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Newsome v. Arizona Department of Corrections

United States District Court, D. Arizona

February 2, 2015

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

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

On June 12, 2013, Plaintiff Thomas Eliss Newsome, who is confined in the Idaho Correctional Center in Boise, Idaho, 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). By Order dated August 12, 2013, the Court denied the Application to Proceed and gave Plaintiff 30 days to either pay the filing and administrative fees or file a complete Application Proceed In Forma Pauperis. 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 administratively closed the case, and entered judgment accordingly (Doc. 7). By Order dated January 30, 2014, the Court construed Plaintiff's August 27, 2013 filing as a new in forma pauperis application and vacated the October 11, 2013 entry of judgment because Plaintiff had substantially complied with the Court's August 12, 2013 Order (Doc. 8). Accordingly, the Court granted Plaintiff leave to proceed in forma pauperis, but dismissed the Complaint for failure to state a claim. Plaintiff was provided with 30 days in which to file an amended complaint that cured the deficiencies identified in the January 30 Order.

On February 18, 2014, Plaintiff filed a First Amended Complaint (Doc. 11). By Order dated October 27, 2014, the Court dismissed the First Amended Complaint because Plaintiff had again failed to state a claim. Plaintiff was provided with 30 days in which to file a second amended complaint to cure the deficiencies identified in the Court's October 27 Order.

On November 10, 2014, Plaintiff filed a Second Amended Complaint (Doc. 15). Plaintiff has also filed a Motion "to be under the American Disabilities Act in this Court Proceeding" (Doc. 14). The Court will deny the Motion and will dismiss the Second Amended Complaint and this action.

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 )).

II. Second Amended Complaint

In his three-count Second Amended Complaint, Plaintiff names as Defendants: Nurse Baxter, a nurse practitioner at Arizona State Prison Complex-Florence ("ASPC-Florence"); CO II Polivich, a correctional officer at ASPC-Florence; the unnamed "Medical Director" at ASPC-Florence; the unnamed Warden at ASPC-Florence; an unnamed CO III at ASPC-Florence; an unnamed CO IV at ASPC-Florence; and an unnamed "extradition company" that transported Plaintiff from ASPC-Florence to Idaho.

Although largely unintelligible, Plaintiff appears to allege in Count One that Defendants did not provide instructions to the extradition company tasked with moving Plaintiff from ASPC-Florence to Idaho. He indicates that he slipped and fell in an ASPC-Florence shower in November, 2011, injuring his neck and back. Despite these injuries, Plaintiff appears to allege that the extradition company was not instructed to provide support or medication for his injuries while transporting Plaintiff, causing further injury to Plaintiff's neck and back.

In Count Two, Plaintiff appears to allege that the Idaho Department of Corrections ("IDOC") has sought Plaintiff's medical records from the Arizona Department of Corrections ("ADOC") for more than three years. As a result, IDOC has delayed treatment of Plaintiff's injuries. As a result of this delay, Plaintiff's injuries have worsened to the point that he now requires surgery. Plaintiff complains that he has numbness in in his legs and knees, and is constantly in extreme pain.

In Count Three, Plaintiff largely appears to repeat his allegations from Counts One and Two, but appears to also state that he now has to use ...


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