United States District Court, D. Arizona
Edwin M. Jaramillo, Plaintiff,
Glendale County, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On August 19, 2013, Plaintiff Edwin M. Jaramillo, who is confined in the Yavapai County Detention Center in Camp Verde, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. In an Order dated October 16, 2013, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. On October 28, 2013, Plaintiff submitted a new Application to Proceed In Forma Pauperis, which was also deficient. In an Order dated December 30, 2013, the Court denied the Application to Proceed and gave Plaintiff an additional 30 days to pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis.
On January 14, 2013, Plaintiff filed a new Application to Proceed In Forma Pauperis (Doc. 8). The Court will grant the Application to Proceed and 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 credited to Plaintiff's trust account 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 alleges three counts, all Eighth Amendment violations, surrounding the death of his son, Gabriel C. Jaramillo. Plaintiff sues "Glendale County, AZ, " the City of Glendale, the State of Arizona and "Phoenix, AZ, A.D.P.S., Etc." Plaintiff seeks declaratory relief as well as monetary damages.
Plaintiff designates Count I as an Eighth Amendment claim of excessive force by an officer. He alleges that "officers acted out of malice and their actions were not reasonable. Therefor[e], they took my son's life when my son was at a halt. They shot him[, ] but did not have any reason to because he was not armed at all."
Plaintiff designates Count II as an Eighth Amendment claim of cruel and unusual punishment and excessive force by an officer. Plaintiff alleges: "The state of mind of the officials were not competent because the seriousness of the challenged condition. I believe that their ...