G. MURRAY SNOW, District Judge.
On July 13, 2012, Plaintiff Jamarr L. Yancey, who was then confined in Maricopa County's Durango Jail in Phoenix, Arizona, filed a pro se Complaint pursuant to 42 U.S.C. § 1983 with an Application to Proceed In Forma Pauperis. (Doc. 1, 2.) On July 31, 2012, Plaintiff filed a notice of change of address reflecting that he had been released from custody. (Doc. 8.) In an Order filed on August 2, 2012, the Court denied his Application and ordered Plaintiff to either pay the filing fee or show cause why he was unable to do so. (Doc. 9.) Plaintiff has filed an in forma pauperis application signed under penalty of perjury reflecting that he is unemployed, has no assets, and has several dependents. (Doc. 10.) The Court will therefore grant Plaintiff leave to proceed in forma pauperis and discharge the show cause order. If Plaintiff's financial circumstances materially change or he is re-incarcerated, Plaintiff must promptly file a notice in this case regarding such change in circumstances. The Court will dismiss the Complaint for failure to state a claim with leave to amend.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."
"[A] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally."
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action.
Plaintiff asserts three counts for threat to safety based on conditions of confinement at the Durango Jail. Plaintiff sues Maricopa County Sheriff Joseph M. Arpaio and the Maricopa County Board of Supervisors. Plaintiff seeks compensatory relief.
Plaintiff asserts the following: Durango Jail poses a threat to inmates and staff due to peeling lead paint, asbestos in the ceilings and walls, and overcrowding in the dormitories and cells, where a cell designed to hold four inmates houses 32. Plaintiff also asserts "unsanitary living conditions." (Doc. 1 at 3.) He further alleges fire safety code violations, including that fire extinguishers are inaccessible to inmates in the lockdown housing unit, a lack of fire sprinklers, and faulty fire and carbon dioxide detectors. He also alleges a lack of fire escape exits and drills. According to Plaintiff, Arpaio "knowingly & intentionally" conspired to violate inmate constitutional rights by housing pretrial detainees in "biohazardous asbestos, lead based building, jails."
IV. Failure to State a Claim
To state a claim under § 1983, a plaintiff must allege that (1) the conduct about which he complains was committed by a person acting under color of state law, and (2) the conduct deprived him of a constitutional right.
A. Maricopa County Board of Supervisors
Plaintiff sues the Maricopa County Board of Supervisors without naming each supervisor as a defendant or alleging any facts against the Board. When individuals, such as members of the Maricopa County Board of Supervisors, are sued in an official capacity, the real party in interest is the entity of which the members are agents.
Plaintiff does not allege any facts against the Maricopa County Board of Supervisors. Further, he fails to allege facts to support that he was injured as a result of a municipal policy or custom. Accordingly, Plaintiff fails to state a claim against the Maricopa County Board of Supervisors and it will be dismissed.
B. Sheriff Arpaio
Plaintiff also sues Maricopa County Sheriff Arpaio. While Arpaio may be sued, Plaintiff fails to state a claim against him.
"A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights."
Plaintiff makes only vague and conclusory assertions that Arpaio "knowingly & intentionally" conspired to violate constitutional rights by housing pretrial detainees in allegedly unconstitutional conditions. (Doc. 1 at 4.) Although pro se pleadings are liberally construed,
C. Conditions of Confinement
As noted above, Plaintiff asserts three counts for allegedly unconstitutional conditions of confinement at the Durango Jail. A prison inmate's claim for unconstitutional conditions of confinement arises under the Eighth Amendment,
In addition to alleging facts to support that he is confined in conditions posing a substantial risk of harm, a plaintiff must also allege facts to support that a defendant had a "sufficiently culpable state of mind," i.e., that the official acted with deliberate indifference to inmate health or safety.
Plaintiff in part complains of overcrowding at the Durango Jail. Allegations of overcrowding alone are insufficient to state a claim.
Plaintiff fails to allege facts to support that overcrowding caused an increase in violence, reduced the provision of constitutionally required services or reached a level where the institution was no longer fit for human habitation, while he was there. That is, he has not alleged facts to support that overcrowding at Durango posed a substantial risk of harm to him. Moreover, Plaintiff fails to allege facts to support that a named Defendant, or anyone else, acted with deliberate indifference to a substantial risk of harm to him based on overcrowding.
Plaintiff also asserts that he was exposed to asbestos and lead paint at the Durango Jail. The Consumer Product Safety Commission has banned as hazardous products that contain intentionally-added, respirable free-form asbestos "[o]n the basis that airborne asbestos fibers present the hazards of cancer, including lung cancer and mesothelioma" (emphasis added)).
Plaintiff does not allege facts to support the presence of airborne asbestos fibers asbestos at the Durango Jail. With respect to lead paint, Plaintiff does not allege facts to support that he ingested lead paint. If Plaintiff had alleged facts to support that he was exposed to airborne asbestos fibers and ingested lead paint. Plaintiff fails allege facts to support that a named Defendant, or anyone else, acted with deliberate indifference to a substantial risk of harm to him based on those conditions. He fails to allege facts to support that a named Defendant knew of such conditions and knew that they posed a substantial risk to his well-being, but failed to act to alleviate such risk. Accordingly, Plaintiff fails to state a claim based on exposure to asbestos or lead paint.
Plaintiff also alleges that there were insufficient fire escape routes, alarms, and suppression equipment at the Durango Jail. Plaintiff fails to allege an injury or facts to support that those conditions posed a substantial risk of harm to him. He also fails to allege facts to support that any named Defendant, or anyone else, acted with deliberate indifference to the claimed lack of escape routes, alarms, and suppression equipment at the jail. Accordingly, Plaintiff fails to state a claim based on these conditions.
V. Leave to Amend
For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original complaint.
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court.
D. Possible "Strike"
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice.
(1) Plaintiff is
(2) The Complaint is
(3) If Plaintiff fails to file an amened complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strick" under 28 U.S.C. § 1915(g).
(4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.