Opinion
CV-23-02082-PHX-JAT (DMF)
01-12-2024
Michael D. Escobar, Plaintiff, v. Irene Barron Irby, et al., Defendants.
ORDER
James A. Teilborg, Senior United States District Judge.
On September 15, 2023, Plaintiff Michael D. Escobar, who is confined in a Maricopa County Jail, filed a Complaint in the Superior Court of Maricopa County, Arizona, against Maricopa County Sheriff's Office (MCSO) Captain Irene Barron Irby, Sergeant Rushing, and Officers Moody and Murray. On October 6, 2023, Defendants filed a Notice of Removal and removed the case to this Court. On October 13, 2023, Defendants filed a Motion for Extension of Time to File Responsive Pleading/Motion to Dismiss. In a November 9, 2023 Order, the Court determined removal was proper, dismissed the Complaint with leave to amend because it was not filed on this Court's approved form, and denied as moot Defendants' Motion.
Meanwhile, on November 6, 2023, Plaintiff filed a First Amended Complaint and an Application to Proceed In Forma Pauperis (Doc. 5), and on November 9, 2023, he filed a Motion to Appoint Counsel (Doc. 8). The Court was not aware of these filings when it issued the November 9, 2023 Order. On November 29, 2023, Plaintiff filed a Second Amended Complaint (Doc. 9), which supersedes the First Amended Complaint in its entirety. The Court will deny as moot the Application to Proceed, dismiss the Second Amended Complaint with leave to amend, and deny the Motion to Appoint Counsel without prejudice.
Defendants paid the filing fees when they removed the case to this Court. Thus, Plaintiff does not need to pay the fees or file an Application to Proceed In Forma Pauperis.
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 Second 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. Second Amended Complaint
In his two-count Second Amended Complaint, Plaintiff sues Captain Irene Barron Irby, Sergeant Rushing, and Officers Moody and Murray. Plaintiff asserts an excessive force claim, purportedly under the Sixth Amendment, and a threat-to-safety claim, purportedly under the Equal Protection Clause of the Fourteenth Amendment. He seeks monetary relief.
Plaintiff indicates the source of this Court's jurisdiction over the Second Amended Complaint as 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Because Plaintiff names only state actors as Defendants, the Court construes the Second Amended Complaint as brought pursuant to 42 U.S.C. § 1983.
In Count One, Plaintiff alleges that on March 27, 2023, an “incident” occurred that could have been avoided if a supervisor had been called, as Plaintiff had requested. Plaintiff asserts that Defendants Moody and Murray “cho[]se to entertain [Plaintiff's] frustration, which escalated the situation” until one of the officers struck Plaintiff with a closed fist. Plaintiff claims Defendants Moody and Murray “proceeded to take part in a physical altercation with [Plaintiff],” during which Plaintiff feared for his life and “decided to defend [him]self.” Plaintiff alleges this was the second time that Defendants Moody and Murray had assaulted him, and Plaintiff had filed a civil complaint against Moody and Murray based on the prior incident.
Plaintiff alleges that Defendant Rushing “is aware of” Defendants Moody and Murray's aggressive behavior and “condones this type of mistreatment against inmates.” As his injury, Plaintiff claims he suffered bruises on his neck and head, injuries from a deployed taser, post-traumatic stress disorder, psychological trauma, and inadequate medical treatment.
In Count Two, Plaintiff alleges that MCSO officers failed to abide by the United States Constitution by failing to keep him safe and protect his rights. Plaintiff claims Defendants Moody and Murray “intentionally ass[a]ulted” Plaintiff and physically harmed him. Plaintiff asserts that Defendant Rushing failed to discipline Defendants Moody and Murray's for the prior assault against Plaintiff, which “keeps this type of thing[] happening” to detainees.
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).
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.
A. Defendant Irby
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. Monellv. Dep'tof Soc. Servs., 436 U.S. 658 (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, 556 U.S. at 676.
Plaintiff has not alleged that Defendant Irby personally participated in a deprivation of Plaintiff's constitutional rights, was aware of a deprivation and failed to act, or formed policies that resulted in Plaintiff's injuries. Plaintiff names Defendant Irby solely based on her role as a supervisor. Thus, the Court will dismiss without prejudice Defendant Irby.
B. Excessive Force
The Fourteenth Amendment's Due Process Clause, and not the Eighth Amendment, applies to the use of excessive force against pretrial detainees that amounts to punishment. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002). Force is excessive if the officers' use of force was “objectively unreasonable” in light of the facts and circumstances confronting them, without regard to their mental state. Kingsley, 576 U.S. at 396. In determining whether the use of force was reasonable, the Court should consider factors including, but not limited to
the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Kingsley, 576 U.S. at 397.
Because officers are “often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving”-the reasonableness of a particular use of force must be examined “from the viewpoint of [a] reasonable officer on the scene, ‘rather than with the 20/20 vision of hindsight.'” Gibson, 290 F.3d at 1197 (quoting Graham, 490 U.S. at 396). Further, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,” violates the Constitution. Graham, 490 U.S. at 396 (citation omitted).
Plaintiff's allegations are too vague and conclusory to state an excessive force claim. Plaintiff provides no factual detail regarding the altercation with Defendants Moody and Murray, including how Defendants “entertained” Plaintiff's frustration, what immediately precipitated Defendants' alleged use of force, or whether Plaintiff posed a threat to Defendants or anyone else. Thus, Plaintiff fails to state an excessive force claim against Defendants Moody and Murray.
C. Threat to Safety
Although not entirely clear, Plaintiff appears to allege that Defendant Rushing failed to protect Plaintiff from Defendants Moody and Murray because Rushing failed to discipline Moody and Murray for their prior assaultive behavior. A pretrial detainee has a right under the Due Process Clause of the Fourteenth Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, shelter, sanitation, medical care, and personal safety.'” Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). To state a claim of unconstitutional conditions of confinement against an individual defendant, a pretrial detainee must allege facts that show:
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries.Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).
Whether the conditions and conduct rise to the level of a constitutional violation is an objective assessment that turns on the facts and circumstances of each particular case. Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack of due care by a state official' does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a plaintiff must “prove more than negligence but less than subjective intent-something akin to reckless disregard.” Id.
Plaintiff provides no factual detail concerning Defendants Moody and Murray's alleged prior assaultive behavior, including whether and how Defendant Rushing was aware of the conduct, and whether Rushing knew or should have known that Defendants Moody and Murray's prior behavior created a substantial risk of serious harm to Plaintiff. Thus, Plaintiff fails to state a claim against Defendant Rushing.
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. RichardFeiner & 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).
V. Motion to Appoint Counsel
There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents, 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. Thus, the Court will deny without prejudice Plaintiff's Motion to Appoint Counsel.
VI. Warnings
A. 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. ....
B. 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) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 5) is denied as moot.
(2) Plaintiff's Motion to Appoint Counsel (Doc. 8) is denied without prejudice.
(3) The Second Amended Complaint (Doc. 9) 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.
(4) 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 without prejudice and deny any pending unrelated motions as moot.
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.