United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff Anthony Delgado, who is confined in the Arizona State Prison Complex - Yuma in San Luis, Arizona, 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. 4). Plaintiff has also filed a document titled "This is a Motion to Amend" (Doc. 3). The Court will deny the Motion 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 assess an initial partial filing fee of $23.80. The remainder of the 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 ). 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.
In his two-count Complaint, Plaintiff names as Defendants the Arizona Department of Corrections ("ADOC"); Kieth Smith, a security operations administrator with ADOC; Marlene Coffy, a protective segregation officer with ADOC; and R. Sanders, the warden at the Dakota Unit of Arizona State Prison Complex - Yuma.
In Count One, Plaintiff alleges that he has repeatedly requested protective custody status due to threats and assaults made against him by other inmates. Rather than place Plaintiff in protective custody, however, Defendants have moved Plaintiff from one prison complex to another. Despite the moves, Plaintiff alleges that he is still in danger, and that Defendants' failure to place him in protective custody violates his right to be free from physical harm and threats. As a result, Plaintiff alleges that he has suffered at least one assault in which he was physically injured.
In Count Two, Plaintiff alleges that he filed a grievance related to Defendants' failure to place him in protective custody. According to Plaintiff, the evidence he presented as part of that grievance was lost by Defendant Sanders' staff. Plaintiff alleges that his family contacted Defendant Sanders regarding the loss of evidence, and that Plaintiff's Aunt even drove to Yuma and personally spoke with Defendant Sanders about the grievance and loss of evidence. Nevertheless, Plaintiff alleges that Defendant Sanders cancelled the grievance, and placed Plaintiff in a general population unit. When Plaintiff refused to go to the general population unit, he alleges that Defendant Sanders had her staff seize Plaintiff's personal property and revoke his privileges in retaliation for the complaints Plaintiff and his family had made. As a result, Plaintiff alleges that he has suffered mental anguish, emotional damages, and anxiety attacks.
For his alleged injuries, Plaintiff seeks monetary compensation and placement ...