United States District Court, D. Arizona
ORDER
David
G. Campbell Senior United States District Judge
On July
23, 2018, Plaintiff Michael Price, who is confined in the
Arizona State Prison Complex-Yuma, filed a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1)
and an Application to Proceed In Forma Pauperis. In a July
27, 2018 order, the Court denied the deficient Application to
Proceed and gave Plaintiff 30 days either to pay the filing
and administrative fees or file a complete Application to
Proceed and a certified six-month inmate trust account
statement. On August 20, 2018, Plaintiff filed a new
Application to Proceed (Doc. 5). The Court will order
Defendant Banning to answer Count One of the Complaint and
will dismiss Defendants Ryan and Corizon and Count Two
without prejudice.
I.
Application to Proceed In Forma Pauperis and Filing
Fee
The
Court will grant Plaintiff's Application to Proceed In
Forma Pauperis. 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 $16. 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)).
III.
Complaint
In his
two-count complaint, Plaintiff sues Arizona Department of
Corrections Director Charles L. Ryan, Corizon Medical
(“Corizon”), and Correctional Officer Banning.
Plaintiff asserts two claims of Eighth Amendment deliberate
indifference and seeks injunctive and monetary relief.
In
Count One, Plaintiff alleges that during a quarterly search
of his unit, he was patted down and then directed to go
through “the magneto polls.” Plaintiff asserts
that he informed the officer that he had a pacemaker and was
told to go to Defendant Banning, who had the handheld metal
detector. Plaintiff claims that when he approached Banning,
Plaintiff told him that he had a pacemaker and that was the
reason Plaintiff was sent to him. Plaintiff alleges that he
had his hand over his pacemaker while Banning repeatedly
waved the metal detector over Plaintiff's chest area.
Plaintiff asserts that he told Banning again that he had a
pacemaker, and Banning “kept asking [Plaintiff] what
was this.” Plaintiff claims that he asked Banning
“why did he keep doing that but he offered no
response.” Plaintiff alleges that since then, he has
had extreme chest pain and his pacemaker has not been
functioning properly. Plaintiff asserts that Banning's
actions have subjected him to “an unwarranted great
degree of pain and suffering” and this was “a
deliberate form of cruel and unusual punishment” and a
“form of excessive force by way of a metal
detector.” As his injury, Plaintiff claims that his
health has deteriorated, he has suffered continuous chest
pain, and his pacemaker is not functioning correctly.
In
Count Two, Plaintiff alleges that shortly after he started
experiencing chest pain as a result of Defendant
Banning's actions, Plaintiff submitted “a
couple” of Health Needs Requests to Defendant Corizon.
Plaintiff asserts that Corizon denied him the right to see a
cardiologist, but “perseverance by way of one of the
nurses eventually got [Plaintiff] an appointment” with
a doctor. Plaintiff claims that the doctor informed him that
as a result of the metal detector being waved over
Plaintiff's pacemaker, the pacemaker was damaged, which
resulted in the chest pain. As his injury, Plaintiff alleges
that Corizon's failure to get Plaintiff medical attention
in a timely manner caused unwarranted pain and suffering.
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 ...