DAVID G. CAMPBELL, District Judge.
Plaintiff Peter Robles, who is confined in the Maricopa County Durango Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to amend.
I. Application to Proceed
In Forma Pauperis and Filing Fee
Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
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, 556 U.S. 662, 678 (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 679. 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 681.
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). Plaintiff's Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
In his three-count Complaint, Plaintiff names as Defendants Maricopa County Sheriff Joseph M. Arpaio, and Maricopa County Supervisor Max W. Wilson. Plaintiff seeks monetary relief.
In Count One, Plaintiff alleges that there are four bunks in a cell with no adequate space, creating a fire hazard; that the holding tanks are overcrowded; that the bunks, tables, and chairs are rusted; that there is asbestos in the buildings; that living conditions are unsanitary and there are not enough cleaning supplies; that inmates have various unknown illnesses, including tuberculosis and staph infections, and that it is difficult to get medical attention in a timely manner; that there is no access to drinking fountains or cups to retrieve water from the sinks; that fire exits are painted shut, and there are no sprinklers in the pods; that he has had to live in the same clothes for up to eight days at a time; that the sinks, toilets, and drains in the bathroom are clogged; that there is no handicap access; and that wires are hanging out of electrical outlets. As a result, Plaintiff alleges that he has a staph infection, suffers from constant colds and flu viruses, headaches, sinus and lung congestion, ear aches, coughing, sneezing, and "P.T.S.S.," and is unsure of the long-term effect these alleged injuries may have on him.
In Count Two, Plaintiff alleges that the air conditioning is on at all times; that staff will not supply extra blankets, clothes, or turn the heat on when necessary; that air ventilation is improper, the ductwork is dirty, there are no filters on the air returns, and there is a smell of burnt animals; that there is asbestos in the ceilings; that there is no reply to Health Needs Requests for 48 to 72 hours; that under 2,000 calories are served per day, with only two meals served each day that include just half a pint of milk in the morning; that rotten milk, fruit, vegetables, and bread are served; that there are foreign objects in the food, such as rocks and hair; that "ornamental" oranges are served that are "all pulp," have no juice, and are bitter; that dinner is served cold, without a drink, and the food is mixed together; that food is lost during transportation; and that the peanut butter is too oily, there is no jelly at times, and there is no drinking fountain. As a result, Plaintiff alleges that he constantly suffers from cold and flu viruses, body aches, headaches, allergies, "P.T.S.S.," and weakness, has lost weight, and is unsure of the long-term effect these alleged injuries may have on him.
In Count Three, Plaintiff alleges that he is unable to receive mail other than post cards, leaving him unable to handle personal and business financial obligations; that he is unable to subscribe to non-religious materials; that mail is lost and the corners are cut out of postcards; that mail is not sent back in a timely manner, and is sometimes kept at the Durango Jail for up to five months; that outgoing mail has been opened and resealed with tape; and that the notary service is poor. As a result, Plaintiff alleges that he has not been able to pay his bills on time.
IV. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). 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).
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. Bd. 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.
A. Joseph M. Arpaio
Plaintiff fails to state a claim against Defendant Arpaio in his Complaint. "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 v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone else who allegedly violated a plaintiff's constitutional rights does not make the supervisor liable. Monell v. Dep't of Soc. Svcs. of New York, 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 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 fails to allege any facts regarding Defendant Arpaio in his Complaint. Plaintiff does not allege that Defendant Arpaio directly violated Plaintiff's constitutional rights. Moreover, Plaintiff does not allege facts showing that Defendant Arpaio violated Plaintiff's constitutional rights pursuant to a policy, practice, or custom, or that Defendant Arpaio participated in or directed any violations of Plaintiff's rights, or knew of any violations of Plaintiff's rights but failed to act to prevent them. Accordingly, Plaintiff fails to state a claim against Defendant Arpaio, and Defendant Arpaio will be dismissed.
B. Max W. Wilson
Plaintiff fails to allege any facts regarding Defendant Wilson in his Complaint. Plaintiff does not allege that Defendant Wilson directly violated Plaintiff's constitutional rights. Moreover, Plaintiff does not allege facts that Defendant Wilson violated Plaintiff's constitutional rights pursuant to a policy, practice, or custom, or that he participated in or directed any violations of Plaintiff's rights, or knew of any violations of Plaintiff's rights but failed to act to prevent them. Accordingly, Plaintiff fails to state a claim against Defendant Wilson, and he will be dismissed from this proceeding. Because Plaintiff has failed to state a claim against any named defendant for which relief could be granted, his Complaint will be dismissed.
C. Conditions of Confinement
In his Complaint, Plaintiff appears to be seeking relief for allegedly unconstitutional conditions of confinement. Plaintiff should be aware that a pretrial detainee's claim for unconstitutional conditions of confinement arises from the Fourteenth Amendment's Due Process Clause rather than from the Eighth Amendment's prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Nevertheless, the same standards are applied, requiring proof that the defendant acted with "deliberate indifference." See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
"Deliberate indifference" is a higher standard than negligence or lack of ordinary due care for the prisoner's health or safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, the alleged constitutional deprivation must objectively be "sufficiently serious"; that is, the official's act or omission must result in the denial of "the minimal civilized measure of life's necessities." Id. at 834 (citations omitted). Second, the prison official must have a "sufficiently culpable state of mind"; that is, "the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,
To state a claim for unconstitutional conditions of confinement, a plaintiff must allege that a defendant's acts or omissions have deprived the inmate of "the minimal civilized measure of life's necessities" and that the defendant acted with deliberate indifference to an excessive risk of inmate health or safety. Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (quoting Farmer, 511 U.S. at 834); see Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). Whether conditions of confinement rise to the level of a constitutional violation may depend, in part, on the duration of an inmate's exposure to those conditions. Keenan v. Hall, 83 F.3d 1083, 1089, 1091 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). "The circumstances, nature, and duration of a deprivation of  necessities must be considered in determining whether a constitutional violation has occurred." Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)).
With respect to meals, "[t]he Eighth [and Fourteenth] Amendment[s] require only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing." LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (citation omitted); see Frost, 152 F.3d at 1128 (applying Eighth Amendment standard to a pretrial detainee's Fourteenth Amendment claims regarding his conditions of confinement). "The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation." LeMaire, 12 F.3d at 1456 (citations omitted). An inmate may, however, state a claim where he alleges that he is served meals with insufficient calories for long periods of time. Id.
Plaintiff has not alleged how long he was exposed to any of the alleged conditions. Moreover, Plaintiff fails to connect the conditions complained of to any Defendant or to allege facts to support that any Defendant knew, or should have known, that the conditions posed an excessive risk to Plaintiff, but failed to alleviate the conditions. Accordingly, Plaintiff fails to state a claim for unconstitutional conditions.
V. Leave to Amend
Because the Court has determined that Plaintiff has failed to state a claim against any named Defendant for which relief could be granted, the Complaint will be dismissed. Within 30 days, however, 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 and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
Further, if Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of the Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo, 423 U.S. at 371-72, 377.
Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to explain how the conduct of each named Defendant is connected to the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim.
If released from custody, 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
If Plaintiff's 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. 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).
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3) The Complaint (Doc. 1) is
(4) If Plaintiff fails to file an amended 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 "strike" under 28 U.S.C. § 1915(g).
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.