Weber v. Ryan

1 KM 2 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Cory Brett Weber, No. CV 21-02040-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER [12] Charles L. Ryan, et al., [13] Defendants. [15] 16 Plaintiff Cory Brett Weber, who is confined in a Maricopa County Jail, has filed a 17 pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to 18 Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to 19 amend. 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 If the Court determines that a pleading could be cured by the allegation of other 2 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 3 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 4 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 5 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 6 III. Complaint 7 Plaintiff names former Arizona Department of Corrections Director Charles Ryan 8 and Sergeant Smith as Defendants in his one-count Complaint and seeks injunctive relief 9 and money damages. 10 Plaintiff alleges Defendant Smith violated his First, Fifth, Eighth, and Fourteenth 11 Amendment rights when he placed “a homeless person” in a cell with Plaintiff. Plaintiff 12 claims “the filth from living in the cell [with] this person caused the two heart attacks” and 13 states he “went to medical” for the second heart attack. Plaintiff alleges he suffered two 14 additional heart attacks and suffers chest pains “everyday” as a result. Plaintiff asserts 15 Defendant Ryan is responsible for training Defendant Smith and “is individually 16 responsible for upholding a ban on magazines to prevent masturbation[;] you can’t 17 masturbate in a prison cell with a homeless man.” 18 IV. Failure to State a Claim 19 A. Medical Claims 20 Not every claim by a prisoner relating to inadequate medical treatment states a 21 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 22 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 23 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 24 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 25 Cir. 2006). 26 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 27 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 28 know of and disregard an excessive risk to inmate health; “the official must both be aware 1 of facts from which the inference could be drawn that a substantial risk of serious harm 2 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 3 Deliberate indifference in the medical context may be shown by a purposeful act or failure 4 to respond to a prisoner’s pain or possible medical need and harm caused by the 5 indifference. Jett, 439 F.3d at 1096 . Deliberate indifference may also be shown when a 6 prison official intentionally denies, delays, or interferes with medical treatment or by the 7 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 8 97, 104-05 (1976); Jett, 439 F.3d at 1096 . 9 Deliberate indifference is a higher standard than negligence or lack of ordinary due 10 care for the prisoner’s safety. Farmer, 511 U.S. at 835 . “Neither negligence nor gross 11 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 12 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458 , 13 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 14 do not support a claim under § 1983). “A difference of opinion does not amount to 15 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 16 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 17 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 18 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 19 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 20 Estelle, 429 U.S. at 105 . 21 Plaintiff has not alleged facts demonstrating that either Defendant Smith or 22 Defendant Ryan was aware of a substantial risk of serious harm to Plaintiff’s health 23 resulting from his housing assignment, nor has Plaintiff alleged that either Defendant 24 denied him medical care. Further, Plaintiff does not state when he suffered the heart 25 attacks, or allege any facts to show how living with a “homeless person” caused his heart 26 attacks. To the extent Plaintiff continues to suffer chest pains, Plaintiff is currently housed 27 in a Maricopa County Jail but has not named any Maricopa County staff as defendants or 28 alleged whether he has requested medical treatment from any Maricopa County medical 1 staff, when he made any such request, or what response he received. Plaintiff has failed to 2 state an Eighth Amendment medical claim. 3 B. First Amendment Claims 4 “[A] prison inmate retains those First Amendment rights that are not inconsistent 5 with his status as a prisoner or with the legitimate penological objectives of the corrections 6 system.” Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Clement v. Cal. Dep’t of 7 Corr., 364 F.3d 1148, 1151 (9th Cir. 2004). A regulation that impinges on First 8 Amendment rights “is valid if it is reasonably related to legitimate penological interests.” 9 Turner v. Safley, 482 U.S. 78, 79 (1987); see also Beard v. Banks, 548 U.S. 521 , 528 10 (2006). Legitimate penological interests include “the preservation of internal order and 11 discipline, the maintenance of institutional security against escape or unauthorized entry, 12 and the rehabilitation of the prisoners.” Procunier v. Martinez, 416 U.S. 396, 412 (1974). 13 In light of concerns about preventing the sexual harassment of prison guards and other 14 inmates, prison officials may prohibit receipt of sexually explicit materials. See 15 Bahrampour v. Lampert, 356 F.3d 969, 976 (9th Cir. 2001); Frost v. Symington, 197 F.3d 16 348, 357 (9th Cir. 1999); Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999). 17 Plaintiff has not alleged that the ban on sexually explicit magazines is not related to 18 a legitimate penological interest. Plaintiff therefore fails to state a First Amendment claim. 19 V. Leave to Amend 20 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 21 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 22 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 23 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 24 to use the court-approved form, the Court may strike the amended complaint and dismiss 25 this action without further notice to Plaintiff. 26 Plaintiff must clearly designate on the face of the document that it is the “First 27 Amended Complaint.” The first amended complaint must be retyped or rewritten in its [28] 1 entirety on the court-approved form and may not incorporate any part of the original 2 Complaint by reference. Plaintiff may include only one claim per count. 3 In each count, Plaintiff must write short, plain statements telling the Court: (1) the 4 constitutional right Plaintiff believes was violated; (2) the name of the Defendant who 5 violated the right; (3) exactly what that Defendant did or failed to do and when; (4) how 6 the action or inaction of that Defendant is connected to the violation of Plaintiff’s 7 constitutional right; and (5) what specific injury Plaintiff suffered because of that 8 Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 9 Plaintiff must repeat this process for each person he names as a Defendant. If 10 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 11 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 12 failure to state a claim. Conclusory allegations that a Defendant or group of 13 Defendants has violated a constitutional right are not acceptable and will be 14 dismissed. 15 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, [16] 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 17 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 18 as nonexistent. Ferdik, 963 F.2d at 1262 . Any cause of action that was raised in the 19 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 20 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 21 F.3d 896 , 928 (9th Cir. 2012) (en banc). 22 VI. Warnings 23 A. Release 24 If Plaintiff is released while this case remains pending, and the filing fee has not 25 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 26 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 27 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 28 result in dismissal of this action. 1 B. Address Changes 2 Plaintiff must file and serve a notice of a change of address in accordance with Rule 3 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 4 relief with a notice of change of address. Failure to comply may result in dismissal of this 5 action. 6 C. Possible “Strike” 7 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 8 fails to file an amended complaint correcting the deficiencies identified in this Order, the 9 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915 (g). 10 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 11 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 12 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 13 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 14 or fails to state a claim upon which relief may be granted, unless the prisoner is under 15 imminent danger of serious physical injury.” 28 U.S.C. § 1915 (g). 16 D. Possible Dismissal 17 If Plaintiff fails to timely comply with every provision of this Order, including these 18 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 19 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 20 the Court). 21 IT IS ORDERED: 22 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 23 (2) As required by the accompanying Order to the appropriate government 24 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 25 fee. 26 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 27 has 30 days from the date this Order is filed to file a first amended complaint in compliance 28 with this Order. 1 | (4) ‘If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 2 | Court must, without further notice, enter a judgment of dismissal of this action with 3 | prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915 (g) 4 | and deny any pending unrelated motions as moot. 5 | (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a 6 | civil rights complaint by a prisoner. 7 | Dated this Sth day of January, 2022. s| | Mk Lo. ‘chad T. Gibuade Michael T. Liburdi 11 | United States District Judge 12 | 13| 14 | 15 | 19 | 20 | 21 | 22 | 24 | 25 | 26 | 27 | 28 |