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Moran v. Arpaio

United States District Court, D. Arizona

July 29, 2014

Ricardo Angel Moran, Plaintiff,
v.
Joseph M. Arpaio, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Ricardo Angel Moran, 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) (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.

III. Complaint

In his three-count Complaint, Plaintiff names as Defendants Joseph M. Arpaio, the Maricopa County Sheriff; and the County of Maricopa. Plaintiff seeks monetary relief.

In Count One, Plaintiff alleges that moldy bread, rotten fruit, and expired milk are served at the jail; that there are not enough food portions, and less than 2, 000 calories are served per day; that there are no drinking fountains; that food trays are not washed and dried food is left on the trays; and that the canteen sells expired food. As a result, Plaintiff alleges that he has lost weight, and suffers from headaches and diarrhea.

In Count Two, Plaintiff alleges there is no fresh air because the filters and ductwork are filthy and unclean; that there is asbestos in the building ceiling, and lead paint chips falling off the wall and circulating in the air; that multiple inmates are always sick with cold and flu viruses, as well as tuberculosis; and that the air conditioner is always on with the temperature under 67 degrees. As a result, Plaintiff alleges that he has lost sleep, suffers from headaches, body aches, and cold viruses, that his eyes burn and his throat is sore, and that he is always cold.

In Count Three, Plaintiff alleges that there is asbestos in the building, and paint chips are falling off the walls and tables; that there are four men to a cell, too many beds in the cells, and that 64 men share two toilets and two showers; that overcrowding causes tension and violence; that there are not enough seats in the dayroom to eat his food; and that there is mildew in the shower area. As a ...


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