United States District Court, D. Arizona
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 4th Ave
County Jail;
(3) Ancillary Supervisor Brent Williams (MCSO Central
Mailroom);
(4) Deputy Chief Lee, MCSO 4th Ave. County Jail;
(5) Officer J. Fontaine, #B5198, MCSO 4th Ave.
County Jail;
(6) Officer N. Price, #B3925, MCSO 4th Ave. County
Jail;
(7) Officer C. Lango aka C. Andersen, #B4200, MCSO
4th Ave. County Jail;
(8) Officer Dodd, #B3164, MCSO SRT Officer, MCSO
4th Ave. County Jail;
(9) Officer Gardea, #B4257, MCSO SRT Officer, MCSO
4th Ave. County Jail;
(10) Sergeant Gonzalez, #B4159, MCSO 4th Ave.
County Jail;
(11) Officer M. Ngo, #B4159, MCSO 4th Ave. County
Jail; and
(12) Officer Collins B2930, #B2930, MCSO SRT Officer, MCSO
4th 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 ...