United States District Court, D. Arizona
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 ...