Walker v. Penzone ( 2019 )

1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mark Anthony Walker, No. CV 19-01583-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Paul Penzone, et al., 13 Defendants. 14 15 Plaintiff Mark Anthony Walker, who is confined in the Arizona State Prison 16 Complex-Yuma, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) 17 and an Application to Proceed In Forma Pauperis (Doc. 2). The Court granted the 18 Application to Proceed but dismissed the Complaint with leave to amend because it failed 19 to state a claim. Plaintiff filed a First Amended Complaint (Doc. 9), which the Court 20 dismissed with leave to amend because it failed to state a claim (Doc. 10). Plaintiff has 21 filed a Second Amended Complaint (Doc. 11). The Court will grant Plaintiff 120 days in 22 which to learn the identity of Defendant Doe and file a Notice of Substitution and will 23 dismiss the remaining Defendant. 24 I. Statutory Screening of Prisoner Complaints 25 The Court is required to screen complaints brought by prisoners seeking relief 26 against a governmental entity or an officer or an employee of a governmental entity. 28 27 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 28 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 1 relief may be granted, or that seek monetary relief from a defendant who is immune from 2 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 3 A pleading must contain a “short and plain statement of the claim showing that the 4 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 5 not demand detailed factual allegations, “it demands more than an unadorned, the- 6 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 7 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Id. 9 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 10 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 11 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 12 that allows the court to draw the reasonable inference that the defendant is liable for the 13 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 14 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 15 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 16 allegations may be consistent with a constitutional claim, a court must assess whether there 17 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 18 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 19 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 20 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 21 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 22 U.S. 89, 94 (2007) (per curiam)). 23 II. Second Amended Complaint 24 Plaintiff alleges one count for a threat to his safety. Plaintiff sues an unknown 25 Maricopa County Detention Officer, John Doe, and the Maricopa County Sheriff’s Office 26 (MCSO). Plaintiff seeks injunctive, compensatory, and punitive relief. 27 Plaintiff alleges the following facts: 28 At relevant times, Plaintiff had Type 1 diabetes and had limited mobility on his left 1 side due to a stroke and complications from his diabetes. On January 30, 2019, Plaintiff 2 was booked into the Fourth Avenue Jail and taken to the medical unit, where it was 3 determined, or confirmed, that he had Type 1 Diabetes. Following the medical evaluation, 4 Plaintiff was assigned a lower tier lower bunk. 5 On February 26, 2019, Doe came to Plaintiff’s cell and told him that he had to move 6 to an upper bunk. Plaintiff told Doe that he had “lower bunk clearance” but Doe “said no.” 7 Plaintiff then told Doe that attempting to climb to the upper bunk was not safe for him and 8 that he could hurt himself. Plaintiff also suggested that he be moved to Cell 14, which was 9 empty, instead. Doe refused. Plaintiff was assisted to the top bunk by other prisoners. The 10 next day, Officer Piric and Nurse Pat came to Plaintiff’s cell to give him his insulin. As 11 Plaintiff attempted to climb down from the top bunk, he fell and hurt his back, legs, and 12 feet and was unable to walk. Doe and a third shift sergeant helped Plaintiff move to Cell 13 14. Plaintiff was transferred to the Arizona Department of Corrections a day or two later. 14 Plaintiff alleges that the absence of ladders to reach and climb down from the top bunks 15 posed a threat to his and other prisoners’ safety, particularly prisoners with serious medical 16 problems. Plaintiff has recurring pain and very limited mobility. 17 III. Failure to State a Claim 18 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 19 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 20 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 21 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 22 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 23 as a result of the conduct of a particular defendant and he must allege an affirmative link 24 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 25 72, 377 (1976). 26 The Maricopa County Sheriff’s Office is not a proper defendant because it is a “non- 27 jural entity.” Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir. 2015) (citing Braillard 28 v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010)). In Arizona, the 1 responsibility of operating jails and caring for prisoners is placed by law upon the sheriff. 2 See Ariz. Rev. Stat. §§ 11-441(A)(5), 31-101. The sheriff’s office is simply an 3 administrative creation of the county sheriff to allow him to carry out his statutory duties 4 and is not a “person” amenable to suit pursuant to § 1983. Accordingly, the Maricopa 5 County Sheriff’s Office will be dismissed from this action. 6 IV. Service on Doe Will Not Be Required at this Time 7 Plaintiff sufficiently alleges facts to state a threat-to-safety claim against John Doe. 8 Although Plaintiff has stated a claim against Defendant Doe, the Court will not require 9 service on Defendant Doe at this time because it is, in most instances, impossible for the 10 United States Marshal or his designee to serve a summons and complaint upon an 11 anonymous defendant. However, the Court will not dismiss the claim against Defendant 12 Doe at this time. 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 Defendant 19 Doe, through subpoena or otherwise, and to substitute Defendant’s actual name by filing a 20 “notice of substitution.” See Wakefield, 177 F.3d at 1163. The Court may dismiss without 21 prejudice Defendant Doe if Plaintiff fails to timely file a Notice of Substitution, unless 22 Plaintiff seeks and is granted an extension of time. 23 V. Warnings 24 A. Release 25 If Plaintiff is released while this case remains pending, and the filing fee has not 26 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 27 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 28 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 1 result in dismissal of this action. 2 B. Address Changes 3 Plaintiff must file and serve a notice of a change of address in accordance with Rule 4 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 5 relief with a notice of change of address. Failure to comply may result in dismissal of this 6 action. 7 C. Copies 8 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 9 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 10 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 11 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 12 to comply may result in the filing being stricken without further notice to Plaintiff. 13 D. Possible Dismissal 14 If Plaintiff fails to timely comply with every provision of this Order, including these 15 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 16 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 17 to comply with any order of the Court). 18 IT IS ORDERED: 19 (1) Plaintiff has 120 days from the filing date of this Order in which to discover, 20 by subpoena or otherwise, the identity of Defendant John Doe, and to file a Notice of 21 Substitution for Defendant Doe. 22 (2) The Clerk of Court must issue one subpoena in blank and send it to Plaintiff. 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 (3) The Clerk of Court may enter a judgment of dismissal for failure to prosecute 2| without prejudice and without further notice to Plaintiff, if Plaintiff fails to file a Notice of 3] Substitution within 120 days for Defendant Doe, unless Plaintiff seeks and is granted an 4] extension of time. 5 Dated this 3rd day of December, 2019. 6 Michael IT. Liburdi 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28