United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff Peter Robles, 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.
In his three-count Complaint, Plaintiff names as Defendants Maricopa County Sheriff Joseph M. Arpaio, and Maricopa County Supervisor Max W. Wilson. Plaintiff seeks monetary relief.
In Count One, Plaintiff alleges that there are four bunks in a cell with no adequate space, creating a fire hazard; that the holding tanks are overcrowded; that the bunks, tables, and chairs are rusted; that there is asbestos in the buildings; that living conditions are unsanitary and there are not enough cleaning supplies; that inmates have various unknown illnesses, including tuberculosis and staph infections, and that it is difficult to get medical attention in a timely manner; that there is no access to drinking fountains or cups to retrieve water from the sinks; that fire exits are painted shut, and there are no sprinklers in the pods; that he has had to live in the same clothes for up to eight days at a time; that the sinks, toilets, and drains in the bathroom are clogged; that there is no handicap access; and that wires are hanging out of electrical outlets. As a result, Plaintiff alleges that he has a staph infection, suffers from constant colds and flu viruses, headaches, sinus and lung congestion, ear aches, coughing, sneezing, and "P.T.S.S., " and is unsure of the long-term effect these alleged injuries may have on him.
In Count Two, Plaintiff alleges that the air conditioning is on at all times; that staff will not supply extra blankets, clothes, or turn the heat on when necessary; that air ventilation is improper, the ductwork is dirty, there are no filters on the air returns, and there is a smell of burnt animals; that there is asbestos in the ceilings; that there is no reply to Health Needs Requests for 48 to 72 hours; that under 2, 000 calories are served per day, with only two meals served each day that include just half a pint of milk in the morning; that rotten milk, fruit, vegetables, and bread are served; that there are foreign objects in the food, such as rocks and hair; that "ornamental" oranges are served that are "all pulp, " have no juice, and are bitter; that dinner is served cold, without a drink, and the food is mixed together; that food is lost during transportation; and that the peanut butter is too oily, there is no jelly at times, and there is no drinking fountain. As a result, Plaintiff alleges that he constantly suffers from cold and flu viruses, body aches, headaches, allergies, "P.T.S.S., " and weakness, has lost weight, and is unsure of the long-term effect these alleged injuries may have on him.
In Count Three, Plaintiff alleges that he is unable to receive mail other than post cards, leaving him unable to handle personal and business financial obligations; that he is unable to subscribe to non-religious materials; that mail is lost and the corners are cut out of postcards; that mail is not sent back in a timely manner, and is sometimes kept at the Durango Jail for up to five months; that outgoing mail has been opened and resealed with tape; ...