Ortega v. Ryan et al, No. 2:2009cv01432 - Document 5 (D. Ariz. 2009)
Court Description: ORDER granting Plaintiff's 4 Motion for Leave to Proceed in forma pauperis; the Complaint 1 is dismissed for failure to state a claim; Plaintiff has 30 days to file a first amended complaint in compliance with this Order; if Plaintiff fails to comply with this order, the Clerk must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal counts as a "strike" under 28 U.S.C. § 1915(g). Signed by Judge Mary H Murguia on 8/11/09. (Attachments: # 1 Complaint Form)(REW, )
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Ortega v. Ryan et al 1 Doc. 5 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ernie Pete Ortega, Plaintiff, 10 11 vs. 12 Charles Ryan, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 09-1432-PHX-MHM (MHB) ORDER 14 15 Plaintiff Ernie Pete Ortega, who is confined in the Arizona State Prison Complex- 16 Florence in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. #1) and an Application to Proceed In Forma Pauperis (Doc. #4). The Court 18 will dismiss the Complaint with leave to amend. 19 I. Application to Proceed In Forma Pauperis and Filing Fee 20 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 21 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 22 The Court will assess an initial partial filing fee of $0.67. The remainder of the fee will be 23 collected monthly in payments of 20% of the previous month’s income each time the amount 24 in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate 25 Order requiring the appropriate government agency to collect and forward the fees according 26 to the statutory formula. 27 .... 28 .... JDDL-K Dockets.Justia.com 1 JDDL-K II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief against 3 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 5 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 6 be granted, or that seek monetary relief from a defendant who is immune from such relief. 7 28 U.S.C. § 1915A(b)(1), (2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 10 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 12 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 23 If the Court determines that a pleading could be cured by the allegation of other facts, 24 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 25 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 26 should not, however, advise the litigant how to cure the defects. This type of advice “would 27 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 28 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was -2- JDDL-K 1 required to inform a litigant of deficiencies). Plaintiff’s Complaint will be dismissed for 2 failure to state a claim, with leave to amend because the Complaint may possibly be saved 3 by amendment. 4 III. Complaint 5 In his five-count Complaint, Plaintiff sues the following Defendants: Arizona 6 Department of Corrections Director Charles Ryan, Corrections Officer (CO) IV Espinoza, 7 CO II Camacho, CO III Monahand, CO III Troug, CO III M. Greene, CO IV J. Osborn, 8 Sergeant Brandner, CO II Phiester, and John Doe Property Sergeants. 9 In Count One, Plaintiff alleges that he was retaliated against in violation of the First 10 Amendment. He claims Defendants Phiester, Brandner, and John Doe Property Sergeants 11 failed to inventory his personal and private property, resulting in a loss of his property, in 12 retaliation for Plaintiff exercising his constitutional right to petition the government for 13 redress of grievances.” He claims the policy for property/inmate movement was not followed 14 on every occasion. 15 In Count Two, Plaintiff claims he was subjected to deliberate indifference in violation 16 of the Eighth Amendment. He claims he did not receive an “inmate ‘starter kit,’” which 17 contains a variety of hygiene supplies, when he was moved to a different unit and that he had 18 to wait five days for the kit due to a lack of funds. Plaintiff also alleges that his personal 19 property was not delivered within the “mandated 72 hour period” and that “mandated 2 page 20 inmate letter[s],” are no longer issued as part of the grievance procedure due to budget cuts. 21 In Count Three, Plaintiff claims he was subjected to deliberate indifference in 22 violation of the Eighth Amendment because (1) Defendant Troug placed false evidence into 23 a proposed maximum custody placement hearing, and (2) Defendant Ryan approved 24 Plaintiff’s placment in a housing unit where the cells are “not in compliance with Federal law 25 for lock down housing and the facility is delapi[d]ated.” He states that the exercise space “is 26 not [ac]ceptable by Federal law for extended lock down housing.” 27 In Count Four, Plaintiff asserts that Defendants Espinoza, Monahand, Greene, Osborn, 28 and unknown prison officials retaliated against Plaintiff for exercising his constitutional right -3- 1 to petition the government for a redress of grievances by refusing to allow meritorious 2 grievances to proceed properly, refusing to answer meritorious informal grievances and 3 grievance attempts; throwing away, losing, or discarding meritorious informal grievance 4 attempts; and “falsifying government documents and government records in retaliation.” 5 Plaintiff lists a variety of grievances he believes were unprocessed or denied for invalid or 6 frivolous reasons. 7 In Count Five, Plaintiff alleges retaliation in violation of the First Amendment. He 8 claims that, during a cell search, Defendant Camacho broke some of his property and that 9 some of his property “went missing.” Plaintiff asserts that he filed a grievance, but 10 Defendant Osborn never responded to it and returned it unacknowledged. Plaintiff then states 11 that he “attempted to grieve such” to a non-party, who returned the original copies to 12 Defendant Osborn so that Defendant Osborn could respond, but Defendant Osborn has not 13 done so. Plaintiff claims that he filed an appeal with the Arizona Department of Corrections 14 Central Office and that the following day “T.S.U. c[a]me thr[ough] and searched cells” and 15 his copy of the appeal “vanished,” only to “resurface[]” a month later “via mail.” Plaintiff 16 asserts that he has suffered damaged and lost property and mental stress and anguish “due 17 to constant retaliation by [Defendant Camacho].” 18 JDDL-K In his Request for Relief, Plaintiff seeks declaratory and injunctive relief, monetary 19 damages, and attorney’s fees and costs. 20 IV. Failure to State a Claim 21 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 22 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. 23 Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, 24 a liberal interpretation of a civil rights complaint may not supply essential elements of the 25 claim that were not initially pled. Id. 26 A. Count Two - Failure to Link Defendant with Injuries 27 To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific 28 injury as a result of specific conduct of a defendant and show an affirmative link between the -4- 1 injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 2 (1976). In Count Two, Plaintiff has failed to link his injuries to the specific conduct of any 3 Defendant. Therefore, the Court will dismiss without prejudice Count Two. 4 5 Count Three 1. Defendant Troug 6 An “inmate has no constitutionally guaranteed immunity from being falsely or 7 wrongly accused of conduct which may result in the deprivation of a protected liberty 8 interest. The plaintiff, as all other prison inmates, has the right not to be deprived of a 9 protected liberty interest without due process of law.” Freeman v. Rideout, 808 F.2d 949, 10 951 (2d Cir. 1986). Plaintiff does not allege that he was not afforded the procedural due 11 process safeguards required by Wolff v. McDonnell, 418 U.S. 539 (1974), at the maximum 12 custody placement hearing. Thus, Plaintiff has failed to state a claim regarding Defendant 13 Troug allegedly placing false evidence into a maximum custody placement hearing. The 14 Court will dismiss without prejudice Count Three against Defendant Troug. 15 JDDL-K B. 2. Defendant Ryan 16 To state a claim under the Eighth Amendment, plaintiffs must meet a two-part test. 17 First, the alleged constitutional deprivation must be, objectively, “sufficiently serious”; the 18 official’s act or omission must result in the denial of “the minimal civilized measure of life’s 19 necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the prison official must 20 have a “sufficiently culpable state of mind,” i.e., he must act with deliberate indifference to 21 inmate health or safety. Id. “Deliberate indifference is a high legal standard.” Toguchi v. 22 Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison 23 official must both know of and disregard an excessive risk to inmate health; the official must 24 both be aware of facts from which the inference could be drawn that a substantial risk of 25 serious harm exists and he must also draw the inference. Farmer, 511 U.S. at 837. 26 Simply using the words “deliberate indifference” is insufficient. See Iqbal, 129 S. Ct. 27 at 1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements, do not suffice.”). Plaintiff has failed to make sufficient allegations -5- JDDL-K 1 to support a plausible claim that Defendant Ryan acted with deliberate indifference in 2 housing Plaintiff in a dilapidated facility or in a cell that Plaintiff believes contains 3 “un[ac]ceptable” room for exercise. The Court will dismiss without prejudice Count Three 4 against Defendant Ryan. 5 C. Retaliation Claims 6 A viable claim of First Amendment retaliation contains five basic elements: (1) an 7 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 8 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 9 Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not 10 reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567- 11 68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation 12 claims requires an inmate to show (1) that the prison official acted in retaliation for the 13 exercise of a constitutionally protected right, and (2) that the action “advanced no legitimate 14 penological interest”). The plaintiff has the burden of demonstrating that his exercise of his 15 First Amendment rights was a substantial or motivating factor behind the defendants’ 16 conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); 17 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 18 In Count One, Plaintiff claims Defendants Phiester, Brandner, and John Doe Property 19 Sergeants failed to inventory his personal and private property in retaliation for Plaintiff 20 exercising his right to petition the government for redress of grievances. It is unclear what 21 Plaintiff did to exercise his right to petition the government for a redress of his grievances. 22 Moreover, Plaintiff has presented only insufficient, conclusory allegations that Defendants’ 23 conduct was “because of” Plaintiff’s exercise of his right to petition the government. See 24 Iqbal, 129 S. Ct. at 1949. Plaintiff has alleged nothing to suggest that the exercise of his 25 First Amendment rights was a substantial or motivating factor behind the occasional failure 26 to inventory his property. The Court, therefore, will dismiss without prejudice Count One. 27 In Count Four, Plaintiff claims that Defendants Espinoza, Monahand, Greene, Osborn, 28 and unknown prison officials improperly dealt with his grievances in retaliation for -6- JDDL-K 1 exercising his constitutional right to petition the government for a redress of grievances. It 2 is unclear what exercise of Plaintiff’s right to petition the government for a redress of his 3 grievances caused the alleged retaliation—Plaintiff has made reference to another lawsuit and 4 to the filing of grievances. In addition, although Plaintiff asserts that Defendants improperly 5 dealt with several grievances, his claim appears more consistent with a disagreement 6 regarding the policy for processing grievances. Plaintiff has alleged nothing to suggest that 7 the exercise of his First Amendment rights was a substantial or motivating factor in the denial 8 or processing of his grievances. The Court, therefore, will dismiss without prejudice Count 9 Four. 10 In Count Five, Plaintiff has presented vague allegations and nothing to suggest that 11 either of Defendant Camacho or Defendant Osborn took any action because of Plaintiff’s 12 exercise of his constitutionally protected rights. The Court, therefore, will dismiss without 13 prejudice Count Five. 14 V. Leave to Amend 15 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 16 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 17 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 18 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 19 to use the court-approved form, the Court may strike the amended complaint and dismiss this 20 action without further notice to Plaintiff. 21 Plaintiff must clearly designate on the face of the document that it is the “First 22 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 23 entirety on the court-approved form and may not incorporate any part of the original 24 Complaint by reference. Plaintiff may include only one claim per count. 25 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 26 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 27 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as 28 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original -7- 1 complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 2 565, 567 (9th Cir. 1987). 3 VI. Warnings 4 A. 5 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 6 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 7 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 8 in dismissal of this action. 9 B. Release Address Changes 10 Plaintiff must file and serve a notice of a change of address in accordance with Rule 11 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 12 relief with a notice of change of address. Failure to comply may result in dismissal of this 13 action. 14 C. Copies 15 Plaintiff must submit an additional copy of every filing for use by the Court. See 16 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 17 to Plaintiff. 18 D. Possible “Strike” 19 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails 20 to file an amended complaint correcting the deficiencies identified in this Order, the 21 dismissal will count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 22 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 23 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 24 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 25 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 26 or fails to state a claim upon which relief may be granted, unless the prisoner is under 27 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 28 JDDL-K -8- 1 E. Possible Dismissal 2 If Plaintiff fails to timely comply with every provision of this Order, including these 3 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 4 1260-61 (a district court may dismiss an action for failure to comply with any order of the 5 Court). 6 IT IS ORDERED: 7 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. #4) is granted. 8 (2) As required by the accompanying Order to the appropriate government agency, 9 10 Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $0.67. (3) The Complaint (Doc. #1) is dismissed for failure to state a claim. Plaintiff has 11 30 days from the date this Order is filed to file a first amended complaint in compliance with 12 this Order. 13 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 14 Court must, without further notice, enter a judgment of dismissal of this action with prejudice 15 that states that the dismissal counts as a “strike” under 28 U.S.C. § 1915(g). 16 17 18 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 11th day of August, 2009. 19 20 21 22 23 24 25 26 27 28 JDDL-K -9-
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