Smith v. MCSO Towers Kitchen, No. 2:2009cv00100 - Document 4 (D. Ariz. 2009)
Court Description: ORDER granting 3 Motion for Leave to Proceed in forma pauperis. The complaint 1 is dismissed for failure to state a claim. Pla has 30 days to file a 1st amended complaint. If pla fails to file an amended complaint within 30 days, 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 USC section 1915(g). Signed by Judge Mary H Murguia on 2/12/2009. (Attachments: # 1 Prisoner Civil Rights Complaint form) (LAD)
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Smith v. MCSO Towers Kitchen 1 Doc. 4 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Ronald Edward Smith, 9 Plaintiff, 10 vs. 11 MCSO Towers Kitchen, 12 Defendant. 13 ) ) ) ) ) ) ) ) ) ) No. CV 09-0100-PHX-MHM (DKD) ORDER 14 Plaintiff Ronald Edward Smith, who is confined in the Towers Jail in Phoenix, 15 Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an 16 Application to Proceed In Forma Pauperis. The Court will dismiss the Complaint with leave 17 to amend. 18 I. Application to Proceed In Forma Pauperis and Filing Fee 19 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 20 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 21 The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory 22 fee will be collected monthly in payments of 20% of the previous month’s income each time 23 the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a 24 separate Order requiring the appropriate government agency to collect and forward the fees 25 according to the statutory formula. 26 II. Statutory Screening of Prisoner Complaints 27 The Court is required to screen complaints brought by prisoners seeking relief against 28 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. JDDL-K Dockets.Justia.com 1 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 2 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 3 be granted, or that seek monetary relief from a defendant who is immune from such relief. 4 28 U.S.C. § 1915A(b)(1), (2). If the Court determines that a pleading could be cured by the 5 allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint 6 before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) 7 (en banc). The Court should not, however, advise the litigant how to cure the defects. This 8 type of advice “would undermine district judges’ role as impartial decisionmakers.” Pliler 9 v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide 10 whether the court was required to inform a litigant of deficiencies). Plaintiff’s Complaint 11 will be dismissed for failure to state a claim with leave to amend because the Complaint may 12 possibly be saved by amendment. 13 III. Plaintiff alleges two counts regarding the food provided to him as a pretrial detainee. 14 JDDL-K Complaint 15 Plaintiff sues only the MCSO Towers Kitchen. He seeks compensatory relief. 16 IV. Failure to State a Claim 17 To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the 18 conduct about which he complains was committed by a person acting under the color of state 19 law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. 20 Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid constitutional 21 claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of 22 a particular defendant, and he must allege an affirmative link between the injury and the 23 conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 24 A. Failure to Name a Proper Defendant 25 To state a claim under § 1983, a plaintiff must sue a “person” who, acting under color 26 of state law, violated the plaintiff’s constitutional rights. A “person” for purposes of § 1983, 27 includes officials or officers who directly violated or caused a violation of a plaintiff’s 28 constitutional rights. Further, a supervisor “is only liable for constitutional violations of his -2- 1 subordinates if the supervisor participated in or directed the violations, or knew of the 2 violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 3 1989). In addition, Rule 10(a) of the Federal Rules of Civil Procedure requires a plaintiff to 4 include the names of the parties in the action. As a practical matter, it is impossible in most 5 instances for the United States Marshal or his designee to serve a summons and complaint 6 or amended complaint upon an anonymous or unnamed defendant. That is, a plaintiff must 7 sue the “persons” responsible, not “staff” or fictitiously-named defendants. 8 In addition to individual officers, a municipality is also a “person” for purposes of 9 § 1983, i.e., a municipality, such as a city or county, may be sued. See Leatherman v. 10 Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); 11 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To state a claim against a 12 municipality under § 1983, a plaintiff must allege facts to support that his constitutional 13 rights were violated pursuant to a policy or custom of the municipality. Cortez v. County of 14 Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001) (citing Monell, 436 U.S. at 690-91); 15 Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). Therefore, a 16 plaintiff cannot state a § 1983 claim against a municipal defendant unless he alleges that the 17 municipal defendant maintained a policy or custom pertinent to the plaintiff’s alleged injury 18 and explains how such policy or custom caused his injury. Sadoski v. Mosley, 435 F.3d 19 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant to Fed. 20 R. Civ. P. 12(b)(6)). 21 22 JDDL-K Plaintiff sues only the MCSO Towers Kitchen. That is not a “person” subject to suit pursuant to § 1983. Therefore, it will be dismissed. 23 B. Conditions of Confinement (Meals) 24 In Count I, Plaintiff asserts that he has been denied the right to edible food and that 25 he should not have to buy edible food. A pretrial detainee’s claim for unconstitutional 26 conditions of confinement arises from the Due Process Clause of the Fourteenth Amendment 27 while a convicted inmate’s claims for unconstitutional conditions arises from the Eighth 28 Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. -3- JDDL-K 1 520, 537 (1979); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Nevertheless, the 2 same standards are applied. 3 unconstitutional conditions, a plaintiff must allege an objectively “sufficiently serious” 4 deprivation that results in the denial of “the minimal civilized measure of life’s necessities.” 5 Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 6 1994); see Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). That 7 is, a plaintiff must allege facts supporting that he is incarcerated under conditions posing a 8 substantial risk of harm. Farmer, 511 U.S. at 834. Whether a condition of confinement rises 9 to the level of a constitutional violation may depend, in part, on the duration of an inmate’s 10 exposure to that condition. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Hutto 11 v. Finney, 437 U.S. 678, 686-87 (1978)). In addition to alleging facts to support that he is 12 confined in conditions posing a substantial risk of harm, a plaintiff must also allege facts to 13 support that a defendant had a “sufficiently culpable state of mind,” i.e., that the official acted 14 with deliberate indifference to inmate health or safety. See Farmer, 511 U.S. 837. In 15 defining “deliberate indifference” in the jail context, the Supreme Court has imposed a 16 subjective test: “the official must both be aware of the facts from which the inference could 17 be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 18 Id. A plaintiff must also allege how he was injured by the alleged unconstitutional 19 conditions. See, e.g., Lewis v. Casey, 518 U.S. 343, 349 (1996) (doctrine of standing 20 requires that claimant have suffered or will imminently suffer actual harm); Caswell v. 21 Calderon, 363 F.3d 832, 836 (9th Cir. 2004). See Frost, 152 F.3d at 1128. To state a claim for 22 With respect to meals, “[t]he Eighth Amendment requires only that prisoners receive 23 food that is adequate to maintain health; it need not be tasty or aesthetically pleasing.” 24 LeMaire v. Maass, 121 F.3d 1444, 1456 (9th Cir. 1993) (citations omitted); Frost, 152 F.3d 25 at 1128 (applying Eighth Amendment standard to a pretrial detainee’s Fourteenth 26 Amendment claims regarding conditions of confinement). 27 occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not 28 amount to a constitutional deprivation.” Id. (quoting Hamm v. Dekalb County, 774 F.2d -4- “The fact that the food 1 1567, 1575 (9th Cir. 1985)). An inmate may, however, state a claim where he alleges that 2 he is served meals with insufficient calories for long periods of time. Id. 3 Plaintiff makes only conclusory allegations that the food is unfit for human 4 consumption and is inedible. He does not allege that he has received inadequate nutrition or 5 lost weight due to inadequate meals. Plaintiff also fails to allege facts to support that any 6 “person” acting under color of state law has acted with deliberate indifference in providing 7 meals. Absent the allegation of additional facts, Plaintiff fails to state a constitutional 8 violation based upon the food provided to inmates. C. 9 JDDL-K Neglect 10 In Count II, Plaintiff alleges that the provision of outdated food, spoiled milk and 11 meat, and blackened vegetables, “make a person consider starving.” (Doc.# 1 at 4.) For the 12 reasons discussed above, these allegations fail to state a claim. Moreover, to the extent that 13 Plaintiff alleges negligence, he fails to state a constitutional violation. Negligence by a 14 defendant acting under color of state law is not sufficient to state a claim under § 1983. 15 Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (plaintiff must plead more than mere 16 negligence in a § 1983 action); see Alfrey v. United States, 276 F.3d 557, 568 (9th Cir. 17 2002). Accordingly, Count II fails to state a claim. 18 V. Leave to Amend 19 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 20 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 21 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 22 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 23 to use the court-approved form, the Court may strike the amended complaint and dismiss this 24 action without further notice to Plaintiff. 25 Plaintiff must clearly designate on the face of the document that it is the “First 26 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 27 entirety on the court-approved form and may not incorporate any part of the original 28 Complaint by reference. Plaintiff may include only one claim per count. -5- JDDL-K 1 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 2 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 3 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as 4 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original 5 complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 6 565, 567 (9th Cir. 1987). 7 VI. Warnings 8 A. Release 9 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 10 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 11 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 12 in dismissal of this action. 13 B. Address Changes 14 Plaintiff must file and serve a notice of a change of address in accordance with Rule 15 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 16 relief with a notice of change of address. Failure to comply may result in dismissal of this 17 action. 18 C. Copies 19 Plaintiff must submit an additional copy of every filing for use by the Court. See 20 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 21 to Plaintiff. 22 D. Possible “Strike” 23 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails 24 to file an amended complaint correcting the deficiencies identified in this Order, the 25 dismissal will count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 26 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 27 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 28 occasions, while incarcerated or detained in any facility, brought an action or appeal in a -6- 1 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 2 or fails to state a claim upon which relief may be granted, unless the prisoner is under 3 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 4 E. 5 If Plaintiff fails to timely comply with every provision of this Order, including these 6 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 7 1260-61 (a district court may dismiss an action for failure to comply with any order of the 8 Court). 9 IT IS ORDERED: 10 11 12 13 14 (1) Possible Dismissal Plaintiff’s Application to Proceed In Forma Pauperis, filed with the Complaint, is granted. (Doc.# 3.) (2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee. (3) The Complaint is dismissed for failure to state a claim. Plaintiff has 30 days 15 from the date this Order is filed to file a first amended complaint in compliance with this 16 Order. (Doc.# 1.) 17 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 18 Court must, without further notice, enter a judgment of dismissal of this action with prejudice 19 that states that the dismissal counts as a “strike” under 28 U.S.C. § 1915(g). 20 21 22 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 12th day of February, 2009. 23 24 25 26 27 28 JDDL-K -7-
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