November 26, 2013
Michael Ceregaini, Plaintiff,
Nurse Rigo, et al., Defendants.
ROBERT C. BROOMFIELD, Senior District Judge.
Plaintiff Michael Ceregaini,  who is confined in the Lower Buckeye Jail in Phoenix, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 2.) The Court will dismiss the 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 not assess an initial partial filing fee. Id. The statutory filing 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). Plaintiff's Complaint will be dismissed failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
Plaintiff alleges three counts for threat to safety, use of excessive force, and denial of basic necessities. Plaintiff sues the following current or former employees of the Maricopa County Sheriff's Office (MCSO): Nurse Rigo, R.N.; an assistant nurse to Rigo, whose name is unknown (Doe I); Sergeant Fieldcamp; and another sergeant, whose name is unknown (Doe II). Plaintiff seeks compensatory relief.
IV. Failure to State a Claim
To state a claim for relief under § 1983 claim, a plaintiff must allege facts to support that (1) acts by a defendant (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must 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).
A. Threat to Safety
Plaintiff designates Count I as a claim for threat to safety. A claim for threat to safety arises under the Fourteenth Amendment as to pretrial detainees and under the Eighth Amendment as to convicted inmates, but the standard is the same. To state a claim under § 1983 for threats to safety, an inmate must allege facts to support that he was incarcerated under conditions posing a substantial risk of harm and that officials were "deliberately indifferent" to those risks. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837. That is, "the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference." Id.
Plaintiff alleges that he suffers from Post-Traumatic Stress Disorder (PTSD) from receiving Ativan injections in his gluteus maximus, which he estimates has occurred at least at least 750 times at Urgent Psychiatric Care in Phoenix, and are painful to receive in the gluteus. At some point, Nurse Rigo told Plaintiff that all injections must be injected into the gluteus because it is the largest muscle in the body. Plaintiff speculates that Rigo, who is male, prefers to give injections in the gluteus because he is homosexual. Other nurses have informed Plaintiff that injections into arm muscles are equally effective. When Rigo's assistant injected Plaintiff in the gluteus, he ended up drawing out some of Plaintiff's blood, which triggered Plaintiff's PTSD.
Plaintiff fails to allege when and where the events he complains of occurred. Plaintiff does not allege that any physician has diagnosed him as having PTSD, nor does Plaintiff describe any symptoms, including their severity and duration. Moreover, Plaintiff fails to allege facts to support that Rigo or his assistant knew or should have known that administering injections in his gluteus posed, or was likely to pose, an excessive risk to his safety or health. For all of these reasons, Plaintiff fails to state a claim in Count I against Rigo or Doe I.
B. Excessive Force
Plaintiff designates Count II as a claim for use of excessive force. The Fourth Amendment applies to excessive force claims by pretrial detainees, see Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003), while the Eighth Amendment applies to excessive force claims of convicted inmates, see Hudson v. McMillian, 503 U.S. 1, 7 (1992); Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). Under both, force may not be used maliciously and sadistically for the purpose of causing harm. Hudson, 503 U.S. at 7; Watts v. McKinney, 394 F.3d 710, 711 (9th Cir. 2005). The question is whether an officer's actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to underlying intent or motivation. Lolli, 351 F.3d at 415 (citing Graham, 490 U.S. at 397). The Court must balance the nature and quality of the intrusion against the countervailing governmental interests. Id.
Plaintiff alleges the following: in early to mid-August 2013, after Plaintiff was returned from court, Sergeant Fieldcamp and another officer dragged Plaintiff across the pod at an extremely rapid pace, while Plaintiff was in leg-chains, and threw him against the wall. When he was previously arrested, he was unable to make a phone call.
While Plaintiff indicates that Fieldcamp and the other officer may have used more force than necessary under the circumstances, he does not allege facts to support that they used force maliciously and sadistically for the purpose of causing harm. Nor does Plaintiff allege facts to support that the force used under the circumstances was objectively unreasonable. Indeed, Plaintiff largely fails to describe the circumstances. For these reasons, Plaintiff fails to state a claim in Count II and it will be dismissed.
C. Basic Necessities
Plaintiff designates Count III as a claim for denial of basic necessities. To state a claim for denial of basic necessities, a plaintiff must allege that a defendant's acts or omissions have deprived the inmate of "the minimal civilized measure of life's necessities" and that the defendant acted with deliberate indifference to an excessive risk to inmate health or safety. Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (citing Farmer, 511 U.S. at 834); see Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). That is, a plaintiff must allege a constitutional deprivation that is objectively "sufficiently serious" to result in the denial of "the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834. Whether conditions of confinement rise to the level of a constitutional violation may depend, in part, on the duration of an inmate's exposure to those conditions. Keenan v. Hall, 83 F.3d 1083, 1089, 1091 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). A plaintiff must also allege facts supporting that the jail official had a "sufficiently culpable state of mind, " i.e., that the official acted with deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834. In defining "deliberate indifference, " the Supreme Court has imposed a subjective test, "the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. "The circumstances, nature, and duration of a deprivation of  necessities must be considered in determining whether a constitutional violation has occurred.'" Hearns v. Terhune, 413, F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)).
Plaintiff alleges the following facts: Plaintiff could not get a blanket, despite a medical release, toothpaste, tank orders, inmate legal services forms, grievance forms, or an indigent care package, mattress, and clothing. Officer Gillard handed out the indigent care packages on August 14, 2013, but Plaintiff did not receive one. An officer who gave Plaintiff "the form" on August 13 eventually gave Plaintiff a blanket, but it reeked of aftershave. On one occasion, Officer Rain threw "dried up fecal matter" into Plaintiff's cell and some got wedged in the door, when he gave Plaintiff a mat. Plaintiff asked for basic necessities on August 13 and 14.
Plaintiff fails to connect the allegations in Count III to any named Defendant. Nor does he sufficiently allege facts to support that anyone acted with deliberate indifference to his needs. Plaintiff does not allege facts to support that the conditions complained of posed an excessive risk to his health or safety. He also fails to allege the duration of his exposure to the conditions and additional facts to support that conditions posed a risk to his health or safety. At most, Plaintiff complains of events that may have occurred during a previous detention (fecal matter) and having to wait a day or two to receive supplies. That, absent more, is not sufficient to state a claim. Accordingly, Count III will be dismissed for failure to state a claim.
V. Leave to Amend
For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the 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 "First Amended Complaint." The first 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 by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original 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 an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
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 Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an 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 Complaint (Doc. 1) 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 in compliance with this Order.
(4) If Plaintiff fails to file an 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) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.