United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
20, 2019, Plaintiff Erica Ann Lewis, who is confined in a
Maricopa County Jail, filed a pro se civil rights
Complaint (Doc. 1) and an Application to Proceed In
Forma Pauperis (Doc. 2). The Court will dismiss the Complaint
with leave to amend.
Application to Proceed In Forma Pauperis and Filing
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 not assess an initial partial
filing fee. Id. The statutory filing 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.
Statutory Screening of Prisoner Complaints
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. §
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,
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
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.
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)).
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.
one-count Complaint, Plaintiff seeks monetary damages from
Defendant Paul Penzone. She contends she has been exposed to
black mold and has had various ailments. Plaintiff asserts
Defendant Penzone knew about the black mold, was given funds
to fix it, and did nothing.
Failure to State a Claim
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). Further, a liberal
interpretation of a civil rights complaint may not supply
essential elements of the claim that were not initially pled.
state a valid claim under § 1983, plaintiffs must allege
that they suffered a specific injury as a result of specific
conduct of a defendant and show an affirmative link between
the injury and the conduct of that defendant. See Rizzo
v. Goode, 423 U.S. 362, 371-72, 377 (1976). “A
plaintiff must allege facts, not simply conclusions, that
show that an individual was personally involved in the
deprivation of [her] civil rights.” Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
pretrial detainee has a right under the Due Process Clause of
the Fourteenth Amendment to be free from punishment prior to
an adjudication of guilt. Bell v. Wolfish, 441 U.S.
520, 535 (1979). “Pretrial detainees are entitled to
‘adequate food, clothing, shelter, sanitation, medical
care, and personal safety.'” Alvarez-Machain v.
United States, 107 F.3d 696, 701 (9th Cir. 1996)
(quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th
Cir. 1982)). To state a claim of unconstitutional conditions
of confinement against an individual defendant, a pretrial
detainee must allege facts that show:
(i) the defendant made an intentional decision with respect
to the conditions under which the plaintiff was confined;
(ii) those conditions put the plaintiff at substantial risk
of suffering serious harm; (iii) the defendant did not take
reasonable available measures to abate that risk, even though
a reasonable official in the circumstances would have
appreciated the high degree of risk involved-making the
consequences of the defendant's conduct obvious; and (iv)
by not taking such measures, the defendant caused the
Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th
the conditions and conduct rise to the level of a
constitutional violation is an objective assessment that
turns on the facts and circumstances of each particular case.
Id.; Hearns v. Terhune, 413 F.3d 1036, 1042
(9th Cir. 2005). However, “a de minimis level of
imposition” is insufficient. Bell, 441 U.S. at
539 n.21. In addition, the “‘mere lack of due
care by a state official' does not deprive an individual
of life, liberty, or property under the Fourteenth
Amendment.” Castro v. County of Los Angeles,
833 F.3d 1060, 1071 (9th Cir. 2016) (quoting Daniels v.
Williams, 474 U.S. 327, 330-31 (1986)). Thus, a
plaintiff must “prove more than negligence but less
than subjective intent-something akin to reckless
vague and conclusory allegations do not support a conclusion
that Defendant Penzone made an intentional decision that put
Plaintiff at substantial risk of suffering serious harm. In
addition, Plaintiff does not identify how Defendant Penzone
was aware of the black mold and does not allege any facts to
support that her symptoms were the result of exposure to
black mold. Absent more, Plaintiff has failed to state a
claim. Thus, the Court will dismiss without prejudice
Leave to Amend
foregoing reasons, Plaintiff's Complaint will be
dismissed for failure to state a claim upon which relief may
be granted. Within 30 days, Plaintiff may submit a first
amended complaint to cure the deficiencies outlined above.
The Clerk of Court will mail Plaintiff a court-approved form
to use for filing a first amended complaint. If Plaintiff
fails to use the court-approved form, the Court may strike
the amended complaint and dismiss this action without further
notice to Plaintiff.
must clearly designate on the face of the document that it is
the “First Amended Complaint.” The first amended
complaint must be retyped or rewritten in its entirety on the
court-approved form and may not incorporate any part of the
original Complaint by reference. Plaintiff may include only
one claim per count.
amended complaint supersedes the original Complaint.
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
1992); Hal Roach Studios v. Richard Feiner &
Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After
amendment, the Court will treat the original Complaint as
nonexistent. Ferdik, 963 F.2d at 1262. Any cause of
action that was raised in the original Complaint and that was
voluntarily dismissed or was dismissed without prejudice is
waived if it is not alleged in a first amended complaint.
Lacey v. Maricopa County, 693 F.3d 896, 928 (9th
Cir. 2012) (en banc).
Plaintiff files an amended complaint, Plaintiff must write
short, plain statements telling the Court: (1) the
constitutional right Plaintiff believes was violated; (2) the
name of the Defendant who violated the right; (3) exactly
what that Defendant did or failed to do; (4) how the action
or inaction of that Defendant is connected to the violation
of Plaintiff's constitutional right; and (5) what
specific injury Plaintiff suffered because of that
Defendant's conduct. See Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976).
must repeat this process for each person he names as a
Defendant. If Plaintiff fails to affirmatively link the
conduct of each named Defendant with the specific injury
suffered by Plaintiff, the allegations against that Defendant
will be dismissed for failure to state a claim.
Conclusory allegations that a Defendant or group of