Opinion
CV 06-0168-PHX-MHM (VAM).
June 20, 2006
ORDER
Pending before the Court are Plaintiff's: (1) First Amended Complaint and Memorandum of Law in support thereof (Doc. ## 9, 10); (2) "Request for Production of Documents by Defendant under Rule 34" (Doc. # 5); (3) Motion to Appoint Counsel filed on April 11, 2006 (Doc. # 6); and (4) Motion to Appoint Counsel filed on June 12, 2006 (Doc. # 12). Plaintiff has already been granted leave to proceed in forma pauperis. The Court will deny Plaintiff's motions for appointment of counsel and request for production of documents, and will dismiss the First 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 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). 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, 542 U.S. 225, 231 (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 First Amended Complaint will be dismissed for failure to state a claim, with leave to amend because the complaint may possibly be saved by amendment.
II. Complaint
Plaintiff's First Amended Complaint concerns conditions at the Towers Jail, and he sues only Sheriff Joe Arpaio. According to Count I, Defendant Arpaio forces "Plaintiff class" to sleep with three individuals in each cell and serves the inmates insufficient and spoiled food. Count II alleges that jail inmates are forced to wear clothing that identifies them as "unsentenced inmates." Plaintiff avers that the sentenced inmates assault the unsentenced inmates because they are easy to identify. Further, Plaintiff avers that his identification badge has an "h" to identify him as an alleged sex offender. As a result, Plaintiff claims he has been assaulted 7 or 8 times because he is easily identifiable as an alleged sex offender. In Count III Plaintiff avers that other inmates have filed § 1983 lawsuits and have been placed in administrative segregation or have been denied proper food and hygiene materials. Plaintiff further claims that other inmates have been physically assaulted and that Officer Freeman has been misusing the security override.
Plaintiff's Amended Complaint appears to present itself as a class action lawsuit, see Doc. # 9 at 4, 4A, and 6. However, the Court notes that Plaintiff's action is not a class action, but an individual action that must only raise Plaintiff's own constitutional claims. The Court additionally notes that Plaintiff may be referring to Hart v. Hill, No. CIV 77-0479-PHX-EHC (MS) (D. Ariz.), a class action lawsuit. It is unclear whether Plaintiff is attempting to argue that the conditions of confinement contravene the amended judgment in that matter. However, the Court reminds Plaintiff that jurisdiction to enforce the judgment is retained by the court which entered it.Jeff D. v. Kempthorne, 365 F.3d 844, 853 (9th Cir. 2004). A civil rights action is not the proper means by which to enforce the decree. Cagle v. Sutherland, 334 F.3d 980, 986 (11th Cir. 2003); Klein v. Zavaras, 80 F.3d 432, 435 (10th Cir. 1996);DeGidio v. Pung, 920 F.2d 525, 534 (8th Cir. 1990); Green v. McKaskle, 788 F.2d 1116, 1122-23 (5th Cir. 1986). Standing alone, remedial orders cannot serve as a substantive basis for a § 1983 claim for damages because such orders do not create "rights, privileges, or immunities secured by the Constitution and laws." Green, 788 F.3d at 1123-24. Remedial decrees are the means by which unconstitutional conditions are corrected but they do not create or enlarge constitutional rights. Id. at 1123. To the extent Plaintiff seeks to enforce Hart v. Hill, his claim is not properly brought in this action. Instead, his allegations must separately state a violation of a constitutional right.
III. Failure to State a Claim A. Failure to Link Claims to Defendant Arpaio
To state a § 1983 claim, a plaintiff must allege that he suffered specific injury as a result of the specific conduct of a defendant, and show an affirmative link between the injury and that conduct. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Plaintiff has not connected any of his claims to Defendant Arpaio. Plaintiff sues Arpaio in his individual and official capacities because he is "directly responsible for the upkeep of the jails" (Doc. # 9 at 2). There are no other allegations set forth against him.
Arpaio cannot be liable simply based upon his position. There is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of a person who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978);Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045. There are no allegations to show that Arpaio participated in or directed the alleged constitutional violations, or that he knew of the violations and failed to act to prevent them.
Arpaio is liable only if he "play[ed] an affirmative part in the alleged deprivation of constitutional rights." King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). In Arpaio's individual capacity, this means that Plaintiff "must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights."Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998),cert. denied, 525 U.S. 1154 (1999). In Arpaio's official capacity, this means that Plaintiff must set forth allegations to show that Arpaio either created or acted pursuant to an official policy or custom that caused Plaintiff's constitutional injury.See Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004) (quotingMonell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). Without any allegations regarding Defendant Arpaio's conduct, Plaintiff fails to state a claim against him. Because Defendant Arpaio is the only named Defendant, Plaintiff's Amended Complaint must be dismissed for failure to state a claim.
B. Failure to State a Claim
Plaintiff's First Amended Complaint additionally fails to present cognizable claims for relief. Count I does not allege any facts in support of his contention that the jail is overcrowded. Plaintiff fails to specifically set forth facts supporting these allegations, such as the areas alleged to be overcrowded, when or how the lack of privacy, peace and quiet, and/or any fighting or threats resulted in a violation of his civil rights. Additionally, Plaintiff's allegation that meals are insufficient and unwholesome are not supported by any specific facts.
Count II similarly fails to allege facts to support a constitutional violation. Plaintiff's contention that being identified as an unsentenced inmate or as an alleged sex offender subjects pretrial detainees to violence is unsupported by any specific facts or statements. Plaintiff merely provides conclusions. The Plaintiff "'bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains.'" Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (citations omitted). The jail has a reasonable penological interest in identifying inmates who have yet to be sentenced. Plaintiff has not attempted to allege the absence of a legitimate correctional goal. Nor has Plaintiff identified any specific instances of when he was targeted or attacked for his status as either a pretrial detainee or an alleged sex offender. In the absence of any specific allegation, Plaintiff fails to state a cognizable constitutional claim.
In Count III, Plaintiff makes no attempt to present a claim on his own behalf. Rather, Plaintiff asserts that other inmates' § 1983 claims have failed in the past, and the other inmates have been placed in administrative segregation without cause. "[A] plaintiff must allege [1] personal injury fairly traceable to the defendant's allegedly unlawful conduct and [3] likely to be redressed by the requested relief." Idaho Conservation League v. Mumma, 956 F.2d 1508, 1513 (9th Cir. 1992) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)) (emphasis in original). In Count III, Plaintiff has not alleged a personal injury.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Plaintiff may amend his First Amended Complaint to cure the deficiencies outlined above. The Clerk of Court will be directed to provide Plaintiff with a Court-approved form for filing a civil rights Complaint. Plaintiff is advised that the 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 by reference. Any Amended Complaint submitted by Plaintiff should be clearly designated as such on the face of the document. Plaintiff will have 30 days from the date of filing of this order to submit a Second Amended Complaint. If Plaintiff's Second Amended Complaint fails to state a claim, Plaintiff's action will be dismissed.
Plaintiff is also reminded that in a Second Amended Complaint, he may only include one claim per count. The "one claim per count" rule is set forth in the form Complaint and accompanying instructions, and is a requirement imposed by the local rules of this Court. See LRCiv 3.4(a) (complaint must be in accordance with the instructions provided with the form).
An Amended Complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (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).
V. Motions to Appoint Counsel.
Plaintiff has filed three motions in total seeking the appointment of counsel, contending that his indigence and imprisonment limit his ability to litigate this action. There is no constitutional right to appointment of counsel in a civil case. See Ivey v. Board of Regents of University of Alaska, 673 F.2d 266 (9th Cir. 1982). The appointment of counsel in a civil rights case is required only when exceptional circumstances are present. Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980);Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986). "A finding of exceptional circumstances requires an evaluation of both 'the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.'" Wilborn, 789 F.2d at 1331 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The Court must review both of these factors together in deciding whether or not to appoint counsel. Id.
The Court has reviewed and evaluated the First Amended Complaint and finds this action presents no "exceptional circumstances" requiring the appointment of counsel at this time. Plaintiff's position is no different than other pro se litigations who have brought nearly similar claims. His status as a confined inmate, while limiting, does not make his action unusually complex. Accordingly, Plaintiff's Motions for Appointment of Counsel (Doc. ## 6, 12) will be denied without prejudice.
VI. Motion for Production of Documents
Plaintiff filed a "Request for Production of Documents Under Rule 34" on April 11, 2006 (Doc. # 5). Plaintiff requests Defendant Hudson to produce certain documents related to jail procedures. However, Plaintiff filed a First Amended Complaint that eliminated Lt. Hudson as a Defendant. Moreover, no Defendant has been served in this action, and requests for production of documents are premature. Finally, Plaintiff's request is not germane to the issues he has presented in either of his Complaints. As a result, Plaintiff's request will be denied.
VII. Rule 41 Cautionary Notice
Plaintiff should take notice that if he fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.) (district court may dismiss action for failure to comply with any order of the Court), cert. denied, 506 U.S. 915 (1992).
VIII. Warnings 1. 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.
2. Address Changes
Plaintiff must file and serve a notice of a change of address 10 days before the move is effective, if practicable. See LRCIV 83.3(d). Plaintiff shall not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal.
3. Copies
Plaintiff must serve Defendant, 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 be accompanied by 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. LRCIV 5.4. The Court may strike any filing that fails to comply with these requirements. 4. Possible dismissal
Plaintiff is warned that failure to timely comply with every provision of this Order, including these warnings, may result in dismissal of this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the Court).
IT IS THEREFORE ORDERED that:
(1) Plaintiff's Motion for Appointment of Counsel filed on April 11, 2006 (Doc. # 6) is DENIED without prejudice.
(2) Plaintiff's Motion for Appointment of Counsel filed on June 12, 2006 (Doc. # 12) is DENIED without prejudice.
(3) Plaintiff's Request for Production of Documents under Rule 34 (Doc. # 5) is DENIED without prejudice.
(4) The Complaint is DISMISSED for failure to state a claim. Within 30 days from the date this Order is filed, Plaintiff must submit a Second Amended Complaint. If Plaintiff files a Second Amended Complaint that fails to state a claim, Plaintiff's action will be dismissed.
(5) If Plaintiff fails to comply, the Clerk of Court shall enter a judgment of dismissal of this action with prejudice and not that the dismissal falls under 28 U.S.C. § 1915(g).
(6) The Clerk of Court shall mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
INFORMATION AND INSTRUCTIONS FOR A PRISONER FILING CIVIL RIGHTS COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA I. General Information About the Civil Rights Complaint Form: A. The Form. The civil rights complaint form is designed to help prisoners prepare a complaint seeking relief for a violation of their federal civil rights. Local Rule of Civil Procedure 3.4(a) requires that prisoner civil rights complaints be filed on the court-approved form. Your complaint must be typewritten or legibly handwritten. All information must be clearly and concisely written, only in the space provided on the form. If needed, you may attach no more than fifteen additional pages of standard letter size paper to continue any part of the complaint. You must identify which part of the complaint is being continued and number all pages.B. Your Signature. You must sign the complaint. Your signature constitutes a certificate that: 1) you have read the complaint; 2) to the best of your knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and law; and 3) it is not being filed for any improper purpose. Please review Rule 11 of the Federal Rules of Civil Procedure. Rule 11 provides for the imposition of sanctions if the complaint is signed in violation of the Rule.
C. The Filing Fee. You must pay the $350.00 filing fee. If you are unable to pay the filing fee when the complaint is filed, you may request leave to proceed in forma pauperis. Please review the "Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. § 1915" for more information.
D. Court Divisions. If you resided in Maricopa, Pinal, Yuma, La Paz, or Gila county when your rights were allegedly violated, you should file your complaint in the Phoenix Division of the court. If you resided in Apache, Navajo, Coconino, Mohave, or Yavapai county when your rights were allegedly violated, you should file your complaint in the Prescott Division of the court. If you resided in Pima, Cochise, Santa Cruz, Graham, or Greenlee county when your rights were allegedly violated, you should file your complaint in the Tucson Division of the court. See LRCiv 5.1(a) and 77.1(a).
You should mail THE ORIGINAL AND ONE COPY of your complaint with the $350.00 filing fee or the application to proceed in forma pauperis to:
Phoenix Prescott Divisions: OR Tucson Division:
U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 321 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
E. Certificate of Service on Defendants. You must furnish the opposing party or their attorney with a copy of any document you submit to the court (except the initial complaint and application to proceed in forma pauperis). Pursuant to Rules 5(a) and (d) of the Federal Rules of Civil Procedure, each original document (except the initial complaint and application for leave to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the opposing party or their attorney and the address to which it was mailed. Any document received by the court which does not include a certificate of service may be stricken. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this ___ day of (month) , (year) , to: Name: _____________________ Address: ___________________ Attorney for Defendant(s)/Respondent(s)
_______________ (Signature)
F. Original and Judge's Copy. You must furnish an original and one copy of any document submitted to the court. You must furnish one additional copy to the clerk if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original.
G. Exhibits. You should not submit exhibits with the complaint. Instead, the relevant information should be paraphrased in the complaint. You should keep the exhibits to use to support or oppose a motion for summary judgment or at trial.
H. Change of Address. You must immediately notify the clerk and the opposing party or their attorney in writing of any change in your mailing address. Failure to notify the court of any change in your mailing address may result in the dismissal of your case.
I. Amended Complaint. If you need to change any of the information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the court-approved civil rights complaint form. Rule 15(a) of the Federal Rules of Civil Procedure allows you to file one amended complaint prior to any defendant filing an answer. After any defendant has filed an answer, you must file a motion for leave to amend and lodge a proposed amended complaint. Local Rule of Civil Procedure 15.1(a)(2) prohibits any amended pleading from referencing any prior pleading. Further, any allegations or defendants not included in the amended complaint are considered dismissed.
J. Letters and Motions. It is generally inappropriate to write a letter to any of the District Judges, Magistrates Judges, or the staff of any of the judicial officers. The appropriate way to communicate with these persons is by filing a written pleading or motion.
II. Completing the Civil Rights Complaint Form:
HEADING:1. Your Name. Print your name, prison or jail inmate number, and mailing address on the lines provided.
2. Defendants. Print the names of each of your defendants. If you name more than four defendants, you should print the name of one defendant and "see additional page for defendants" in the space provided. On the additional page you must list the names of all of the defendants. This additional page should be inserted after page 1 and numbered as page "1-A" at the bottom of the page. The initial complaint must contain the names of all of the parties (plaintiffs as well as defendants) in the heading (or on the additional page if more than four defendants). See Rule 10(a) of the Federal Rules of Civil Procedure.
3. Jury Demand. If you want a jury trial, you must write "JURY TRIAL DEMANDED" on the line below "CIVIL RIGHTS COMPLAINT BY A PRISONER." Failure to do so will result in the loss of the right to a jury trial. A jury trial is not available if you are seeking only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983 for state, county, or city defendants; "Bivens v. Six Unknown Federal Narcotics Agents" for federal defendants; or "other." If you mark "other," identify the source of that authority.
2. Plaintiff. Print all of the requested information on the spaces provided. Identify the institution and city where the alleged violation of your rights occurred.
3. Defendants. Print all of the requested information about each of the defendants in the spaces provided. If you are naming more than four defendants, you must provide the necessary information about each additional defendant on a separate page. Label the page(s) as "2-A," "2-B," etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as "2-A," "2-B," etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION:
You must identify what rights the defendant(s) violated. The form provides space to allege three separate counts (one violation per count). If you are alleging more than three counts, you must provide the necessary information about each additional count on a separate page. Number the additional pages "5-A", "5-B", etc., and insert them immediately behind page 5. Remember that you are limited to a total of fifteen additional pages.
1. Counts. You must identify which civil right was violated. YOU MAY ALLEGE THE VIOLATION OF ONLY ONE CIVIL RIGHTS CLAIM PER COUNT.
2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. YOU MAY CHECK ONLY ONE BOX PER COUNT. If you check the box marked "Other," you must identify the specific issue involved in the space provided.
3. Supporting Facts. After you have identified which civil right was violated, you need to state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you need to identify which defendant did what act. You also need to state the date(s) on which the act(s) occurred if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.
5. Administrative Remedies. Exhaustion of administrative remedies is a prerequisite to filing a civil rights complaint. 42 U.S.C. § 1997e requires prisoners to exhaust the available administrative remedies before being allowed to file a civil rights action. Consequently, you must disclose whether you have exhausted the inmate grievance procedures or administrative appeals for each count in your complaint. If one of your counts is exempt from the grievance procedures or administrative appeals, fully explain the exemption on the lines provided.
Part D. REQUEST FOR RELIEF:
Print the relief you are seeking in the space provided.
SIGNATURE:
You must sign your name and print the date you signed the complaint. Your signature must be an original signature, not a photocopy.
FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your complaint being stricken or dismissed by the court. All questions must be answered concisely in the proper space on the form. If needed, you may attach no more than fifteen additional pages. The form, however, must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number the pages.
FORM