United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff James Norman Ziegenfuss, Jr., who is confined in the Maricopa County Tent City 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.
Plaintiff names the following Defendants in his two-count Complaint: Maricopa County Sheriff Joseph M. Arpaio; the Maricopa County Board of Supervisors; Maricopa County Jails; Fulton Brock; Don Stapley; Andrew Kunasek; Max Wilson; Mary Rose Wilcox; Maricopa County Tents Jail; Commander John Doe; and MCSO Kitchen Supervisor "Et, Al." Plaintiff seeks damages and training for food handlers. He also wants felons who have been out of prison for more than a year to be allowed to visit family members in jail.
In Count One, Plaintiff asserts a Fourth Amendment "discrimination" claim and alleges the following facts: Defendants Arpaio, Maricopa County Jails, Brock, Stapley, Kunasek, Wilson, Wilcox, and Maricopa County Supervisors implemented written rules, regulations, directives and policies that are discriminatory and prejudicial to "any and all felons to visit anyone in M.C.S.O. jails, be it relative, family member or fiance of any felon to visit an inmate here at M.C.S.O." However, a person who has been released from jail can "visit anyone after 12 months expired." Plaintiff is unable "to have the same visits [with his] loved ones because they are felons and denied  visitation rights." This has harmed Plaintiff and his family members. Plaintiff's fiancee is not allowed to visit him "because her felony was over 15 years ago" and there is no "time limit on felons but there is on anyone else." Plaintiff is being discriminated against, and the rule is prejudicial against felons and families. In addition, the rule is "constitutionally unfair" and constitutes cruel and unusual punishment under the Eighth Amendment.
In Count Two, Plaintiff asserts a threat to safety claim and alleges the following facts: Defendants Arpaio, Maricopa County Board of Supervisors, and Maricopa County Jails failed to follow rules, regulations, policy and procedures in preparing Plaintiff's meals "and with deliberate indifference failed to remove pebbles from [Plaintiff's] soy beans causing 2 of [his] back teeth to crack in half while eating [his] meal." The kitchen supervisor is supposed to check the beans for pebbles before cooking, but "with deliberate indifference caused a serious medical injury" to Plaintiff's mouth. This is a violation of Plaintiff's "civil right to be free from danger while eating" and a threat to Plaintiff's safety. Plaintiff has been waiting for three weeks to see a dentist, and his first health needs request was lost. Plaintiff has "lots of pain and suffering."
IV. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must ...