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Nester v. Ryan

United States District Court, D. Arizona

January 21, 2016

Oscar Nester, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

REPORT AND RECOMMENDATION

DEBORAH M. FINE, Magistrate Judge.

TO THE HONORABLE STEPHEN M. McNAMEE:

Before the Court is Plaintiff's Motion for Extension of Time to Prepare His Motion for Leave to File a First Amended Complaint (Doc. 10); and Plaintiff's Motion for Leave of the Court to File a First Amended Complaint (Doc. 11). This matter is before the undersigned on referral from the District Judge. The Court has a continuing obligation to screen complaints brought by prisoners seeking relief against an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The screening requirement extends to proposed amended complaints. Because a magistrate judge cannot decide a "matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement, " Rule 72(b)(1), Federal Rules of Civil Procedure, the undersigned recommends as follows.

I. Background

Plaintiff Oscar Nester filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. On October 27, 2015, the Court granted Plaintiff's Application to Proceed In Forma Pauperis and ordered Defendants Ryan and Corizon to respond to Plaintiff's two-count Complaint. (Doc. 8.) On November 19, 2015, Plaintiff filed a motion for an extension of time to file a motion for leave to file an amended complaint. (Doc. 10.) On November 25, 2015, Plaintiff filed his motion for leave to file his First Amended Complaint, which is attached to the motion ("FAC"). (Doc. 11.)

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. 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.

The United States Court of Appeals for the Ninth Circuit has instructed that courts "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 )). 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). In such circumstances, even a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.

III. First Amended Complaint

Plaintiff's five-count FAC names the following Defendants: Charles L. Ryan; Corizon Health, Inc.; Wexford Health Sources, Inc.; Dr. Arlene McKamey; Dr. Michael Hegmann; Dr. Mulhen; Kerry Byrd; and Assistant FHA Howley. Plaintiff seeks injunctive, compensatory, and punitive relief. Because Plaintiff filed his motion for leave to amend before a responsive pleading was filed and as a matter of course under Fed.R.Civ.P. 15(a)(1)(B), the Court recommends that Plaintiff's motion for extension of time (Doc. 10) be denied as unnecessary.

A. Claims From Original Complaint

Plaintiff's FAC contains Counts I and II from his original complaint. The Court previously screened those counts and ordered Defendants Ryan and Corizon to answer those counts. (Doc. 8.) The Court recommends that these same Defendants ...


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