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Velasquez v. Ryan

United States District Court, D. Arizona

September 5, 2014

Hector Velasquez, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

ORDER

STEVEN P. LOGAN, District Judge.

Plaintiff Hector Velasquez, who is confined in the Arizona State Prison Complex-Lewis in Buckeye, Arizona, 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 assess an initial partial filing fee of $37.86. 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.

III. Complaint

In his three-count Complaint, Plaintiff names as Defendants: Charles Ryan, the Director of the Arizona Department of Corrections ("ADOC"); "John Doe, " the Deputy Warden at the Arizona State Prison Complex-Kingman ("ASPC-Kingman"); and multiple John/Jane Does, who are described as classification officers at ADOC's Central Office. For his alleged injuries, Plaintiff seeks injunctive relief in the form of an addition to his "Do Not House" list, as well as monetary relief and punitive damages.

In his Complaint, Plaintiff alleges that on October 2, 2012, he was transferred to ASPC-Kingman, where, within hours, he was beaten by four or five other inmates. As a result of the beating, Plaintiff was in a coma for 12 days, suffered brain trauma, has had to re-learn how to walk and talk, and will require therapy for the remainder of his life. Plaintiff alleges that the beating occurred because he was placed in a unit with his victim, and that the victim should have been on Plaintiff''s "Do Not House" list. Plaintiff further alleges that he was "almost" assaulted again while he was in the infirmary.

In Count One, Plaintiff alleges that Defendant Ryan is liable because, "even though [Defendant Ryan] was not told personally [about] the situation, " his staff failed to ensure Plaintiff's safety by allowing Plaintiff to be housed in the ...


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