Price v. Ryan

          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 ...