United States District Court, D. Arizona
Honorable Stephen M. McNamee Senior United States District Judge
Plaintiff Keith Preston Nance, who is confined in the Arizona State Prison Complex, South Unit, in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 2.) The Court will dismiss the Complaint for failure to state a claim with leave to amend.
I. Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month’s income credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. 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 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.
Plaintiff alleges two counts for violation of equal protection and 42 U.S.C. §§ 1997 and 2000. Plaintiff sues the following current or former employees of the Arizona Department of Corrections (ADC): Director Charles Ryan; Florence Complex Warden Greg Fizer; Deputy Warden Jack Heet; and Corrections Officer (CO) II Thomas Crean, a grievance coordinator. Plaintiff seeks injunctive, compensatory, and punitive relief.
Plaintiff alleges the following facts in his Complaint: Plaintiff is African-American. In the South Unit chow hall, inmates are allowed to sit where they choose, but they choose to sit in groups segregated by race. Otherwise at South Unit, inmates are bunked, socialize, and attend worship services without regard to race. According to Plaintiff, if he sat at “a white, Mexican, or Native American table, ” he would be subjected to a “beat down, ” i.e., an assault by other inmates. (Doc. 1 at 3f.) Plaintiff contends that Defendants have allowed a custom of racially segregated seating in the South Unit chow hall, in violation of equal protection and §§ 1997 and 2000.
On January 19, 2015, Plaintiff forwarded a letter to Defendant Heet seeking a mission statement denouncing segregation of inmates at meals based on race. On January 27, 2015, Plaintiff met with Heet and Crean about his concerns. Heet agreed to investigate.
On February 28, 2015, Plaintiff submitted an informal resolution to Defendant Crean concerning the issue. On March 5, 2015, Crean found the grievance resolved based on a response sent on March 4, 2015. On March 9, 2015, Plaintiff submitted a formal grievance to Heet because he had not received a resolution to his complaint. On March 11, 2015, Crean responded to the grievance stating that after investigation and conducting interviews, he found that South Unit did not promote, facilitate, or encourage segregation in the chow hall and denied the grievance.
On March 11, 2015, Plaintiff submitted a grievance appeal to Warden Fizer. In an April 8, 2015 response, Fizer affirmed denial of the grievance because ADC did not enforce or encourage segregation in the chow hall and ADC already had a zero tolerance stance against discrimination based on race.
On April 13, 2015, Plaintiff submitted his final grievance appeal to Ryan. On April 27, 2015, Ryan affirmed the denial of Plaintiff’s grievance appeal. Ryan agreed that ADC had a zero tolerance stance towards racial discrimination. Ryan noted that there was no assigned seating in the Unit chow hall and that inmates could choose to sit where they wanted.
In an April 24, 2015 Unit newsletter, an unnamed inmate asked Heet what legacy he wished to leave at the South Unit, to which Heet replied that he would like to have the chow hall integrated. At an April 27, 2015 South Unit Community Meeting, Heet and inmates discussed integration of the Unit chow hall, but “no course of action was determined nor policy or custom change.” (Doc. 1 at 3G.) In an April 28, 2015 newsletter, Heet stated that he was not trying to enforce integration, but that he wanted every inmate to feel free to sit with whomever he chose at meals.
IV. 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).
A. Count I
Plaintiff designates Count I as a claim for violation of equal protection. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws, ” which is essentially a direction that all persons similarly situated should be treated alike. U.S. Const., amend. XIV; see City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). A state practice that interferes with a fundamental right or that discriminates against a suspect class of individuals is subject to strict scrutiny. Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976); City of Cleburne, 473 U.S. at 441. Thus, in Johnson v. California, 543 U.S. 499 (2005), the Supreme Court held that racial classifications in prisons are “immediately suspect” and subject to strict scrutiny, even where such policies affect all races equally. 543 U.S. at 508-09. Absent allegations that he is a member of a suspect class, or that a fundamental right has been violated, a plaintiff must allege facts to support that he has been intentionally treated differently from others who are similarly situated without a reasonable basis therefor. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Conclusory allegations do not suffice. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
Plaintiff alleges that he is African American, a member of a suspect class. However, Plaintiff fails to allege facts to support that any Defendant has mandated or required inmates to sit in racially segregated groups in the chow hall. Rather, Plaintiff asserts that Defendants allow or tolerate inmates choosing to segregate themselves by race in the chow hall. Plaintiff acknowledges that he may sit where he chooses, but speculates that if he sat with inmates of a different race in the chow hall, he would be physically attacked. Plaintiff does not allege facts to support that he has ever done so, that any Defendant has prevented him from doing so, or that he has ever been attacked for doing so. Instead, Plaintiff appears to seek forced integration in the chow hall by Defendants, while acknowledging that in all other activities, the races are integrated. Allowing inmates to sit where and with whom they choose in the chow hall, absent other facts, does not rise to the level of an equal protection violation. Accordingly, Plaintiff fails to state a claim in Count I and it will be dismissed.
B. Count II
Plaintiff designates Count II as a claim for violation of 42 U.S.C. §§ 1997 and 2000a premised on the same facts asserted in support of Count I. While § 1997e allows a prisoner to file suit if he has complied with available administrative remedies, it does not afford a substantive basis for relief. Indeed, it authorizes a court to dismiss a prisoner suit sua sponte if the prisoner fails to state a claim under § 1983, among other reasons. As discussed above, Plaintiff has failed to state a substantive claim in Count I. The same facts alleged in support of Plaintiff’s equal protection claim do not otherwise state a claim under § 1997. Accordingly, this portion of Count II will be dismissed.
Section 2000a prohibits discrimination or segregation in places of public accommodation, such as hotels, motels, restaurants, gas stations, bus lines, and entertainment venues, open to the public. 42 U.S.C. § 2000a(b). The Court has found no authority to support that state prisons constitute places of public accommodation. Further, state action for purposes of § 2000a(d) means discrimination or segregation carried on (1) under color of any law, statute, ordinance, or regulation, (2) carried on under color of any custom, or usage required or enforced by officials of the state, or (3) required by action of the state. 42 U.S.C. § 2000a(d). Further, § 2000a authorizes the Attorney General to initiate suit. Plaintiff has not alleged facts to support any of these requirements. For the above reasons, Plaintiff fails to state a claim under § 2000a. This portion of Count II will be dismissed with prejudice because Plaintiff cannot amend to state a claim under § 2000a.
V. Leave to Amend
For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the 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 “First Amended Complaint.” The first 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 by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original 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 an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is ...