United States District Court, D. Arizona
May 8, 2014
Lewis A. Martin, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On December 27, 2013, Plaintiff Lewis A. Martin, 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 February 18, 2014 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 March 6, 2014, Plaintiff filed his First Amended Complaint (Doc. 7). On March 14, 2014, Plaintiff filed a "Motion for Preliminary Injunction Prohibiting Continuance of Acts of Unconstitutional Jail Policy" (Doc. 8). The Court will deny the Motion and will dismiss the First Amended Complaint with leave to amend.
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 First 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. First Amended Complaint
Plaintiff sues the following Defendants in his five-count First Amended Complaint: Maricopa County; "Maricopa County Sheriffs', " employed as the "Maricopa County Sheriff's Department"; and Sheriff Joseph M. Arpaio. Plaintiff seeks damages and an injunction requiring the "discontinuation of all unwarranted, unlawful and illegal blanket' strip searching of inmates being held" in Maricopa County jails.
In Count I, Plaintiff alleges that his Fourth Amendment rights have been violated by "illegal strip searches" and he alleges the following facts: upon being detained and incarcerated at the Fourth Avenue Jail, Plaintiff and all arrestees are strip searched "regardless of misdemeanor or felony arrest and without any reasonable suspicion that we, as a category of offenders, or individually might possess weapons or contraband." The strip searches continue "throughout the detainment process, specifically and on all court dates (prior as well as after) solely by procedure and rules implemented by Maricopa County's Sheriff's Department under the jurisdiction of Joseph M. Arpaio." The searches subject each detainee "to a complete body and cavity search which consists of facing a wall, lifting each foot in turn, then while facing away from detention officers, bending completely forward at the waist, spreading both butt cheeks for anal cavity search, then having to squat and cough, then facing forward and moving genitalia to allow visual inspection." "Upon housing placement, groups of approx. 10-15 people must be completely naked while placing all street clothes' into a plastic bag and waiting for name to be called in order to trade for facility issued clothing." Similar searches are conducted before and after an inmate's court proceeding "regardless of housing status or bond availability and without any reasonable suspicion of contraband or weapons, but apparently solely on the reasons of being detained and housed in a Maricopa County facility for custodial housing and care, and for transportation of any and all court hearings as required, as well as allowed by the unconstitutional policy of Sheriff Joseph M. Arpaio's Maricopa County Sheriff's Department." According to Plaintiff, the searches are degrading and humiliating and cause emotional as well as psychological distress.
In Count II, Plaintiff alleges that the searches violate his Eighth Amendment rights and that he "as well as all pre-arraignment/pre-trial detainees are initially strip searched as well as continually strip searched without reasonable individualized suspicions but for the sole reason of being detained and housed in the general jail population."
In Count III, Plaintiff alleges that the searches violate his Fourteenth Amendment rights and that the "blanket' strip searching of all persons, male and female, regardless of any misdemeanor or felony infraction without individual suspicion or indication of possessing weapons or contraband is excessive, harassing and vindictive since it apparently applies to being detained as a possible violator of an alleged crime." Plaintiff asserts that the searches "are unrelated to any legitimate penological interests as they are not done randomly or for specific institutional security concerns' but solely for the reason of being detained and upon being housed custodially at Maricopa County's [4th Avenue] jail and (as required) in order to attend any and all types of court proceedings and appearances."
In Count IV, Plaintiff asserts a claim of excessive force by an officer and alleges the following facts: on August 20, 2013, Plaintiff was detained and booked at the "Maricopa County Jail" and "subsequently placed in a padded security' room without any clothing." Plaintiff was "in an unstable mental state of mind due to psychological issues" and only remembers waking up on the floor with his hands under his head while lying on his stomach. Detention officers were yelling at Plaintiff to remove his hands from under his head. Plaintiff was not aggressive or refusing to obey orders but did not have "any reasonable understanding of situation or cause." As Plaintiff tried to remove his hands, and while still lying on his stomach, he was shot with a Taser by unknown detention officers. According to Plaintiff, "this excessive force was unwarranted as well as unnecessary due to attempting to cooperate with detention officers demands." Plaintiff suffered "physical as well as emotional and psychological damage, pains and discomfort from tazers, insecurities to self as well as to mental and physical well being due to post-traumatic stress."
In Count V, Plaintiff alleges that he was denied medical care and alleges the following facts: Plaintiff has been incarcerated at the Fourth Avenue Jail for approximately six months and has requested "medical as well as mental health support and assistance." Plaintiff has on numerous occasions submitted health needs requests ("HNR") forms "to be seen by a healthcare provider and/or by any mental health advisor and/or psychiatrist." To date, these requests have not been "adhered to or taken seriously." Plaintiff has complained of hearing voices and being unable to sleep. He also has extreme and severe nightmares which cause anxiety and fear of his surroundings. Because of "Maricopa County's continued denial of care and negligence, symptoms of mental distress, psychological trauma and mental health continue to worsen."
III. 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. Maricopa County
Plaintiff fails to state a claim against the county. A municipality, such as a city or county, is a "person" for purposes of § 1983 and may be sued. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 686, 694 (1978). To state a claim against a municipality under § 1983, a plaintiff must allege facts to support that his constitutional rights were violated pursuant to a policy or custom of the municipality. Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001) (citing Monell, 436 U.S. at 690-91); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989)). A municipality may not be sued solely because an injury was inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Therefore, a § 1983 claim against a municipal defendant "cannot succeed as a matter of law" unless a plaintiff: (1) contends that the municipal defendant maintains a policy or custom pertinent to the plaintiff's alleged injury; and (2) explains how such policy or custom caused the plaintiff's injury. Sadoski, 435 F.3d at 1080 (affirming dismissal of a municipal defendant pursuant to Fed.R.Civ.P. 12(b)(6)).
Plaintiff fails to allege facts to support that Maricopa County maintained a policy or custom that resulted in the violation of his federal constitutional rights. Accordingly, Plaintiff fails to state a claim against Maricopa County.
B. Maricopa County Sheriff's Office
It appears that Plaintiff is attempting to sue the Maricopa County Sheriff's Office ("MCSO"). MCSO is not a proper defendant. Claims under § 1983 are directed at "bodies politic and corporate." Monell, 436 U.S. at 688-89. Under the Civil Rights Act of 1871, Congress intended municipalities and other local government units to be included among those persons to whom § 1983 applies. Id. at 689-690. In Arizona, the responsibility for operating jails and caring for prisoners is placed by law upon the sheriff and the County. See Ariz. Rev. Stat. §§ 11-251(8), 11-291(A), 11-441(A)(5), 31-101. MCSO is simply an administrative creation of the sheriff to allow him to carry out his statutory duties; it is not a "person" amenable to suit pursuant to § 1983. See, e.g., Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504 (D. Conn. 2008); Pahle v. Colebrookdale Twp., 227 F.Supp.2d 361 (E.D. Pa. 2002). Accordingly, to the extent Plaintiff is attempting to sue MCSO, it will be dismissed from this action as a Defendant.
C. Count I (Fourth Amendment)
Plaintiff alleges in Count I that the strip searches at the Fourth Avenue Jail violate his rights 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." Hudson, 468 U.S. at 527-28. Furthermore, any restriction on a 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).
Generally, strip searches do not violate the Fourth Amendment rights of prisoners. See Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir. 1988). Whether a search is reasonable under the Fourth Amendment requires a case-by-case "balancing of the need for the particular search against the invasion of personal rights that the search entails...." Bell, 441 U.S. at 559. "The required factors for courts to consider include: (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted." Byrd v. Maricopa County Sheriff's Dept., 629 F.3d 1135, 1141 (9th Cir. 2011) ( en banc ) (quotations omitted).
That being said, the Fourth Amendment guarantees the right of the people to be secure against unreasonable searches, and its protections are not extinguished upon incarceration. Michenfelder, 860 F.2d at 332-33. Further, the Fourth Amendment has been held to apply to the invasion of bodily privacy. Id. at 333. Thus, strip searches that are excessive, vindictive, harassing, or unrelated to any legitimate penological interest may violate the Fourth Amendment. Id. at 332. 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) ( en banc ). Moreover, an arrestee can be "strip searched without individualized suspicion if the arrestee would be introduced into the general jail population." Edgerly v. City and County of San Francisco, 599 F.3d 946, 957 (9th Cir. 2010) (citing Bull, 595 F.3d at 977). However, jail officials must have "reasonable suspicion to strip search arrestees charged with minor offenses who are not classified for housing in the general population." Id. Finally, the Supreme Court upheld as constitutional strip searches of arrestees, which were conducted by county jails as a standard part of the intake process and required male prisoners to lift their genitals and cough in a squatting position, because the searches were "designed to uncover contraband that can be undetected by a pat down, metal detector, and other less invasive searches." Florence v. Bd. of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510, 1520 (2012).
Plaintiff's allegations are too vague and conclusory to state a claim. 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, or where, his housing status, 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 searches were unprofessionally conducted or not conducted in relative privacy. 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 not supply essential elements of the claim that were not initially pled. Id. In short, Plaintiff fails to allege sufficient facts to state a Fourth Amendment claim, and Count II will be dismissed.
D. Count II (Eighth Amendment)
Plaintiff alleges in Count II that the strip searches violate his Eighth Amendment right to be free from cruel and unusual punishment. A pretrial detainee=s claim for unconstitutional conditions of confinement arises from the Fourteenth Amendment's Due Process Clause rather than from the Eighth Amendment prohibition against cruel and unusual punishment. Bell, 441 U.S. at 531. Nevertheless, the same standards are applied, requiring proof that the defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
To state a claim for unconstitutional conditions of confinement, a plaintiff must allege that a defendant's acts or omissions have deprived the inmate of "the minimal civilized measure of life's necessities" and that the defendant acted with deliberate indifference to an excessive risk to inmate health or safety. Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)); see Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). Whether conditions of confinement rise to the level of a constitutional violation may depend, in part, on the duration of an inmate's exposure to those conditions. Keenan v. Hall, 83 F.3d 1083, 1089, 1091 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). "The circumstances, nature, and duration of a deprivation of  necessities must be considered in determining whether a constitutional violation has occurred." Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). Thus, for example, to state a claim regarding personal security, the detainee must show that the defendant was deliberately indifferent. Redman v. County of Los Angeles, 942 F.2d 1435, 1443 (9th Cir. 1991) ( en banc ), cert. denied, 502 U.S. 1074 (1992). To adequately allege deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at 832-33. That is, "the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference." Id.
Plaintiff has failed to allege any facts showing that any Defendant was deliberately indifferent to an excessive risk to his health or safety. Accordingly, Count II will be dismissed.
E. Count III (Fourteenth Amendment)
Plaintiff alleges in Count III that the strip searches violate his Fourteenth Amendment rights. Under the Due Process Clause, "a detainee may not be punished prior to an adjudication of guilt." Bell, 441 U.S. at 536 (citations omitted). However, the government may subject a pretrial detainee "to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution." Id. at 536-37. Here, Plaintiff has failed to allege facts to support that the strip searches are conducted with the intent to punish pretrial detainees. Bell, 441 U.S. at 540 (no unconstitutional punishment occurs when the government imposes restrictions as part of legitimate operational concerns to ensure security and order).
Plaintiff also alleges that his rights under the Equal Protection Clause have been violated. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not "deny to any person within its jurisdiction the equal protection of the laws, " which is essentially a direction that all persons similarly situated should be treated alike. U.S. Const., amend. XIV; see City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). A state practice that interferes with a fundamental right or that discriminates against a suspect class of individuals is subject to strict scrutiny. Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976); see City of Cleburne, 473 U.S. at 441. Absent allegations that he is a member of a suspect class, or that a fundamental right has been violated, a plaintiff must allege facts to support that he has been intentionally treated differently from others who are similarly situated without a reasonable basis therefor. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Conclusory allegations do not suffice. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977). Plaintiff does not allege that he is a member of a suspect class or that he has been treated differently from other similarly situated individuals.
Accordingly, Plaintiff fails to state a Fourteenth Amendment claim and Count III will be dismissed.
F. Count IV (Excessive Force)
Plaintiff has not named as a Defendant any individual who allegedly used excessive force on him. Accordingly, Count IV will be dismissed without prejudice.
Plaintiff should be aware that 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).
G. Count V (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, 511 U.S.at 837. 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 V, Plaintiff alleges that he has been in jail approximately six months, and he has "continuously and on numerous occasions" submitted HNR forms to be seen by a "healthcare provider and/or by any mental health advisor and/or psychiatrist." Plaintiff alleges that he has complained of hearing voices, being unable to sleep, and severe nightmares which cause anxiety and fear of his surroundings. Plaintiff alleges that his requests have not been "adhered to or taken seriously." Plaintiff, however, fails to allege when he submitted these HNRs or any details about them or any responses he received. He does attach exhibits to his First Amended Complaint, including two HNRs dated September 16, 2013 and September 20, 2013, and two other undated HNRs. In the September 16, 2013 HNR, which is date stamped the same day, Plaintiff states that he needs to see the doctor about his back pain and getting a new mattress. In the September 20, 2013 HNR, which is date stamped September 22, 2013, Plaintiff wrote that his feet are "cracking and hurt" and he is still having back pain. Neither of the other two undated HNRs is date stamped. In one, Plaintiff wrote "need to see the psyciatrist (sic) A.S.A.P." In the other, Plaintiff wrote "I am hearing voices and can not sleep need to see the Phyk. Please & Thank you." It is unclear whether these two undated HNRs were ever submitted to anyone.
Moreover, Plaintiff has not named as a Defendant any individual who was allegedly deliberately indifferent to a serious medical need. For that reason alone, Plaintiff fails to state a claim. In addition, Plaintiff fails to allege facts, and his exhibits do not support, that anyone was deliberately indifferent to a serious medical need or even who allegedly denied him medical care. Accordingly, Plaintiff has failed to state a claim of deliberate indifference to a serious medical need in Count V and it will be dismissed.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "Second Amended Complaint." The second 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 or First Amended Complaint by reference. Plaintiff may include only one claim per count.
A second amended complaint supersedes the original Complaint and First Amended 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 the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint or first amended complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) ( en banc ).
V. Motion for Preliminary Injunction
Plaintiff's Motion for Preliminary Injunction asks the court to enjoin Defendants "from enforcing unconstitutional' jail policies to the petitioner, as well as all others similarly situated... being the actual act of blank strip searching' all detainees housed at Maricopa County(s) [Fourth Avenue] Jail(s) without any reasonable suspicion of containing weapons or contraband[.]"
A preliminary injunction is an extraordinary and drastic remedy and will not be granted absent a clear showing of likely success in the underlying claim and possible irreparable injury. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) ( per curiam ). An injunction or temporary restraining order is appropriate to grant intermediate relief of the same character as which may be granted finally, and relief is not proper when requested on matters lying wholly outside the issues in suit. See DeBeers Consol. Mines v. United States., 325 U.S. 212, 220 (1945); Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir.), amended, 131 F.3d 950 (11th Cir. 1997). To obtain injunctive relief, the party "must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). In other words, Plaintiff must seek injunctive relief related to the merits of his underlying claim. Because Plaintiff's First Amended Complaint has been dismissed, there are currently no claims pending before this Court.
In addition, a temporary restraining order without notice may be granted only if "specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard" and the movant certifies to the court in writing any efforts made to give notice and the reasons that notice should not be required. Fed.R.Civ.P. 65(b)(1). A "court may only issue a preliminary injunction on notice to the adverse party." Fed.R.Civ.P. 65(a)(1). Plaintiff has not provided notice nor does he explain why notice should not be required. Based on the foregoing, Plaintiff's Motion will be denied without prejudice.
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 First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second 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) The First Amended Complaint (Doc. 7) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.
(2) If Plaintiff fails to file a second 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).
(3) Plaintiff's "Motion for Preliminary Injunction Prohibiting Continuance of Acts of Unconstitutional Jail Policy" (Doc. 8) is denied without prejudice.
(4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.