure to state a claim, but because it may be amended to state a claim, the Court will dismiss it with leave to amend.

II. Second Amended Complaint

Plaintiff asserts three claims for violations of his rights to constitutionally adequate medical care, due process and "participation in defense." He names the following Defendants: Yavapai County Sheriff Scott Mascher; attorney Alex Harris; John Doe Director of Wexford Health at the Yavapai County Jail; B. Payne, a Wexford Health nurse at the Yavapai County Jail; and the Yavapai County Board of Supervisors ("YCBOS"). He seeks declaratory relief as well as nominal, compensatory and punitive damages.

Plaintiff asserts the following facts in support of his Second Amended Complaint: Plaintiff has been a pre-trial detainee in the Yavapai County Jail since September 6, 2011. According to Plaintiff, jail policies are "designed by County Attorney Sheila Polk on behalf of the YCBOS and Sheriff Mas[c]her." Plaintiff has bad eyesight and wears prescription glasses. From September 6, 2011 until April 22, 2013, Plaintiff was told by Wexford Health that he could not get an eye exam until he went to prison. No one told Plaintiff how he should go about "getting it done" until April 22, 2013. Plaintiff asserts that he was "in unbearable pain" for nineteen months and that he was told he would "just have to use reading glasses." Plaintiff states that his attorney, Harris, who is employed by the YCBOS to represent him, "indicated that she does not have time for [his] problems and... pushed for [Plaintiff] to sign a plea." Plaintiff alleges that Harris, Mascher and Wexford Health "worked together" to violate his Eighth Amendment rights when they "promulgated a policy of deliberate indifference to [his] saf[e]ty and medical needs by denying [him] treatment for [his] eyes causing [him] extre[]me pain and preventing [him] from participating in his defense which led to Alex Harris being fired." As a result, Plaintiff claims he "was subjected to malicious and sadistic pain for 22 months [and] was unable to parti[c]ipate in [his] defense for 22 months without being punished, hindered and discouraged with malicious and sadistic pain."

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. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also 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).

Further, 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 ...


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