Harb v. Penzone ( 2021 )

1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ronnie Hassan Harb, No. CV 21-01032-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Paul Penzone, 13 Defendant. 14 15 Plaintiff Ronnie Hassan Harb, who is confined in a Maricopa County Jail, has filed 16 a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application 17 to Proceed In Forma Pauperis (Doc. 2). The Court will order Defendant to answer the 18 Complaint. 19 I. Application to Proceed In Forma Pauperis and Filing Fee 20 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 21 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 22 § 1915(b)(1). The Court will assess an initial partial filing fee of $13.33. The remainder 23 of the fee will be collected monthly in payments of 20% of the previous month’s income 24 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 25 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 26 government agency to collect and forward the fees according to the statutory formula. 27 . . . . 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, the- 11 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 Plaintiff names Maricopa County Sheriff Paul Penzone, in his official capacity, as 3 Defendant in his two-count Complaint and seeks money damages. In Count One, Plaintiff 4 alleges his Fourteenth Amendment rights were violated when Defendant Penzone failed to 5 take adequate precautions to prevent the spread of the COVID-19 virus in the Maricopa 6 County Jails. Plaintiff alleges Defendant Penzone is responsible for the jail and its 7 procedures, and has authority to “dictate new or emergency action to his employees in 8 times like when a pandemic virus could infiltrate of his facilities.” (Doc. 1 at 6.)1 Plaintiff 9 alleges that the lack of precautions at the Towers Jail put him in substantial risk of suffering 10 serious harm, and Defendant Penzone “did not take reasonable available measures [which] 11 directly caused [Plaintiff] the injury of contracting the coronavirus while housed in his 12 jail.” (Id. at 7.) Plaintiff asserts he saw employees moving between housing units, 13 potentially spreading the COVID-19 virus, and exhausted administrative remedies with 14 respect to this problem. Plaintiff claims there was no change in procedures to prevent the 15 spread of infectious diseases and “new intake inmates . . . continued to be housed with 16 inmates incarcerated previous to the CDC guidelines being issued.” (Id. at 3.) Plaintiff 17 tested positive for COVID-19 on June 15, 2020, and has suffered muscle pain, headaches, 18 fatigue, loss of appetite, and psychological trauma. 19 In Count Two, Plaintiff alleges his Fourteenth Amendment rights were violated 20 when he “wasn’t allowed to fully practice CDC guidelines while a pretrial detainee from 21 March thru June 2020.” (Id. at 4.) Plaintiff states there was no way for him to remain six 22 feet apart from his cellmates or to follow other CDC guidelines for avoiding exposure to 23 COVID-19. Plaintiff asserts Defendant Penzone “allowed for the towers jail to house 3 24 inmates per cell prior to the outbreak in the jail and well into June of 2020.” Plaintiff 25 alleges Penzone “did not enact different housing procedures in the jail to keep inmates at a 26 distance to each other . . . [and] as a pretrial detainee [Plaintiff] was not allowed to practice 27 28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 the doctor/scientist recommended guidelines issued by the CDC.” (Id. at 9.) Plaintiff 2 contends Defendant Penzone “had the ability to change the housing policies during this 3 global emergency and failed to do so to keep [Plaintiff] from contracting COVID, despite 4 [Plaintiff using] the grievance process.” Plaintiff claims that as a result, he contracted 5 COVID-19. 6 Liberally construed, Plaintiff has adequately stated Fourteenth Amendment 7 conditions of confinement claims and the Court will require Defendant Penzone, in this 8 official capacity, to answer the Complaint. 9 IV. Warnings 10 A. Release 11 If Plaintiff is released while this case remains pending, and the filing fee has not 12 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 13 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 14 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 15 result in dismissal of this action. 16 B. Address Changes 17 Plaintiff must file and serve a notice of a change of address in accordance with Rule 18 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 19 relief with a notice of change of address. Failure to comply may result in dismissal of this 20 action. 21 C. Copies 22 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy 23 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 24 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must 25 submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to 26 comply may result in the filing being stricken without further notice to Plaintiff. 27 D. Possible Dismissal 28 If Plaintiff fails to timely comply with every provision of this Order, including these 1 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 2 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 3 to comply with any order of the Court). 4 IT IS ORDERED: 5 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 6 (2) As required by the accompanying Order to the appropriate government 7 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 8 of $13.33. 9 (3) The Clerk of Court must send Plaintiff a service packet including the 10 Complaint (Doc. 1), this Order, and both summons and request for waiver forms for 11 Defendant Penzone. 12 (4) Plaintiff must complete and return the service packet to the Clerk of Court 13 within 21 days of the date of filing of this Order. The United States Marshal will not 14 provide service of process if Plaintiff fails to comply with this Order. 15 (5) If Plaintiff does not either obtain a waiver of service of the summons or 16 complete service of the Summons and Complaint on Defendant within 90 days of the filing 17 of the Complaint or within 60 days of the filing of this Order, whichever is later, the action 18 may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 19 (6) The United States Marshal must retain the Summons, a copy of the 20 Complaint, and a copy of this Order for future use. 21 (7) The United States Marshal must notify Defendant of the commencement of 22 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 23 Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this 24 Order. 25 (8) If Defendant agrees to waive service of the Summons and Complaint, 26 Defendant must return the signed waiver forms to the United States Marshal, not the 27 Plaintiff, within 30 days of the date of the notice and request for waiver of service 28 1 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 2 personal service. 3 (9) The Marshal must immediately file signed waivers of service of the 4 summons. If a waiver of service of summons is returned as undeliverable or is not returned 5 by Defendant within 30 days from the date the request for waiver was sent by the Marshal, 6 the Marshal must: 7 (a) personally serve copies of the Summons, Complaint, and this Order 8 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 9 and 10 (b) within 10 days after personal service is effected, file the return of 11 service for Defendant, along with evidence of the attempt to secure a waiver of 12 service of the summons and of the costs subsequently incurred in effecting service 13 upon Defendant. The costs of service must be enumerated on the return of service 14 form (USM-285) and must include the costs incurred by the Marshal for 15 photocopying additional copies of the Summons, Complaint, or this Order and for 16 preparing new process receipt and return forms (USM-285), if required. Costs of 17 service will be taxed against the personally served Defendant pursuant to Rule 18 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 19 Court. 20 (10) Defendant must answer the Complaint or otherwise respond by appropriate 21 motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 22 Rules of Civil Procedure. 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 (11) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 2| 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 3 | authorized under 28 U.S.C. § 636(b)(1). 4 Dated this 28th day of June, 2021. 5 Wicheal T. Fburde Michael T. Liburdi 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28