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Foley v. Antolin

United States District Court, D. Arizona

September 9, 2014

Rick Alton Foley, Plaintiff,
v.
Mrs. Antolin, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

On November 6, 2013, Plaintiff Rick Alton Foley, who is confined in the Arizona State Prison Complex-Florence in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. On November 20, 2013, he filed an Application for Preliminary Injunction and a Temporary Restraining Order (Doc. 7), a Notice of Joinder (Doc. 8), and a Declaration in support of his Application for Preliminary Injunction and a Temporary Restraining Order.

In a February 7, 2014 Order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to either pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. [1] On February 24, 2014, Plaintiff filed a second Application to Proceed In Forma Pauperis (Doc. 12). The Court will grant the second Application to Proceed, dismiss the Complaint with leave to amend, deny as moot the Notice of Joinder, and deny without prejudice the Application for Preliminary Injunction and a Temporary Restraining Order.

I. Second Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's second 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 ). The Court will dismiss Plaintiff's Complaint for failure to comply with Local Rule of Civil Procedure 3.4, but because the Complaint may possibly be saved by amendment, will dismiss the Complaint with leave to amend.

III. Complaint

Local Rule of Civil Procedure 3.4 requires in part that "[a]ll complaints... by incarcerated persons must be signed and legibly written or typewritten on forms approved by the Court and in accordance with the instructions provided with the forms." The instructions provided with the court-approved civil rights complaint form states that a plaintiff may only allege "one violation per count." (Emphasis in original.) In addition, Rule 10(b) of the Federal Rules of Civil Procedure states that a party "must state its claims... in numbered paragraphs, each limited as far as practicable to a single set of circumstances.... If doing so would promote clarity, each claim founded on a separate transaction or occurrence... must be stated in a separate count." It is not the responsibility of the Court to review a rambling narrative in an attempt to determine the number and nature of a plaintiff's claims.

The Court has reviewed Plaintiff's Complaint and concludes that it fails to comply with Local Rule of Civil Procedure 3.4 and Rule 10(b) of the Federal Rules of Civil Procedure. Although his Complaint is divided into four counts, Plaintiff alleges more than four violations of his constitutional rights. For example, Count One contains twenty-nine separately numbered paragraphs and appears to cursorily allege an assortment of different First Amendment violations. Although the bulk of Plaintiff's allegations in Count One relate to the denial and destruction of non-nude photographs/pictures and catalogues of non-nude photographs, Plaintiff also includes allegations that Defendants deprived him of his right to communicate with or send mail to federal and state courts; deprived him of his right to communicate with prison administrators and to send notices of claim through the mail; deprived him of his right to receive adult magazines, books, photographs, and catalogues; denied him legal materials; denied him and disposed of an incoming audio compact disc; prevented him from using postage stamps to pay for legal services; denied him the ability to send outgoing mail; disposed of outgoing mail; disposed of incoming mail containing unused postage stamps; seized mail packages and refused to permit the packages to be mailed to the addressees; and failed to train Defendants properly and to enforce polices and rules. This violates Local Rule 3.4 and Rule 10(b) of the Federal Rules of Civil Procedure. See e.g., Davis v. Coca-Cola ...


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