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Walker v. Penzone

United States District Court, D. Arizona

December 3, 2019

Mark Anthony Walker, Plaintiff,
v.
Paul Penzone, et al., Defendants.

          ORDER

          Michael T. Liburdi United States District Judge

         Plaintiff Mark Anthony Walker, 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 (Doc. 2). The Court granted the Application to Proceed but dismissed the Complaint with leave to amend because it failed to state a claim. Plaintiff filed a First Amended Complaint (Doc. 9), which the Court dismissed with leave to amend because it failed to state a claim (Doc. 10). Plaintiff has filed a Second Amended Complaint (Doc. 11). The Court will grant Plaintiff 120 days in which to learn the identity of Defendant Doe and file a Notice of Substitution and will dismiss the remaining Defendant.

         I. 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)).

         II. Second Amended Complaint

         Plaintiff alleges one count for a threat to his safety. Plaintiff sues an unknown Maricopa County Detention Officer, John Doe, and the Maricopa County Sheriff's Office (MCSO). Plaintiff seeks injunctive, compensatory, and punitive relief.

         Plaintiff alleges the following facts:

         At relevant times, Plaintiff had Type 1 diabetes and had limited mobility on his left side due to a stroke and complications from his diabetes. On January 30, 2019, Plaintiff was booked into the Fourth Avenue Jail and taken to the medical unit, where it was determined, or confirmed, that he had Type 1 Diabetes. Following the medical evaluation, Plaintiff was assigned a lower tier lower bunk.

         On February 26, 2019, Doe came to Plaintiff's cell and told him that he had to move to an upper bunk. Plaintiff told Doe that he had “lower bunk clearance” but Doe “said no.” Plaintiff then told Doe that attempting to climb to the upper bunk was not safe for him and that he could hurt himself. Plaintiff also suggested that he be moved to Cell 14, which was empty, instead. Doe refused. Plaintiff was assisted to the top bunk by other prisoners. The next day, Officer Piric and Nurse Pat came to Plaintiff's cell to give him his insulin. As Plaintiff attempted to climb down from the top bunk, he fell and hurt his back, legs, and feet and was unable to walk. Doe and a third shift sergeant helped Plaintiff move to Cell 14. Plaintiff was transferred to the Arizona Department of Corrections a day or two later. Plaintiff alleges that the absence of ladders to reach and climb down from the top bunks posed a threat to his and other prisoners' safety, particularly prisoners with serious medical problems. Plaintiff has recurring pain and very limited mobility.

         III. 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 ...


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