Campbell 043669 v. Unknown Parties

1 JL 2 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Ricky Lee Campbell, No. CV-24-01797-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 Unknown Parties, et al., 13 Defendants. [14] 15 On July 22, 2024, pro se Plaintiff Ricky Lee Campbell, who is confined in the 16 Arizona State Prison Complex-Eyman, filed a civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1). In an August 20, 2024 Order, the Court denied the deficient Application 18 to Proceed with leave to refile within 30 days. On September 6, 2024, Plaintiff filed a new 19 Application to Proceed In Forma Pauperis (Doc. 7). 20 I. Application to Proceed In Forma Pauperis and Filing Fee 21 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 22 U.S.C. § 1915 (a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 23 § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing 24 fee will be collected monthly in payments of 20% of the previous month’s income credited 25 to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 26 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 27 agency to collect and forward the fees according to the statutory formula. 28 . . . . 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the11 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, [16] 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679 . Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681 . 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338 , 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 1 III. Complaint 2 In his two-count Complaint, Plaintiff sues Unknown Officers #1-10 and Unknown 3 Nurses #1-5. He seeks declaratory and injunctive relief and compensatory and punitive 4 damages. Plaintiff designates Count One as an Eighth Amendment threat-to-safety claim 5 and Count Two as an Eighth Amendment medical care claim. He alleges the same facts 6 for each count, as follows: 7 On February 7, 2023, Plaintiff was moved to Special Management Unit 1 (SMU 1). 8 Although Plaintiff had a Special Needs Order (SNO) for a lower bunk, Unknown Officer 9 #1 placed Plaintiff in a cell with another prisoner who also had a lower bunk SNO. 10 Unknown Officer #1 refused to move Plaintiff to an alternative cell, stating that it was a 11 “shift change” and that the next shift could “deal with” Plaintiff. Unknown Officer #1 12 instructed Plaintiff to either climb up to the top bunk or sleep on the floor that was covered 13 in dead roaches, mice feces, and other detritus. 14 Plaintiff climbed up to the top bunk, but when he tried to climb down, he fell off the 15 ladder and broke his hip. Plaintiff’s cellmate called a “man-down”/Incident Command 16 System. Unknown Officers #2-7 and Unknown Nurses #1-2 responded. Unknown 17 Officers #2-7 dragged Plaintiff onto a gurney, causing him excruciating pain. At the 18 medical unit, Unknown Nurses #1-2 briefly examined his hip and told the officers, “He’s 19 fine, take him back to his cell.” Unknown Officers #2-3 moved Plaintiff into a wheelchair, 20 again causing him excruciating pain. Unknown Officer #3 told Plaintiff, “You better not 21 be making this shit up.” 22 For the next three days, Plaintiff could not move or get out of bed. Plaintiff was 23 forced to urinate in a bowl, which his cellmate emptied for him. Plaintiff could not eat 24 because of the pain he was experiencing, and, as a result, he had no bowel movements. On 25 February 10, 2023, Plaintiff begged Unknown Officers #2-10 to summon medical 26 assistance and asked Medication Pass Nurses #3-5 to assist him. A nurse practitioner came 27 to Plaintiff’s cell and immediately recognized the severity of his injury. The nurse 28 practitioner directed Unknown Officers #9-10 to escort Plaintiff to the medical unit. An x1 ray of Plaintiff’s hip showed it was “severely broken.” The nurse practitioner called 911, 2 and an ambulance transported Plaintiff to a local hospital, where he underwent hip 3 replacement surgery. Plaintiff endured a lengthy rehabilitation process to relearn how to 4 walk and continues to experience excruciating pain, which is not adequately treated. 5 IV. Failure to State a Claim 6 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 7 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 8 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 9 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278 , 10 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 11 as a result of the conduct of a particular defendant and he must allege an affirmative link 12 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362 , 37113 72, 377 (1976). 14 With respect to Unknown Officers #2-10 and Unknown Nurses #3-5, Plaintiff does 15 not specifically allege what each Defendant did or failed to do that violated his 16 constitutional rights. A complaint “does not require ‘detailed factual allegations,’” but it 17 must plead enough “factual content that allows the court to draw the reasonable inference 18 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting 19 Bell Atl. Corp., 550 U.S. at 555 ). Accordingly, a plaintiff must “allege overt acts with 20 some degree of particularity such that his claim is set forth clearly enough to give 21 defendants fair notice” of the allegations against them. Ortez v. Washington Cnty., 88 F.3d 22 804, 810 (9th Cir. 1996); see also Sebastian Brown Prods., LLC v. Muzooka, Inc., 143 F. 23 Supp. 3d 1026, 1037 (N.D. Cal. 2015) (“A plaintiff ‘must identify what action each 24 Defendant took that caused Plaintiffs’ harm, without resort to generalized allegations 25 against Defendants as a whole.”); Flores v. EMC Mortg. Co., 997 F. Supp. 2d 1088 , 1103 26 (N.D. Cal. 2014) (complaint failed to satisfy Rule 8 where it lacked “facts of defendants’ 27 specific wrongdoing to provide fair notice as to what each defendant is to defend.”). Courts 28 consistently conclude that a complaint that “lump[s] together . . . multiple defendants in 1 one broad allegation fails to satisfy [the] notice requirement of Rule 8(a)(2).” Gen-Probe, 2 Inc. v. Amoco Corp., Inc., 926 F. Supp. 948, 961 (S.D. Cal. 1996) (citing Gauvin v. 3 Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988)). The Court will therefore dismiss 4 Defendants Unknown Officers #2-10 and Unknown Nurses #3-5. 5 V. Claims for Which an Answer Will be Required 6 Liberally construed, Plaintiff has stated an Eighth Amendment threat-to-safety 7 claim against Unknown Officer #1 and an Eighth Amendment medical care claim against 8 Unknown Nurses #1 and #2. Although Plaintiff has stated a claim against these Unknown 9 Defendants, the Court will not require service on these Unknown Defendants at this time 10 because it is, in most instances, impossible for the United States Marshal or his designee 11 to serve a summons and complaint upon an anonymous defendant. However, the Court 12 will not dismiss the claim against Unknown Officer #1 and Unknown Nurses #1 and #2. 13 The Ninth Circuit has held that where identity is unknown prior to the filing of a 14 complaint, the plaintiff should be given an opportunity through discovery to identify the 15 unknown defendants, unless it is clear that discovery would not uncover the identities, or 16 that the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 F.3d 17 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 18 The Court will allow Plaintiff 120 days in which to discover the actual name of one or more 19 of the Unknown Defendants, through subpoena or otherwise, and to substitute at least one 20 of the Defendants’ actual names by filing a “notice of substitution.” See Wakefield, 177 21 F.3d at 1163. The Court may dismiss without prejudice this action if Plaintiff fails to timely 22 file a notice of substitution identifying at least one of the Unknown Defendants, unless 23 Plaintiff seeks and is granted an extension of time. 24 VI. Warnings 25 A. Release 26 If Plaintiff is released while this case remains pending, and the filing fee has not 27 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 28 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 1 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 2 result in dismissal of this action. 3 B. Address Changes 4 Plaintiff must file and serve a notice of a change of address in accordance with Rule 5 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 6 relief with a notice of change of address. Failure to comply may result in dismissal of this 7 action. 8 C. Possible Dismissal 9 If Plaintiff fails to timely comply with every provision of this Order, including these 10 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, [11] 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 12 to comply with any order of the Court). 13 IT IS ORDERED: 14 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 7) is granted. 15 (2) As required by the accompanying Order to the appropriate government 16 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 17 fee. 18 (3) Defendants Unknown Officers #2-10 and Unknown Nurses #3-5 are 19 dismissed without prejudice. 20 (4) If Plaintiff attempts to amend to address the shortcomings identified in this 21 Order, the amended complaint must be retyped or rewritten in its entirety on the court22 approved form for filing a civil rights complaint by a prisoner (including those claims and 23 Defendants that were not dismissed), and Plaintiff must comply with Rule 15 of the Federal 24 Rules of Civil Procedure and Rule 15.1 of the Local Rules of Civil Procedure. 25 (5) Plaintiff has 120 days from the filing date of this Order in which to discover, 26 by subpoena or otherwise, the identity of Unknown Officer #1 and Unknown Nurses #1 27 and #2, and to file a “notice of substitution” for one or more of these Unknown Defendants. 28 . . . . 1 (6) The Clerk of Court must issue three subpoenas in blank and send them and three copies of the Marshal’s Process Receipt & Return form (USM-285) to Plaintiff. 3 (7) Plaintiff shall complete the subpoenas and USM-285 forms and promptly 4| return them to the Clerk of Court. 5 (8) | Upon receipt of properly completed subpoenas and USM-285 forms, the Clerk of Court must deliver the subpoenas, the USM-285 forms, and a copy of this Order, to the United States Marshal for service. 8 (9) Within 20 days of receiving the subpoenas, USM-285 forms, and a copy of this Order, the United States Marshal must personally serve the subpoenas and a copy of 10 | this Order in accordance with the provisions of Rule 45 of the Federal Rules of Civil 11 | Procedure and 28 U.S.C. §§ 566 (c) and 1915(d). 12 (10) Within 10 days after personal service is effected, the United States Marshal 13 | must file the proofs of service. 14 (11) The Clerk of Court may enter a judgment of dismissal for failure to prosecute 15 | without prejudice and without further notice to Plaintiff, if Plaintiff fails to file a notice of 16 | substitution within 120 days for at least one of the Unknown Defendants, unless Plaintiff 17 | seeks and is granted an extension of time. 18 Dated this 7th day of October, 2024. [19] 20 a [21] 2 James A. Teil Org Senior United States District Judge