United States District Court, D. Arizona
May 8, 2014
Wilfrido Lopez-Cortes, Plaintiff,
Maricopa County Sheriff Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Plaintiff Wilfrido Lopez-Cortes, who is confined in the Maricopa County Durango 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 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). 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 ). Here, Plaintiff fails to state a claim upon which relief can be granted in his Complaint, but it appears that allegations of additional or other facts could cure this failure. Accordingly, Plaintiff's Complaint will be dismissed without prejudice and Plaintiff will be given an opportunity to amend.
In his Complaint, Plaintiff alleges three counts against Defendants Maricopa County Sheriff Joseph M. Arpaio and "Maricopa County Sheriffs."
In Count One, Plaintiff alleges as follows: "they say there [ sic ] serving 2, 000 calories per day, " but he only receives two meals each day ("with no drink with dinner"); the food is "always cold"; there are "never enough portion[s]"; the "meat is always greasy [and] without sal[t]"; the "fruit is always rotten"; there are "foreign objects in [the] food"; and the milk and jelly are expired. As a result, Plaintiff asserts that he has no energy, has lost weight and muscle mass, is malnourished, suffers from "P.T.S.S., " and is unsure of the long-term effect these alleged injuries will have on him.
In Count Two, Plaintiff alleges as follows: the air ventilation is improper; the "A/C always is on and below 66 [degrees]"; jail staff "will not turn the heat on" or provide "extra clothes or blankets"; there is asbestos in the buildings; the clothes are "stinky"; there are "multiple inmates with sicknesses" and an "untold amount of illnesses"; and medical attention is not provided on time. As a result, Plaintiff asserts that he has been "exposed to illnesses, " has "staff [ sic ] infections, " suffers from "P.T.S.S., " and is unsure of the long-term effect these alleged injuries will have on him.
In Count Three, Plaintiff alleges as follows: Durango is the "only jail in [the] U.S. to have 4 man cells"; "64 inmates" share "two toilets and two showers"; there are four bunks in each cell "with no room"; the bunks create fire hazards; the beds, tables, and chairs are rusted; there is asbestos in the buildings; and the holding tanks are overcrowded. As a result, Plaintiff asserts that he has "bodily injury, " his "life [is] at risk, " has "staff [ sic ] infections, " suffers from "P.T.S.S., " and is unsure of the long-term effects these alleged injuries will have on him. As relief, Plaintiff seeks monetary damages.
IV. Failure to State a Claim
To prevail in a 42 U.S.C. § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived plaintiff of federal rights, privileges, or immunities, and (4) caused him damage. Thornton v. City of St. Helens , 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n , 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must 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 Sheriff Joseph M. Arpaio
Plaintiff fails to state a claim against Defendant Arpaio in his Complaint. "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. 2002). Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone else who allegedly violated a plaintiff's constitutional rights does not make the supervisor liable. Monell v. Dep't of Soc. Svcs. Of New York , 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.
Plaintiff fails to allege any facts regarding Defendant Arpaio in his Complaint. Plaintiff does not allege that Defendant Arpaio directly violated Plaintiff's constitutional rights. Nor does Plaintiff allege facts showing that Defendant Arpaio violated Plaintiff's constitutional rights pursuant to a policy, practice, or custom, participated in or directed any violations of Plaintiff's rights, or knew of any violations of Plaintiff's rights but failed to act to prevent them. Defendant Arpaio will be dismissed from this proceeding.
B. "Maricopa County Sheriffs"
As an initial matter, it is unclear from his Complaint whether Plaintiff is attempting to sue the Maricopa County Sheriff's Office , or certain, unnamed Maricopa County Sheriff's Officers. Plaintiff asserts simply that he is bringing suit against "Maricopa County Sheriffs" at the Maricopa County Durango Jail. If the former, the Maricopa County Sheriff's Office is not a proper defendant. In Arizona, the responsibility for operating jails and caring for prisoners is placed by law upon the sheriff of the county in which a jail is located. See Ariz. Rev. Stat. Ann. § 11-441(A)(5); Ariz. Rev. Stat. Ann. § 31-101. A sheriff's "office" is simply an administrative creation of the sheriff to allow him to carry out his statutory duties. As such, a sheriff's "office" is not a "person" that can be sued pursuant to § 1983.
If, however, Plaintiff is attempting to sue unnamed Sheriff's officers - acting in either their personal or official capacities - he has still failed to state any claims against such defendants. Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to include the names of the parties in the action. As a practical matter, it is impossible in most instances for the United States Marshal or his designee to serve a summons and complaint or amended complaint upon an anonymous defendant. Where the names of individual defendants are unknown at the time a complaint is filed, a plaintiff may refer to the individual unknown defendants as Defendant John (or Jane) Doe 1, John Doe 2, and so on, and allege facts to support how each particular Doe defendant violated the plaintiff's constitutional rights. Nevertheless, a plaintiff must still allege specific facts detailing how each individual defendant violated plaintiff's rights. If the defendants are sued in their official capacities, Plaintiff must allege that the officials acted as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles , 294 F.3d 1186, 1188 (9th Cir. 2002).
Plaintiff fails to allege any facts regarding Defendant "Maricopa County Sheriffs" in his Complaint. Plaintiff does not allege that Defendant "Maricopa County Sheriffs" directly violated Plaintiff's constitutional rights. Nor does Plaintiff allege facts showing that his constitutional rights were violated as a result of Defendant "Maricopa County Sheriffs" acting pursuant to a policy, practice, or custom. Because Plaintiff has failed to allege facts to support that Defendant "Maricopa County Sheriffs" violated his rights, Plaintiff has failed to state a claim against that Defendant.
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.
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 ).
Further, 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 the 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 explain how the conduct of each named Defendant is connected to 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.
Moreover, in amending his Complaint, Plaintiff should be aware that a pretrial detainee's claim for unconstitutional conditions of confinement arises from the Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish , 441 U.S. 520, 535 n.16 (1979). 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) (citation omitted).
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer v. Brennan , 511 U.S. 825, 835 (1994). To state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, the alleged constitutional deprivation must be, objectively, "sufficiently serious"; the official's act or omission must result in the denial of "the minimal civilized measure of life's necessities." Id. at 834. Second, the prison official must have a "sufficiently culpable state of mind, " i.e. , he must act with deliberate indifference to inmate health or safety. Id. In defining "deliberate indifference" in this context, the Supreme Court has imposed a subjective test: "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." Id. at 837 (emphasis added).
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 , 511 U.S. at 834); 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)).
Allegations of overcrowding, without more, do not state a claim under the Eighth and Fourteenth Amendments. See Hoptowit v. Ray , 682 F.2d 1237, 1248-49 (9th Cir. 1982). A plaintiff may, however, state a cognizable claim where he or she alleges that overcrowding results in some unconstitutional condition. See, e.g., Akao v. Shimoda , 832 F.2d 119, 120 (9th Cir. 1987) (reversing district court's dismissal of claim that overcrowding caused increased stress, tension and communicable disease among inmate population); see also Toussaint v. Yockey , 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming that an Eighth Amendment violation may occur as a result of overcrowded prison conditions causing increased violence, tension and psychiatric problems).
With respect to meals, "[t]he Eighth [and Fourteenth] Amendment[s] require only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing." LeMaire v. Maass , 12 F.3d 1444, 1456 (9th Cir. 1993); see Frost , 152 F.3d at 1128 (applying Eighth Amendment standard to a pretrial detainee's Fourteenth Amendment claims regarding his conditions of confinement). "The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation." LeMaire , 12 F.3d at 1456 (citations omitted). An inmate may, however, state a claim where he alleges that he is served meals with insufficient calories for long periods of time. Id.
If released from confinement, 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
If Plaintiff's 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 not assessed an initial partial filing fee.
(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.