Grady v. Arpaio et al, No. 2:2009cv01996 - Document 4 (D. Ariz. 2009)

Court Description: ORDER granting Plaintiff's 3 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 10/30/09. (Attachments: # 1 Complaint Form)(REW, )
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Grady v. Arpaio 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 Anthony Grady, Plaintiff, 10 11 vs. 12 Joe Arpaio, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 09-1996-PHX-MHM (LOA) ORDER 14 Plaintiff Anthony Grady, who is confined in the Maricopa County Lower Buckeye 15 Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. #1) and an 16 Application to Proceed In Forma Pauperis (Doc. #3). The Court will dismiss the Complaint 17 with leave 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 $19.21. 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 .... 27 .... 28 JDDL-K 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 two-count Complaint, Plaintiff sues the following Defendants: Maricopa County 6 Sheriff Joe Arpaio, Don Stapley, the Maricopa County Sheriff’s Department, and Maricopa 7 County Sheriff Supervisors. In Count One, Plaintiff alleges “access to court with health code 8 violation.” He claims that on three occasions he was in a holding cell with trash all over the 9 cell and with living and dead cockroaches. In Count Two, Plaintiff states that he asked for 10 a nail clipper because he was unable to bend to use a nail file, and that “medical” refused to 11 clip his toenail. In his Request for Relief, Plaintiff seeks monetary compensation. 12 IV. Failure to State a Claim 13 A. Failure to Allege a Violation of a Constitutional Right 14 Section 1983 provides a cause of action against persons acting under color of state law 15 who have violated rights guaranteed by the United States Constitution and federal law. 42 16 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). 17 Plaintiff has failed to allege any constitutional or federal-law violations. Thus, the Court will 18 dismiss without prejudice Plaintiff’s Complaint because it fails to state a claim. 19 B. Failure to Link Defendant with Injuries 20 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 21 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. 22 Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, 23 a liberal interpretation of a civil rights complaint may not supply essential elements of the 24 claim that were not initially pled. Id. 25 To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific 26 injury as a result of specific conduct of a defendant and show an affirmative link between the 27 injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 28 (1976). There is no respondeat superior liability under § 1983, and therefore, a defendant’s -3- 1 position as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights 2 does not impose liability. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691- 3 92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 4 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to . . . § 1983 suits, 5 a plaintiff must plead that each Government-official defendant, through the official’s own 6 individual actions, has violated the constitution.” Iqbal, 129 S. Ct. at 1948. 7 Plaintiff has not alleged that any Defendant personally participated in a deprivation 8 of Plaintiff’s constitutional rights, was aware of a deprivation and failed to act, or formed 9 policies that resulted in Plaintiff’s injuries. Thus, the Court will dismiss all Defendants. 10 C. Improper Defendant 11 The Maricopa County Sheriff’s Department is not a proper defendant. In Arizona, the 12 responsibility of operating jails and caring for prisoners is placed by law upon the sheriff. 13 See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. § 31-101. A sheriff’s office is simply 14 an administrative creation of the county sheriff to allow him to carry out his statutory duties 15 and not a “person” amenable to suit pursuant to § 1983. Accordingly, the Maricopa County 16 Sheriff’s Department will be dismissed from this action. 17 V. Leave to Amend 18 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 19 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 20 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 21 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 22 to use the court-approved form, the Court may strike the amended complaint and dismiss this 23 action without further notice to Plaintiff. 24 Plaintiff must clearly designate on the face of the document that it is the “First 25 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 26 entirety on the court-approved form and may not incorporate any part of the original 27 Complaint by reference. Plaintiff may include only one claim per count. 28 JDDL-K -4- 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 In any amended complaint, Plaintiff must write short, plain statements telling the 8 Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the 9 Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how 10 the action or inaction of that Defendant is connected to the violation of Plaintiff’s 11 constitutional right; and (5) what specific injury Plaintiff suffered because of that 12 Defendant’s conduct. Rizzo, 423 U.S. at 371-72, 377. 13 Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff 14 fails to affirmatively link the conduct of each named Defendant with the specific injury 15 suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to 16 state a claim. Conclusory allegations that a Defendant or group of Defendants have 17 violated a constitutional right are not acceptable and will be dismissed. 18 Plaintiff should take note that a pretrial detainee’s claim for unconstitutional 19 conditions of confinement arises from the Fourteenth Amendment Due Process Clause rather 20 than from the Eighth Amendment prohibition against cruel and unusual punishment. Bell 21 v. Wolfish, 441 U.S. 520, 535 (1979). Nevertheless, the same standards are applied, 22 requiring proof that the defendant acted with deliberate indifference. See Frost v. Agnos, 23 152 F.3d 1124, 1128 (9th Cir. 1998). 24 To state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, 25 the alleged constitutional deprivation must be, objectively, “sufficiently serious”; the 26 official’s act or omission must result in the denial of “the minimal civilized measure of life’s 27 necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the prison official must 28 have a “sufficiently culpable state of mind,” i.e., he must act with deliberate indifference to -5- JDDL-K 1 inmate health or safety. Id. In defining “deliberate indifference” in this context, the Supreme 2 Court has imposed a subjective test: “the official must both be aware of facts from which the 3 inference could be drawn that a substantial risk of serious harm exists, and he must also draw 4 the inference.” Id. at 837 (emphasis added). 5 Not every claim by a prisoner that he has received inadequate medical treatment states 6 a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a 7 plaintiff must show that the defendants acted with “deliberate indifference to serious medical 8 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 9 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need” by demonstrating 10 that failure to treat the condition could result in further significant injury or the unnecessary 11 and wanton infliction of pain and (2) the defendant’s response was deliberately indifferent. 12 Jett, 439 F.3d at 1096 (quotations omitted). 13 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 14 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know 15 of and disregard an excessive risk to inmate health; the official must both be aware of facts 16 from which the inference could be drawn that a substantial risk of serious harm exists and 17 he must also draw the inference. Farmer, 511 U.S. at 837. Deliberate indifference in the 18 medical context may be shown by a purposeful act or failure to respond to a prisoner’s pain 19 or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. 20 Deliberate indifference may also be shown when a prison official intentionally denies, 21 delays, or interferes with medical treatment or by the way prison doctors respond to the 22 prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 23 Deliberate indifference is a higher standard than negligence or lack of ordinary due 24 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 25 negligence will constitute deliberate indifference.” Clement v. California Dep’t of 26 Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter 27 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 28 “medical malpractice” do not support a claim under § 1983). “A difference of opinion does -6- 1 not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. 2 Vild, 891 F.2d 240, 242 (9th Cir. 1989). The indifference must be substantial. The action 3 must rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105- 4 06. 5 VI. Warnings 6 A. 7 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 8 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 9 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 10 Release in dismissal of this action. 11 B. Address Changes 12 Plaintiff must file and serve a notice of a change of address in accordance with Rule 13 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 14 relief with a notice of change of address. Failure to comply may result in dismissal of this 15 action. 16 C. Copies 17 Plaintiff must submit an additional copy of every filing for use by the Court. See 18 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 19 to Plaintiff. 20 D. Possible “Strike” 21 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails 22 to file an amended complaint correcting the deficiencies identified in this Order, the 23 dismissal will count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 24 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 25 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 26 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 27 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 28 JDDL-K -7- 1 or fails to state a claim upon which relief may be granted, unless the prisoner is under 2 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 3 E. Possible Dismissal 4 If Plaintiff fails to timely comply with every provision of this Order, including these 5 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 6 1260-61 (a district court may dismiss an action for failure to comply with any order of the 7 Court). 8 IT IS ORDERED: 9 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. #3) is granted. 10 (2) As required by the accompanying Order to the appropriate government agency, 11 12 Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $19.21. (3) The Complaint (Doc. #1) is dismissed for failure to state a claim. Plaintiff has 13 30 days from the date this Order is filed to file a first amended complaint in compliance with 14 this Order. 15 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 16 Court must, without further notice, enter a judgment of dismissal of this action with prejudice 17 that states that the dismissal counts as a “strike” under 28 U.S.C. § 1915(g). 18 19 20 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 30th day of October, 2009. 21 22 23 24 25 26 27 28 JDDL-K -8-