Opinion
CV-23-02525-PHX-JAT (JZB)
12-20-2024
Dayshaun Darion Conner, Plaintiff, v. K. Taylor, et al., Defendants.
ORDER
JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
On December 5, 2023, pro se Plaintiff Dayshaun Darion Conner, who is confined in the Arizona State Prison Complex-Lewis (ASPC-Lewis), filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a January 10, 2024 Order, the Court 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 January 12, 2024, Plaintiff filed his First Amended Complaint. In a March 26, 2024 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order. The Court warned Plaintiff that the Clerk of Court would enter a judgment of dismissal with prejudice if he failed to timely file a second amended complaint.
Not having received a second amended complaint or a motion for extension of time, on May 10, 2024, the Clerk of Court entered a Judgment of dismissal with prejudice. The Clerk of Court sent the May 10, 2024 Judgment to Plaintiff at his address of record. On May 13, 2024, the mail was returned as undeliverable because Plaintiff was out to court in Maricopa County.
On August 21, 2024, Plaintiff filed a “Motion for Excusable Neglect Pursuant to FRCP 60(b)(1) and (6), Prayer to Reopen Case and for Leave to File a Second Amended Complaint” and lodged a proposed Second Amended Complaint. In an October 11, 2024 Order, the Court construed the Motion as a Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, granted the Motion, and directed the Clerk of Court to vacate the May 10, 2024 Judgment, and reopen this case. Because Plaintiff stated in his Motion that he never received the March 26, 2024 Order and did not have the benefit of that Order when he filed the lodged proposed Second Amended Complaint, the Court directed the Clerk of Court not to file the lodged proposed Second Amended Complaint and gave Plaintiff 30 days to file a Second Amended Complaint that cured the deficiencies identified in the March 26 Order.
On October 29, 2024, Plaintiff filed a Second Amended Complaint (Doc. 15). The Court will dismiss the Second 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). The Court will dismiss Plaintiff's Second Amended Complaint 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. Second Amended Complaint
In his three-count Second Amended Complaint, Plaintiff sues Sergeant Kimo Taylor, Corporal Christopher Carter, and Correctional Officer Doe #1. Plaintiff asserts excessive force claims. He seeks monetary relief.
Plaintiff alleges the following:
On October 12, 2023, Plaintiff was secured in handcuffs, leg irons, and shackles, and was strapped down and secured in a mobile restraint chair. Plaintiff was incapable of moving and posed no physical threat to anyone. While Plaintiff was restrained, Defendants Taylor, Carter, and Doe #1 all lunged at and slammed into Plaintiff. Defendant Taylor placed Plaintiff in a “choke hold” and “aggressively chok[ed]” Plaintiff for “what seemed like long minutes,” causing him extreme anxiety, apprehension, and panic. Plaintiff “legitimately feared for his life and thought he was going to be killed, choked to death.” “Then later,” Defendant Taylor “aggressively grabbed” Plaintiff's neck and lower face area and twisted his head and neck at an angle in a manner that again cut off his air supply and made it difficult for him to breathe.
Defendant Carter pushed Plaintiff's head and neck between his legs and Carter “aggressively str[uck]” Plaintiff with a closed fist on the side of his head, causing Plaintiff to lose vision and nearly lose consciousness. Defendant Carter “appl[ied] his full body weight” on Plaintiff's head and neck, causing unbearable pain.
Defendant Doe #1 “aggressively” restrained Plaintiff's legs and then let go, drew his handheld taser, and asked, “Should I tase him?” Defendant Doe #1 tased Plaintiff in his lower body, causing him anxiety, apprehension, and panic, as Plaintiff “legitimately] feared for [his] life and thought [he] was going to be killed, tased to death.” Defendants Taylor, Carter, and Doe #1 “swapp[ed] with new officers” and left the holding cell.
As a result of the “altercation,” Plaintiff suffered multiple cuts, bruises, and lacerations to his neck, shoulders, back, legs, and wrist. Plaintiff felt humiliated and degraded and suffered extreme anxiety, stress, and emotional turmoil while he thought he was going to be killed and could not breathe. “To this day,” Plaintiff continues to suffer extreme anxiety, difficulty sleeping, and often awakes from night sweats and terror, feeling like he is suffocating. Plaintiff also has difficulty “dealing with[] and being around staff where any sudden movement or loud noises cause[] [him] severe anxiety and paranoia.”
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).
When an inmate 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.
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
Plaintiff's allegations are too vague to state an excessive force claim. Plaintiff does not state why he had been handcuffed, shackled, and placed in a restraint chair, and he does not state what happened just before Defendants allegedly lunged at and slammed into him. Without additional information, the Court cannot reasonably infer that the force used was applied maliciously and sadistically to cause harm. Plaintiff has primarily recited the elements of an excessive force claim, but that is insufficient to state a claim. See Iqbal, 556 U.S. at 678. As presented, Plaintiff fails to state a claim in the Second Amended Complaint, and it will be dismissed.
The Court notes that Plaintiff was convicted in Maricopa County Superior Court, case #CR-2024101574, of aggravated assault, with an offense date of October 12, 2023. See https://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp?caseNumber=CR2024-101574 (last accessed Dec. 17, 2024). In addition, according to Plaintiff's online inmate record, on October 12, 2023, he was charged with disorderly conduct and assault on staff that did not involve serious injury and was found guilty of both charges. See https://corrections.az.gov/inmate-data-search (search by Inmate Number 304527) (last accessed Dec. 17, 2024).
IV. Leave to Amend
For the foregoing reasons, the Court will dismiss Plaintiff's Second Amended Complaint for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a third amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a third amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the third 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 “Third Amended Complaint.” The third 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 prior Amended Complaints by reference. Plaintiff may include only one claim per count.
A third amended complaint supersedes the original Complaint and prior Amended Complaints. 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 prior Amended Complaints as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or prior Amended Complaints and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a third amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
Plaintiff should note that a prisoner's claim for damages cannot be brought under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the prisoner demonstrates that the conviction or sentence has previously been reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
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 Second Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a third 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 Second Amended Complaint (Doc. 15) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a third amended complaint in compliance with this Order.
(2) If Plaintiff fails to file a third 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.