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Bishop v. Babeu

United States District Court, D. Arizona

February 2, 2015

Aaron Joseph Bishop, Plaintiff,
v.
Paul R. Babeu, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

On February 25, 2014, Plaintiff Aaron Joseph Bishop, who was confined in the Pinal County Jail in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a June 6, 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.

I. Application to Proceed In Forma Pauperis and Filing Fee

On November 10, 2014, Plaintiff filed a Notice of Change of Address, indicating he was no longer incarcerated (Doc. 16). At that time, Plaintiff still owed $338.24 towards his filing fee. Accordingly, in a November 21, 2014 Order, the Court ordered Plaintiff to either pay the remainder of the filing fee within 30 days or file a non- prisoner application to proceed in forma pauperis (Doc. 17).

On December 23, 2014, Plaintiff filed a non- prisoner Motion to Proceed In Forma Pauperis and Supporting Information (Doc. 19), indicating that he is not working and he has no money or assets. The Court will grant the Motion to Proceed and permit Plaintiff to proceed without paying the remainder of the filing fee.

II. Motions for Extension of Time to File a First Amended Complaint

Following the Court's June 6, 2014 Order dismissing the Complaint with leave to Amend, Plaintiff filed three Motions for Extension of Time to File a First Amended Complaint (Docs. 11-13). On July 1, 2014, Plaintiff requested a 30-day extension due to medical issues and difficulty accessing the law library; on July 29, 2014, he requested an additional 45-day extension due to continued medical issues and limited access to legal materials; and on September 11, 2014, he requested an additional 7-day extension, which he appears to have sought in place of the additional 45-day extension. On the same day that Plaintiff requested the 7-day extension, he also filed his First Amended Complaint (Doc. 14). The Court will grant the Motions for 30- and 7-day extensions (Docs. 11, 13), rendering the First Amended Complaint timely; deny the Motion for a 45-day extension as moot (Doc. 12); and dismiss the First Amended Complaint with leave to amend.

III. 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.

IV. First Amended Complaint

In his single-count First Amended Complaint, Plaintiff sues Pinal County Sheriff Paul Babeu, and Pinal County. Plaintiff ...


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