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 ...