Wilkins v. Maricopa County et al, No. 2:2009cv01380 - Document 41 (D. Ariz. 2009)
Court Description: ORDER granting 28 Plaintiff's Motion to Amend Complaint, the Clerk shall file 29 the proposed First Amended Complaint. IT IS FURTHER ORDERED that Counts Two and Three of the First Amended Complaint are DISMISSED with prejudice. IT IS FURTHER ORDERED that Plaintiff's Eighth Amendment claims are DISMISSED with prejudice. IT IS FURTHER ORDERED that Plaintiff's allegations asserting the rights of detainees other than himself are DISMISSED with prejudice. If Plaintiff fails to prov ide a full name and address for the unknown Jail Guard by February 20, 2010, his claims against unknown Jail Guard may be dismissed without prejudice. IT IS FURTHER ORDERED denying as moot 14 Maricopa County's Motion to Dismiss Case; 19 Defe ndant Arpaio's Motion to Dismiss Case; Defendant Arpaio's and Maricopa County's 33 and 35 Motions for Summary Disposition and 38 Plaintiff's Motion to Strike Defendants' Request for Summary Disposition. Signed by Magistrate Judge Lawrence O Anderson on 12/21/09.(LSP)
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Wilkins v. Maricopa County et al 1 Doc. 41 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Brian A. Wilkins, Plaintiff, 10 11 vs. 12 Maricopa County, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-1380-PHX-LOA ORDER 15 On June 29, 2009, Plaintiff filed a pro se civil rights Complaint pursuant to 42 16 U.S.C. § 1983. (docket # 1) On July 6, 2009, the Court granted Plaintiff in forma pauperis 17 status. (docket # 5) Defendants Joseph M. Arpaio and Maricopa County were served and both 18 filed Motions to Dismiss. (docket ## 14, 19) Rather than responding to the motions to dismiss, 19 Plaintiff filed a Motion for Leave to Amend Complaint, docket # 28, which Defendants oppose. 20 (dockets # 31, # 33) All served Defendants have consented in writing to magistrate-judge 21 jurisdiction pursuant to 28 U.S.C. § 636(c). (docket ## 6, 17) As discussed below, the Court 22 will grant Plaintiff leave to amend, will screen the claims alleged in the First Amended 23 Complaint, and will deny the Motions to Dismiss, and related motions, as moot. 24 I. Applicable Law 25 Federal Rule of Civil Procedure 15 governs the amendment of pleadings. Rule 26 15 is applied liberally in favor of amendments and, in general, the district court should freely 27 give leave when justice so requires. Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 28 Dockets.Justia.com 1 1994). Leave need not be granted, however, where the amendment of the complaint would 2 cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in 3 futility, or creates undue delay. Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 4 1981). 5 In addition to the standard governing amendment, because Plaintiff is 6 proceeding pro se, 28 U.S.C. § 1915(e)(2) instructs that the district court “dismiss the case at 7 any time if the court determines that . . . the action is frivolous or malicious[,] fails to state a 8 claim on which relief may be granted[,] or seeks monetary relief against a defendant who is 9 immune from such relief.” Id. To streamline the application of Fed.R.Civ.P. 15 and § 1915(e), 10 the Court will grant Plaintiff leave to amend and will review the First Amended Complaint 11 under § 1915(e). 12 A complaint must contain a “short and plain statement of the claim showing 13 that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8 does not demand 14 detailed factual allegations, “it demands more than unadorned, the-defendant-unlawfully harmed 15 -me accusations.” Ashcroft v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009). “Threadbare 16 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 17 suffice.” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state 18 a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 19 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that 20 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a 22 context-specific task that requires the reviewing court to draw on its judicial experience and 23 common sense.” Iqbal, 129 S.Ct. at 1950. Thus, although a plaintiff’s specific factual 24 allegations may be consistent with a constitutional claim, a court must assess whether there are 25 other “more likely explanations” for a defendant’s conduct. Id. at 1951. 26 II. First Amended Complaint 27 In his four-count First Amended Complaint brought pursuant to 42 U.S.C. § 28 1983 and 42 U.S.C. § 1985(3), Plaintiff sues the following Defendants: Maricopa County, -2- 1 Maricopa County Sheriff Joseph M. Arpaio, an unidentified Maricopa County Jail X-ray 2 Technician (“X-ray Technician”), and an unidentified Maricopa County Jail Guard (“Jail 3 Guard”) for violations of his Fourteenth and Eighth Amendment rights. 4 Plaintiff’s allegations arise from a 58-day period in 2008 during which he was 5 a pretrial detainee at the Lower Buckeye Jail in Phoenix, Arizona. (docket # 29 at 3) Plaintiff 6 alleges that on July 22, 2008, he was arrested by the Tempe Police Department and taken to the 7 Fourth Avenue Jail in Phoenix, Arizona. (Id.) Plaintiff alleges that “Maricopa County” 8 collected information about his medical history; including that he takes medication for 9 hypertension, and that he had been treated two weeks prior for a broken hand. (Id.) On July 23, 10 2008, Plaintiff was transferred to Lower Buckeye Jail. On July 25, 2008, at around 10:30 a.m., 11 Plaintiff was “forcibly given an X-ray against his will, on his broken hand.” (Id.) The Defendant 12 X-Ray technician did not provide Plaintiff a “lead apron or [other] garment to guard against 13 radiation poisoning and/or overexposure.” (Id.) 14 Plaintiff further alleges that Maricopa County has a policy and custom of 15 forcing pretrial detainees to participate in unsafe, involuntary medical experiments, and that 16 “Maricopa County doctors” “continually tried to force Plaintiff to allow them to stick needles 17 in him” to “figure out why [Plaintiff has] high blood pressure.” (docket # 29 at 4) Plaintiff 18 claims he was threatened with solitary confinement if he continued to refuse to let “Maricopa 19 County doctors” stick needles in him, and that the doctors eventually “gave up.” (Id.) Plaintiff 20 alleges that “jail officials” refused to provide him with his hypertension medication, despite his 21 repeated requests. (docket # 29 at 4-5) Plaintiff further claims that “Maricopa County medical” 22 refused to give him a splint for his broken hand. (docket # 29 at 4) 23 Plaintiff also claims that during his 58 days of confinement, he was given rotten 24 meat and fruit, moldy bread, and polluted water pursuant to policies of Defendants Maricopa 25 County and Arpaio. (docket # 29 at 5) Plaintiff further alleges that, pursuant to the policies of 26 Defendants Maricopa County and Arpaio, he was forced to “stand in small holding cells with 27 upwards of 60 sick, coughing, bleeding inmates who could not move because of the crowding.” 28 -3- 1 (Id.) Finally, Plaintiff alleges that Defendant Jail Guard forced Plaintiff to strip naked in front 2 of other guards and “placed his hands on Plaintiff’s genitals.” (Id.) 3 A. Eighth Amendment Claims 4 In Counts One and Four, Plaintiff asserts violations of the Eighth Amendment. 5 (docket # 29 at 8, 12) Because Plaintiff’s allegations stem from a period during which he was 6 a pretrial detainee and had not been convicted and sentenced, Plaintiff lacks standing to bring 7 claims under the Eighth Amendment. The protections of the Eighth Amendment do not attach 8 until after conviction and sentence. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239 9 (1983) (“Eighth Amendment scrutiny is appropriate only after the state has secured a formal 10 adjudication of guilt.”); Ingraham v. Wright, 430 U.S. 651, 671, n. 40 (1977) (“[T]he State does 11 not acquire the power to punish with which the Eighth Amendment is concerned until after it 12 has secured a formal adjudication of guilt in accordance with due process of law.”). The 13 relevant constitutional provision to adjudicate claims based on the violation of the rights of 14 pretrial detainees is the Due Process Clause of the Fourteenth Amendment. Ingraham, 430 U.S. 15 651, 671-672, n. 40 (1977) (“Where the State seeks to impose punishment without such an 16 adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth 17 Amendment.”). Accordingly, Plaintiff’s claims under the Eighth Amendment will be dismissed 18 with prejudice for lack of standing. 19 20 21 B. Count One In Count One of the First Amended Complaint, Plaintiff alleges violations under 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3). 22 1. Allegations under Section 1985(3) 23 “To state a cause of action under § 1985(3), a complaint must allege (1) a 24 conspiracy, (2) to deprive any person or a class of persons of the equal protection of the laws, 25 or of equal privileges and immunities under the laws, (3) an act by one of the conspirators in 26 furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation of any 27 right or privilege of a citizen of the United States.” Gillespie v.Civiletti, 629 F.2d 637, 641 (9th 28 Cir. 1989) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)). -4- 1 “The language requiring intent to deprive of equal protection . . . means that 2 there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus 3 behind the conspirators’ action.” Griffin, 403 U.S. at 102. The Ninth Circuit has extended § 4 1985(3) “beyond race ‘only when the class in question can show that there has been a 5 governmental determination that its members require and warrant special federal assistance in 6 protecting their civil rights.” Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) 7 (internal citations omitted). Specifically, the Ninth Circuit requires “‘either that the courts have 8 designated the class in question a suspect or quasi-suspect classification requiring more exacting 9 scrutiny or that Congress has indicated through legislation that the class required special 10 protection.’” Sever, 978 F.2d at 1536 (quoting Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 11 1985)). A claim under Section 1985(3) “must allege facts to support the allegation that 12 defendants conspired together. A mere allegation of conspiracy without factual specificity is 13 insufficient.” Karim-Panahi v. Los Angeles Police Dep’t., 839 F.2d 621, 626 (9th Cir. 1988). 14 Plaintiff’s First Amended Complaint fails to state a claim under 42 U.S.C. § 15 1985(3). Plaintiff alleges that Maricopa County made policies, which Defendant Arpaio 16 administered, that “violated the Plaintiff’s and many others similarly situated rights to be free 17 from cruel and unusual punishment and substantive due process.” (docket # 29 at 6-7) Plaintiff 18 does not allege any of the elements necessary to state a claim under 42 U.S.C. § 1985(3). For 19 example, the second element requires a showing of “some racial, or perhaps otherwise class- 20 based, invidiously discriminatory animus behind the conspirators’ actions.” Gillespie, 629 F.2d 21 at 641. Plaintiff does not make any allegation that he was subjected to discrimination on the 22 basis of his race or other membership in a class. The Court will dismiss Plaintiff’s allegations 23 under 42 U.S.C. § 1985(3) for failure to state a claim. 24 2. Other Allegations in Count One 25 In Count One Plaintiff alleges that, pursuant to the policies of Defendants 26 Maricopa County and Arpaio, detainees were placed in crowded holding cells, served rotten 27 food and polluted water, denied medical treatment, and were used for medical experiments. 28 Plaintiff alleges that as “a result of the wrongful conduct, policies, and practices of defendants -5- 1 and each of them, the Plaintiff’s civil rights, including but not limited to his rights under the 2 Eighth and Fourteenth Amendments of the United States Constitution, were repeatedly and 3 wantonly violated, and Plaintiff sustained damages and physical injuries, including but not 4 limited to emotional and physical pain and suffering.” (docket # 29 at 8) 5 As previously stated, Plaintiff’s claims under the Eighth Amendment will be 6 dismissed for lack of standing. The Court will consider Plaintiff’s allegations, which can be 7 divided into conditions of confinement and medical claims, under the Fourteenth Amendment’s 8 Due Process Clause. The Fourteenth Amendment’s Due Process Clause protects a pretrial 9 detainee from punishment prior to an adjudication of guilt in accordance with due process of 10 law. Bell v. Wolfish, 441 U.S. 520, 534-35 (1979). “This standard differs significantly from the 11 standard relevant to convicted prisoners, who may be subject to punishment so long as it does 12 not violate the Eighth Amendment’s bar against cruel and unusual punishment.” Pierce v. 13 County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008). A pretrial detainee’s due process rights 14 are at least as great as a convicted prisoner’s Eighth Amendment rights. City of Revere v. 15 Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983); Oregon Advocacy Ctr. v. Mink, 322 F.3d 16 1101, 1120 (9th Cir. 2003) (“[E]ven though the pretrial detainees’ rights arise under the Due 17 Process Clause, the guarantees of the Eighth Amendment provide a minimum standard of care 18 for determining their rights. . . .”). 19 a. Conditions of Confinement 20 The “more protective” Fourteenth Amendment standard applies to conditions 21 of confinement for pretrial detainees and requires the government to do more than provide 22 minimal necessities. Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004). To prevail on a 23 Fourteenth Amendment claim regarding conditions of confinement, a pretrial detainee generally 24 need not satisfy the Eighth Amendment’s “deliberate indifference” standard of culpability. 25 Jones, 393 F.3d at 933-34. Rather, the Fourteenth Amendment’s “punishment” standard applies 26 to pretrial detainees’ claims. Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008). 27 28 -6- 1 “[T]he fact that [pre-trial] detention interferes with the detainee’s 2 understandable desire to live as comfortably as possible and with as a little restraint as possible 3 during confinement does not convert the conditions or restrictions of detention into 4 ‘punishment.’” Bell, 441 U.S. at 537. Although pretrial detainee’s claims arise under the 5 Fourteenth Amendment’s Due Process Clause, the Eighth Amendment’s guarantees provide a 6 minimum standard of care for determining a pretrial detainee’s rights. Jones v. Johnson, 781 7 F.2d 769, 771 (9th Cir. 1986). The Eighth Amendment requires that prison officials provide 8 inmates with adequate food, clothing, shelter, sanitation, and medical care and take reasonable 9 measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994). 10 Plaintiff claims that, pursuant to the polices and practices of Defendants 11 Maricopa County and Joseph Arpaio, he was “given moldy bread, spoiled, smelly meat 12 substances, and rotten fruits for a ‘breakfast meal,’ and some sort of concoction which can only 13 be described as vomit looking, for a “dinner meal, per the policy of Maricopa County Sheriff 14 Joseph M. Arpaio.” (docket # 29, ¶ 15, ¶ 27) Plaintiff further argues that he bought food from 15 the canteen which was “stolen and damaged by jail guards on one occasion.” (docket # 29, ¶ 16 16, ¶ 27) He further claims that he was “forced several times to stand in small holding cells 17 with upwards of 60 sick, coughing, bleeding inmates who could not move because of 18 crowding.” (docket # 29, ¶ 16, ¶ 27) Plaintiff alleges that “the water supplied to [him] at 19 ‘Lower Buckeye Jail’ comes from a toilet and looks very cloudy and polluted.” (docket # 29, 20 ¶ 17, ¶ 27b) Plaintiff claims that as a result of the acts of Defendants, he “was injured in his 21 mental and physical health, suffers unknown and unpredictable long-term effects of radiation 22 exposure . . . .” (docket # 29 ¶ 32) 23 b. Overcrowding 24 Although a pretrial detainee’s claims arise under the Fourteenth Amendment’s 25 Due Process Clause, the Eighth Amendment’s guarantees provide a minimum standard of care 26 for determining a pretrial detainee’s rights. Jones, 781 F.2d at 771. The Eighth Amendment 27 requires that prison officials take reasonable measures to guarantee the safety of the inmates. 28 Farmer, 511 U.S. at 832. “Prison officials have a duty to take reasonable steps to protect -7- 1 inmates from physical abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982) (Hoptowit 2 I). Overcrowding can violate the Eighth Amendment if it results in specific effects that form 3 the basis for an Eighth Amendment violation such as by causing increased violence, diluting 4 constitutionally required services to the extent they fall below the minimum Eighth Amendment 5 standards, or by reaching a level “unfit for human habitation.” Hoptowit I, 682 F.2d at 1249. 6 Overcrowding does not give rise to an Eighth Amendment violation without evidence that it has, 7 in fact, increased violence, deprived pretrial detainees of constitutionally required services, or 8 violated contemporary standards of decency. Rhodes v. Chapman, 452 U.S. 337, 347-49 9 (1981). 10 In his Amended Complaint, Plaintiff alleges that, pursuant to the policies of 11 Defendants Maricopa County and Arpaio, he was “forced several times to stand in small holding 12 cells with upwards of 60 sick, coughing, bleeding inmates who could not move because of 13 crowding.” (docket # 29, ¶ 16) Plaintiff’s allegations of overcrowding are sufficient to state 14 a claim against Defendant Arpaio and Defendant Maricopa County. 15 c. Food and Water 16 Although a pretrial detainee’s claims arise under the Fourteenth Amendment’s 17 Due Process Clause, the Eighth Amendment’s guarantees provide a minimum standard of care 18 for determining a pretrial detainee’s rights. Jones, 781 F.2d at 771. The Eighth Amendment 19 requires that prison officials provide inmates with adequate food. Farmer, 511 U.S. at 832. 20 Food provided to inmates must not only be “nutritionally adequate,” but also “prepared and 21 served under conditions which do not present an immediate danger to the health and well being 22 of the inmates who consume it.” Ramos v. Lamm, 639 F.2d 559, 570-71 (10th Cir. 1980). 23 However,“[t]he Eighth Amendment requires only that prisoners receive food that is adequate 24 to maintain health; it need not be tasty or aesthetically pleasing. The fact that the food 25 occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not 26 amount to a constitutional deprivation.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). 27 Plaintiff alleges that, pursuant to the policies of Defendant Arpaio and 28 Maricopa County, he was “given moldy bread, spoiled, smelly meat substances, and rotten fruits -8- 1 for a ‘breakfast meal,’ and some sort of concoction which can only be described as vomit 2 looking, for a “dinner meal, per the policy of Maricopa County Sheriff Joseph M. Arpaio.” 3 (docket # 29, ¶ 15) Plaintiff also alleges that “the water supplied to [him] at ‘Lower Buckeye 4 Jail’ comes from a toilet and looks very cloudy and polluted.” (docket # 29, ¶ 17, ¶ 27b) 5 Plaintiff’s allegations that he was given rotten food and polluted water state a claim against 6 Defendants Arpaio and Maricopa County and an answer will be required. 7 d. Medical Care 8 In Count One, Plaintiff asserts that Defendants Maricopa County and Arpaio 9 maintained policies and practices of “withholding and/or flat-out refusing vital medical 10 treatments, including but not limited to prescription drugs for hypertension and splints for 11 broken hands; exposing pre-trial non-convicted inmates to medical experimentation procedures, 12 including but not limited to giving them ‘water pills’ for all maladies and exposing them to high 13 level of radiation.” (docket # 29, ¶ 27(b)) To the extent the foregoing allegations assert the 14 rights of other detainees, Plaintiff lacks standing to assert those claims. A “plaintiff generally 15 must assert his own legal rights and interests, and cannot rest his claim to relief on the legal 16 rights or interests of third parties.” Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 17 610 (9th Cir. 2005) (citing Warth v. Seldin, 422 U.S. 490, 499 (1975)). Accordingly, Plaintiff’s 18 claims asserting the rights of persons other than himself will be dismissed. 19 In Count One, Plaintiff further alleges that, pursuant to the policies of 20 Defendants Maricopa County and Arpaio, “Maricopa County medical” refused to give him a 21 splint for his broken hand and that “jail officials” refused Plaintiff’s repeated requests for his 22 medication for hypertension. (docket # 29, ¶ 13, ¶ 14) Plaintiff contends that during the 58 23 days he was detained his blood pressure exceeded 155/110, a “fatal level.” (docket # 29, ¶ 13) 24 Plaintiff also alleges that the failure to provide a splint for his broken hand caused him “severe 25 pain” and “caused his hand to heal improperly and has caused arthritis-like symptoms in said 26 hand.” (docket # 29, ¶ 14) Although a pretrial detainee’s claims arise under the Fourteenth 27 Amendment’s Due Process Clause, the Eighth Amendment’s guarantees provide a minimum 28 standard of care for determining a pretrial detainee’s rights. Jones, 781 F.2d at 771. The Eighth -9- 1 Amendment requires that prison officials provide inmates with adequate medical care. Farmer, 2 511 U.S. at 832; Estelle v. Gamble, 429 U.S. 97 (1976). To violate the Eighth Amendment, 3 defendants must act with deliberate indifference to the prisoner’s serious medical needs. 4 Estelle, 429 U.S. at 104. Section 1983 relief does not lie for medical malpractice. Lopez v. 5 Smith, 203 F.3d 1122, 1131 (9th Cir. 2000); see also Frost v. Agnos, 152 F.3d 1124, 1130 (9th 6 Cir. 1998). “[A] complaint that a physician has been negligent in diagnosing or treating a 7 medical condition does not state a valid claim of medical mistreatment under the Eighth 8 Amendment. Medical malpractice does not become a constitutional violation merely because 9 the victim is a prisoner.” Estelle, 429 U.S. at 106. Even gross negligence related to medical 10 treatment is not sufficient to establish deliberate indifference to serious medical needs. Wood 11 v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 12 Liberally construing the Amended Complaint, Plaintiff’s allegations that he 13 was denied blood pressure medication despite repeated requests, and that he was denied a splint 14 for his broken hand state a claim and an answer will be required. 15 B. Count Two - Procedural Due Process 16 In Count Two, Plaintiff alleges a violation of the Fourteenth Amendment’s Due 17 Process clause based on Defendant Arpaio’s failure to provide Plaintiff with a copy of the 18 “MCSO Rules and Regulations,” a pamphlet which includes information regarding 19 administrative remedies for grievances. (docket # 29, ¶ 9) Plaintiff claims that he had to obtain 20 a copy of the pamphlet from another inmate and alleges that “Defendants wantonly violated 21 procedural due process” by not providing him with the pamphlet. Plaintiff asserts that he 22 exhausted available administrative remedies. (docket # 29 ¶ 11) Plaintiff’s assertions in Count 23 Two appear to be in response to the arguments raised by Maricopa County and Joseph Arpaio 24 in their Motions to Dismiss directed to the original Complaint. Defendants Maricopa County 25 and Arpaio moved for dismissal based, in part, on Plaintiff’s failure to exhaust administrative 26 remedies. They argued that Plaintiff’s claims should be dismissed for failure to comply with 27 the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), which requires a prisoner 28 to exhaust administrative remedies before filing suit. However, the Ninth Circuit Court of - 10 - 1 Appeals in Talamentes v. Leyva, ___ F.3d ___, 2009 WL 2392913 (9th Cir., August 6, 2009), 2 recently held that the exhaustion requirement is applicable only to those individuals who are 3 incarcerated at the time they file the lawsuit. Plaintiff was not incarcerated when he filed suit 4 and, thus, the exhaustion requirement did not apply to him. Id. Accordingly, Plaintiff’s 5 allegations in Count Two do not state a claim for relief under § 1983. 6 C. Count Three - Fourteenth Amendment 7 In Count Three, Plaintiff asserts a violation of his Fourteenth Amendment Due 8 Process rights based on the quality of medical care he received. Plaintiff alleges that Defendant 9 X-Ray technician “violated Plaintiff’s Fourteenth Amendment Due Process rights when she 10 forced the Plaintiff against his will to undergo unnecessary medical treatments, as a punishment 11 for the Plaintiff refusing the treatment.” (docket # 29, ¶ 42) Plaintiff further alleges that 12 Defendants Arpaio and Maricopa County promoted an environment which allowed medical 13 personnel to force Plaintiff into unsafe medical treatments which he refused. (docket # 29, ¶ 14 43) Plaintiff alleges the following facts in support of Count Three. On July 22, 2008, Plaintiff 15 was arrested by the Tempe Police Department and was taken to the Maricopa County Jail. 16 (docket # 29, ¶ 7) Plaintiff was detained as a pretrial detainee until September 17, 2008, a total 17 of 58 days. (docket # 29, ¶ 7) On July 23, 2008, Plaintiff was transferred to the Lower Buckeye 18 Jail. Plaintiff contends he was “forcibly given an X-ray against his will, on his broken hand.” 19 (docket # 29, ¶ ¶9 -11) Plaintiff claims the X-ray was unnecessary because he was already 20 wearing a splint and X-rays had been taken at Banner Medical Center in Mesa, Arizona and at 21 Arizona State University in early July. Plaintiff argues that Defendant Maricopa County had 22 access to these records but “wantonly, intentionally, and maliciously exposed the Plaintiff to 23 high levels of radiation without any sort of protection.” (docket # 29, ¶ 9) 24 Plaintiff claims that Defendant X-ray Technician placed Plaintiff “under a large 25 x-ray machine” without any protection, such as a “lead apron or garment.” (docket # 29, ¶10- 26 11) Plaintiff claims that he refused the x-ray, but the Technician proceeded with the x-ray 27 anyway. (Id.) Plaintiff does not allege any specific injury as a result of the x-ray other than 28 - 11 - 1 stating that “only a medical expert would be able to evaluate the damage and potential damage 2 done to Plaintiff because of the exposure.” (Id. at 4) 3 Plaintiff was a pretrial detainee at the time of the events alleged in his First 4 Amended Complaint. “[P]retrial detainees . . . possess greater constitutional rights than 5 prisoners.” Stone v. City of San Francisco, 968 F.2d 850, 857 n. 10 (9th Cir. 1992). A pre-trial 6 detainee’s right to be free from punishment is grounded in the Fourteenth Amendment’s Due 7 Process clause, but courts borrow from the Eighth Amendment’s jurisprudence when analyzing 8 the rights of pretrial detainees. Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 9 2002). To violate the Eighth Amendment, defendants must act with deliberate indifference to 10 the prisoner’s serious medical needs. Estelle, 429 U.S. at 104. Section 1983 relief does not lie 11 for medical malpractice. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000); see also Frost v. 12 Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998). “[A] complaint that a physician has been negligent 13 in diagnosing or treating a medical condition does not state a valid claim of medical 14 mistreatment under the Eighth Amendment. Medical malpractice does not become a 15 constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Even 16 gross negligence related to medical treatment is not sufficient to establish deliberate indifference 17 to serious medical needs. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 18 The unidentified Defendant X-ray Technician’s conduct does not give rise to 19 a constitutional violation. Plaintiff’s allegation that the X-Ray Technician failed to provide 20 Plaintiff with a “lead apron” or other protective garment amount to nothing more than 21 negligence, i.e., standard of care questions involving reasonableness under similar 22 circumstances. Estelle, 429 U.S. at 106. Additionally, to state a claim under § 1983, a plaintiff 23 must allege that he suffered a specific injury as a result of specific conduct of a defendant and 24 show an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 25 423 U.S. 362, 371-72, 377 (1976). Plaintiff does not allege any specific injury as a result of the 26 x-ray. He speculates that “only a medical expert would be able to evaluate the damage and 27 potential damage done to Plaintiff because of the exposure.” (Id. at 4) The Court will dismiss 28 Count Three against X-ray Technician with prejudice. - 12 - 1 2 D. Count Four - Eighth and Fourteenth Amendment Claims 3 In Count Four, Plaintiff alleges violations of his Eighth and Fourteenth 4 Amendment rights based on a “sexual assault” by an unidentified Jail Guard. (docket # 29 at 5 12) As previously stated, Plaintiff’s claims under the Eighth Amendment will be dismissed for 6 lack of standing. However, the Court will consider Plaintiff’s allegations under the Fourteenth 7 Amendment. Plaintiff alleges that on August 19 or 20, 2008, Defendant Jail Guard, a male, told 8 Plaintiff that “black inmates” were suspected of having marijuana in their cells. Although 9 Plaintiff told Defendant Jail Guard that he did not have marijuana in his cell, “Defendant 10 commenced to grab the Plaintiff’s genitals and fondle them for several seconds, saying he was 11 ‘searching for contraband,’ while the Plaintiff’s cellmate stood right there.” (docket # 29, ¶ ¶ 12 18, 47) Plaintiff further alleges that “Defendant then spread the Plaintiff’s buttocks, then told 13 the Plaintiff to put his boxers back on and head downstairs.” (Id.) Plaintiff contends that the 14 assault was in retaliation for Plaintiff having filed a grievance about guards destroying his mail. 15 (Id.) Plaintiff claims that the “trauma, emotional distress, and sheer embarrassment as a result 16 of this incident caused the Plaintiff to avoid contact with all Maricopa County jail employees 17 for the remainder of time he was incarcerated as a pre-trial [detainee], and caused Plaintiff to 18 not speak of said incident, except for (sic) to a couple of close family [members] and friends.” 19 (docket # 29, ¶ 48) Plaintiff’s allegations state a claim under the Fourteenth Amendment and 20 will be permitted to proceed. 21 Plaintiff was a pretrial detainee at the relevant times. Because he was not a 22 convicted prisoner at those times, his claims do not arise under the Eighth Amendment. Bell v. 23 Wolfish, 441 U.S. 520, 535 n. 16 (1979) (the Eighth Amendment prevents the imposition of 24 cruel and unusual punishment on convicted prisoners); Jones v. Johnson, 781 F.2d 769, 771 (9th 25 Cir. 1986) (the Eighth Amendment applies only to convicted prisoners). When a person has 26 been arrested but has not been convicted of a crime, “his rights derive from the due process 27 clause rather than the Eighth Amendment’s protection against cruel and unusual punishment.” 28 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002). It is the more - 13 - 1 protective Fourteenth Amendment that sets the standards applicable to a pretrial detainee’s 2 conditions of confinement. Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (citing 3 Youngberg v. Romeo, 457 U.S. 307 (1982), and Bell, 441 U.S. 520). 4 The Fourteenth Amendment “requires the government to do more than provide 5 the ‘minimal civilized measure of life’s necessities’ for non-convicted detainees.” Jones v. 6 Blanas, 393 F.3d 918, 931 (9th Cir. 2004). At a minimum, “the Fourteenth Amendment 7 prohibits all punishment of pretrial detainees.” Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 8 2004). Bell, 441 U.S. at 535 (when the state detains a person on a criminal charge, that person, 9 unlike one convicted of a crime, “may not be punished prior to an adjudication of guilt in 10 accordance with due process of law”). 11 The prohibition against punishment of pretrial detainees extends to actions that 12 “amount to punishment.” Id. at 536. A particular action will not amount to prohibited 13 punishment unless it causes the detainee to suffer some harm or disability. Id. at 538. Harm 14 suffered by a pretrial detainee may constitute unconstitutional punishment even if the harm itself 15 is not independently cognizable as a separate constitutional violation. Demery, 378 F.3d at 16 1030. However, “the harm or disability caused by the government’s action must either 17 significantly exceed, or be independent of, the inherent discomforts of confinement.” Id. Loss 18 of freedom of choice and diminished privacy are examples of inherent incidents of confinement. 19 Bell, 441 U.S. at 537. 20 A pretrial detainee may demonstrate that an action was unconstitutionally 21 punitive by showing that the action was expressly intended to punish or that the action served 22 an alternative, non-punitive purpose but was “‘excessive in relation to the alternative purpose.’” 23 Demery, 378 F.3d at 1028 (quoting Bell, 441 U.S. at 538). A challenged action that is 24 reasonably related to a legitimate government goal, such as effective management of the jail or 25 maintenance of internal jail security and order, will not, without more, constitute punishment. 26 Bell, 441 U.S. at 539-40, 546; Redman v. County of San Diego, 942 F.2d 1435, 1440-41 (9th Cir. 27 1991); White v. Roper, 901 F.2d 1501, 1504 (9th Cir. 1990). “Conversely, a court may infer an 28 intent to punish when there is no such reasonable relation.” White, 901 F.2d at 1504 (citing Bell, - 14 - 1 441 U.S. at 540). “ ‘Retribution and deterrence are not legitimate nonpunitive governmental 2 objectives.’ ” Id. at 1504-05 (quoting Bell, 441 U.S. at 539 n. 20). 3 Although the Fourteenth Amendment protects pretrial detainees from the use 4 of force that amounts to punishment, it is “the Fourth Amendment [that] sets the ‘applicable 5 constitutional limitations’ for considering claims of excessive force during pretrial detention.” 6 Gibson, 290 F.3d at 1197 (quoting Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th 7 Cir.1996)). The Fourth Amendment standard is one of “objective reasonableness.” Lolli v. 8 County of Orange, 351 F.3d 410, 415 (9th Cir. 2003) (citing Pierce, 76 F.3d at 1043). “The 9 question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 10 circumstances confronting them, without regard to their underlying intent or motivation.” 11 Graham v. Connor, 490 U.S. 386, 397 (1989). 12 The allegations in Count Four that Defendant Jail Guard, in the presence of 13 Plaintiff’s cell mate, strip-searched Plaintiff, “grab[bed] Plaintiff’s genitals and fondle[d] them 14 for several seconds, . . . spread the Plaintiff’s buttocks” (docket # 29, ¶ 18, ¶ 47) state a claim 15 under the Fourteenth Amendment. Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) 16 (Strip-searches that are “excessive, vindictive, harassing, or unrelated to any legitimate 17 penological interest,” however, may be unconstitutional); Hudson v. McMillian, 503 U.S. 1, 6-7 18 (1992) (“[T]he core judicial inquiry is . . . .whether force was applied in a good-faith effort to 19 maintain or restore discipline, or maliciously and sadistically to cause harm.”). 20 The only named Defendant in Count Four is a “Doe defendant,” identified as 21 Jail Guard. Although the use of a Doe defendant is sufficient to withstand dismissal at the 22 initial review stage, using a Doe defendant creates problems because such an individual cannot 23 be served with process until he or she is identified by a real name. Because the identity of 24 defendant Jail Guard is unknown, the Court cannot order service on that person. The Court will 25 give Plaintiff an opportunity to discover the Jail Guard’s true name and address. Plaintiff must 26 promptly take steps to discover the full name and address of the unknown Defendant Jail Guard 27 and provide that information to the Court in a supplement to his pleading. 28 In view of the foregoing, - 15 - 1 IT IS ORDERED that Plaintiff’s Motion for Leave to Amend Complaint 2 (docket # 28) is GRANTED. The Clerk of Court shall file the proposed First Amended 3 Complaint. (docket # 29) 4 5 6 7 8 9 IT IS FURTHER ORDERED that Counts Two and Three of the First Amended Complaint are DISMISSED with prejudice. IT IS FURTHER ORDERED that Plaintiff’s Eighth Amendment claims are DISMISSED with prejudice. IT IS FURTHER ORDERED that Plaintiff’s allegations asserting the rights of detainees other than himself are DISMISSED with prejudice. 10 IT IS FURTHER ORDERED that Defendants Arpaio and Maricopa County 11 shall answer Plaintiff’s allegations in Count One of the First Amended Complaint that 12 inadequate medical care and inadequate conditions of confinement violated Plaintiff’s 13 Fourteenth Amendment rights. 14 IT IS FURTHER ORDERED that Plaintiff may engage in discovery to 15 determine the identify of the unknown Defendant Jail Guard and that on or before February 16 15, 2010, Plaintiff shall provide the full name and address of the unknown Jail Guard identified 17 in Count Four to the USMS for service. If Plaintiff fails to provide a full name and address for 18 the unknown Jail Guard by February 20, 2010, his claims against unknown Jail Guard may be 19 dismissed without prejudice. 20 IT IS FURTHER ORDERED that the following motions are DENIED as 21 moot: Maricopa County’s Motion to Dismiss, docket # 14; Defendant Arpaio’s Motion to 22 Dismiss, docket # 19; the motions of Defendant Arpaio and Maricopa County for Summary 23 Disposition, dockets # 33, # 35; and Plaintiff’s Motion to Strike Defendants’ Request for 24 Summary Disposition, docket # 38. 25 DATED this 21st day of December, 2009. 26 27 28 - 16 -
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