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Draper v. Mascher

United States District Court, Ninth Circuit

December 12, 2013

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

ORDER

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 state in relevant part that:

Local Rule of Civil Procedure (LRCiv) 3.4[ ] provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.

(Instructions at ¶ 1) (italics added for emphasis).

Plaintiff used the court-approved form, but he failed to comply with the Instructions for completing it by failing to set forth supporting facts for each of his claims in the designated area on the form. For example, Plaintiff designated Count I as a claim for excessive force, but he failed to describe the supporting facts under "Supporting Facts" on the form complaint. Similarly, Plaintiff designated Count II as a claim for violations of the Eighth Amendment's cruel and unusual clause, but he failed to set forth supporting facts in the appropriate area. Instead, Plaintiff purported to incorporate by reference allegations contained in his motion for leave to amend. Plaintiff may not incorporate other filings into a complaint, but set forth relevant facts in the appropriate place on the court-approved form. Because Plaintiff has failed to properly complete the court-approved form for his First Amended Complaint, and fails to include supporting facts in his First Amended Complaint, the Court will dismiss the First Amended Complaint for failure to state a claim with leave to file a second amended complaint.

In completing a second amended complaint, Plaintiff should include supporting facts for each of claims in the designated area. Plaintiff should not file a motion for leave to amend or include supporting facts in a filing other than his second amended complaint.

V. Leave to Amend

For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form and to complete it in substantial accordance with the Instructions, 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 "Second Amended Complaint." The second amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original or First Amended Complaint, or any other filing, by reference. Plaintiff may include only one claim per count.

A second amended complaint supersedes every prior 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 every prior complaint as nonexistent. Ferdik , 963 F.2d at 1262. Any cause of action that was raised in a prior complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County , 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

VI. Warnings

A. Release

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.

C. Copies

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 and the First Amended Complaint have 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) The Clerk of Court must file Plaintiff's First Amended Complaint nunc pro tunc to the date that it was lodged. (Doc. 11.)

(2) Plaintiff's motion for leave to amend is denied as moot. (Doc. 10.)

(3) The First Amended Complaint is dismissed for failure to state a claim. (Doc. 11.) Plaintiff has 30 days from the date this Order is filed to file a second 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.

(6) Plaintiff's motion to waive fees is denied. (Doc. 12.)


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