United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff Joseph Lavance Smith, who is confined in the Arizona State Prison Complex-Eyman (ASPC-Eyman), has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will order Defendants Musachio and Woods to answer Counts One and Two of the Complaint and will dismiss the remaining claims and Defendants without prejudice.
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 assess an initial partial filing fee of $4.50. The remainder of the 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 )).
Plaintiff names the following Defendants in his two-count Complaint: Arizona Department of Corrections (ADOC) Director Charles L. Ryan; "SD Handler" Correctional Officer II Musachio; Assistant Deputy Warden Woods; Correctional Officers II Godlevsky and Streadman; Northern Region Director Ron Credio; Unknown Nurse; Deputy Warden of Operations Lee; Unknown Facility Health Administrator at ASPC-Eyman; and Unknown Health Services Regional Operations Director at ASPC-Eyman.
In Count One, Plaintiff alleges his Eighth Amendment rights were violated when Defendant Musachio used excessive force on him. Plaintiff claims that on July 15, 2013, he was returning to his cell when Defendant Musachio and his canine exited the control room passage. Plaintiff states that as he was walking through the passage, Defendant Musachio and the canine "closed in on the Plaintiff, at which time the Plaintiff politely asked [Defendant Musachio] to keep the dog from behind him, for his fear of its closeness and being bit." Plaintiff claims Defendant Musachio came closer and told Plaintiff to "shut the fuck up and hurry up and get to his cell." Plaintiff went to his assigned cell as directed, but claims "the verbal assault initiated by CO 2 Musachio continued as both parties hurled profanities." Plaintiff was then locked in his assigned cell.
Plaintiff claims Defendant Musachio left Plaintiff's cell for two to four minutes and then returned and resumed his verbal abuse. Plaintiff alleges that Defendant Musachio then yelled to Defendant Streadman to open Plaintiff's cell door. Defendant Musachio then ordered Plaintiff to close the cell door behind him. Plaintiff complied. Plaintiff claims "the argument continued as CO 2 Musachio ordered the Plaintiff to come closer, saying you want to fight motherfucker, come on.'" Plaintiff claims he refused the officer's challenge and took a non-threatening posture against the wall directly next to his cell.
Plaintiff claims that Defendant Musachio continued with his hostilities while removing the canine's muzzles and leash, and threw the restraints in the general direction of Defendant Godlevsky, who was about 10 feet away and looking on. Plaintiff asked Defendant Godlevsky to call a sergeant, but she did not respond.
Defendant Musachio ordered Plaintiff to the floor. Plaintiff states he "refused and remained in the same non-threatening posture against the wall, out of fear of being bit." An unknown officer approached and repeated the order and Plaintiff again refused. The officer then sprayed Plaintiff with a chemical agent, and Defendant Musachio took hold of Plaintiff's right wrist, and pinned Plaintiff to the wall. Defendant Musachio then shook Plaintiff's right arm and the unleashed canine attacked Plaintiff and bit into Plaintiff's right arm. Plaintiff states that the canine shook his arm two or three times, causing intense pain, before Defendant Musachio commanded the canine to release Plaintiff. The canine released and then immediately bit Plaintiff's right hip and groin region before releasing again. Plaintiff was then taken to the floor and put in restraints.
Plaintiff alleges Defendant Musachio's behavior constitutes excessive force because Plaintiff was locked in his cell, and posed no danger to staff or other inmates, before the physical confrontation with the dog began. Plaintiff further contends Defendant Musachio's actions violated ADOC policy relating to canines and were "malicious and sadistically designed for the purpose of causing harm, out of and for retaliation all of which horrific physical and psychological trauma."
Plaintiff claims Defendant Godlevsky violated his constitutional rights by failing to intervene on Plaintiff's behalf. Plaintiff alleges Defendant Streadman violated his constitutional rights by "allowing further access to the Plaintiff and not intervening on the Plaintiff's behalf."
Plaintiff claims Defendants Woods, Lee, Credio, and Ryan violated his constitutional rights because they are responsible for the actions of Defendants Musachio, Godlevsky, and Streadman.
In Count Two, Plaintiff alleges his Eighth Amendment rights were violated when he was denied adequate medical treatment for his wounds resulting from the dog bites. Plaintiff claims that after the incident, he was taken to medical where Defendant Unknown Nurse took photos and measured the diameter of Plaintiff's wounds. Defendant Nurse informed Defendant Woods "that the Plaintiff would need to be taken for outside medical care because she wasn't equipped to handle the sutures necessary for the injuries-the nurse stated ar[r]angements had been made." Plaintiff claims Defendant Woods had a brief conference with Defendant Lee and then "directed the nurse to clean and gauze the Plaintiff's wounds because they're not that bad.'" Plaintiff claims that as a result of not receiving the proper treatment, his wounds bled for seven days.
Plaintiff claims that Defendant Woods violated his constitutional rights by refusing Plaintiff "a community standard of health care" and by "abusing her authority to personally direct the medical care given, which resulted in unnecessary disfigurement/scarring, pain and suffering." Plaintiff further claims Defendant Unknown Nurse violated his constitutional ...