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Jones v. Nash

United States District Court, D. Arizona

January 23, 2018

Edward Lee Jones, Jr., Plaintiff,
v.
C. Nash, et al., Defendants.

          ORDER

          Honorable Diane J. Humetewa United States District Judge.

         Pending before the Court are two motions: (1) Plaintiff's Motion for Entry of Default (doc. 14), and (2) Defendant's Motion for the Court to Screen Plaintiff's First Amended Complaint (doc. 22). For the reasons that follow, the Court will deny Plaintiff's Motion and grant Defendant's Motion.

         I. Background.

         On May 19, 2017, Plaintiff, who is confined in the Arizona State Prison Complex - Eyman in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) On June 6, 2017, the Court screened the Complaint, ordered Defendant Woods to answer the medical care claim in Count Two, and ordered Plaintiff to serve Defendant Woods within 90 days of the filing of the Complaint, or within 60 days of the date of the Order. (Doc. 5.) The Court further ordered that Defendant Woods must answer the medical care claim in Count Two of the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (Id.)

(A) A defendant must serve an answer…(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the Defendant outside any judicial district of the United States. Fed.R.Civ.P. 12(a)(1)(A)(ii)

Fed. R. Civ. P. 12(a)(1)(A)(ii)

         On July 12, 2017, a Process Receipt and Return was filed with the Court with an attached Waiver of the Service of Summons signed by Defendant Woods, making September 11, 2017 his deadline to file a responsive pleading. (Doc. 7.) As of September 15, 2017, the Court's docket reflected that an answer had not been filed. Accordingly, the Court issued an Order requiring Defendant Woods to file a responsive pleading pursuant to Rule 12 of the Federal Rules of Civil Procedure on or before September 29, 2017. (Doc. 12.)

         On October 11, 2017, Defendant Woods having failed to file a responsive pleading, and Plaintiff having taken no further action, the Court issued an Order for Plaintiff to show cause in writing why the claims against Defendant Woods should not be dismissed for failure to prosecute no later than November 3, 2017, unless a responsive pleading pursuant to Rule 12 of the Federal Rules of Civil Procedure or an application for entry of default pursuant to Rule 55(a) was filed within such time. On October 17, 2017, Plaintiff filed a Motion for Entry of Default (doc. 14), and a First Amended Complaint against Defendants Lao, Meyers, Nash, and Woods (doc. 16)[1].

         On October 24, 2017, Defendant Woods filed a Motion for Leave to File Untimely Answer indicating an administrative error as the cause of delay in filing an appropriate answer in this matter and that the delay was inadvertent and not intentional. (Doc. 17.) On October 25, 2017, the Court granted Defendant's Motion, accepted Defendant's untimely Answer, and ordered the Clerk of the Court to file Defendant's Answer lodged at Doc. 18. (Doc. 19.) On November 3, 2017, Defendant Woods filed a Motion to Screen the First Amended Complaint. (Doc. 22.)

         II. Plaintiff's Motion for Entry of Default.

         Rule 55(a) of the Federal Rules of Civil Procedure states that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Thus, the entry of the default is not discretionary, but is simply dependent upon the party's failure to defend.

         Here, Defendant Woods has filed an answer (doc. 20), and has filed a Motion requesting that the Court screen Plaintiff's First Amended Complaint (doc. 22). The Court finds that Defendant Woods has not failed to appear and defend in this action.

         III. Defendant's Motion for the Court to Screen Plaintiff's First Amended Complaint.

         The Court will grant Defendant's Motion to Screen Plaintiff's First Amended Complaint.

         A. Statutory Screening of Plaintiff's First Amended Complaint.

         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.

         B. Plaintiff's First Amended Complaint.

         In his four-count Amended Complaint, Plaintiff sues the following Defendants in their individual and official capacities: Corizon Health (Corizon) Licensed Practical Nurse C. Nash, Sergeant/Shift Supervisor Woods, Deputy Warden Lao, and Corizon Registered Nurse Unknown Myers. In his Request for Relief, ...


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