Martinez v. Corrections Corporation of America et al, No. 2:2009cv00956 - Document 4 (D. Ariz. 2009)

Court Description: ORDER granting 3 Motion for Leave to Proceed in forma pauperis, Plaintiff must pay the $350.00 filing fee. The Complaint is dismissed with 30 days leave to amend. Clerk must enter dismissal with prejudice that states that the dismissal counts as a "strike" under 28 U.S.C. § 1915(g) if Plaintiff fails to comply. Signed by Judge Mary H Murguia on 6/18/09. (Attachments: #(1) PCR Complaint Form)(LSP)

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Martinez v. Corrections Corporation of America et al 1 Doc. 4 WO \MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 ) ) ) Plaintiff, ) ) vs. ) Corrections Corporation of America, et al.,) ) ) Defendants. ) David S. Martinez, No. CV 09-956-PHX-MHM (ECV) ORDER 14 15 Plaintiff David S. Martinez, who is confined in the Corrections Corporation of 16 America’s La Palma Correctional Center, has filed a pro se civil rights Complaint pursuant 17 to 42 U.S.C. § 1983 (Doc. #1) and an Application to Proceed In Forma Pauperis (Doc. #3). 18 The Court 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 $5.43. 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 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). If the Court determines that a pleading could be cured by the 8 allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint 9 before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) 10 JDDL-K II. (en banc). 11 The Court should not, however, advise the litigant how to cure the defects. This type 12 of advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v. 13 Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide 14 whether the court was required to inform a litigant of deficiencies). Plaintiff’s Complaint 15 will be dismissed for failure to state a claim, with leave to amend because the Complaint may 16 possibly be saved by amendment. 17 III. Complaint 18 In his three-count Complaint, Plaintiff sues Defendants Corrections Corporation of 19 America (CCA), Warden C. DeRosa, Health Services Administrator Burnett, Unit Manager 20 Meier, Lieutenant Johnson, and “Unknown Officer(s).” 21 In each count, Plaintiff asserts a violation of his First Amendment right to free speech, 22 his Fourth Amendment right to “be secure in their person,” the Eighth Amendment 23 prohibition against cruel and unusual punishment, the Ninth Amendment, and the Fourteenth 24 Amendment rights to due process and equal protection. 25 In Count One, Plaintiff claims that Defendants DeRosa, Burnett, Meier, Johnson, and 26 Unknown Officer were agents of CCA and that Plaintiff “acquiesced to [an] unwarranted 27 tuberculosis test” after Defendants Meier, Johnson, and Unknown Officer made threats of 28 physical restraint and segregation. He also alleges that Defendant Burnett failed to “establish -2- 1 policy in clinic, for staff, to ensure rights of inmates who choose not to accept medical 2 treatment” and that Defendant DeRosa failed to ensure that “facility staff was following 3 guidelines to protect inmate-residents rights.” 4 In Count Two, Plaintiff claims that Defendants Meier, Johnson and Unknown Officer 5 were agents of CCA and that Defendat Meier’s “combative words and threatening tone of 6 voice . . . instigated animosity and hostility between inmate-residents and staff” that caused 7 a “threat of riot” which would have exposed Plaintiff to a danger of physical harm. He also 8 asserts that Defendants Johnson and Unknown Officer verbally supported Defendant Meier’s 9 statements and “failed to defuse the stituation.” 10 In Ground Three, Plaintiff alleges that Defendants DeRosa, Burnett, Meier, Johnson, 11 and Unknown Officer were agents of CCA; that Defendant Burnett “neglected his 12 responsibility in the production of the intake teaching packet that listed acknowledgment of 13 the Tuberculosis information, but was omitted” and “failed to instruct[] staff in medical clinic 14 on inmate refusal policy”; that Defendant Meier neglected to recognize Plaintiff’s right to 15 refuse treatment; and that Defendants DeRosa and Burnett “neglected their responsiblity in 16 ensuring that the inmate-resident[s’] rights were not violated” and neglected to timely resolve 17 another inmate’s grievance. 18 19 JDDL-K In his Request for Relief, Plaintiff seeks injunctive relief and monetary damages. IV. Failure to State a Claim 20 A. Failure to Link Defendant with Injuries 21 To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific 22 injury as a result of specific conduct of a defendant and show an affirmative link between the 23 injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 24 (1976). There is no respondeat superior liability under § 1983, and therefore, a defendant’s 25 position as the supervisor or employer of persons who allegedly violated Plaintiff’s 26 constitutional rights does not impose liability. Monell v. New York City Department of 27 Social Services, 436 U.S. 658, 691-92 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 28 1989). -3- JDDL-K 1 Plaintiff does not allege any specific conduct by Defendant CCA, does not allege that 2 Defendant CCA caused a constitutional violation by instituting a policy, custom, or practice 3 that was the moving force behind an alleged constitutional violation, and does not allege that 4 any other Defendant was acting pursuant to a CCA custom, policy, or practice. Therefore, 5 the Court will dismiss without prejudice Defendant CCA. 6 B. Failure to State a Claim 7 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 8 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. 9 Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, 10 a liberal interpretation of a civil rights complaint may not supply essential elements of the 11 claim that were not initially pled. Id. 12 Simply asserting that a set of facts constitutes a violation of a myriad of constitutional 13 amendments does not state a claim. Plaintiff’s allegations in his Complaint are entirely 14 vague and conclusory and it is unclear how Defendants’ conduct would constitute a violation 15 of many of the constitutional amendments that Plaintiff has listed. Thus, the Court will 16 dismiss Plaintiff’s Complaint without prejudice. The Court will grant Plaintiff leave to file 17 an amended complaint. 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. -4- JDDL-K 1 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 2 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of 3 the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; 4 (4) how the action or inaction of that Defendant is connected to the violation of 5 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 6 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 7 Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff 8 fails to affirmatively link the conduct of each named Defendant with the specific injury 9 suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to 10 state a claim. Conclusory allegations that a Defendant or group of Defendants have violated 11 a constitutional right are not acceptable and will be dismissed. 12 If Plaintiff files an amended complaint, he should take note that allegations of threats 13 fail to state a constitutional claim. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) 14 (defendants’ threats of bodily harm to convince plaintiff not to pursue legal redress were 15 insufficient to state a claim under § 1983; “it trivializes the eighth amendment to believe a 16 threat constitutes a constitutional wrong”). 17 Plaintiff should also take note that, to state a claim under the Eighth Amendment, 18 plaintiffs must meet a two-part test. First, the alleged constitutional deprivation must be, 19 objectively, “sufficiently serious”; the official’s act or omission must result in the denial of 20 “the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 21 (1994). Second, the prison official must have a “sufficiently culpable state of mind,” i.e., he 22 must act with deliberate indifference to inmate health or safety. Id. In defining “deliberate 23 indifference” in this context, the Supreme Court has imposed a subjective test: “the official 24 must both be aware of facts from which the inference could be drawn that a substantial risk 25 of serious harm exists, and he must also draw the inference.” Id. at 837 (emphasis added). 26 To state a § 1983 medical claim, a plaintiff must show that the defendants acted with 27 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th 28 Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a -5- 1 “serious medical need” by demonstrating that failure to treat the condition could result in 2 further significant injury or the unnecessary and wanton infliction of pain and (2) the 3 defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations 4 omitted). 5 To act with deliberate indifference, a prison official must both know of and disregard 6 an excessive risk to inmate health; the official must both be aware of facts from which the 7 inference could be drawn that a substantial risk of serious harm exists and he must also draw 8 the inference. Farmer, 511 U.S. at 837. Deliberate indifference in the medical context may 9 be shown by a purposeful act or failure to respond to a prisoner’s pain or possible medical 10 need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference 11 may also be shown when a prison official intentionally denies, delays, or interferes with 12 medical treatment or by the way prison doctors respond to the prisoner’s medical needs. 13 Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 14 Deliberate indifference is a higher standard than negligence or lack of ordinary due 15 care for the prisoner’s safety. Id. at 835. “Neither negligence nor gross negligence will 16 constitute deliberate indifference.” Clement v. California Dep’t of Corrections, 220 F. Supp. 17 2d 1098, 1105 (N.D. Cal. 2002). 18 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 19 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 20 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as 21 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original 22 complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 23 565, 567 (9th Cir. 1987). 24 VI. Warnings 25 A. Release 26 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 27 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 28 JDDL-K -6- JDDL-K 1 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 2 in dismissal of this action. 3 B. Address Changes 4 Plaintiff must file and serve a notice of a change of address in accordance with Rule 5 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 6 relief with a notice of change of address. Failure to comply may result in dismissal of this 7 action. 8 C. Copies 9 Plaintiff must submit an additional copy of every filing for use by the Court. See 10 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 11 to Plaintiff. 12 D. Possible “Strike” 13 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails 14 to file an amended complaint correcting the deficiencies identified in this Order, the 15 dismissal will count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 16 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 17 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 18 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 19 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 20 or fails to state a claim upon which relief may be granted, unless the prisoner is under 21 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 22 E. Possible Dismissal 23 If Plaintiff fails to timely comply with every provision of this Order, including these 24 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 25 1260-61 (a district court may dismiss an action for failure to comply with any order of the 26 Court). 27 .... 28 .... -7- 1 IT IS ORDERED: 2 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. #3) is granted. 3 (2) As required by the accompanying Order to the appropriate government agency, 4 5 Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $5.43. (3) The Complaint (Doc. #1) is dismissed for failure to state a claim. Plaintiff has 6 30 days from the date this Order is filed to file a first amended complaint in compliance with 7 this Order. 8 9 10 11 12 13 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court 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). (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 18th day of June, 2009. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K -8-

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