United States District Court, D. Arizona
Michael T. Liburdi United States District Judge
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.
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)).
Second Amended Complaint
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.
alleges the following facts:
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.
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.
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