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Turner v. Barajas

United States District Court, D. Arizona

January 6, 2015

Nathaniel Turner, Jr., Plaintiff,
v.
Unknown Barajas, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

On March 20, 2014, Plaintiff Nathaniel Turner, Jr., who is confined in the Arizona State Prison Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a May 23, 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 June 16, 2014, Plaintiff filed his First Amended Complaint (Doc. 7). On June 17, 2014, Plaintiff filed a Motion for Extension of Time to Obtain Counsel (Doc. 8). The Court will deny the Motion for Extension of Time and dismiss the First Amended Complaint with leave to amend.

I. Motion for Extension of Time

In his June 17 Motion for Extension of Time, Plaintiff seeks 30 days within which to obtain counsel. In the six months since Plaintiff filed the Motion, counsel has not entered an appearance in this case. Accordingly, the Court will deny the Motion.

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 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.

III. First Amended Complaint

In his three-count First Amended Complaint, Plaintiff names the following Defendants: Phoenix Police Officers Jacob Daniels and Michael Smith; John Doe Medical Staff at St. Luke's Hospital; and Doctor B. Johnson.

In Count One, Plaintiff claims his arrest was the result of racial profiling by Defendants Daniels and Smith. Plaintiff claims that on January 17, 2014, he was charging his laptop at a Shell Gas Station when Defendants Daniels and Smith approached him and told him he was stealing electricity and trespassing. Plaintiff claims that he had permission to charge his laptop at the gas station and that he "would see [Officer Daniels] in court for racial harassment." Plaintiff claims that as soon as he reached over to unplug his computer, he was "brutally assaulted by officer Jacob Daniels." Plaintiff claims that Defendant Daniels "for no reason jumped on [his] back putting [him] in a sleeper/choke hold causing [him] to fall head first into the pavement, knocking [him] unconscious, giving [him] a concussion." ...


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