United States District Court, D. Arizona
Michael T. Liburdi United Stales District Judge
Howard Cochran, who is confined in the Arizona State Prison
Complex-Eyman in Florence, Arizona, filed a pro se civil
rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1)
and an Application to Proceed In Forma Pauperis (Doc. 7). The
Court granted the Application to Proceed but dismissed the
Complaint with leave to amend because it failed to state a
claim (Doc. 9). Plaintiff has filed a First Amended Complaint
(Doc. 11). The Court will dismiss the First Amended Complaint
with leave to amend.
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 First Amended
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 alleges a claim for violation
of his Eighth Amendment rights. Plaintiff sues only the
former director of the Arizona Department of Corrections
(ADC), Charles L. Ryan. Plaintiff seeks compensatory
alleges that from October 16, 2018 until May 9, 2019, he was
housed in the “M.D.U.” Plaintiff alleges that
his cell was infested with roaches, he was housed in a
two-person cell with two other prisoners, and he had to sleep
on the floor next to the toilet and smell his cellmates as
they used the toilet. Plaintiff further alleges that
disinfectant or cleaning supplies were not passed around
during that period. In addition, he alleges that he was not
able to send his clothing out to be washed. Plaintiff asserts
that “Defendant was made aware of this but Defendant
still acted with deliberate indifference about
Plaintiff['s] in human[e] living condition[.]” As
his injury, Plaintiff alleges he suffered stress, shame, and
Failure to State a Claim
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 he must allege an affirmative link between the injury and
the conduct of that defendant. Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976).
state a claim for unconstitutional conditions of confinement,
a plaintiff must allege an objectively “sufficiently
serious” deprivation that results in the denial of
“the minimal civilized measure of life's
necessities.” Farmer v. Brennan, 511 U.S. 825,
834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th
Cir. 1994); see Estate of Ford v. Ramirez-Palmer,
301 F.3d 1043, 1049-50 (9th Cir. 2002). That is, a plaintiff
must allege facts supporting that he is incarcerated under
conditions posing a substantial risk of harm.
Farmer, 511 U.S. at 834. “The circumstances,
nature, and duration of a deprivation of  necessities must
be considered in determining whether a constitutional
violation has occurred.” Hearns v. Terhune,
413 F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v.
Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). Further,
whether a condition of confinement rises to the level of a
constitutional violation may depend, in part, on the duration
of an inmate's exposure to that condition. Keenan v.
Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing
Hutto v. Finney, 437 U.S. 678, 686-87 (1978)).
Allegations of overcrowding, alone, are insufficient to state
a claim. See Rhodes v. Chapman, 452 U.S. 337, 348
(1981). When, however, overcrowding causes an increase in
violence or reduces the provision of other constitutionally
required services or reaches a level where the institution is
no longer fit for human habitation, the inmate's right
against cruel and unusual punishment may be violated. See
Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471
(9th Cir. 1989); Toussaint v. Yockey, 722 F.2d 1490,
1492 (9th Cir. 1984).
plaintiff must also allege facts to support that a defendant
acted with deliberate indifference. Deliberate indifference
is a higher standard than negligence or lack of ordinary due
care for the prisoner's safety. Farmer, 511 U.S.
at 835. In defining “deliberate indifference” in
this context, the Supreme Court has imposed a subjective
test: “the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the
inference.” Id. at 837 (emphasis added).
noted above, overcrowding is not sufficient to state an
Eighth Amendment claim, absent more. Even if Plaintiff has
alleged facts sufficient to support that he was subject to
unconstitutional conditions of confinement, Plaintiff fails
to allege facts to support that Ryan, the only named
Defendant knew, or should have known, of the conditions, but
failed to act despite a substantial risk to
Plaintiff. Plaintiff fails to allege when or how Ryan became
aware of the conditions or how Ryan responded after he became
aware of the conditions. Accordingly, Plaintiff fails to
state a claim in his First Amended Complaint and it will be
Leave to Amend
foregoing reasons, Plaintiff's First Amended Complaint
will be dismissed for failure to state a claim upon which
relief may be granted. Within 30 days, Plaintiff may submit a
second amended complaint to cure the deficiencies outlined
above. The Clerk of Court will mail Plaintiff a
court-approved form to use for filing a second amended
complaint. If Plaintiff fails to use the court-approved form,
the Court may strike the second amended complaint and dismiss
this action without further notice to Plaintiff.
must clearly designate on the face of the document that it is
the “Second Amended Complaint.” The second
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 or First Amended Complaint
by reference. Plaintiff may include only one claim per count.
second amended complaint supersedes the original Complaint
and First Amended 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 and First Amended Complaint as nonexistent.
Ferdik, 963 F.2d at 1262. Any cause of action that
was raised in the original Complaint or First Amended
Complaint and that was voluntarily dismissed or was dismissed
without prejudice is waived if it is not alleged in a second
amended complaint. Lacey v. Maricopa County, 693
F.3d 896, 928 (9th Cir. 2012) (en banc).
Plaintiff is released while this case remains pending, and
the filing fee has not been paid in full, Plaintiff must,
within 30 days of his release, either (1) notify the Court
that he intends to pay the unpaid balance of his filing fee
within 120 days of his release or (2) file a
non-prisoner application to proceed in forma
pauperis. Failure to comply may result in dismissal of this
action. . . . .