United States District Court, D. Arizona
ORDER TO SHOW CAUSE
STEPHEN M. McNAMEE, District Judge.
On June 13, 2014, Plaintiff Angel Soto, who is confined in the Arizona State Prison Complex-Eyman, 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 will order Plaintiff to show cause why his Complaint should not be dismissed as barred by the statute of limitations.
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 $18.60. 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 the following Defendants: Arizona Department of Corrections ("ADOC") Director Charles Ryan; Sergeant Sweetman at SMU II Browning Unit; CO II Zamora at SMU II Browning Unit; CO II Gutierrez at SMU II Browning Unit; SSU Banghart at Rynning Unit; CO II Ramirez at SMU II Browning Unit; CO II Harris at SMU II Browning Unit; CO II Jones at SMU II Browning Unit; CO II Schell at SMU II Browning Unit; CO II Emore at SMU II Browning Unit; CO II Rodriguez at SMU II Browning Unit; Sergeant Victoria at SMU II Browning Unit; CO II Bope at SMU II Browning Unit; Sergeant Swaney at SMU II Browning Unit; and Sergeant McClellan at SMU II Browning Unit. Plaintiff seeks a declaratory judgment and damages.
In Count One, Plaintiff asserts a claim of excessive force and alleges the following facts: Plaintiff required suicide watch treatment after explaining to staff that he had stopped taking his medications and was experiencing paranoid psychosis. Instead of treating Plaintiff, "Defendant(s) brutally attacked [Plaintiff] and used torture." Defendants assaulted Plaintiff and then hand and leg cuffed him. While Plaintiff was subdued, he was again "violently assaulted, with punches, kicks and excessive pepper spray." The "Defendant(s) got on [Plaintiff's] back and twisted [his] right hand causing (2) broken fingers." Plaintiff's hair was pulled up and held while a sergeant "violently stomped [Plaintiff's] head smashing [his] jaw into the concrete [and] inflicting a laceration that required several stitches." Plaintiff was then placed face down onto a gurney, still leg and hand cuffed, and strapped down. A sergeant climbed on top of Plaintiff, "spread [his] buttocks and inserted pepper spray into [his] rectum." Plaintiff requested medical but "the torture continued." As a result, Plaintiff alleges that he suffered a debilitating jaw injury, two broken fingers, stitches in his chin which left a scar, limited function in his right hand, emotional trauma, PTSD, and pain from the mace which caused his skin to peel.
Plaintiff asserts a threat to safety claim in Count Two and alleges the following facts: "The Director and all Defendant(s) were deliberately indifferent when he failed to train his subordinates by implementing a policy to recognize mental health problems not protective segregation problems." By this deliberate indifference, Defendant Banghart allowed another inmate to talk to Plaintiff "making him believe the reason [Plaintiff] requested suicide watch was for protection." Word spread across the prison that Plaintiff was seeking protection and the inmates plotted against Plaintiff, causing him to become paranoid and psychotic and barricading his cell. The incident caused Plaintiff to be sent to SMU II "where officers knew or should have known [Plaintiff] was suffering from mental illness, but instead brutally assaulted [Plaintiff] by pepper spray, sexually assaulting [Plaintiff], breaking fingers ...