United States District Court, D. Arizona
February 18, 2014
Lewis A. Martin, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Plaintiff Lewis A. Martin, 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 assess an initial partial filing fee of $20.75. 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.
Plaintiff filed his Complaint on the court-approved form, but he omitted page two, wherein he is required to list the Defendants he is suing. Nevertheless, the Court will screen his Complaint because he has listed the following individuals as Defendants in the caption of his Complaint: Maricopa County Sheriff Joseph Arpaio; Facility Commander A. Harmon; and Attorney William Peterson. Plaintiff asserts five claims and seeks compensatory and punitive damages, attorney's fees and costs.
Plaintiff designates Count I as a claim of excessive force by an officer. Plaintiff alleges that upon being booked at Maricopa County Jail on August 20, 2013, he was placed in a padded security room without any clothing. According to Plaintiff, inmates are placed in a security room to protect themselves or others from injury. Plaintiff states that he was "in an unstable mental state of mind" and all he can remember is that while lying on his stomach with his hands under his head, he woke up and heard detention officers yelling at him to remove his hands from under his head. Plaintiff was not resisting or exhibiting any type of aggressive behavior when he was shot with a Taser gun, even though he was "unstable physically or mentally" and in a security room "deemed necessary to accommodate physical as well as mental well being." Plaintiff asserts that he was injured physically and emotionally.
Plaintiff designates Count II as a denial of constitutionally adequate medical care. He alleges that he has been incarcerated in the Fourth Avenue Jail for four months and has requested medical and mental health support and assistance. Plaintiff states that he has submitted numerous health needs requests ("HNR"s) to be seen by a health care provider or a mental health advisor or psychiatrist, but his HNRs have "not been adhered to or taken seriously."
Plaintiff designates Count III as a denial of his Sixth Amendment right to assistance of counsel. After Plaintiff was arrested and charged, he was "given an attorney to represent [him] throughout the criminal proceedings as well as court process." Plaintiff alleges that his attorney, Defendant Peterson, "has continuously shown himself to be incompetent and unprofessional[.]" Plaintiff asserts that he has continuously requested information and evidence relating to his case "as well as other case factors which have not been given to myself or granted."
Plaintiff appears to allege an equal protection claim in Count IV. He states that he has not been found guilty of any crimes, sentenced or convicted "to where my due process and equal protection of all laws should be forfeited or deprived." Plaintiff alleges that every time he goes to court he is strip searched, clothed, shackled and pat-down searched even though he has not yet been found guilty of any crime or wrong doing.
Plaintiff alleges in Count V that he has been illegally strip searched, in violation of the Fourth Amendment. He asserts that Defendant Arpaio has instructed Defendant Harmon and facility commanders to have housing officers "force inmates to be completely stripped of all clothing before being issued new clothes, then shackled and pat down' searched again before and upon return from each and every court appearance." Plaintiff alleges that Arpaio has "repeatedly violated [his] 4th Amendment right by illegally strip searching an un-sentenced' inmate without war[a]nt, necessary immediate safety concern or cause of action."
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 prerequisite for any relief under § 1983 are allegations to support that a defendant acted under the color of state law. The "under color of state law" component is the equivalent of the "state action" requirement under the Constitution. Lugar v. Edmondson Oil Co, Inc., 457 U.S. 922, 928 (1982); Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000) (citing West v. Atkins, 487 U.S. 42, 49 (1988); Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). "Acting under color of state law is a jurisdictional requisite for a § 1983 action.'" Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (quoting West, 487 U.S. at 46). Whether an attorney representing a criminal defendant is privately retained, a public defender, or court-appointed counsel, he or she does not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 317-18 (1981); Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) ( en banc ). Because Plaintiff's criminal defense attorney, Defendant Peterson, is not acting under color of state law, Plaintiff fails to state a claim against him and Peterson and Count III will be dismissed.
B. 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 V, 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 "repeatedly violated [his] 4th Amendment right by illegally strip searching an un-sentenced' inmate without war[a]nt, necessary immediate safety concern or cause of action."
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 these searches, where these searches 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.
Because Plaintiff has failed to state a claim against any identifiable Defendant, his Complaint will be dismissed with leave to amend.
C. Excessive Force
The Fourteenth Amendment Due Process clause, not the Eighth Amendment, protects pretrial detainees from excessive force that amounts to punishment. Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002). "[T]he Fourth Amendment sets the applicable constitutional limitations' for considering claims of excessive force during pretrial detention." Id. (quoting Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996).
The Fourth Amendment does not prohibit the use of reasonable force. Tatum v. City & County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). Whether the force was excessive depends on "whether the officers' actions [were] objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989); Tatum, 441 F.3d at 1095; Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003). The Court must balance the nature and quality of the intrusion against the countervailing governmental interests at stake. Graham, 490 U.S. at 396; Lolli, 351 F.3d at 415. Moreover,
[t]he "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, " violates the Fourth Amendment.
Graham, 490 U.S. at 396 (citations omitted).
Plaintiff fails to allege sufficient facts in Count I to support that the amount of force allegedly used was objectively unreasonable under the circumstances. Plaintiff fails to identify the individual who allegedly shot him with a Taser or any other detention officer allegedly involved in the use of excessive force. In addition, Plaintiff does not state whether he was complying with the officers' orders or generally resisting them. For these reasons, Plaintiff fails to state a claim for excessive force under the circumstances in Count I.
D. Medical Care
Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corr., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference, " "negligence, " or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105.
In Count II, Plaintiff states that he submitted numerous HNRs, but he fails to provide any details about those HNRs such as the dates he submitted each HNR, what he said in his HNRs, to whom he gave the HNRs, and what response he received, if any. Further, he fails to identify any individual allegedly responsible for the denial of medical care. Accordingly, Plaintiff has failed to state a claim of deliberate indifference to a serious medical need in Count II.
E. Fourth Amendment
While Plaintiff alleges violations of his rights under the Fourth and Fourteenth Amendments in Counts IV and V, both 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).
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 the 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 in Counts IV and V.
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 assessed an initial partial filing fee of $20.75.
(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.