Opinion
No. CV-04-2552-PHX-SMM (LOA).
November 7, 2005
ORDER
On November 15, 2004, Jorge Rudy Alvarado (Plaintiff), presently residing in Glendale, Arizona, filed with the Clerk of the Court a pro se "Civil Rights Complaint By A Prisoner" (Document #1) (Complaint) pursuant to 42 U.S.C. § 1983. Plaintiff did not pay the one hundred and fifty dollar ($150.00) filing fee, but filed an uncertified "Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" (Application To Proceed) with his Complaint.
When Plaintiff filed the Complaint, he was confined in the Maricopa County Durango Jail in Phoenix, Arizona (Durango Jail).
By Order filed December 6, 2004 (Document #3), Plaintiff's deficient Application To Proceed was denied without prejudice and Plaintiff was given thirty (30) days to pay the one hundred and fifty dollar ($150.00) filing fee, or in the alternative, to file with the Court a new, certified Application to Proceed and a certified copy of his inmate trust fund account statement (or institutional equivalent).
On January 4, 2005, Plaintiff filed a new, certified Application To Proceed (Document #4), which the Court granted by Order filed August 2, 2005 (Document #7). The August 2, 2005 Order also denied Plaintiff's "Application For Deferral Of Court Fees And/Or Cost And Consent To Entry Of Judgment" (Document #5), which Plaintiff filed on January 19, 2005.
On January 25, 2005, Plaintiff filed a letter to the "Clerk" (Document #6), in which he informed the Court of his new address in Glendale, Arizona. Because it appeared that Plaintiff had been released from custody, the Court's August 2, 2005 Order gave Plaintiff thirty (30) days from the filing date of the Order to pay the one hundred and fifty dollar ($150.00) filing fee.
PAYMENT OF FILING FEE
On August 26, 2005, Plaintiff paid the one hundred and fifty dollar ($150.00) filing fee. Accordingly, the Court will proceed to review the Complaint.
STATUTORY SCREENING OF PRISONER COMPLAINTS
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the 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). The Court also must dismiss a complaint or portion thereof if Plaintiff fails to exhaust any administrative remedy available to him. 42 U.S.C. § 1997e(a).
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 the complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court is required to grant leave to amend "if a complaint can possibly be saved," but not if the Complaint "lacks merit entirely." Id. at 1129. A court therefore should grant leave to amend if the pleading could be cured by the allegation of other facts, or if it appears at all possible that the defect can be corrected. Id. at 1130.
The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine the district judges' role as impartial decisionmakers." Pliler v. Ford, 124 S.Ct. 2441, 2446 (2004); see also Lopez, 203 F.3d at 1131, n. 13 (declining to decide whether court was required to inform litigant of deficiencies). Plaintiff's Complaint will be dismissed with leave to amend because the Complaint may possibly be saved by amendment.
COMPLAINT
Plaintiff alleges two (2) counts in the Complaint. (Complaint at 4-5). In Count I, Plaintiff alleges that population/housing limitations have been exceeded at the Durango Jail. Id. at 4. In Count II, Plaintiff alleges that he has been denied outside recreation time. Id. at 5.
Named as Defendants in the Complaint are: (1) Maricopa County Sheriff's Office; and (2) Joseph M. Arpaio, Sheriff of Maricopa County. (Complaint at 1-2).
Plaintiff seeks injunctive relief, and compensatory and punitive monetary damages. (Complaint at 7).
IMPROPER DEFENDANT
The Maricopa County Sheriff's Office is not a proper Defendant. In Arizona, the responsibility of operating jails and caring for prisoners is placed by law upon the sheriff. See A.R.S. § 11-441(A)(5); A.R.S. § 31-101. A sheriff's office is simply an administrative creation of the county sheriff to allow him to carry out his statutory duties, and not a "person" amenable to suit pursuant to § 1983. Therefore, Defendant Maricopa County Sheriff's Office will be dismissed from this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted.
FAILURE TO LINK DEFENDANT
To state a viable constitutional claim under 42 U.S.C. § 1983, Plaintiff must show an affirmative link between the alleged injury and the conduct of an individual Defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
To state a claim against a state official, the civil rights complainant must allege that the official personally participated in the constitutional deprivation, or that a state supervisory official was aware of the widespread abuses and with deliberate indifference to the inmate's constitutional rights failed to take action to prevent further misconduct. King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); See also Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978);Williams v. Cash, 836 F.2d 1318, 1320 (11th Cir. 1988).
There is no liability under 42 U.S.C. § 1983 based on a theory of respondeat superior. Monell, 436 U.S. at 691; West v. Atkins, 487 U.S. 42, 54 n. 12 (1988); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984).
Although Plaintiff names Joseph M. Arpaio as a Defendant, he has not made any allegations against him individually in the body of the Complaint, and he has not linked any of his injuries to actions of Defendant Arpaio.
FAILURE TO STATE A CLAIM
Constitutional Violation
Plaintiff has failed to the allege in either Count I or Count II that the conditions in the Durango Jail create the "wanton and unnecessary infliction of pain" as required to state a Fourteenth or Eighth Amendment conditions of confinement claim. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The inquiry with respect to pretrial detainees is whether the prison conditions amount to "punishment" without due process in violation of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Generally, a prison's "obligation under the [E]ighth [A]mendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (quotations omitted). However, this does not mean that federal courts can or should interfere whenever prisoners are inconvenienced or suffer de minimis injuries. See Bell, 441 U.S. at 539 n. 21 (noting that a de minimis level of imposition does not rise to a constitutional violation).
Hart v. Arpaio
In Count I of the Complaint Plaintiff refers to the case of "Harts Vs Hill," and in Count II Plaintiff refers to the Amended Judgment in "Harts Vs Hill." (Complaint at 4-5). The Court assumes that Plaintiff intends to refer to Hart v. Arpaio, CV 77-0479-PHX-EHC (MS).
However, with respect to any injunctive relief that Plaintiff may seek in connection with the rights enumerated in the Amended Judgment of the class action case of Hart v. Arpaio, the Court notes that injunctive relief may only be sought or enforced within the original case. The Amended Judgment in the class action precludes Plaintiff from seeking separate and individual injunctive relief in the instant action.
Moreover, with respect to any claim for monetary damages, Hart v. Arpaio provides no independent cause of action. Although the class action does not foreclose an individual complaint for damages, see Hiser v. Franklin, 94 F.3d 1287 (9th Cir.),cert. denied, 520 U.S. 1103 (1997), a plaintiff must demonstrate some right of action and legal entitlement to the monetary damages he seeks. In a case challenging the conditions of confinement of pretrial detainees, the most likely source of a right to sue (of which Plaintiff has availed himself in this action) is 42 U.S.C. § 1983. However, in order to state a claim under § 1983, Plaintiff must allege a cognizable constitutional claim. As discussed above, Plaintiff has failed to allege a constitutional violation and the Complaint will therefore be dismissed.
DISMISSAL OF COMPLAINT WITH LEAVE TO AMEND
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266 (9th Cir. 1982); Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir. 1979). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.Ivey, 673 F.2d at 268.
Because Plaintiff has failed to affirmatively link his alleged injuries with the conduct of any specific, named Defendant, and has failed to allege a constitutional violation, Plaintiff's Complaint will be dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief can be granted. However, in keeping with "the rule favoring liberality in amendments to pleadings," the Court will exercise its discretion and allow Plaintiff to file an amended complaint, if he so desires, to show what constitutional rights he has been deprived of, how the conduct of proper defendants deprived him of said rights, what injury, if any, he has suffered as a result of the activities of the defendants, and how he has exhausted his administrative remedies.Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
If Plaintiff chooses to file an amended complaint, he should take notice that an amended complaint supersedes the original 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 original pleading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Thus, causes of action alleged in an original complaint which are not alleged in an amended complaint are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Any amended complaint filed by Plaintiff must be retyped or rewritten in its entirety on the current, Court-approved form included with this Order and may not incorporate any part of the original Complaint by reference. See Rule 15.1(a)(2), Local Rule of Civil Procedure ("LRCiv"). If Plaintiff cannot fit all of his supporting facts in favor of a particular count on the Court-approved form, then he may continue on an attachment, but each matter on any attachment must be clearly referenced to a particular count on the Court-approved form, and be numbered appropriately. Plaintiff may only address one (1) issue in each count.
WARNING
Plaintiff is warned that if he fails to timely comply with every provision of this Order the action will be dismissed without further notice. See Ferdik, 963 F.2d at 1260-61 (stating a district court may dismiss action for failure to comply with any order of the court). Moreover, because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal of this action will count as a "strike" under the "three strikes" provision of the Prison Litigation Reform Act.See 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED:
(1) That Defendant Maricopa County Sheriff's Office is DISMISSED WITHOUT PREJUDICE from this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted;
(2) That Plaintiff's Civil Rights Complaint By A Prisoner (Document #1) ("Complaint") is DISMISSED WITHOUT PREJUDICE, WITH LEAVE TO AMEND, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted. Plaintiff SHALL HAVE thirty (30) days from the filing date of this Order to file an amended complaint in order to state specific allegations of deprivation of constitutional rights against proper defendant(s), to name as defendant(s) the individual(s) who participated in the activities alleged in his amended complaint, to state what injury he has suffered as a result of the activities of the defendant(s), and to show how, prior to filing this action, he exhausted his administrative remedies as to each of his claims for relief. The amended complaint must be retyped or rewritten in its entirety on the current, Court-approved form included with this Order, may not incorporate any part of the original Complaint by reference, and must contain Plaintiff's original signature. If Plaintiff fails to file the amended complaint on a current, Court-approved form, the amended complaint will be stricken, and the action dismissed without further notice to Plaintiff. Any amended complaint submitted by Plaintiff should be clearly designated as an amended complaint on the face of the document;
(3) That the Clerk of the Court is DIRECTED to enter a judgment of dismissal with prejudice of this action, without further notice to Plaintiff, if Plaintiff fails to file an amended complaint within thirty (30) days from the filing date of this Order. Upon entry of judgment, the Clerk of the Court SHALL MAKE an entry on the docket in this matter indicating that the dismissal of this action falls within the purview of 28 U.S.C. § 1915(g);
(4) That a clear, legible copy of every pleading or other document filed SHALL ACCOMPANY each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Plaintiff;
(5) That at all times during the pendency of this action, Plaintiff SHALL IMMEDIATELY ADVISE the Court and the United States Marshal of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date, except that if Plaintiff has been released from custody, the notice should so indicate. The notice shall not include any motions for any other relief. Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b);
(6) That the Clerk of the Court is DIRECTED to provide Plaintiff with a current, Court-approved form for filing a civil rights complaint by a prisoner pursuant to 42 U.S.C. § 1983.
Form