United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff Samuel Louis Fuller, who is confined in the Maricopa County Fourth Avenue Jail, has filed a pro se civil rights Complaint (Doc. 1) pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),  and an Application to Proceed In Forma Pauperis (Doc. 2). He has also filed a Motion for a Preliminary Injunction and Temporary Restraining Order (Doc. 6). The Court will grant the Application to Proceed, will order Defendant Hansdall to answer a portion of Count Two of the Complaint, will dismiss the remaining claims and Defendants, and will deny the Motion for a Preliminary Injunction and Temporary Restraining Order.
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 )).
In his two-count Complaint, Plaintiff sues the following Defendants: court-appointed defense attorney Kari Jill Granville, Maricopa County Sheriff's Office (MCSO) Sergeant Hansdall, MCSO Field Training Officer Abbott, and MCSO Visitation/Inmate Property Department Officer Alger.
In Count One, Plaintiff alleges that he has received "ineffective advice of counsel", in violation of his Fourth, Fifth, and Fourteenth Amendment rights, and has been subjected to a "[c]onspiracy to coerce incompetency during trial." Plaintiff asserts that when Defendant Granville initially met with Plaintiff, she told him that his case was going to be "unbelievable" if Plaintiff took the stand and testified and that the testimony of nine police officers would likely be more credible. Plaintiff states that Defendant Granville suggested that Plaintiff make his testimony "beli[e]vable, " which Plaintiff construed to mean that he should either not testify or testify falsely. Plaintiff contends that when Plaintiff stated that he would testify truthfully, Defendant Granville explained to Plaintiff that "[t]his system is nothing more th[a]n a big pimp' and unfortunately [Plaintiff was] on the whore' end of the spectrum in this instance." Plaintiff claims he was injured because Defendant Granville tried to persuade him to either fabricate his testimony or waive his right to testify and "disrespected [him] by calling [him] a Hoe!"
In Count Two, Plaintiff alleges that he has been subjected to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Although Plaintiff's rambling allegations are difficult to follow, it appears he is raising two separate claims.
First, it appears that Plaintiff is alleging that he was subjected to retaliation by Defendants Alger and Abbott. Plaintiff asserts that after he filed a grievance regarding Defendant Alger and informed Defendant Alger that he had filed two civil rights lawsuits against another officer, Defendant Alger told Plaintiff that he should not attempt to intimidate MCSO staff. Plaintiff states that he then noticed that he had named Defendant Alger as a defendant in another lawsuit and then spoke to Defendant Alger regarding Defendant Alger's statement that Plaintiff should not attempt to intimidate staff.
Plaintiff contends that Defendant Alger directed other sergeants to target and harass Plaintiff. He claims that the following day, Defendant Alger retaliated against Plaintiff by serving Plaintiff with a disciplinary action report/write-up in which he accused Plaintiff of using "laud" language in an inmate request form. He also asserts that two shift sergeants approached Plaintiff's cell and harassed Plaintiff by making him stand up and show his face while he was sleeping or by telling him to remove a piece of paper from his wall. Plaintiff claims that Plaintiff also contends that on one occasion, Defendant Abbott repeatedly kicked Plaintiff's cell door and demanded that Plaintiff show his face, although Plaintiff was asleep and his identification was in plain view.
Second, Plaintiff alleges that he was subjected to excessive force by Defendant Hansdall. Plaintiff claims that Defendant Hansdall directed other officers to use chemical devices and fire mace, pepper spray bullets, gas fogger bombs, and a taser at Plaintiff in response to Plaintiff's refusal to follow a nurse's instruction that Plaintiff chew in her presence a chewable Tums tablet. He also contends that after the medical department "cleared" Plaintiff, Defendant Hansdall instructed other detention officers to put Plaintiff in a "contaminated" holding cell for three hours. Plaintiff asserts that Defendant Hansdall knew the cell was contaminated and that the holding cell was not well-ventilated and the toilet was filled with urine and feces and would not flush. Plaintiff also claims Defendant Hansdall was acting vicariously for Defendant Alger and another officer.
In his Request for Relief, Plaintiff seeks monetary damages and "interposition by way of [an] injunction order" that requires Plaintiff to be transferred to the custody of the United States Marshal "for the duration and final decision in [his] ongoing criminal prosecution CR-2012-006837-001 DT."
IV. Failure to State a Claim
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
A. Count One
A prerequisite for any relief under 42 U.S.C. § 1983 is a showing that the defendant has acted under the color of state law. A public defender or court-appointed attorney representing a criminal defendant does not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 325 (1981); see also Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972). However, a public defender engaged in intentional misconduct as a part of a conspiracy with state actors to ...