Cedric R. Jordan, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On June 12, 2013, Plaintiff Cedric R. Jordan, who is confined in the Maricopa County Fourth Avenue Jail, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. On August 5, 2013, he filed a Notice for Status. On August 13, 2013, he filed a Motion to Expedite Service. On September 23, 2013, he filed a First Amended Complaint.
In an October 16, 2013 Order, the Court granted the Application to Proceed, partially granted the Notice for Status, dismissed the First Amended Complaint because Plaintiff had failed to state a claim, and denied as premature the Motion to Expedite Service. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order.
On November 5, 2013, Plaintiff filed his Second Amended Complaint (Doc. 10). On November 13, 2013, he filed a Notice (Doc. 11). On December 5, 2013, he filed a Notice of Status (Doc. 12). On December 17, 2013, he filed a Motion to Expedite Service of Complaint (Doc. 13). On December 24, 2013, he filed a Notice of Status of Case (Doc. 14).
I. 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 Second 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.
II. Second Amended Complaint
In his three-count Second Amended Complaint, Plaintiff sues Defendants Joseph M. Arpaio and Doctor Berardi. Plaintiff's three counts are essentially the same: Plaintiff contends that Defendant Berardi violated Plaintiff's Eighth Amendment rights when, during a surgery in September 2012 to repair Plaintiff's fractured jaw, Defendant Berardi allegedly "maliciously & sadistically jammed a device in the Plaintiff's left ear, " causing Plaintiff's left eardrum to be severely ruptured. Plaintiff claims that eight months later, a health care provider at the jail diagnosed Plaintiff as having a ruptured eardrum and stated that "it appeared to him that someone stuck something down the Plaintiff's ear." Plaintiff seeks monetary damages.
III. Failure to State a Claim
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may ...