United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff Kevin Jason Groch, who is confined in the Maricopa County Durango Jail, 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 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.
In his Complaint, Plaintiff alleges three counts against Maricopa County Sheriff Joseph Arpaio.
In Count One, Plaintiff alleges as follows: The air conditioning is 58 degrees at all times and Plaintiff does not have extra blankets or clothing. There is asbestos and black mold in vents and duct work. The sinks are broken and rusty and there is no hot or filtered water. There are only two working toilets for over sixty inmates. There are not adequate cleaning supplies. Plaintiff was not provided socks at the Fourth Avenue Jail. Plaintiff alleges that he is constantly sick with flu, migraines, infections, ring worm, loss of sleep, and has trouble breathing and a stuffy and runny nose.
In Count Two, Plaintiff alleges as follows: The tanks and pods are overcrowded. There are unsanitary conditions. There are 64 men in a pod with two working toilets. There are four bunks in a cell, which is a fire hazard. There is no access to medical "when needed." There is black mold and asbestos in pods and the buildings are condemned. Plaintiff is exposed to lead. There are no fire sprinklers. There is increased stress, tension, and anxiety due to violence and confrontations between inmates. Plaintiff has had sleepless nights, which has led to depression and psychiatric problems and "increased communicable diseases."
In Count Three, Plaintiff alleges as follows: There are under 2000 calories per day "over [an] extended period of time." Rotten fruit, moldy bread, and expired milk are served. There are two meals per day with no drink with dinner. There is no expiration date on food. Plaintiff has suffered food ...