United States District Court, D. Arizona
July 2, 2015
Michael David Johnson, Plaintiff,
Maricopa County Sheriff's Office, et al., Defendants.
DAVID G. CAMPBELL,
On November 14, 2014, Plaintiff Michael David Johnson, who was then
confined in the Maricopa County Lower Buckeye 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 January 28, 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 5, 2015, Plaintiff filed a Notice of Change of Address
indicating he is no longer in custody, and on May 7, 2015, he filed his First
Amended Complaint (Doc. 14). At the time Plaintiff was released, he still owed
$292.00 towards his filing fee. In a May 15, 2015 Order, the Court gave
Plaintiff 30 days to either pay the $292.00 balance of the filing fee or file a
non-prisoner Application to Proceed in District Court without Prepaying Fees or
Costs. Plaintiff has since filed a non-prisoner Application to Proceed (Doc. 17)
and a Motion to Appoint Counsel (Doc. 18).
The Court will grant the non-prisoner Application to Proceed, dismiss
the First Amended Complaint and this action, and deny the Motion to Appoint
Counsel as moot.
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.
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
"[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. First Amended Complaint
In his single-count First Amended Complaint, Plaintiff names as
Defendants Maricopa County Sheriff Joseph M. Arpaio; Maricopa County Supervisors
Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Steve Gallardo; and
the Scottsdale City Court. Plaintiff seeks punitive damages, "appeal of civil
order of protection hearing/re-hearing, " and court costs.
Plaintiff claims that Defendants violated his due process rights by
denying him access to a court transcript he needed to appeal an Order of
Protection in Scottsdale City Court. Plaintiff's claim is based on the following
On July 3, 2014, Plaintiff was arrested for violating an Order of
Protection issued by the Scottsdale City Court, and he was placed in the Lower
Buckeye Jail to await trial. While in custody, Plaintiff was transported to an
August 6, 2014 hearing in his Order of Protection case. Plaintiff lost that
hearing, and he filed for an appeal and requested a copy of the August 6, 2014
hearing transcript. The Scottsdale City Court sent Plaintiff an audio CD of the
hearing per their policy. This CD was intercepted by the Lower Buckeye Jail
legal services and held by the property department.
On August 15, 2014, Plaintiff filed an inmate request, asking to
listen to the CD, and the request was denied on August 20, 2014. On August 22,
2014, Plaintiff wrote to the Scottsdale City Court requesting assistance, and
his request was denied on September 29, 2014. In the meantime, Plaintiff filed a
series of inmate grievances and grievance appeals regarding the denial of his
request to hear the CD. On October 6, 2014, Plaintiff's final grievance was
denied. Plaintiff wrote his memorandum appealing the Scottsdale City Court's
Order of Protection decision without access to the hearing transcript, and lost
Plaintiff alleges that the Order of Protection was frivolous, and he
believes he would have won his appeal if he had been given access to the August
6, 2014 hearing transcript. He claims that Defendants' denial of due process in
not making the transcript available to him "directly interfered with and
impacted [his] defense and subsequent incarceration."
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)). Negligence is not sufficient to state a claim under § 1983.
Daniels v. Williams, 474 U.S. 327, 330-31 (1986). 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.
A. Failure to State a Claim Against Any Defendant
Plaintiff fails to state a claim against Arpaio. For an individual to
be liable in his individual capacity, "[a] plaintiff must allege facts, not
simply conclusions, that show that the individual was personally involved in the
deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998). Further, there is no respondeat superior liability
under § 1983, so a defendant's position as the supervisor of someone who
allegedly violated a plaintiff's constitutional rights does not make him liable.
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691; Taylor v. List,
880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). A supervisor in his
individual capacity "is only liable for constitutional violations of his
subordinates if the supervisor participated in or directed the violations, or
knew of the violations and failed to act to prevent them." Taylor, 880
F.2d at 1045. Alternatively, for an individual to be liable in his official
capacity, a plaintiff must allege injuries resulting from a policy, practice, or
custom of the entity for which that individual exercises final policy-making
authority. Monell, 436 U.S. 694; Cortez v. County of Los Angeles,
294 F.3d 1186, 1188 (9th Cir. 2002).
Plaintiff does not allege that Arpaio personally kept him from being
able to listen to the CD, nor does he allege that, as a supervisor, Arpaio
directed anyone else to keep him from doing so, or knew that Plaintiff was
unable to do so, yet failed to act. Plaintiff also fails to allege any facts
showing that the denial of his requests resulted from a policy, practice, or
custom observed at the Lower Buckeye Jail. Accordingly, Plaintiff fails to state
a claim against Arpaio in either his individual or official capacity.
2. Barney, Chucri, Kunasek, Hickman, and Gallardo
Plaintiff also fails to state a claim against Maricopa County
Supervisors Barney, Chucri, Kunasek, Hickman, and Gallardo. When individuals,
such as members of the Maricopa County Board of Supervisors, are sued in an
official capacity, the real party in interest is the entity of which the members
are agents. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting
Monell, 436 U.S. at 690 n. 55). In this case, that entity is Maricopa
County. A municipality may not be sued, however, solely because an injury was
inflicted by one of its employees or agents. Long v. County of Los Angeles,
442 F.3d 1178, 1185 (9th Cir. 2006) (citation omitted). Rather, the municipality
is liable only when the execution of its policy or custom inflicts a
constitutional injury. Id. (citation omitted); Miranda v. City of
Cornelius, 429 F.3d 858, 868 (9th Cir. 2005) (citation omitted).
Plaintiff has not alleged that his rights were violated as the result
of any policy, practice, or custom of Maricopa County. Moreover, official county
policy may only be set by an official with "final policymaking authority" (
Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83
(1986) (plurality opinion)), and in Arizona, the responsibility for operating
jails is placed on the county sheriff, not on a county's board of supervisors.
See Ariz. Rev. Stat. Ann. § 11-441(A)(5); Ariz. Rev. Stat. Ann. § 31-101.
Therefore, even if Plaintiff had alleged facts showing his injury stemmed from a
policy or practice observed at the Lower Buckeye Jail, the Maricopa County Board
of Supervisors would not be liable under § 1983 because it lacks authority to
establish an official policy with respect to the operation of the jail. Further,
the Board cannot be held liable for the actions of the Sheriff or his deputies
on a theory of respondeat superior liability. See Los
Angeles Police Prot. League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990)
(citation omitted). Accordingly, Plaintiff fails to state a claim against
Barney, Chucri, Kunasek, Hickman, and Gallardo.
3. Scottsdale City Court
Finally, Plaintiff fails to state a claim against the Scottsdale City
Court. Claims under § 1983 may be directed at "bodies politic and corporate."
Monell, 436 U.S. at 688-89. "[A] municipality can be sued under § 1983,
but it cannot be held liable unless a municipal policy or custom caused the
constitutional injury." Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163, 166 (1993). "A municipality may be
liable for actions resulting in violations of constitutional rights only when
the conduct of its official or agent is executed pursuant to a government policy
or custom." Lewis v. Sacramento County, 98 F.3d 434, 446 (9th Cir.
1996), rev'd on other grounds, 523 U.S. 833 (1998). Although the
Scottsdale City Court is an arm or agency of the City of Scottsdale, which is
subject to suit under § 1983, Plaintiff does not allege that his rights were
violated due to a policy or custom of the City of Scottsdale. There is also no
respondeat superior liability under § 1983; thus, the City of Scottsdale's
position as the employer or supervisor of someone who may have violated
Plaintiff's constitutional rights does not impose liability. Monell,
436 U.S. at 691-92. Accordingly, Plaintiff fails to state a claim against the
Scottsdale City Court.
B. Failure to State a Constitutional Claim
Even if Plaintiff had named a proper Defendant - someone who, through
his own, individual actions, kept Plaintiff from being able to listen to the CD
of his Scottsdale City Court hearing - Plaintiff fails to state a constitutional
claim based on the loss of his appeal in the Scottsdale City Court.
As the Court noted in its January 28, 2015 Order, the right of
meaningful access to the courts prohibits officials from actively interfering
with inmates' attempts to prepare or file legal documents. Lewis v. Casey,
518 U.S. 343, 350 (1996). The right of access to the courts is only a right to
bring petitions or complaints to court, however, and not a right to discover
such claims or even to ligate them effectively once filed with a court. Id.
at 354. The right "guarantees no particular methodology but rather the conferral
of a capability - the capability of bringing contemplated challenges to
sentences or conditions of confinement before the courts." Id. at 356.
For an access-to-courts claim, a plaintiff must show that he suffered
an "actual injury" with respect to contemplated litigation. Id. at 349.
To show actual injury, the plaintiff must demonstrate that the defendants'
conduct frustrated or impeded him from bringing to court a nonfrivolous claim
that he wished to present. Id. at 352-53.
Moreover, "the injury requirement is not satisfied by just any type of
frustrated legal claim." Id. at 354. The right of access to the courts
"does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative
actions to slip-and-fall claims." Id. at 355. The nonfrivolous claim
must be a direct or collateral attack on the inmate's sentence or a challenge to
the conditions of his confinement. Id. "Impairment of any other
litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration." Id.
(emphasis in original).
Plaintiff's claim fails for a number of reasons. First, Plaintiff does
not allege facts showing he was impaired in his ability to bring a direct or
collateral attack on his sentence or a challenge to the conditions of his
confinement. Plaintiff alleges that his inability to listen to the CD of his
August 6, 2014 Order of Protection hearing "directly interfered with and
impacted [his criminal] defense and subsequent incarceration." But based on the
facts alleged, Plaintiff was arrested for violating the Order of Protection on
July 3, 2014, a month before the date of the hearing in which he purportedly
challenged that order and lost. Thus, the facts alleged do not plausibly show
that an appeal of that decision, even if successful, would have impacted
Plaintiff's arrest and incarceration for a criminal violation that had already
Additionally, Plaintiff has not alleged facts showing he had a
nonfrivolous reason for appealing the Scottsdale City Court's ruling. Although
Plaintiff baldly asserts that "with access to the transcript and other legal
materials regarding this case" he would have won his appeal, he does not
identify any claims the transcript and these "other legal materials" would have
allowed him to make. To the extent Plaintiff implies that access to the
Scottsdale City Court transcript would have allowed him to discover appealable
errors in that court's decision that he was otherwise unable to identify, this
supposition is too speculative to form the basis of an access-to-the-courts
claim. In short, Plaintiff fails to allege any facts that plausibly show that
being permitted to listen to the CD would have allowed him to make a
nonfrivolous claim, and, even if it did, that his ability to make that claim
would have either directly or indirectly impacted his criminal sentence.
IV. Dismissal without Leave to Amend
Because Plaintiff has failed to state a claim in his First Amended
Complaint, the Court will dismiss his First Amended Complaint. "Leave to amend
need not be given if a complaint, as amended, is subject to dismissal."
Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989).
The Court's discretion to deny leave to amend is particularly broad where
Plaintiff has previously been permitted to amend his complaint.
Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir.
1996). Repeated failure to cure deficiencies is one of the factors to be
considered in deciding whether justice requires granting leave to amend.
Moore, 885 F.2d at 538. The Court finds that further opportunities to
amend would be futile. Therefore, the Court, in its discretion, will dismiss
Plaintiff's First Amended Complaint without leave to amend.
IT IS ORDERED:
(1) Plaintiff's non-prisoner Application to Proceed (Doc. 17) is
(2) Plaintiff's Motions to Add Counts (Docs. 5 and 6) are granted, and
his Motion for Disclosure (Doc. 7) is denied pursuant to the Court's January 28,
(3) Plaintiff Motion to Appoint Counsel (Doc. 18) is denied as moot.
(4) Plaintiff's First Amended Complaint (Doc. 14) and this action are
dismissed for failure to state a claim, and the Clerk of Court must enter
(5) The Clerk of Court must make an entry on the docket stating that
the dismissal for failure to state a claim may count as a "strike" under 28
U.S.C. § 1915(g).
(6) The docket shall reflect that the Court certifies, pursuant to 28
U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that
any appeal of this decision would not be taken in good faith.