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Ostler v. Maricopa County Durango Jail

United States District Court, D. Arizona

July 28, 2014

Richard Douglas Ostler, Plaintiff,
Maricopa County Durango Jail, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Plaintiff Richard Douglas Ostler, who is confined in the Maricopa County Durango Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983[1] (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will grant the Application to Proceed and 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. 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.

III. Complaint

In his Complaint, Plaintiff alleges three counts against Maricopa County Sheriff Joseph Arpaio, the Maricopa County Durango Jail, and the Maricopa County Towers Jail.

In Count One, Plaintiff alleges as follows: The housing in the Durango Jail is overcrowded and unsanitary. There is mold growing in the bathrooms, ceilings, walls, sinks, and toilets. The paint flakes due to mold and there is mold near the air vents in the bathrooms. Lead paint is exposed and there is mold due to water damage from leaks in the roof. The food is inedible because it is frozen and there is "dried up bread" and one or two items are often missing from the food bags in the mornings. There is sometimes expired milk. No medical attention is provided for the "unsafe breathing environment." Plaintiff has suffered from sinus congestion, headaches, sore throat, and stomach problems.

In Count Two, Plaintiff alleges as follows: Plaintiff is housed with three to four other inmates in a cell for two men. There is mold in the day room, cells, and bathrooms. The paint is flaking and "moldy, lead paint" is exposed. There is corrosion from water damage from leaks in the roof. The water is "murky and unsanitary." The sinks do not always work and do not work properly. Plaintiff smells euthanized animals from the nearby "dog pound." Plaintiff suffers from chest pains, sinus congestion, headaches, upset stomach, and diarrhea.

In Count Three, Plaintiff alleges as follows: There is asbestos in the walls and ceilings, which is in the air from the installation of new cameras. The walls are flaking from mold and mildew exposing the lead paint that is underneath. Plaintiff suffers ...

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