United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
On March 30, 2015, Plaintiff Rodney Cabrera De La Rosa, who is confined in the Maricopa County 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 May 15, 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 June 8, 2015, Plaintiff filed a letter addressed to the undersigned and 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 three-count First Amended Complaint, Plaintiff sues Joseph M. Arpaio, Maricopa County Sheriff; "Durango Jail Staff [and] Employees"; "G.T.L. Staff, " "subcontractor phone provider services" at the Durango Jail; and Allen Pest Control, "subcontractor pest control (3/3/2015)" at the Durango Jail. Plaintiff seeks monetary damages
In Count One, Plaintiff asserts a claim based on the conditions of confinement. He alleges that he was assigned to "Durango 4A-7-2" on February 8, 2015 and that he noticed asbestos, black mold spores, "rusty vents, " and "[g]nats flying everywhere." Plaintiff claims that the housing unit is "not livable and should have been condemned." Due to these conditions, Plaintiff has incurred sinus infections, coughing, sneezing, headaches, body aches, chest pain, bloody mucus, skin rash, diarrhea, stomach aches, runny nose, runny eyes, and irritated eyes.
In Count Two, Plaintiff asserts a claim of "phone call tampering" and alleges that Defendant G.T.L. is the subcontractor that provides telephone services to inmates at the Durango Jail. Staff members claim that they do not have control over the phone call rates. G.T.L. charges $12.00 for a twenty minute phone call, which is difficult for his family to pay. Plaintiff complained about the phone call rates to prison staff members, but they told Plaintiff that he should send a postcard instead of using the telephone. Due to the telephone rates, Plaintiff has suffered from post-traumatic stress disorder, "extreme mental cruelty, " anxiety, depression, and "extreme financial hardship."
In Count Three, Plaintiff asserts a claim of "discrimination" and alleges that on March 3, 2015, a sprayer from Defendant Allen Pest Control yelled "your[e] all poisoned anyway." Plaintiff claims that several inmates, including Plaintiff, filed a grievance regarding this incident. Plaintiff further claims that he was "discriminated" against by the sprayer employed by Defendant Allen Pest Control. On March 19, 2015, Sergeant Contreras came into Plaintiff's pod and said, "De La Rosa, you have to be educated to be a spokesman for the pod." Plaintiff claims this statement was judgmental, degrading, and discriminatory because he is a "Pacific Islander." Plaintiff further claims that when he and another inmate were called in about two broken razors, Plaintiff was the only one sent to disciplinary segregation, ...