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Newsome v. Arizona Department of Corr.

United States District Court, D. Arizona

October 27, 2014

Thomas Eliss Newsome, Plaintiff,
Arizona Department of Corr., et al., Defendants.


STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff Thomas Eliss Newsome, who is now confined in the South Idaho Correctional Institution in Boise, Idaho, filed a pro se civil rights Complaint under 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. [1] (Doc. 1, 2.) Because the in forma pauperis application submitted by Plaintiff did not substantially comply with this District's approved form, the Court denied the application in an August 12, 2013 Order and gave Plaintiff 30 days to pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. (Doc. 5.) On August 27, 2013, Plaintiff submitted a six-month trust account statement and the second page of a new Application to Proceed In Forma Pauperis. (Doc. 6.) However, on October 11, 2013, the Clerk of Court entered judgment. (Doc. 7.) In an Order filed on January 30, 2014, the Court construed Plaintiff's filing on August 27, 2013 as a new in forma pauperis application and vacated the October 11, 2013 entry of judgment based on Plaintiff's substantial compliance with the Court's August 12, 2013 order. (Doc. 8.) The Court granted Plaintiff leave to proceed in forma pauperis, but dismissed the Complaint for failure to state a claim with leave to amend. ( Id. )

Plaintiff has filed a First Amended Complaint. (Doc. 11.) The Court will dismiss the First Amended Complaint for failure to state a claim with leave to amend.

I. 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 First Amended Complaint will be dismissed 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.

II. First Amended Complaint

Plaintiff alleges three counts for denial of constitutionally adequate medical care after he was injured at an Arizona Department of Corrections (ADC) facility. Plaintiff sues Nurse Practitioner Jane Doe, Caseworker Povich, Warden John Doe, and Medical Director Doe. Plaintiff appears to seek injunctive and compensatory relief.

To the extent that the First Amended Complaint is legible, Plaintiff appears to complain of Defendants' failure(s) to provide medical treatment for serious injuries to his neck and back, particularly while he was transported from Arizona to Idaho.[2] Although unclear, he appears to allege the following: Plaintiff suffered a serious orthopedic injury while incarcerated by ADC, apparently in the East Unit. He indicates that a warden or assistant warden photographed the area where Plaintiff was injured and the condition of the floor. Treatment scheduled by an orthopedic surgeon and neurologist in Arizona were delayed, or cancelled, by Plaintiff's extradition from Arizona to Idaho, which took about 20 days. The company that transported Plaintiff was not provided instructions or medical supplies for Plaintiff's medical condition(s) during transit and Idaho prison officials were not informed of Plaintiff's medical condition(s). Plaintiff contends that ADC medical staff failed to arrange for medical care while he was being transported. Plaintiff alleges that his medical condition worsened as a result causing numbness in his legs and pain in his back and neck.

III. Failure to State a Claim

To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). 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 ...

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