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Perez v. Durango Jail

United States District Court, D. Arizona

November 3, 2014

Anthony Valero Perez, Plaintiff,
v.
Durango Jail, et al., Defendants.

ORDER

DAVID C. CAMPBELL, District Judge.

On May 7, 2014, Plaintiff Anthony Valero Perez, who is confined in the Durango Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a July 8, 2014 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.

On August 5, 2014, Plaintiff filed his First Amended Complaint (Doc. 8). The Court will dismiss the First Amended Complaint 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 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.

II. First Amended Complaint

Plaintiff names as Defendants Maricopa County Sheriff Joseph Arpaio, Durango Jail Commander Baron Erbuy, and Towers Jail Commander Sensalini. Plaintiff seeks damages.

Plaintiff asserts a threat to safety claim in all three counts. In Count One, Plaintiff alleges that while incarcerated in the Towers Jail, he was locked down for five days with three inmates in the cell. Plaintiff further alleges that "Jail Commander at Towers Jail is directly responsible by authority over all correctional staff to come in contact with Plaintiff."

In Count Two, Plaintiff alleges that while he was at the Fourth Avenue Jail, he was housed in overcrowded intake holding cells where physical contact with others was unavoidable. Toilets were unsanitary and often lacking toilet paper, and there was no soap for washing. Plaintiff was also housed in intake for over 24 hours without a blanket, mattress, or bed between February 28 and March 1, 2014. Plaintiff alleges that the Maricopa County Sheriff is "directly responsible by his authority over all staff employed by MCSO."

In Count Three, Plaintiff alleges that he was repeatedly moved from different pods and cells while at Durango Jail and the pods and cells were "completely unsanitized and dirty" when he arrived. Trash was scattered throughout and the bathrooms were dirty and full of urine. Inmates had inadequate cleaning supplies. Plaintiff asserts that the "Jail Commander is ...


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