United States District Court, D. Arizona
G. MURRAY SNOW, District Judge.
On June 5, 2013, Plaintiff Ramone Trammell, 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. In a September 3, 2013 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.
On October 3, 2013, Plaintiff filed his First Amended Complaint. In a November 26, 2013 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order.
On December 27, 2013, Plaintiff filed a Second Amended Complaint (Doc. 6). The Court will dismiss the Second Amended Complaint and this action.
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 )).
II. Second Amended Complaint
A. Plaintiff's Allegations
In his Second Amended Complaint, Plaintiff alleges one count of excessive force by an officer and one count of denial of constitutionally adequate medical care. He names as Defendants Tempe Police Officer Tim Spruyt, Maricopa County Correctional Officer Kelly, and Dr. Mullany and Nurse Corbin, who work at the Maricopa County Jail for Correctional Health Services. Plaintiff seeks compensatory and punitive damages, costs, attorney's fees, and "such equitable relief as deemed necessary or proper."
Plaintiff alleges the following facts in Count I: Plaintiff was "travelling as a passenger in a vehicle for a traffic violation and for use of marijuana." Plaintiff "decided to run, and as he ran from the location of the stop, he was shot in the back by Officer Spruyt." As Plaintiff ran from the scene, he dropped his cell phone, which was the only item in his possession aside from cash, a wallet and the clothes he was wearing. Plaintiff alleges that Spruyt made no commands to stop and that Spruyt never saw a weapon to confirm that Plaintiff was armed. Plaintiff contends that prior to fleeing, the "worst charge [he] could have been suspected of was possession of marijuana. Because Spruyt could not have confirmed that [Plaintiff] had a weapon and because at the time of the incident, the worst crime that could have been imputed to [Plaintiff] was evading arrest, the use of Spruyt's firearm, a deadly weapon for purposes of inflicting deadly force, was unreasonable." Plaintiff alleges that Spruyt could not have mistaken his cell phone for a weapon and that Spruyt "would have been able to easily ascertain that it was not a weapon that dropped[.]"
In Count II, Plaintiff asserts that as a result of the gunshot wounds, he required surgery and a portion of his bowel was removed, a stoma inserted, and he now needs a colostomy bag. Plaintiff alleges that Defendant Corbin has refused to give him items to care for the stoma, including hydrogen peroxide, saline to clean the area, cleaning materials such as gauze or Q-tips, or a dry dressing for irritation. Plaintiff states that he has only received these items on two or three occasions during his incarceration, "even though these ...