United States District Court, D. Arizona
ORDER
DAVID
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
On
April 12, 2018, Plaintiff Stephen Michael Borowski, who was
then confined in a Maricopa County Jail and is now confined
in the Arizona State Prison Complex-Yuma, filed a pro se
civil rights complaint pursuant to 42 U.S.C. § 1983 and
an Application to Proceed In Forma Pauperis. In an April 27,
2018 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 May
10, 2018, Plaintiff filed his First Amended Complaint. In a
May 17, 2018 order, the Court dismissed the First Amended
Complaint for failure to state a claim. The Court gave
Plaintiff 30 days to file a second amended complaint that
cured the deficiencies identified in the order. ….
….
Having
not received a second amended complaint or a motion for
extension of time, on July 6, 2018, the Clerk of Court
dismissed this action with prejudice and entered Judgment. On
July 9, 2018, Plaintiff filed a Motion for Extension of Time
to File Amended Complaint. In a July 12, 2018 order, the
Court vacated the July 6, 2018 Judgment, directed the Clerk
of Court to reopen the case, and granted Plaintiff's
Motion for Extension of Time. The Court gave Plaintiff 30
days to file a second amended complaint. On August 20, 2018,
Plaintiff filed a Second Amended Complaint (Doc. 13). The
Court will dismiss the Second Amended Complaint and this
action.
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. §
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)).
II.
Second Amended Complaint
In his
three-count Second Amended Complaint, Plaintiff sues Maricopa
County Sheriff Paul Penzone, Inmate Legal Services Supervisor
T. Kendell-House, Unknown Detention Officers and Supervisors,
and “Unknown Parties.” Plaintiff asserts claims
relating to his mail and property, denial of access to the
courts, a threat to safety, and denial of basic necessities.
He seeks monetary relief.
In
Count One, Plaintiff alleges that Defendants
“continually put up obstacles” by providing
conflicting information to resolve court cases and denying
Plaintiff access to the courts by “knowingly, willfully
and wantonly” denying him access to a law library to
research the Arizona Rules of Criminal Procedure, the Arizona
Revised Statutes, and case law. Plaintiff asserts that on
several occasions, Defendants impaired his attempts to access
legal supplies to resolve his court cases and fines not
related to his criminal charge, “alway[s] referring
[the] request to [his] criminal attorney.” Plaintiff
includes a chronology of requests he apparently sent to
Inmate Legal Services and the responses he received, which
indicates that Plaintiff repeatedly requested supplies, case
information, access to legal sources and a law library, and
copies of case documents, all of which were denied.
Plaintiff
claims that “Defendants acted and continue to act under
the color of the law” and violated his Eighth and
Fourteenth Amendment rights. Plaintiff asserts that
Defendants denied him access to a law library, information,
legal supplies, and access to courts and failed to take steps
to remedy “this situation.” Plaintiff claims that
Defendants showed indifference to his “serious
request.” Plaintiff contends that Defendants owed a
duty to him to abide by the law and knowingly and willfully
violated his civil rights to access to a law library,
information, courts, and legal supplies. Plaintiff alleges
that Defendants breached their duty and, as a direct and
proximate result of Defendants' failure to provide access
to a law library, information, courts, and “legal
indigent supplies, ” Plaintiff suffered severe
hardships, mental anguish, anxiety, emotional distress,
stress, and undue suffering.
In
Count Two, Plaintiff alleges that Defendants “denied
access to new clean razors” and “failed to take
steps to remedy [the] situation.” Plaintiff asserts
that Defendants knowingly, willingly, and wantonly placed
Plaintiff in continual danger by providing used razors.
Plaintiff claims that on several occasions, he was provided
razors with hair in between the razor blades. Plaintiff
alleges that the razors have an embossed number on the inside
neck, “not from [the manufacturer] since never
consist[e]nt except location.” Plaintiff claims that
Defendants continually denied reusing razors, as stated by
Officer McGill, who told Plaintiff that new razors were
wrapped in cellophane and rubber-banded together. Plaintiff
asserts that Defendants failed to rectify this situation and
repeatedly stated they “open[]ed new ...