Outley v. Penzone

          ORDER

          JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE

         Plaintiff has filed his First Amended Complaint (Doc. 9). The Court is required to screen that pleading and direct service as appropriate.

         A. REPORT AND RECOMMENDATION

         This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of screening of the amended plea is dispositive of some of Plaintiff's claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).

         B. BACKGROUND

         1. Original Complaint

         On February 1, 2019, pro se Plaintiff Michael Outley, Jr., who is confined in the Maricopa County Jail, filed his original Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2).

         In his four-count Complaint, Plaintiff sought monetary damages and injunctive relief from the following Defendants from the Maricopa County Sheriff's Office (MCSO):

(1) Maricopa County Sheriff Paul Penzone;

(2) Commander Seibert;

(3) Mailroom Supervisor John/Jane Doe 1;

(4) Mailroom Handler/Supervisor John/Jane Doe 2;

(5) Custody Bureau Hearing Unit Sergeant B0326;

(6) Detention Officer B. Jones;

(7) SRT Sergeant John Doe 1;

(8-10) SRT Officers John Does 2, 3, and 4;^[1] and

(11) Maricopa County Attorney Bill Montgomery.

         Plaintiff asserted four counts, including: (1) Count 1 (mail policies); (2) Count 2 (monitoring visitation); (3) Count 3 (disciplinary proceedings); and (4) Count 4 (excessive force).

         In an Order filed April 17, 2019 (Doc. 6), the Court granted Plaintiff's IFP application, screened the original Complaint, and dismissed Counts One through Three and Defendants Penzone, Mailroom Supervisor John/Jane Doe 1, Mailroom Handler/Supervisor John/Jane Doe 2, Sergeant John Doe 1, Seibert, Montgomery, Sergeant B0326, and Jones. Answers were required from Defendants SRT Officers Doe 2, 3, and 4), to the claims of excessive force in Count 4 (Counts). The balance of Count 4, including claims of retaliation, failure to train/supervise, conditions of confinement and a “coverup scheme”, was to be dismissed. In addition, the Court granted Plaintiff's request to incorporate into the Complaint the more complete statement regarding the exhaustion of administrative remedies regarding Count Four that is set forth on page 2, line 14, through page 4, line 6, of Document 5. Because service could not be ordered on the fictitious defendants, Plaintiff was given 120 days to file notices of substitution as to the remaining defendants.

         2. First Amended Complaint

         On June 20, 2019, Plaintiff filed his First Amended Complaint (Doc. 9). Plaintiff again seeks monetary damages and injunctive relief from the following Defendants:

(1) Maricopa County Sheriff Paul Penzone;^[2]

(2) Detention Captain Jesse Spurgin, MCSO 4^th Ave County Jail;

(3) Ancillary Supervisor Brent Williams (MCSO Central Mailroom);

(4) Deputy Chief Lee, MCSO 4^th Ave. County Jail;

(5) Officer J. Fontaine, #B5198, MCSO 4^th Ave. County Jail;

(6) Officer N. Price, #B3925, MCSO 4^th Ave. County Jail;

(7) Officer C. Lango aka C. Andersen, #B4200, MCSO 4^th Ave. County Jail;

(8) Officer Dodd, #B3164, MCSO SRT Officer, MCSO 4^th Ave. County Jail;

(9) Officer Gardea, #B4257, MCSO SRT Officer, MCSO 4^th Ave. County Jail;

(10) Sergeant Gonzalez, #B4159, MCSO 4^th Ave. County Jail;

(11) Officer M. Ngo, #B4159, MCSO 4^th Ave. County Jail; and

(12) Officer Collins B2930, #B2930, MCSO SRT Officer, MCSO 4^th Ave.

         County Jail. Plaintiff again asserts four claims, including: (1) Count 1 (mail); (2) Count 2 (disciplinary proceedings); (3) Count 3 (excessive force); and (4) Count 4 (clocks).

         C. SCREENING OF AMENDED COMPLAINT

         1. Screening Required

         In cases filed by persons appearing in forma pauperis the court is required by 28 U.S.C. § 1915(e)(2) to dismiss cases that are frivolous, malicious, fail to adequately state a claim, or seek monetary relief from a defendant who is immune. Further, 28 U.S.C. § 1915A requires the Court to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. The Court must dismiss a complaint or portion thereof if the 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). 42 U.S.C. § 1997 applies the same standard to such complaints even if the defendants are not governmental entities, or officers or employees of a governmental entity.

         2. Pleading Standards

         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.

         “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Iqbal, 556 U.S. at 678.

         Reasonable inferences can be drawn from the facts. “Iqbal demands more of plaintiffs than bare notice pleading, but it does not require us to flyspeck complaints looking for any gap in the facts.” Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012).

         And, 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 ...