Opinion
CV 23-00244-PHX-JAT (JFM)
04-20-2023
Damian Ayarzagoitia, Plaintiff, v. CoreCivic Corporation, et al., Defendants.
ORDER
James A. Teilborg Senior United States District Judge
On February 6, 2023, Plaintiff Damian Ayarzagoitia, who is confined in the Saguaro Correctional Center (SCC) in Eloy, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, an Application to Proceed In Forma Pauperis, and a Motion for Inclusion of Exhibits as Evidence. In a February 16, 2023 Order, the Court denied the Motion, granted the Application to Proceed, and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.
On March 1, 2023, Plaintiff filed his First Amended Complaint (Doc. 8). The Court will dismiss the First Amended Complaint with leave to amend.
I. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Plaintiff's First Amended Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
II. First Amended Complaint
In his First Amended Complaint, Plaintiff sues CoreCivic Corporation (“CoreCivic”) and Correctional Counselor Gerard Baker. Plaintiff asserts claims of excessive force and denial of basic necessities. He seeks monetary and injunctive relief, as well as his costs and fees for this case.
In Count One, Plaintiff alleges the following:
On October 21, 2022, Defendant Baker came to Plaintiff's cell to serve him with a disciplinary report. Defendant Baker opened the food trap to give the report to Plaintiff, and Plaintiff “stuck [his] arms out to prevent [the trap] from being closed.” Plaintiff tried to “grab the papers out of [Baker's] hands” and told Baker that he would not “cooperate with the process” or sign the report, and that if Baker opened the food trap, Plaintiff would spit on him. Instead of “heeding [Plaintiff's] warnings,” Defendant Baker opened the food trap. Defendant Baker released the strap securing his mace but did not draw the can. Defendant Baker ordered Plaintiff to remove his arms, and when Plaintiff adjusted his arms to “withdraw” them and walk away from the door, Baker removed the can of mace. Plaintiff quickly stood up and moved to the center of the cell, with his back to the door. As he did so, he felt a burst of spray hit him in the back. The spray lasted about six seconds. Plaintiff turned around to ask Defendant Baker why he had sprayed Plaintiff, at which point Baker sprayed Plaintiff a second time with a three-second burst that hit Plaintiff in the face. Defendant Baker slammed shut the food trap and reported that he had deployed his mace.
Shortly after the incident, Plaintiff asked Defendant Baker why he had sprayed Plaintiff. Baker responded that he “heard a sound like someone was spitting” and assumed it was Plaintiff spitting on him because Plaintiff had threatened to spit on him. According to Plaintiff, he did not “follow through with [his] threat” to spit on Defendant Baker. Regional Director Todd Thomas subsequently informed Plaintiff that Defendant Baker's use of the mace was “premature.”
Plaintiff was not allowed to “fully and completely decontaminate [his] body,” and the staff members tasked with supervising the decontamination policy told Plaintiff that “their policy only permitted decontamination of the face.” Plaintiff states he suffered no physical injury, but he suffered burning all over his body until he was able to take a shower on October 24, 2022. Plaintiff alleges that even after he showered, he “felt burning for about a week after the incident.”
In Count Two, Plaintiff alleges the following:
Plaintiff was ordered to clean his cell and keep it clean, but staff would not provide any cleaning supplies, except for a chemical bottle. The restrictive housing unit at SCC does not provide proper cleaning supplies for prisoners to clean their cells. Prisoners are not allowed rags, “handbrooms,” toilet brushes, or dustpans; only a chemical bottle is provided. The Chief of Unit Management told Plaintiff that he could use an old t-shirt to clean his cell. Officer Aguirre-Rubio told Plaintiff to use an old newspaper or tear up a t-shirt to use to clean. When Plaintiff requested cleaning supplies, he was told that brooms were not allowed inside the cells, although Plaintiff never requested a broom; rather, he requested a “handbroom,” which is smaller than a broom and “poses little to no risk to security and safety.” Plaintiff states that he suffered no physical injury, but “someone could get sick and/or get HEP A from having to use a sock or t-shirt to clean out the toilet with their bare hands.”
III. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 37172, 377 (1976).
A. Defendant CoreCivic
To state a claim under § 1983 against a private entity performing a traditional public function, such as operating a prison, a plaintiff must allege facts to support that his constitutional rights were violated as a result of a policy, decision, or custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 113839 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (per curiam). A plaintiff must allege the specific policy or custom and how it violated his constitutional rights. A private entity is not liable merely because it employs persons who allegedly violated a plaintiff's constitutional rights. See Tsao, 698 F.3d at 1139; Buckner, 116 F.3d at 452.
Plaintiff does not allege that any of the conduct described in the Complaint was the result of a specific policy or custom of Defendant CoreCivic. Thus, the Court will dismiss without prejudice Defendant CoreCivic.
B. Excessive Force (Count One)
When a prisoner claims that prison officials violated his Eighth Amendment rights by using excessive physical force, the relevant inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). However, the Supreme Court has made it clear that not every use of physical force violates the Eighth Amendment:
That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d [1028, 1033 (2nd Cir. 1973)] (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights”).Id. at 9.
Plaintiff's allegations do not support that Defendant Baker “maliciously and sadistically” sprayed Plaintiff with mace “to cause harm.” Rather, Plaintiff's allegations indicate that Plaintiff's non-compliance with Defendant Baker's orders and his threat to spit on Baker precipitated the use of force. As presented, Plaintiff fails to state an excessive force claim in Count One, and it will be dismissed. ....
C. Basic Necessities (Count Two)
Plaintiff does connect any of the allegations in Count Two to any named Defendant. Thus, the Court will dismiss Count Two.
IV. Leave to Amend
For the foregoing reasons, the Court will dismiss Plaintiff's First Amended Complaint for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the “Second Amended Complaint.” The second amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint or First Amended Complaint by reference. Plaintiff may include only one claim per count.
A second amended complaint supersedes the original Complaint and First Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or First Amended Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
V. Warnings
A. Release
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
C. Possible “Strike”
Because the First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
D. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) The First Amended Complaint (Doc. 8) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.
(2) If Plaintiff fails to file a second 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 may count as a “strike” under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot.
(3) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.