Opinion
No. CV 11-712-PHX-RCB (JRI).
April 15, 2011
ORDER
Plaintiff Christopher F. Castillo, who is confined in the Arizona State Prison Complex-Florence, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. The Court will order Defendant Webster to answer the Complaint and will dismiss the remaining Defendants without prejudice.
I. Application to Proceed In Forma Pauperis and Filing Fee
II. Statutory Screening of Prisoner Complaints
In Forma Pauperis28 U.S.C. § 191528 U.S.C. § 191528 U.S.C. § 1915 28 U.S.C. § 1915A28 U.S.C. § 1915A
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, 129 S. Ct. 1937, 1949 (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 1950. 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 1951.
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)).
III. Complaint
Plaintiff names the following Defendants in the Complaint: Arizona Department of Corrections Director Charles L. Ryan; Complex Warden Carson McWilliams; and Correctional Officers II Webster, Bravo, Regan, and Hetricks.
Plaintiff raises one ground for relief in the Complaint in which he alleges that his Eighth Amendment rights were violated when Defendant Webster used excessive force against him. Plaintiff alleges that after he had a brief verbal confrontation with Defendant Webster, Defendants Webster and Bravo returned to Plaintiff's cell some time later and instructed Plaintiff to "cuff up" for a cell search. Plaintiff states that he complied and cuffed up and that he was standing with his back to the door, "not acting in an aggressive manner," when his door opened.
Plaintiff states that after the door was opened, he was grabbed by the neck and head, slammed into the wall, and was then punched and kicked repeatedly by Defendant Webster. Plaintiff states that Defendant Webster also repeatedly slammed Plaintiff's head on the bed and wall and that Plaintiff lost consciousness. Plaintiff states that when he awoke, Defendant Webster was stomping on his head and that Defendant Bravo said "that's enough" and pulled Defendant Webster off Plaintiff. Defendant Webster then rushed back and kicked Plaintiff again, and Defendant Bravo again pulled Defendant Webster off Plaintiff and blocked Defendant Webster from re-entering Plaintiffs cell.
Defendant states that Defendant Regan was in the control room and saw the incident. Plaintiff further alleges that after the altercation, Defendant Hetricks cuffed Plaintiff and took him to medical.
Plaintiff states that he suffered a concussion, sprained wrist, chipped tooth, and impaired vision in his left eye. Plaintiff seeks money damages.
IV. Failure to State a Claim
A. Defendants Ryan and McWilliams
To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992);Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S. Ct. at 1948.
Plaintiff has not alleged that Defendants Ryan or McWilliams personally participated in a deprivation of Plaintiff's constitutional rights, were aware of a deprivation and failed to act, or formed policies that resulted in Plaintiff's injuries. The Court will therefore dismiss without prejudice Defendants Ryan and McWilliams.
B. Defendants Bravo, Regan, and Hetricks
Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982). In other words, "a prison official can violate a prisoner's Eighth Amendment rights by failing to intervene." Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). To state a claim for failure to intervene, Plaintiff must allege that Defendants Bravo, Regan, and Hetricks knew that excessive force was being used and that they were in a position to stop the use of excessive force.
Plaintiff alleges that Defendant Bravo ended the altercation by pulling Defendant Webster away from Plaintiff and then physically blocked Defendant Webster from reentering Plaintiff's cell. These allegations show that Defendant Bravo intervened in the alleged abuse. Plaintiff has not alleged facts demonstrating that Defendant Bravo could have intervened earlier but failed to do so.
With respect to Defendants Regan and Hetricks, Plaintiff has alleged only that Defendant Regan was in the control room and witnessed the incident and that Defendant Hetricks arrived after the incident and escorted Plaintiff to medical. These facts do not demonstrate that Defendants Regan or Hetricks were in a position to stop the use of excessive force.
Plaintiff has failed to state a claim against Defendants Bravo, Regan, and Hetricks, and the Court will dismiss these Defendants.
V. Claims for Which an Answer Will be Required
Liberally construed, Plaintiff's allegations against Defendant Webster adequately state an Eighth Amendment excessive force claim. The Court will require Defendant Webster to answer the Complaint.
VI. Motion to Appoint Counsel
There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court may request an attorney to represent any person unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when "exceptional circumstances" are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional circumstances requires an evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issue involved. Id. "Neither of these factors is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
Having considered both elements, it does not appear at this time that exceptional circumstances are present that would require the appointment of counsel in this case. Plaintiff is in no different position than many pro se prisoner litigants. The Court will therefore deny without prejudice Plaintiff's Motion for Appointment of Counsel.
VII. Warnings
A. Release
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. 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. Copies
Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files. Fed.R.Civ.P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed.R.Civ.P. 5(d). Also, Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
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 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $1.88.
(3) Plaintiff's Motion to Appoint Counsel (Doc. 4) is denied without prejudice.
(4) Defendants Ryan, McWilliams, Bravo, Regan, and Hetricks are dismissed without prejudice.
(5) Defendant Webster must answer the Complaint.
(6) The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and both summons and request for waiver forms for Defendant Webster.
(7) Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.
If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there.
(8) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on Defendant within 120 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(I).
(9) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use.
(10) The United States Marshal must notify Defendant Webster of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must:
(a) personally serve copies of the Summons, Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and
(b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court.
(11) If Defendant agrees to waive service of the Summons and Complaint, Defendant must return the signed waiver forms to the United States Marshal, not the Plaintiff.
(12) Defendant must answer the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
(13) This matter is referred to Magistrate Judge Jay R. Irwin pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1).
DATED this 14th day of April, 2011.