United States District Court, D. Arizona
April 24, 2015
Berry Williams, Plaintiff,
Unknown Cisneros, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
On October 8, 2014, Plaintiff Berry Williams, who is confined in the Arizona State Prison Complex-Yuma in San Luis, 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 January 14, 2015 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 March 13, 2015, Plaintiff filed his First Amended Complaint (Doc. 9). 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
In his single-count First Amended Complaint, Plaintiff sues Charles L. Ryan, Director of the Arizona Department of Corrections ("ADOC"); Lance Hetmer and Greg Fizer, Wardens at the ADOC; and Unknown Cisneros, Unknown Badsted, and Unknown Reigie, Correctional Officers ("COs") at the ADOC. Plaintiff asserts an Eighth Amendment "cruel and unusual punishment" claim based on the allegations that he was "attacked and beaten" while in ADOC custody.
Plaintiff alleges that on November 22, 2013, Defendant Cisneros was the "floor officer, " supported by Defendant Reigie, who was in the "front key[-]cage, " controlling access to cells 1 through 16, and Defendant Badsted, who was in the "rear key[-] cage, " controlling access to cells 17 through 25. Badsted opened Plaintiff's cell, and Cisneros walked him to the shower but failed to handcuff him "as was usual." Upon return, Plaintiff was left outside his cell while Cisneros escorted another inmate from the shower. Badsted did not make any move to unlock Plaintiff's cell to let him re-enter before any other inmate was let out. Plaintiff was approached by Inmate Nobles from cell 16, with Cisneros following behind. Nobles was also not handcuffed, and he attacked Plaintiff. Plaintiff was "pummeled about the head and face, [and] thrown into the bars and to the floor." He injured his back and twisted his left leg that had previously been injured in a car accident. Plaintiff alleges that, but for Cisneros' failure to place inmates in handcuffs, Badsted's failure to open Plaintiff's cell, and Reigie's "blind eye, " he would not have been attacked.
Plaintiff's remaining allegations pertain to events that took place after he received medical attention for his injuries. Plaintiff alleges that he was approached by Sgt. Stevenson, who offered him a television "with the understanding that [Plaintiff] would pursue no action in the incident." Plaintiff accepted the offer because he is an indigent inmate with a life sentence and no financial means of support. Two months later, however, the television "was taken back" because enough time had then passed to render Plaintiff's complaint moot. Plaintiff appealed to the Deputy Warden Defendant Fizer; then to the Warden Defendant Hetmer; and finally to the ADOC Director Ryan. Each time, his complaint "was treated as trivial and of little consequence."
Plaintiff alleges that he suffered a strain to his lower back and aggravation to his leg injury, but the emotional and mental injuries he suffers are more severe. He alleges that due to the "inconsequential way in which [his] situation was treated, " he suffers constant fear for his safety. He further alleges that the "slight relief" he was given in the form of a television was taken away. Plaintiff claims to suffer from extreme depression and anxiety when he is outside his cell.
Plaintiff seeks monetary and punitive damages and to have a working television provided him for the duration of his sentence per ADOC's agreement with him made by Sgt. Stevenson.
III. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). 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 affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
Plaintiff fails to state an Eighth Amendment claim as to any Defendant. An Eighth Amendment claim requires a sufficiently culpable state of mind by the Defendants, known as "deliberate indifference." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Id. at 835. To state a claim of deliberate indifference, plaintiffs must meet a two-part test. "First, the alleged constitutional deprivation must be, objectively, sufficiently serious"; and the "official's act or omission must result in the denial of the minimal civilized measure of life's necessities." Id. at 834 (internal quotations omitted). Second, the prison official must have a "sufficiently culpable state of mind, " i.e., he must act with "deliberate indifference to inmate health or safety." Id. (internal quotations omitted). In defining "deliberate indifference" in this context, the Supreme Court has imposed a subjective test: "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837 (emphasis added).
A. Defendants Cisneros, Reigie, and Badsted
Plaintiff's allegations against Defendants Cisneros, Reigie, and Badsted are too vague and conclusory to state an Eighth Amendment claim. Plaintiff's only allegations against Defendant Cisneros are that while working as "floor officer" she escorted Plaintiff to the shower and back without handcuffs; she left Plaintiff outside his cell when she went to escort another inmate from the shower; and she was following behind Inmate Nobles when he attacked Plaintiff. It is unclear from the facts alleged whether Cisneros was even with Nobles or was escorting a different inmate at the time of the attack. It is also unclear what precipitated the attack or what Cisneros did or failed to do in response. Absent facts showing that Cisneros knew of and acted with deliberate indifference to a threat posed by Nobles, the mere fact that she was present when Plaintiff was attacked is insufficient to state an Eighth Amendment claim.
Plaintiff's allegations against Defendant Reigie and Badsted are even more minimal. Plaintiff alleges only that Reigie was in the front key-cage operating the locks to the lower-numbered cells at the time of Plaintiff's attack. This is not enough to show that Reigie was aware of a substantial risk of serious harm to Plaintiff prior to the alleged attack or that he acted with deliberate indifference to it. Plaintiff's allegations against Defendant Badsted are only slightly more specific. He alleges that Badsted was operating the locks from the rear key-cage; he unlocked the door to Plaintiff's cell when Defendant Cisneros took Plaintiff to the shower; and he failed to unlock Plaintiff's cell upon return. Even assuming, as Plaintiff alleges, that the attack would not have occurred if Badsted had unlocked Plaintiff's cell, allowing him to reenter, this is not enough to show deliberate indifference. Absent any facts showing that Badsted had been alerted - or otherwise had reason to believe - that Plaintiff was in danger, his failure to unlock Plaintiff's cell door sooner does not show that he acted with deliberate indifference to a serious threat to Plaintiff's safety. Similarly, the allegations that any or all of the Defendants failed to follow policy, requiring them to handcuff inmates when they were taken outside their cells, at most show negligence; they do not show that these Defendants were aware of a serious threat to Plaintiff's safety and were deliberately indifferent to that threat.
B. Defendants Fizer, Hetmer, and Ryan
Plaintiff's only allegations against Defendants Fizer, Hetmer, and Ryan are that Plaintiff appealed to each of them after the television was taken away, and, "[a]t each step, [his] complaint was treated as trivial and of little consequence." These allegations are too vague and conclusory to state a claim. It is not clear what Plaintiff was appealing to these Defendants - whether the alleged attack or the taking of the television - much less what he presented to them or what they did or failed to do in response. Moreover, to the extent Plaintiff sues these Defendants solely for their denials of grievances and not for any involvement in the underlying violations, this is not enough to state a constitutional claim. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (defendants did not commit constitutional violations when they denied administrative grievances, failed to intervene on plaintiff's behalf, and failed to remedy allegedly unconstitutional behavior).
IV. Leave to Amend
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "Second Amended Complaint." The second amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint or First Amended Complaint by reference. Plaintiff may include only one claim per count.
If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo, 423 U.S. at 371-72, 377.
Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.
A second amended complaint supersedes the original Complaint and First Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint or first amended complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) The First Amended Complaint (Doc. 9) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.
(2) If Plaintiff fails to file a second amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g).
(3) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.