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Tull v. Arpaio

United States District Court, D. Arizona

February 5, 2014

Clarence Andrew Tull, Plaintiff,
v.
Joseph M. Arpaio, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Clarence Andrew Tull, who is confined in the Maricopa County Towers 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 assess an initial partial filing fee of $38. The remainder of the 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 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. Complaint

In his three-count Complaint, Plaintiff names as Defendants Maricopa County Sheriff Joseph Arpaio and the Maricopa County Jail. He seeks damages.

Plaintiff designates Count I as a denial of basic necessities. He alleges the following facts: three in a cell "is overcrowding and has been ruled on in 2nd Amen[d]ed Judg[]ment." Plaintiff is unable to get to the toilet or to water in a timely manner. There is nowhere for three men to eat and one is on the bed, one at a table and one on the toilet, which is "very unsanitary." There is no toilet brush or chemicals to properly clean. There is no proper ventilation and "illness thrives in this situation." Plaintiff alleges that he suffers PTSD, many illnesses, and depression and he would like to see an outside doctor to "figure final injur[ie]s."

Plaintiff designates Count II as a threat to safety. He alleges that while in the Durango Jail and possibly in the Towers Jail, he was exposed to black mold in the showers. He was also exposed to asbestos at the Durango Jail. Plaintiff asserts that "[t]here is a separate ruling that says Durango Jail is dangerous and a threat to health and safety of inmates." Plaintiff claims he suffers PTSD, anxiety, stress, and illness, and he needs to see an outside doctor for further evaluation.

Plaintiff also designates Count III as a denial of basic necessities. He alleges the following: "The food is not fit for eating. The oranges are rotten. There is not enough peanut butter for two sandwich[es]. There are bugs and wood i[n] the slop. There aren't 2000 cal. in a day. The[ir] trays are a mess when served all the food mixed together. Moldy bread. ...


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