December 30, 2013
Jimmy S. Martinez, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Plaintiff Jimmy S. Martinez, who is confined in the Maricopa County Fourth Avenue Jail, has 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). 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.
In his three-count Complaint, Plaintiff sues Maricopa County Sheriff Joseph Arpaio and Captain Harmon at the Fourth Avenue Jail.
In Count I, Plaintiff claims that his Fourth Amendment rights have been violated by "illegal strip searching." In support of this claim, Plaintiff asserts that when inmates are detained and incarcerated at the Fourth Avenue Jail, Defendant Arpaio has instructed Harmon and "facility commanders" to have housing officers "force inmates to be completely stripped of all clothing and searched prior to receiving a new set of facility-issued clothing before being shackled and pat-down' searched again before, and upon return from each and every court appearance." (Doc. 1 at 3.) According to Plaintiff, Arpaio "has repeatedly violated the 4th Amendment right by illegally strip searching an un-sentenced' inmate without warrant, necessary safety concern or cause of action." ( Id. )
In Count II, Plaintiff alleges a violation of his Thirteenth Amendment rights. In support of this claim, Plaintiff alleges that as an un-sentenced inmate he has "not been required to forfeit any rights" and has the "right to be free from any type of harassment, including sexual harassment, cruel and unusual punishment in which we have to completely expose oneself in order to receive clean facility-issue clothing going to and upon returning from any and all court proceedings." ( Id. at 4.) Plaintiff further alleges that Defendants Arpaio and Harmon have imposed a rule that inmates "be forced to be strip searched, clothed in new set of clothes then pat down' searched again upon being shackled in order to be cleared' to go to any and all court proceedings which are necessary to attend in order to not bypass or forfeit any rights according to court proceedings or case issues." ( Id. ) Plaintiff contends the practice of "illegal strip searching constantly deprives of rights by forcing oneself to be treated as a slave and involuntary actions affect physical, mental and emotional security and well being as well as state of mind." ( Id. )
Plaintiff designates Count III as a violation of his Fourteenth Amendment rights. He alleges that he has not been found guilty of any crimes, sentenced, or convicted such that he should be deprived of his due process and equal protection rights. Plaintiff alleges that "every time I go to court I'm made to be strip searched, clothed, shackled and pat-down' searched again although I have yet to be found to be guilty of any crime or wrong doing." ( Id. at 5.)
For relief, Plaintiff appears to seek an order immediately discontinuing the "unlawful and illegal strip searching, " Plaintiff's removal from the jail, a restraining order, and compensatory and punitive damages.
IV. 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).
A. Arpaio and Harmon
While Plaintiff may sue Arpaio and Harmon for violations of constitutional rights for acts taken under color of state law, Plaintiff fails to state a claim against either of them. "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 liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045.
In Count I, Plaintiff makes a generalized assertion that Arpaio and Harmon require housing officers to have inmates remove their clothing and be searched when they arrive at the jail and before and after court appearances. Plaintiff also alleges that Arpaio "has repeatedly violated the 4th Amendment right by illegally strip searching an un-sentenced' inmate without warrant, necessary safety concern or cause of action." In Count II, Plaintiff says these searches are pursuant to a rule imposed by Arpaio and Harmon.
As discussed below, Plaintiff fails to state a claim for a Fourth Amendment violation for illegal search and seizure. Thus, Plaintiff necessarily fails to state a claim against Arpaio and Harmon for an unconstitutional custom, practice or policy. Moreover, Plaintiff's allegations fail to specifically describe the allegedly unconstitutional custom, practice or policy or facts to support Arpaio's or Harmon's involvement in promulgating or endorsing such custom, practice, or policy. As for Plaintiff's claim that Arpaio himself has repeatedly violated the Fourth Amendment by illegally strip searching an un-sentenced inmate, he fails to state when Arpaio conducted this search, where this search occurred, or if Plaintiff was the person Arpaio searched. Accordingly, Plaintiff fails to state a claim against Arpaio and Harmon and they will be dismissed.
B. Fourth Amendment
While Plaintiff alleges violations of his rights under the Fourth, Thirteenth and Fourteenth Amendments, all three claims relate to the allegedly unconstitutional practice of strip searching detainees or inmates at the Fourth Avenue Jail. Such claims are properly analyzed under the Fourth Amendment. Detainees, like convicted prisoners, do not possess "the full range of freedoms of an unincarcerated individual." Bell v. Wolfish, 441 U.S. 520, 546 (1979). "The applicability of the Fourth Amendment turns on whether the person invoking its protection can claim a "justifiable, " a "reasonable, " or a "legitimate expectation of privacy" that has been "invaded by government action." Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quotation omitted); see also Bell, 441 U.S. at 557 ("any reasonable expectation of privacy that a detainee retained necessarily would be of a diminished scope"). "A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order." Id. at 527-28. Furthermore, any restriction on plaintiff's privacy interests is justified to the extent that it is "reasonably related to legitimate penological interests." See Turner v. Safley, 482 U.S. 78, 89 (1987). The investigation and prevention of illegal inmate activity, including the prevention of contraband and circulation of threats, is a legitimate penological objective. See Thornburgh v. Abbott, 490 U.S. 401, 411-12 (1989).
That being said, the Fourth Amendment guarantees the right of the people to be secure against unreasonable searches, and its protections are not extinguished upon incarceration. Michenfelder v. Sumner, 860 F.2d 328, 322-33 (9th Cir. 1988). Further, the Fourth Amendment has been held to apply to the invasion of bodily privacy. Id. at 332. Thus, strip searches that are excessive, vindictive, harassing, or unrelated to any legitimate penological interest may violate the Fourth Amendment. Id. Nevertheless, a policy of routinely strip searching arrestees for contraband has been held not to be unreasonable where there is no physical contact and the searches are professionally conducted in relative privacy. Bull v. City and County of San Francisco, 595 F.3d 964, 973 (9th Cir. 2010).
Plaintiff fails to allege any specific facts about strip searches at the Fourth Avenue Jail, such as when he was strip searched, by whom, where, or any facts to support that the search or searches were excessive, vindictive, harassing, or unrelated to a legitimate penological interest. Plaintiff does not allege facts to support that there was any physical contact or that the search was unprofessionally conducted or not conducted in relative privacy. In short, Plaintiff fails to allege sufficient facts to state a Fourth Amendment claim, and Count I will be dismissed.
C. Thirteenth Amendment
Plaintiff designates Count II as a Thirteenth Amendment involuntary servitude claim and alleges that "illegal strip searching constantly deprives of rights by forcing oneself to be treated as a slave[.]" "The Thirteenth Amendment declares that [n]either slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.'" United States v. Kozminski, 487 U.S. 931, 942 (1988) (quoting Amendment XIII). "[T]he term involuntary servitude' necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process." Id. at 943. "By its terms [the Thirteenth] Amendment excludes involuntary servitude imposed as legal punishment for a crime." Id. at 943.
Plaintiff does not allege facts that can be construed to allege a violation of the Thirteenth Amendment. Accordingly, Count II will be dismissed.
D. Fourteenth Amendment
Plaintiff designates Count III as a Fourteenth Amendment equal protection claim. Generally, "[t]o state a claim... for a violation of the Equal Protection Clause... [, ] a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged he is a member of a protected class.
The United States Supreme Court has also recognized "successful equal protection claims brought by a class of one, ' where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). Even under this standard, Plaintiff has failed to state a claim. Plaintiff has failed to allege that he was treated differently than other similarly situated individuals and that there was no rational basis for treating him differently. Accordingly, Count III will be dismissed.
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.
If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo, 423 U.S. at 371-72, 377.
Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.
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.