United States District Court, D. Arizona
September 18, 2014
James Norman Ziegenfuss, Jr., Plaintiff,
Joseph M. Arpaio, et al., Defendants.
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 allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
A. Maricopa County Board of Supervisors
The Maricopa County Board of Supervisors and the individual members of that Board (Defendants Brock, Stapley, Kunasek, Wilson, and Wilcox) are not proper Defendants and must be dismissed. Local government bodies, such as Arizona counties, are persons under § 1983 and may be sued for constitutional injuries. Liability may be imposed on the county if a plaintiff establishes that his injuries were inflicted pursuant to an official county policy or custom. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) (citations omitted). Official county policy may only be set by an official with "final policymaking authority." Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986) (plurality opinion)). To identify those officials with "final policymaking authority, " the Court looks to state law. Id. (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988) (plurality opinion) (quotations omitted)).
In Arizona, the responsibility of operating jails is placed by law upon the Sheriff, not on the county's Board of Supervisors. See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. § 31-101. Therefore, the Board of Supervisors is not liable to Plaintiff under § 1983 because it lacks authority to establish an official policy with respect to the operation of the jail. Further, the Board cannot be held liable for the actions of the Sheriff or his deputies on a theory of respondeat superior liability. See Thompson, 885 F.2d at 1443. Accordingly, the Maricopa County Board of Supervisors and the individual members of the Board (Defendants Brock, Stapley, Kunasek, Wilson, and Wilcox) will be dismissed.
Plaintiff sues the Maricopa County Jails and the Maricopa County Tents Jail. However, a jail is not a proper defendant. Claims under § 1983 are directed at "bodies politic and corporate." Monell v. Dep't of Soc. Servs of New York, 436 U.S. 658, 688-89 (1978). Under the Civil Rights Act of 1871, Congress intended municipalities and other local government units to be included among those persons to whom § 1983 applies. Id. at 689-690. Because a jail is neither a corporation nor a body politic, it is not a "person" for purposes of § 1983. See, e.g., Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504 (D. Conn. 2008); Pahle v. Colebrookdale Tp., 227 F.Supp.2d 361 (E.D. Pa. 2002). Accordingly, the Maricopa County Jails and the Maricopa County Tents Jail are dismissed.
C. Commander John Doe
Plaintiff sues Commander John Doe at the Maricopa County Tents Jail. "A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone else who allegedly violated a plaintiff's constitutional rights does not make the supervisor liable. Monell, 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his individual capacity "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045.
Plaintiff fails to allege any facts regarding Defendant Commander John Doe in his Complaint. Plaintiff does not allege that Defendant Commander John Doe directly violated Plaintiff's constitutional rights. Moreover, Plaintiff does not allege facts showing that Defendant Commander John Doe violated Plaintiff's constitutional rights pursuant to a policy, practice, or custom, or that Defendant Commander John Doe participated in or directed any violations of Plaintiff's rights, or knew of any violations of Plaintiff's rights but failed to act to prevent them. Accordingly, Plaintiff fails to state a claim against Defendant Commander John Doe, and Defendant Commander John Doe will be dismissed.
D. Count One
Plaintiff alleges that his Fourth Amendment rights have been violated by a jail policy prohibiting felons from visiting inmates at the jail, which Plaintiff alleges is discriminatory. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment does not apply to Plaintiff's claim. However, because Plaintiff alleges that the jail policy is discriminatory, it appears Plaintiff may have intended to assert a Fourteenth Amendment equal protection claim. Generally, "[t]o state a claim... for a violation of the Equal Protection Clause... [, ] a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged he is a member of a protected class. Nor are felons a protected class. Plaintiff does allege that the jail rule "is prejudice against felons and families." However, Plaintiff may not assert claims on behalf of other individuals. A "plaintiff generally must assert his own legal rights and interests, and cannot assert the legal rights or interests of third parties.'" Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 610 (9th Cir. 2005) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).
Moreover, the Supreme Court has held that pretrial detainees do not have a right to unfettered visitation. See Block v. Rutherford, 468 U.S. 576, 585-89 (1984) (upholding a blanket prohibition on contact visitation for pretrial criminal detainees as reasonably related to a legitimate government interest in security). Additionally, the Ninth Circuit has squarely held that prisoners have no right to contact visitation. Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002); Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994); Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986) ("To the extent that denial of contact visitation is restrictive and even harsh, it is part of the penalty that criminals pay for their offenses against society."), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
Accordingly, Count One will be dismissed.
E. Count Two
Plaintiff alleges a threat to safety claim in Count Two because he broke two teeth on food at the jail that contained pebbles. A claim for threat to safety arises under the Fourteenth Amendment as to pretrial detainees and under the Eighth Amendment as to convicted inmates. Bell v. Wolfish, 441 U.S. 520, 535 and n.16 (1979). Nevertheless, the same standards are applied, requiring proof that the defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). To state a claim under § 1983 for threat to safety, an inmate must allege facts to support that he was incarcerated under conditions posing a substantial risk of harm and that prison officials were "deliberately indifferent" to those risks. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837. That is, "the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference." Id.
Plaintiff alleges that 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. However, Plaintiff has not alleged facts to support that the supervisor or anyone else was aware of the presence of pebbles in Plaintiff's food or that such presence rose to the level of an excessive risk to inmate safety, such as, for example, alleging the frequency of inmates being injured from pebbles in the food. Plaintiff also has not alleged facts to support that any Defendant knew or should have known that the presence of pebbles in the food posed an excessive risk to inmate safety. For these reasons, Plaintiff fails to state a constitutional claim for threat to safety, and Count Two will be dismissed.
Plaintiff also alleges that he has been waiting for three weeks to see a dentist, and that he has "lots of pain and suffering." It appears that Plaintiff may be attempting to allege that he has been denied constitutionally adequate medical care. To the extent he is, Plaintiff should be aware that not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corr., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference, " "negligence, " or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105. To state a claim of deliberate indifference, plaintiffs must meet a two-part test. "First, the alleged constitutional deprivation must be, objectively, sufficiently serious"; and the "official's act or omission must result in the denial of the minimal civilized measure of life's necessities." Id. at 834 (internal quotations omitted). Second, the prison official must have a "sufficiently culpable state of mind, " i.e., he must act with "deliberate indifference to inmate health or safety." Id. (internal quotations omitted). In defining "deliberate indifference" in this context, the Supreme Court has imposed a subjective test: "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837 (emphasis added).
In this case, Plaintiff has failed to allege sufficient facts to support that any named Defendant was deliberately indifferent to a serious medical need.
V. Leave to Amend
For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo, 423 U.S. at 371-72, 377.
Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed. Plaintiff must also follow all instructions for filing an amended complaint, including the instruction that the complaint must be "neatly handwritten."
Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g).
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.