--ECV Adams v. Maricopa County Sheriff's Office et al, No. 2:2010cv01558 - Document 5 (D. Ariz. 2010)
Court Description: ORDER granting 3 Plaintiff's Motion/Application for Leave to Proceed in forma pauperis; Plaintiff must pay the $350.00 filing fee. The Complaint is dimsised with 30 days leave to amend. Clerk must enter dismissal with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). Signed by Judge Robert C Broomfield on 8/15/10. (Attachments: #(1) PCR Complaint Form). (LSP)
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--ECV Adams v. Maricopa County Sheriff&#039;s Office et al 1 Doc. 5 WO KM 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. ) Maricopa County Sheriff’s Office, et al., ) ) ) Defendants. ) Morgan Adams, No. CV 10-1558-PHX-RCB (ECV) ORDER 14 15 Plaintiff Morgan Adams, who is confined in the Maricopa County Estrella Jail, has 16 filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to 17 Proceed In Forma Pauperis. The Court will dismiss the Complaint 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 $15.50. 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 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). 5 A pleading must contain a “short and plain statement of the claim showing that the 6 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 7 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 8 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 9 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 10 JDDL-K statements, do not suffice.” Id. 11 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 13 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 14 that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 16 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 18 allegations may be consistent with a constitutional claim, a court must assess whether there 19 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 20 If the Court determines that a pleading could be cured by the allegation of other facts, 21 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 22 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 23 should not, however, advise the litigant how to cure the defects. This type of advice “would 24 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 25 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was 26 required to inform a litigant of deficiencies). Plaintiff’s Complaint will be dismissed for 27 failure to state a claim, with leave to amend because the Complaint may possibly be saved 28 by amendment. -2- 1 III. 2 3 Plaintiff names the Maricopa County Sheriff’s Office and Corrections Health Services Risk Manager Susan Fisher as Defendants in the Complaint. 4 Plaintiff’s sole ground for relief is that she was denied adequate medical care. 5 Plaintiff alleges that in May 2010, she was prescribed a benzoyl peroxide wash and retin-A. 6 Plaintiff states that “MCSO/CHS” would only issue the benzoyl peroxide wash but refused 7 to give retin-A. Plaintiff states that because she is employed as an entertainer, it is 8 “imperative that her complexion and body remain in good, clear condition,” and that she now 9 has visible scars on her face and back. 10 11 Plaintiff seeks injunctive relief and money damages. IV. Failure to State a Claim 12 A. 13 The Maricopa County Sheriff’s Office is not a proper defendant. In Arizona, the 14 responsibility of operating jails and caring for prisoners is placed by law upon the sheriff. 15 See Ariz. Rev. Stat. § 11-441(A)(5); Ariz. Rev. Stat. § 31-101. A sheriff’s office is simply 16 an administrative creation of the county sheriff to allow him to carry out his statutory duties 17 and not a “person” amenable to suit pursuant to § 1983. Accordingly, the Maricopa County 18 Sheriff’s Office will be dismissed from this action. Defendant Maricopa County Sheriff’s Office 19 B. 20 To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific 21 injury as a result of specific conduct of a defendant and show an affirmative link between the 22 injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 23 (1976). 24 25 JDDL-K Complaint Failure to Link Injuries with Defendant Plaintiff has failed to make any allegations against Defendant Fisher and has therefore failed to state a claim against Defendant Fisher. 26 C. Constitutional Violation and Medical Claims 27 In order to recover under § 1983, a plaintiff must show: (1) the violation of a right 28 protected by the Constitution or federal law; (2) that was proximately caused; (3) by conduct -3- 1 of a “person” named as a defendant; (4) acting under color of state law. See Crumpton v. 2 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff has not alleged a violation of a 3 constitutional right in the Complaint. 4 Plaintiff should note that a pretrial detainee’s claim for unconstitutional conditions of 5 confinement arises from the Fourteenth Amendment Due Process Clause rather than from 6 the Eighth Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish, 7 441 U.S. 520, 535 (1979). Nevertheless, the same standards are applied, requiring proof that 8 the defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 9 (9th Cir. 1998). 10 Not every claim by a prisoner relating to inadequate medical treatment states a 11 violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a 12 plaintiff must show that the defendants acted with “deliberate indifference to serious medical 13 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 14 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need” by demonstrating 15 that failure to treat the condition could result in further significant injury or the unnecessary 16 and wanton infliction of pain and (2) the defendant’s response was deliberately indifferent. 17 Jett, 439 F.3d at 1096 (quotations omitted). 18 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 19 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know 20 of and disregard an excessive risk to inmate health; “the official must both be aware of facts 21 from which the inference could be drawn that a substantial risk of serious harm exists, and 22 he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate 23 indifference in the medical context may be shown by a purposeful act or failure to respond 24 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 439 25 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally 26 denies, delays, or interferes with medical treatment or by the way prison doctors respond to 27 the prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 28 JDDL-K -4- JDDL-K 1 Even if Plaintiff had named a proper Defendant or adequately linked her claims to a 2 named Defendant, Plaintiff’s allegations still fail to state a claim. Plaintiff has failed to 3 allege that she was denied medical care for a serious medical need. Plaintiff has not 4 demonstrated that failure to receive the retin-A medication will result in a significant injury 5 or that denial of the medication causes the unnecessary and wanton infliction of pain. 6 Accordingly, Plaintiff has failed to state a claim. 7 V. Leave to Amend 8 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 9 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 10 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 11 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 12 to use the court-approved form, the Court may strike the amended complaint and dismiss this 13 action without further notice to Plaintiff. 14 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 15 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of 16 the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; 17 (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff’s 18 constitutional right; and (5) what specific injury Plaintiff suffered because of that 19 Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 20 Plaintiff must repeat this process for each person she names as a Defendant. If 21 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 22 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 23 failure to state a claim. Conclusory allegations that a Defendant or group of Defendants 24 have violated a constitutional right are not acceptable and will be dismissed. 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 her release. 10 Also, within 30 days of her release, she must either (1) notify the Court that she intends to 11 pay the balance or (2) show good cause, in writing, why she cannot. Failure to comply may 12 result 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 may 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. Possible Dismissal 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 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 3) is granted. 11 (2) As required by the accompanying Order to the appropriate government agency, 12 13 Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $15.50. (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 14 30 days from the date this Order is filed to file a first amended complaint in compliance with 15 this Order. 16 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 17 Court must, without further notice, enter a judgment of dismissal of this action with prejudice 18 that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g). 19 20 21 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 15th day of August, 2010. 22 23 24 25 26 27 28 JDDL-K -7-
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