Berry v. Maricopa County Sheriff Office, No. 2:2009cv01738 - 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. The Clerk must enter dismissal with prejudice that states the dismissal may count as a "strike" under 28 U.S.C. § 1915(g) if Plaintiff fails to comply. Signed by Judge Robert C Broomfield on 9/23/09. (Attachments: #(1) PCR Complaint Form). (LSP)

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Berry v. Maricopa County Sheriff Office 1 Doc. 4 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Wayne Berry, Plaintiff, 10 11 vs. 12 Maricopa County Sheriff’s Office, 13 Defendant. ) ) ) ) ) ) ) ) ) ) No. CV 09-1738-PHX-RCB (LOA) ORDER 14 Plaintiff Michael Wayne Berry, who is confined in the Maricopa County Lower 15 Buckeye Jail, 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 assess an initial partial filing fee of $5.00. The remainder of the fee will be 22 collected monthly in payments of 20% of the previous month’s income each time the amount 23 in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate 24 Order requiring the appropriate government agency to collect and forward the fees according 25 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 JDDL-K JDDL-K 1 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 2 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 3 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 4 be granted, or that seek monetary relief from a defendant who is immune from such relief. 5 28 U.S.C. § 1915A(b)(1), (2). 6 A pleading must contain a “short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 8 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 9 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 10 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 11 statements, do not suffice.” Id. 12 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 14 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 15 that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 17 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 19 allegations may be consistent with a constitutional claim, a court must assess whether there 20 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 21 If the Court determines that a pleading could be cured by the allegation of other facts, 22 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 23 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 24 should not, however, advise the litigant how to cure the defects. This type of advice “would 25 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 26 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was 27 required to inform a litigant of deficiencies). Plaintiff’s Complaint will be dismissed for 28 failure to state a claim, with leave to amend because the Complaint may possibly be saved -2- 1 by amendment. 2 III. 3 Plaintiff sues the Maricopa County Sheriff’s Office and raises three grounds for relief: 4 (1) Plaintiff was denied basic necessities for 74 hours in a very crowded area; 5 (2) Staff refused to listen to Plaintiff’s concerns; and 6 (3) Plaintiff was denied medical treatment. 7 Plaintiff seeks money damages. 8 IV. Improper Defendant 9 The sole Defendant in this action, the Maricopa County Sheriff’s Office, is not a 10 proper defendant. In Arizona, the responsibility of operating jails and caring for prisoners 11 is placed by law upon the sheriff. See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. 12 § 31-101. A sheriff’s office is simply an administrative creation of the county sheriff to 13 allow him to carry out his statutory duties and not a “person” amenable to suit pursuant to 14 § 1983. Accordingly, the Maricopa County Sheriff’s Office will be dismissed from this 15 action. 16 V. Failure to State a Claim 17 In order to recover under § 1983, a plaintiff must show: (1) the violation of a right 18 protected by the Constitution or federal law; (2) that was proximately caused; (3) by conduct 19 of a “person” named as a defendant; (4) acting under color of state law. See Crumpton v. 20 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff has not alleged a violation of a 21 constitutional right in any of his claims. 22 Plaintiff should note that a pretrial detainee’s claim for unconstitutional conditions of 23 confinement arises from the Fourteenth Amendment Due Process Clause rather than from 24 the Eighth Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish, 25 441 U.S. 520, 535 (1979). Nevertheless, the same standards are applied, requiring proof that 26 the defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 27 (9th Cir. 1998). 28 JDDL-K Complaint To state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, -3- JDDL-K 1 the alleged constitutional deprivation must be, objectively, “sufficiently serious”; the 2 official’s act or omission must result in the denial of “the minimal civilized measure of life’s 3 necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). These are “deprivations of 4 essential food, medical care, or sanitation” or “other conditions intolerable for prison 5 confinement.” Rhodes v. Chapman, 452 U.S. 337, 348 (1981). To determine whether a 6 violation has occurred, a Court should consider the circumstances, nature and duration of a 7 deprivation of these necessities. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “The 8 more basic the need, the shorter the time it can be withheld.” Hoptowit v. Ray, 682 F.2d 9 1287, 1259 (9th Cir. 1982). 10 Second, the prison official must have a “sufficiently culpable state of mind,” i.e., he 11 must act with deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834. 12 In defining “deliberate indifference” in this context, the Supreme Court has imposed a 13 subjective test: “the official must both be aware of facts from which the inference could be 14 drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 15 Id. at 837 (emphasis added). 16 Similarly, to maintain a claim under the Eighth Amendment based on prison medical 17 treatment, a prisoner must show deliberate indifference to serious medical needs. Estelle v. 18 Gamble, 429 U.S. 97, 104 (1976). To act with deliberate indifference, a prison official must 19 both know of and disregard an excessive risk to inmate health. Farmer, 511 U.S. at 837. The 20 official must both be aware of facts from which the inference could be drawn that a 21 substantial risk of serious harm exists and he must also draw the inference. Id. This 22 subjective approach focuses upon the mental attitude of the defendant. Id. at 839. 23 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 24 1060 (9th Cir. 2004). In the medical context, deliberate indifference may be shown by (1) a 25 purposeful act or failure to respond to a prisoner’s pain or possible medical need and 26 (2) harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 27 (citing Estelle, 429 U.S. at 104). 28 ... -4- 1 JDDL-K VI. Leave to Amend 2 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 3 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 4 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 5 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 6 to use the court-approved form, the Court may strike the amended complaint and dismiss this 7 action without further notice to Plaintiff. 8 In any amended complaint, Plaintiff must write short, plain statements telling the 9 Court: (1) the constitutional right Plaintiff believes was violated; (2) name of the Defendant 10 who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action 11 or inaction of that Defendant is connected to the violation of Plaintiff’s constitutional right; 12 and (5) what specific injury Plaintiff suffered because of that Defendant’s conduct. Rizzo 13 v. Goode, 423 U.S. 362, 371-72, 377 (1976). 14 Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff 15 fails to affirmatively link the conduct of each named Defendant with the specific injury 16 suffered by Plaintiff, the allegation against that Defendant will be dismissed for failure to 17 state a claim. Further, Plaintiff must comply with any specific directions set out by the Court 18 in its discussion of individual claims. Conclusory allegations that a Defendant or group of 19 Defendants have violated a constitutional right are not acceptable, and will be dismissed. 20 Plaintiff must clearly designate on the face of the document that it is the “First 21 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 22 entirety on the court-approved form and may not incorporate any part of the original 23 Complaint by reference. Plaintiff may include only one claim per count. 24 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 25 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 26 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as 27 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original 28 complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d -5- 1 565, 567 (9th Cir. 1987). 2 VII. Warnings 3 A. Release 4 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 5 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 6 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 7 in dismissal of this action. 8 B. Address Changes 9 Plaintiff must file and serve a notice of a change of address in accordance with Rule 10 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 11 relief with a notice of change of address. Failure to comply may result in dismissal of this 12 action. 13 C. Copies 14 Plaintiff must submit an additional copy of every filing for use by the Court. See 15 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 16 to Plaintiff. 17 D. Possible “Strike” 18 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails 19 to file an amended complaint correcting the deficiencies identified in this Order, the 20 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 21 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 22 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 23 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 24 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 25 or fails to state a claim upon which relief may be granted, unless the prisoner is under 26 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 27 28 JDDL-K -6- 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. #3) 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 $5.00. (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 may count 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 23rd day of September, 2009. 19 20 21 22 23 24 25 26 27 28 JDDL-K -7-

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