Opinion
CV 01-2392-PHX-EHC (VAM).
January 24, 2002
ORDER
Plaintiff Redouane Dahmani, currently confined in the Maricopa County Jail in Phoenix, Arizona, has filed a pro se Complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and an Application to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915.
A. Reassignment of This Case to the Hon. Virginia A. Mathis .
This case was originally assigned to United States Magistrate Judge the Hon. Virginia A. Mathis, conditioned on the consent of the parties. Plaintiff failed to properly complete the original consent form provided to him, and the Court provided him a second consent form, to be filed no later than January 17, 2002.
Plaintiff did not timely file his consent, and on January 22, 2002, the Clerk assigned this action by minute order to District Judge Earl H. Carroll. Later that day and subsequent to the entry of the minute order, the Clerk received Plaintiff's consent form. Accordingly, this Order will reassign this action the Hon. Virginia A. Mathis.
B. Application to Proceed In Forma Pauperis Filing Fee .
Plaintiff's request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915 (a). Pursuant to 28 U.S.C. § 1915 (b)(1), Plaintiff is required to pay the statutory filing fee of $150.00 for this action. An initial partial filing fee of $24.00 will be assessed by this Order. 28 U.S.C. § 1915 (b)(1). By separate order, the Court will direct the appropriate agency to collect the initial partial filing fee from Plaintiff's trust account and forward it to the Clerk of Court. Thereafter, Plaintiff will be obligated for monthly payments of 20 percent of the preceding month's income credited to Plaintiffs trust account. These payments will be forwarded by the appropriate agency to the Clerk of Court each time the amount in Plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915 (b)(2).
Plaintiff should take notice that if he is released before the filing fee is paid in full, he must pay the remaining unpaid amount of the filing fee within 120 days of the date of his release. If Plaintiff fails to pay the remainder of the filing fee within 120 days of the date of his release, the action will be dismissed, unless Plaintiff shows good cause, in writing, why he is unable to pay the remainder of the filing fee.
C. 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).
D. Complaint .
Plaintiff generally alleges that the Federal Bureau of Investigation and Maricopa County are responsible for his arrest and detention without probable cause and based on Plaintiffs Arab ancestry. Plaintiff also claims that his home was unreasonably searched in violation of the Fourth and Fourteenth Amendments, and that Defendants have interfered with the free exercise of Plaintiff's religion. Plaintiff further claims that "The Pillars Apartments of Scottsdale" evicted him because he has been accused of being a terrorist, and that Plaintiff's wife was evicted because her name was not on the lease for the apartment. Named as Defendants are: the Federal Bureau of Investigation; the state of Arizona; Maricopa County; the Pillars of Scottsdale Apartments. Plaintiff seeks injunctive relief and monetary damages.
E. Failure to State a Claim .
1. Improper Defendants .
Plaintiff has named as a Defendant the Federal Bureau of Investigation, rather than any individual agent who may have violated his constitutional rights. Sovereign immunity prevents Bivens actions against the United States, its agencies, or its employees in their official capacities. Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1984), cert. denied, 475 U.S. 1010 (1985); Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984); see also Gerritsen v. Consulado General De Mexico, 989 F.2d 340, 343 (9th Cir.) (federal agencies are immune from suit and the district courts lack jurisdiction over them absent express statutory authorization), cert. denied, 114 S.Ct. 95 (1993). Accordingly, Defendant Federal Bureau of Investigation must be dismissed.
Plaintiff also names as a Defendant the state of Arizona. Under the Eleventh Amendment to the Constitution of the United States, a state may not be sued in federal court without its consent. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "Furthermore, a state is not a `person' within the meaning of § 1983." Hale v. State of Arizona, 993 F.2d 1387, 1398 (9th Cir. 1993) (en banc), cert. denied, 114 S.Ct. 386 (1993) (citation omitted). Accordingly, Defendant the state of Arizona must be dismissed.
2. Failure to Allege Elements of Municipal Liability .
Plaintiff also names Maricopa County as a Defendant. "[A] municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). "A municipality may be liable for actions resulting in violation of constitutional rights only when the conduct of its official or agent is executed pursuant to a government policy or custom." Lewis v. Sacramento County, 98 F.3d 434, 446 (9th Cir. 1996).
Plaintiff does not allege that any Defendant acted in conformance with an official policy or custom of Maricopa County in violating Plaintiff's constitutional rights. Accordingly, Defendant Maricopa County will be dismissed without prejudice.
3. Failure to Allege Conduct Under Color of State Law .
Plaintiff names as a Defendant the apartment complex, "Pillars of Scottsdale," in which he lived at the time of his rest. First, an apartment complex is not, on its face, a person within the meaning of § 1983. If Plaintiff intends to name the complex manager or owner as Defendants, he must name those individuals, and allege, if he can do so in good faith, that he or they acted under color of state law. To state a claim under § 1983, the plaintiff must allege that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a constitutional right.Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Private parties generally do not act under color of state law, and are properly dismissed from a § 1983 action unless the plaintiff establishes by more than conclusory allegations that the private party was somehow a state actor. Price v. State of Hawaii, 939 F.2d 701, 707-08 (9th Cir. 1991).
4. Failure to Allege Affirmative Link Between Injury and Conduct of Individual Defendants .
To state a valid claim under § 1983 or Bivens, plaintiffs must allege that they suffered specific injury as a result of the specific conduct of a defendant, and show an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). To state a claim against a government official, the civil rights complainant must allege that the official personally participated in the constitutional deprivation or that a government supervisory official was aware of widespread abuses and with deliberate indifference to the plaintiff's constitutional rights, failed to take action to prevent further misconduct. King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); See Mopell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978). Plaintiff makes no such allegation against any individual Defendant, and therefore, the Complaint must be dismissed for failure to state a claim.
In any Amended Complaint, for each claim Plaintiff alleges he must state the following: (1) the constitutional right he believes was violated; (2) the individual Defendant whose conduct violated that right; (3) the specific conduct which Plaintiff believes violated the right; and (4) the connection between the Defendant's conduct and a specific injury Plaintiff suffered as a result of the conduct. See Rizzo, 423 U.S. at 371-72, 377.
5. Plaintiff May Not Assert the Claims of His Wife .
Plaintiff claims that his wife was improperly evicted from their apartment in connection with Plaintiff's arrest. Plaintiff may not assert any claim on behalf of his wife. Although a non-attorney may appear in propria persona in his own behalf, that right is personal to him and he has no right to appear as an attorney for others. Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (citing C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)). Accordingly, to the extent that Plaintiff alleges any cause of action on behalf of his wife, that claim must be dismissed.
F. Compliance With Local Rule 3.1(a): Only One Claim Per Count .
Further, in amending his Complaint, Plaintiff must comply with Local Rule 3.1(a) of the Local Rules of Practice for the United States District Court for the District of Arizona. Local Rule 3.1(a) requires that all complaints by prisoners be in accordance with the instructions provided in the court-approved civil rights complaint form. Specifically, the instructions provide that plaintiff "MAY ALLEGE THE VIOLATION OF ONLY ONE CIVIL RIGHTS CLAIM PER COUNT." See Information and Instructions for a Prisoner Filing Civil Rights Complaint in the United States District Court for the District of Arizona Form, at 4 (emphasis in original); see also, Complaint form at 4, 5 and 6 ("if your claim involves more than one issue, each issue should be stated in a different count").
Accordingly, in any Amended Complaint, Plaintiff may allege only one civil rights violation per count. If Plaintiff alleges more than three counts (the form provides space to allege three separate counts), Plaintiff must provide the necessary information about each additional count on separate pages.
G. Rule 41 Cautionary Notice .
Plaintiff should take notice that if he fails to timely comply with every provision of this Order, or any order of the Court entered in this matter, the action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the court).
IT IS THEREFORE ORDERED:
(1) That Plaintiff's Application to Proceed In Forma Pauperis is granted;
(2) That Plaintiff is obligated to pay the statutory filing fee of $150.00 for this action. Plaintiff is assessed an initial partial filing fee of $24.00. All fees shall be collected and paid in accordance with this Court's Order to the appropriate government agency filed concurrently herewith;
(3) That the Complaint is dismissed with leave to amend. Plaintiff shall have 30 days from the date this Order is filed to amend his Complaint in order to state specific allegations against proper Defendant(s), to name as Defendant(s) the individual(s) who participated in the activities alleged in his Complaint, and to state what injury, if any, he has suffered as a result of the activities of the Defendant(s), all in compliance with Rule 8, Fed.R.Civ.P. The Amended Complaint must be retyped or rewritten in its entirety and may not incorporate any part of the original Complaint by reference. Any Amended Complaint submitted by Plaintiff should be clearly designated as such on the face of the document;
(4) 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, and shall not include a motion for other relief. Failure to timely file a notice of change of address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure;
(5) 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 and additional copies for each Judge in three-judge cases. See Rule 1.9(f), Rules of Practice of the U.S. District Court for the District of Arizona. Failure to comply with this requirement will result in the pleading or document being stricken without further notice to Plaintiff;
(6) That the Clerk of Court is directed to enter dismissal of this action, without prejudice and without further notice to Plaintiff, if Plaintiff fails to file an Amended Complaint within 30 days of the date this Order is filed; and
(7) That the Clerk of Court is directed to provide Plaintiff a current court-approved form for filing a complaint pursuant to 42 U.S.C. § 1983.