Merchant v. Smith ( 2021 )

1 ASH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steven Sentre Merchant, No. CV 21-01593-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 Unknown Smith, et al., 13 Defendants. 14 15 Plaintiff Steven Sentre Merchant, who is confined in the Arizona State Prison 16 Complex-Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 5). The Court will 18 order Defendants Smith and Calvin to answer Counts One and Three of the Complaint and 19 will dismiss the remaining claim and Defendants without prejudice. 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, 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 In his three-count Complaint, Plaintiff names as Defendants: Red Rock Correctional 3 Center Warden Bruno Stolc; Correctional Officers Smith and Calvin; and Captain Site. 4 Plaintiff seeks monetary relief. 5 Plaintiff’s claims arise from a common core of operative facts, as follows: On 6 September 19, 2019, Plaintiff saw an officer sleeping while on duty, and reported it to 7 Defendant Site. Site informed Defendants Smith and Calvin, who then entered Plaintiff’s 8 pod and told other inmates that Plaintiff was a “snitch.” As a result, Plaintiff alleges that 9 he was assaulted by other inmates, “force[d] to use a ‘pill,’” and “was force[d] to ‘805’ off 10 the complex.” 11 Accordingly, Plaintiff alleges an Eighth Amendment “retaliation” claim in Count 12 One, a First Amendment “intrusion on [] liberty and [] intellectual privacy [and] freedom 13 of speech” claim in Count Two, and an Eighth Amendment “deliberate indifference” claim 14 in Count Three. 15 IV. Failure to State a Claim 16 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 17 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 18 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 19 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 20 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 21 as a result of the conduct of a particular defendant and he must allege an affirmative link 22 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 23 72, 377 (1976). 24 A. Stolc 25 Plaintiff makes no allegations against Stolc. Accordingly, Stolc will be dismissed. 26 B. Site 27 Plaintiff’s only allegations against Site are that after Plaintiff informed Site that an 28 officer was sleeping on duty, Site told Defendants Smith and Calvin. These allegations do 1 not support that Site knew, or should have known, that Smith and Calvin would tell other 2 inmates that Plaintiff was a snitch, or that Site otherwise violated Plaintiff’s civil rights. 3 Accordingly, Site will be dismissed. 4 C. Count Two 5 Plaintiff styles Count Two as a First Amendment “intrusion on [] liberty and [] 6 intellectual privacy [and] freedom of speech” claim. Plaintiff alleges that he has “a right 7 to report a violation to a higher ranking officer,” and that Smith and Calvin “put [him] in 8 danger” by “disclos[ing] what [Plaintiff] told.” As such, it appears that Plaintiff is 9 attempting to allege a First Amendment retaliation claim. Accordingly, Count Two is 10 duplicative of Count One, and will be dismissed. 11 V. Claims for Which an Answer Will be Required 12 The Court construes Count One as a First Amendment retaliation claim, and Count 13 Three as an Eighth Amendment threat-to-safety claim. So construed, the Court finds that 14 Plaintiff has sufficiently stated such claims against Defendants Smith and Calvin, and they 15 will thus be required to answer those portions of the Complaint. 16 VI. Warnings 17 A. Release 18 If Plaintiff is released while this case remains pending, and the filing fee has not 19 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 20 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 21 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 22 result in dismissal of this action. 23 B. Address Changes 24 Plaintiff must file and serve a notice of a change of address in accordance with Rule 25 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 26 relief with a notice of change of address. Failure to comply may result in dismissal of this 27 action. 28 . . . . 1 C. Copies 2 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 3 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 4 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 5 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 6 to comply may result in the filing being stricken without further notice to Plaintiff. 7 D. Possible Dismissal 8 If Plaintiff fails to timely comply with every provision of this Order, including these 9 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 10 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 11 to comply with any order of the Court). 12 IT IS ORDERED: 13 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 5) is granted. 14 (2) As required by the accompanying Order to the appropriate government 15 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 16 fee. 17 (3) Count Two is dismissed without prejudice. 18 (4) Defendants Stolc and Site are dismissed without prejudice. 19 (5) Defendants Smith and Calvin must answer Counts One and Three. 20 (6) The Clerk of Court must send Plaintiff a service packet including the 21 Complaint (Doc. 1), this Order, and both summons and request for waiver forms for 22 Defendants Smith and Calvin. 23 (7) Plaintiff must complete1 and return the service packet to the Clerk of Court 24 within 21 days of the date of filing of this Order. The United States Marshal will not 25 provide service of process if Plaintiff fails to comply with this Order. 26 27 1 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee 28 works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. 1 (8) If Plaintiff does not either obtain a waiver of service of the summons or 2 complete service of the Summons and Complaint on a Defendant within 90 days of the 3 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 4 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 5 16.2(b)(2)(B)(ii). 6 (9) The United States Marshal must retain the Summons, a copy of the 7 Complaint, and a copy of this Order for future use. 8 (10) The United States Marshal must notify Defendants of the commencement of 9 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 10 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 11 Order. 12 (11) A Defendant who agrees to waive service of the Summons and Complaint 13 must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 14 30 days of the date of the notice and request for waiver of service pursuant to Federal 15 Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. 16 (12) The Marshal must immediately file signed waivers of service of the 17 summons. If a waiver of service of summons is returned as undeliverable or is not returned 18 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 19 the Marshal must: 20 (a) personally serve copies of the Summons, Complaint, and this Order 21 upon Defendants pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 22 and 23 (b) within 10 days after personal service is effected, file the return of 24 service for each Defendant, along with evidence of the attempt to secure a waiver 25 of service of the summons and of the costs subsequently incurred in effecting service 26 upon Defendant. The costs of service must be enumerated on the return of service 27 form (USM-285) and must include the costs incurred by the Marshal for 28 photocopying additional copies of the Summons, Complaint, or this Order and for 1 preparing new process receipt and return forms (USM-285), if required. Costs of 2 service will be taxed against the personally served Defendant pursuant to Rule 3 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 4 Court. 5 (13) Defendants Smith and Calvin must answer the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 8 (14) Any answer or response must state the specific Defendant by name on whose 9| behalf it is filed. The Court may strike any answer, response, or other motion or paper that 10 | does not identify the specific Defendant by name on whose behalf it is filed. 11 (15) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 12} 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 13 | authorized under 28 U.S.C. § 636(b)(1). 14 Dated this 9th day of November, 2021. 15 16 a 17 18 _ James A. Teil Org Senior United States District Judge 19 20 21 22 23 24 25 26 27 28