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Draper v. Mascher

United States District Court, Ninth Circuit

December 12, 2013

Jason Dee Draper, Plaintiff,
Scott Mascher, et al., Defendants.


ROBERT C. BROOMFIELD, Senior District Judge.

Plaintiff Jason Dee Draper, who is now confined in the Arizona State Prison Complex, Hualapai Unit, in Kingman, Arizona, 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.) In an Order filed on July 18, 2013, the Court granted Plaintiff leave to proceed in forma pauperis by incrementally paying the filing fee and dismissed the Complaint with leave to amend. (Doc. 8, 9.) Plaintiff has filed a motion for leave to file a first amended complaint and lodged a First Amended Complaint. (Doc. 10, 11.) The Court will order the First Amended Complaint filed nunc pro tunc to the date that it was lodged and deny the motion as moot.[1] Plaintiff has also filed a motion for waiver of fees. (Doc. 12.) The Court will deny that motion and will dismiss the First Amended Complaint for failure to state a claim with leave to amend.

I. Motion for Waiver of Fees

Plaintiff has filed a motion asking the Court to provide him with a copy of his First Amended Complaint because he failed to have a copy made for his records before sending it to the Court. He requested that the Clerk of Court provide him a copy, but was informed that copies would cost $14.00. Plaintiff asserts that he is indigent. The Court will deny Plaintiff's motion. As discussed below, Plaintiff's First Amended Complaint is being dismissed for failure to comply with the Instructions for completing it. Plaintiff should set forth supporting facts for each of his claims, which he omitted from his First Amended Complaint, into a second amended complaint.

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 , 129 S.Ct. 1937, 1949 (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 1950. 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 1951.

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 First Amended Complaint will be dismissed for 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.

III. First Amended Complaint

Plaintiff alleges six counts for use of excessive force, violation of his Eighth Amendment rights not to be subjected to cruel and unusual punishment, free exercise rights, denial of due process, denial of access to the court, and denial of constitutionally-adequate medical care. Plaintiff sues Yavapai County Sheriff Scott Mascher; Yavapai County Sheriff's Office (YCSO) Sergeants Peel and Bora; YCSO Detention Officer (DO) D. Roberts, Colvin, Craven, and John Does 1-3; Dr. Wilkenson of Wexford Health Industries, the health care provider at the Jail; and Yavapai County Attorney Sheila Polk. Plaintiff fails to identify the relief he seeks in his First Amended Complaint.

IV. Failure to Comply with the Instructions for Completing the Form

LRCiv 3.4 requires prisoners to use court-approved form complaints. The Instructions ...

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