DAVID G. CAMPBELL, District Judge.
On July 26, 2013, Plaintiff Troy Steven Jones, who is confined in the Arizona State Prison Complex-Yuma, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). Plaintiff also filed a Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. 4). The Court will deny the Motion and dismiss the Complaint with leave to amend.
I. Application to Proceed In Forma Pauperis and Filing Fee
On September 12, 2013, Plaintiff filed an Amended Application for Leave to Proceed In Forma Pauperis (Doc. 7). Because the Amended Application does not include a certified six-month trust account statement, the Court will deny the Amended Application and consider only Plaintiff's original, July 26 Application.
Plaintiff's July 26 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 $27.84. 28 U.S.C. § 1915(b)(1). The remainder of 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. However, because the Complaint may possibly be saved by amendment, the Court will dismiss the Complaint with leave to amend.
Plaintiff names the following Defendants in the Complaint: Arizona Governor Janice K. Brewer; Arizona Department of Corrections (ADOC) Director Charles L. Ryan; Warden Richard Allen Bock; Deputy Warden Adam Bradley; Deputy Warden E. Jensen; and Assistant Deputy Warden Wallace.
Plaintiff raises three claims for relief. In Count I, Plaintiff alleges his safety is threatened in violation of the Eighth Amendment. Specifically, Plaintiff claims Defendants Ryan, Bock, Bradley, Jensen, and Wallace have knowledge that "dangerous inmates run the place" and impose mandatory prison gang rules on inmates "at the threat of violence or death." Their rules include "illicit acts of inmate-on-inmate violence"; "extortion of inmates monies or personal property"; participation in riots; "censorship of inmates verbal and/or written communication with or to prison officials, medical staff, to the outside world"; and "monitoring of inmate's assigned housing area, assigned prison job, and all inmate activities." Plaintiff claims that an inmate's only recourse is to complain to prison officials who respond by confining the complaining inmate in a maximum custody punitive segregation unit "for months or years, " while the dangerous inmates remain in medium custody without sanctions. When a complaining inmate is placed back into the medium custody inmate population, he faces a "heightened substantial risk of serious inmate-on-inmate violence."
Plaintiff further claims that Defendants Ryan, Bock, Bradley, Jensen, and Wallace confined Plaintiff for 18 to 22 hours a day, and frequently for 24 hours a day, in a "double bunked" dormitory prison that exceeded design capacity. Plaintiff claims the double bunks obstructed prison officials' observation of inmates and their behavior, and corrections officers seldom made security walks, thereby allowing dangerous inmates to extort Plaintiff "to obey prison gang rules and of personal property[.]"
Plaintiff asserts that Defendants "have actual knowledge of the substantial risk of serious harm to Plaintiff" caused by "double bunking in dormitories, and double bunking in cells[, ] and guards failure to supervise inmates and inmates living areas." Further, Defendants "knew or learned that nearly all of the assaults were committed by the dangerous inmates" because Plaintiff and "hundreds of inmates talked to mental health staff about these problems" and because "thousands of inmates [including] Plaintiff filed written statements complaining about the dangerous inmates, threats and assaults by the dangerous inmates, the prison gang rules they impose, and inadequate safety with the Special Services Unit and criminal investigation unit." Despite these complaints, Plaintiff alleges that Defendants have failed to follow state statutory requirements and ADOC policy by "fail[ing] to take reasonable measures to abate the substantial risk of serious harm" when they "allow the dangerous inmates to go on undisciplined and without criminal sanction" and without "segregate[ing] dangerous inmates." As a result of these failures, Plaintiff states he has suffered physical and psychological injuries, pain and suffering, worsening of his mental illness, and monetary loss.
In Count II, Plaintiff alleges that the above facts violate Article 2 § 15 of the Arizona Constitution. Plaintiff alleges that Defendants Ryan, Bock, Bradley, Jensen and Wallace are aware of the substantial risk of serious inmate-on-inmate violence and "acted with careless, reckless disregard towards Plaintiff's safety and well being and w[ere] negligent or gross[ly] neglien[t]." Plaintiff further asserts that Defendants Bock, Jensen and Wallace "continue to fail to take measures or reasonable measures to abate the harm d[e]spite having been put on notice by the service of the summons and third amended complaint herein."
In Count III,  Plaintiff claims his Eighth Amendment rights are violated because Defendants Bock, Bradley, Jensen, and Wallace "denied Plaintiff adequate outside exercise [and] in doing so defendants have acted with deliberate indifference to a substantial risk of serious harm."
Plaintiff seeks declaratory and injunctive relief, a temporary restraining order, nominal damages, his attorney's fees and costs, a protective order, and any ...