YANCEY v. ARPAIO

ORDER

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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] `must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). The Court will dismiss Plaintiff's Complaint for failure to state a claim, but because the Complaint may possibly be saved by amendment, the Court will dismiss the Complaint with leave to amend.

III. Complaint

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."1 (Id. at 4.) Plaintiff alludes to suffering from high blood pressure. Finally, Plaintiff asserts that inmates are illegally bunked in small cells with four inmates held in a 9 x 6 foot cell and a total of 32 occupants in eight 9 x 6 foot cells.

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. Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). In this case, that entity is Maricopa County. The actions of individuals only support municipal liability if a claimed injury resulted pursuant to an official policy or custom of the municipality. Botello v. Gammick, 413 F.3d 971, 978-79 (9th Cir. 2005); Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). For that reason, a municipality may not be sued solely because an injury was inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Rather, the municipality is liable only when the execution of its policy or custom inflicts the constitutional injury. Id.; Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005). As stated by the Ninth Circuit:

Avalos v. Baca, 596 F.3d 583, 587-88 (9th Cir. 2010) (quoting Avalos v. Baca, 517 F.Supp.2d 1156, 1162 (C.D. Cal. 2007)). Thus, a plaintiff cannot state a § 1983 claim against a municipal defendant unless he alleges that the municipal defendant maintained a policy or custom pertinent to the plaintiff's alleged injury and explains how such policy or custom caused his injury. Sadoski, 435 F.3d at 1080.

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." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or custom. See Cortez, 294 F.3d at 1188. Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of a someone who allegedly violated a plaintiff's constitutional rights does not make him liable. Monell, 436 U.S. at 691; Taylor, 880 F.2d at 1045. A supervisor in his individual capacity, "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045.

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, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. Plaintiff fails to allege facts to support that Arpaio enacted or enforced a policy, custom, or practice that resulted in the denial of Plaintiff's constitutional rights. He also has not alleged facts to support that Arpaio directly violated his constitutional rights or that Arpaio was aware that Plaintiff's rights were being violated but failed to act. Accordingly, Plaintiff fails to state a claim against Arpaio and he will be dismissed.

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, Bell v. Wolfish, 441 U.S. 520 (1979), while a pretrial detainee's claim for unconstitutional conditions arises under the Fourteenth Amendment, Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Nevertheless, the same standard is applied. See Frost, 152 F.3d at 1128. To state a claim for unconstitutional conditions, a plaintiff must allege an objectively "sufficiently serious" deprivation that results in the denial of "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994). That is, a plaintiff must allege facts supporting that he is incarcerated under conditions posing a substantial risk of harm. Farmer, 511 U.S. at 834. Only deprivations denying the minimal civilized measure of life's necessities are sufficiently grave for an Eighth Amendment violation. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation omitted). These are "deprivations of essential food, medical care, or sanitation" or "other conditions intolerable for prison confinement." Rhodes v. Chapman, 452 U.S. 337, 348 (1981). Whether a condition of confinement rises to the level of a constitutional violation may depend, in part, on the duration of an inmate's exposure to that condition. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996). "The more basic the need, the shorter the time it can be withheld." Hoptowit v. Ray, 682 F.2d 1287, 1259 (9th Cir. 1982).

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. See Farmer, 511 U.S. at 837. In defining "deliberate indifference" in the jail context, the Supreme Court has imposed a subjective test: "the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. A plaintiff must also allege how he was injured by the alleged unconstitutional conditions. See, e.g., Lewis, 518 U.S. at 349 (doctrine of standing requires that claimant have suffered or will imminently suffer actual harm).

Plaintiff in part complains of overcrowding at the Durango Jail. Allegations of overcrowding alone are insufficient to state a claim. See Rhodes, 452 U.S. at 348. Rather, to state a claim, a plaintiff must allege facts to support that overcrowding caused an increase in violence, reduced the provision of other constitutionally required services, or reached a level where the institution was no longer fit for human habitation. See Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984).

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)). See 16 C.F.R. § 1304.4. The Consumer Product Safety Commission has also banned lead in paint and other products to reduce lead exposure in children where up to 50% of preschool children engaged in pica, the repetitive ingestion of non-food substances, including paint. See 16 C.F.R. § 1303.5.

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. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

VI. Warnings

A. Release

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.

C. Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.

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. See Ferdik 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED.

(1) Plaintiff is granted leave to proceed in forma pauperis and the show cause order, doc. 9, is discharged. (Doc. 19.) Plaintiff must promptly file a notice if his financial circumstances materially change or he is re-incarcerated during the pendency of this case.

(2) The Complaint is dismissed for failure to state a claim. (Doc. 1.) Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.

(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.