Federal District Court Opinions
MICHAEL v. ARPAIO, (Ariz. 12-4-2006) Kidane Michael,
Plaintiff, v. Joe M. Arpaio, Defendant. No. CV
06-2560-PHX-DGC (ECV). United States District Court, D.
Arizona. December 4, 2006
ORDER
DAVID CAMPBELL, District Judge
Plaintiff Kidane Michael, who is confined in Durango Jail
in Phoenix, Arizona, has filed a pro se civil rights
Complaint pursuant to 42 U.S.C. § 1983 with an
Application to Proceed In Forma Pauperis. (Doc.# 1.)[fn1]
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. The Court will assess
an initial partial filing fee of $5.02. The remainder of
the fee will be collected monthly in payments of 20% of the
previous month’s income 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 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 Page 2 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). 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 the 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 because this type of
advice “would undermine [the] 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 court was required to inform
litigant of deficiencies). Plaintiff’s Complaint will be
dismissed for failure to state a claim with leave to amend
because it may possibly be amended to state a claim.
III. Complaint
Plaintiff alleges three claims for relief regarding his
conditions of confinement at the Lower Buckeye and Durango
Jails. In Count I, he alleges that two or three inmates are
being housed in two-inmate cells. In Count II, he alleges
that the two meals a day are served approximately eleven
hours apart, which causes him headaches, stomachaches and
sleeplessness and makes other inmates irritable, leading to
fights. Plaintiff also alleges that inmates are at high
risk for food poisoning from the meals. In Count III,
Plaintiff alleges that detention officers continually hand
out mail to inmates without “proper identification,” which
permits inmates to obtain mail intended for others.
Plaintiff also alleges that mail officers read all incoming
mail in violation of his right to privacy. Plaintiff sues
Maricopa County Sheriff Joe M. Arpaio. Plaintiff seeks
compensatory relief.
IV. Failure to State a Claim
To state a claim under § 1983, a plaintiff must
allege facts supporting that (1) the conduct about which he
complains was committed by a person acting under the color
of state law and (2) the conduct deprived him of a federal
constitutional or statutory right. Wood v. Page 3
Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition,
to state a valid constitutional claim, 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. Failure to Connect Alleged Violations to Sheriff Arpaio
Although Sheriff Arpaio may properly be sued for
constitutional violations, 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 v. County of
Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). 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 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Plaintiff has not alleged that Arpaio enacted or enforced a
policy, custom, or practice that resulted in the denial of
Plaintiff’s civil rights. Further, Plaintiff has not
alleged that Arpaio directly violated his constitutional
rights or that Arpaio was aware that Plaintiff’s rights
were being violated but failed to act. Thus, Plaintiff
fails to state any claim against Arpaio in his Complaint.
B. Failure to State a Claim for Unconstitutional Conditions
In Count I, Plaintiff alleges the Durango and Lower
Buckeye Jails house two or three inmates in two-inmate
cells. In Count II, he alleges that the length of time
between meals causes him physical discomfort, increases the
inmate irritability and leads to fights, and puts inmates
of high risk of food poisoning. A pretrial detainee’s
claims for unconstitutional conditions of confinement arise
from the Due Process Clause of the Fourteenth Amendment
while a convicted inmate’s claims for unconstitutional
conditions arise from the Eighth Amendment prohibition
against cruel and unusual punishment. Bell v. Wolfish, 441
U.S. 520 (1979). Nevertheless, the same standards are
applied. See Frost v. Agnos, Page 4 152 F.3d 1124, 1128
(9th Cir. 1998). To state a claim regarding conditions of
confinement, a plaintiff must allege that a jailor’s acts
or omissions have deprived him of “the minimal civilized
measure of life’s necessities” and that the jailor acted
with deliberate indifference to an excessive risk to inmate
health or safety. Allen v. Sakai, 48 F.3d 1082, 1087 (9th
Cir. 1994) (citing Farmer v. Brennan, 511 U.S. 825 (1994);
see Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043,
1049-50 (9th Cir. 2002). While allegations of overcrowding
alone are insufficient to state a claim, see Rhodes v.
Chapman, 452 U.S. 337, 348 (1981), when overcrowding causes
an increase in violence or reduces the provision of other
constitutionally required services, or reaches a level
where the institution is no longer fit for human
habitation, the inmate’s right against cruel and unusual
punishment may be violated, 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).
In Count I, Plaintiff only alleges overcrowding when three
inmates are held in a two-inmate cell. He does not allege
any facts to support that such overcrowding results in an
increase in violence, reduces the provision of other
constitutionally required services or reaches level where
the jails are no longer fit for habitation. He therefore
fails to state a claim.
In Count II, Plaintiff alleges that the time between the
two meals provided each day causes him physical discomfort,
increases inmate irritability and fights, and exposes
inmates to the risk of food poisoning. With respect to
meals, “[t]he Eighth Amendment requires only that prisoners
receive food that is adequate to maintain health; it need
not be tasty or aesthetically pleasing.” LeMaire v. Maas,
12 F.3d 1444, 1456 (9th Cir. 1993); 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. Page 5
Plaintiff’s allegations that the length of time between
meals leads to irritability and fights among inmates is
conclusory and unsupported by factual allegations. In
addition, Plaintiff fails to set forth facts supporting
deliberate indifference by jail officers or officials to
any increased risk of violence as a result of the period of
time between meals. Plaintiff sets forth no facts to
support any risk of food poisoning, much less a high risk.
Further, while Plaintiff alleges that he has experienced
headaches, stomachaches and sleeplessness due to the length
of time between the morning and evening meals, he does not
allege the frequency or severity of such symptoms or that
the symptoms are sufficiently severe to seek modification
of the meal schedule for medical reasons. For these
reasons, Count II also fails to state a claim.
C. Failure to State a Claim Regarding Mail
In Count III, Plaintiff alleges that detention officers
hand out mail without checking identification, which
enables inmates to obtain mail intended for others. He also
alleges that mail officers read all incoming mail, which
violates his right to privacy.
Prisoners have a First Amendment right to receive mail;
however, that “right is subject to `substantial limitations
and restrictions in order to allow prison officials to
achieve legitimate correctional goals and maintain
institutional security.'” Prison Legal News v. Lehman, 397
F.3d 692, 699 (9th Cir. 2005). Jail officials may open an
inmate’s non-legal mail pursuant to a uniform and evenly
applied policy for legitimate security objectives. Lavado
v. Keohane, 992 F.2d 601, 607 (6th Cir. 1993); Gaines v.
Lane, 790 F.2d 1299, 1304 (7th Cir. 1986); Deutsch v. U.S.
Dep’t of Justice, 881 F. Supp. 49, 54 (D.D.C. 1995);
Herrera v. Scully, 815 F.Supp. 713, 723-24 (S.D.N.Y. 1993);
see also Mann v. Adams, 846 F.2d 589, 590 (9th Cir. 1988)
(prisoners have no right to be present when mail from
public officials or agencies, news media or civil rights
groups is opened). Plaintiff has not alleged facts to
support that non-legal mail is being inspected for any
reason other than to achieve legitimate correctional goals
and to maintain security or that such policy is being
inequitably applied. Lehman, 397 F.3d at 699. Plaintiff’s
allegations concerning the distribution of mail without
proper identification is vague and conclusory. Further,
Plaintiff does not allege that he has Page 6 been injured
in any way by the alleged failure to check inmate
identification in connection with distribution of mail.
Count III will also be dismissed.
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 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.
B. Address Changes
Plaintiff must file and serve a notice of a change of
address 10 days before the move is effective, if
practicable. See LRCiv 83.3(d). Plaintiff must not include
a motion for other Page 7 relief with a notice of change
of address. Failure to comply may result in dismissal.
C. Copies
Plaintiff must submit an additional copy of every document
that he files 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 will 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
Plaintiff is warned that failure to timely comply with
every provision of this Order, including these warnings,
may result in dismissal of 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’s Application to Proceed In Forma Pauperis,
filed with the Complaint, is granted.
(2) As required by the accompanying Order to the
appropriate government agency, Plaintiff must pay the
$350.00 filing fee and is assessed an initial partial
filing fee of $5.02.
(3) The Complaint (doc.# 1) is dismissed for failure to
state a claim. Plaintiff has 30 days from the date this
Order is filed to file a first amended complaint in
compliance with this Order. Page 8
(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 counts as a “strike” under
28 U.S.C. § 1915(g).
(5) The Clerk of Court must mail Plaintiff the
court-approved form for filing a civil rights complaint by
a prisoner. Page 1
INFORMATION AND INSTRUCTIONS FOR A PRISONER FILING CIVIL
RIGHTS COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA
I. General Information About the Civil Rights Complaint
Form:
A. The Form. The civil rights complaint form is designed
to help prisoners prepare a complaint seeking relief for a
violation of their federal civil rights. Local Rule of
Civil Procedure 3.4(a) requires that prisoner civil rights
complaints be filed on the court-approved form. Your
complaint must be typewritten or legibly handwritten. All
information must be clearly and concisely written, only in
the space provided on the form. If needed, you may attach
no more than fifteen additional pages of standard letter
size paper to continue any part of the complaint. You must
identify which part of the complaint is being continued and
number all pages.
B. Your Signature. You must sign the complaint. Your
signature constitutes a certificate that: 1) you have read
the complaint; 2) to the best of your knowledge,
information and belief formed after reasonable inquiry it
is well grounded in fact and law; and 3) it is not being
filed for any improper purpose. Please review Rule 11 of
the Federal Rules of Civil Procedure. Rule 11 provides for
the imposition of sanctions if the complaint is signed in
violation of the Rule.
C. The Filing Fee. You must pay the $350.00 filing fee. If
you are unable to pay the filing fee when the complaint is
filed, you may request leave to proceed in forma pauperis.
Please review the “Information for Prisoners Seeking Leave
to Proceed with a (Non-Habeas) Civil Action in Federal
Court In Forma Pauperis Pursuant to 28 U.S.C. §
1915” for more information.
D. Court Divisions. If you resided in Maricopa, Pinal,
Yuma, La Paz, or Gila county when your rights were
allegedly violated, you should file your complaint in the
Phoenix Division of the court. If you resided in Apache,
Navajo, Coconino, Mohave, or Yavapai county when your
rights were allegedly violated, you should file your
complaint in the Prescott Division of the court. If you
resided in Pima, Cochise, Santa Cruz, Graham, or Greenlee
county when your rights were allegedly violated, you should
file your complaint in the Tucson Division of the court.
See LRCiv 5.1(a) and 77.1(a).
You should mail THE ORIGINAL AND ONE COPY of your
complaint with the $350.00 filing fee or the application to
proceed in forma pauperis to:
Phoenix & Prescott Divisions: OR Tucson Division:
U.S. District Court Clerk U.S. District Court Clerk U.S.
Courthouse, Suite 321 U.S. Courthouse, Suite 1500 401 West
Washington Street, SPC 10 405 West Congress Street
Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
Page 2
E. Certificate of Service on Defendants. You must furnish
the opposing party or their attorney with a copy of any
document you submit to the court (except the initial
complaint and application to proceed in forma pauperis).
Pursuant to Rules 5(a) and (d) of the Federal Rules of
Civil Procedure, each original document (except the initial
complaint and application for leave to proceed in forma
pauperis) must include a certificate of service on the last
page of the document stating the date a copy of the
document was mailed to the opposing party or their attorney
and the address to which it was mailed. Any document
received by the court which does not include a certificate
of service may be stricken. A certificate of service should
be in the following form:
I hereby certify that a copy of the foregoing document
was mailed this ___ day of (month), (year), to:
Name: __________
Address: __________
Attorney for Defendant(s)/Respondent(s)
________________
(Signature)
F. Original and Judge’s Copy. You must furnish an original
and one copy of any document submitted to the court. You
must furnish one additional copy to the clerk if you wish
to have a file-stamped copy of the document returned to
you. All copies must be identical to the original.
G. Exhibits. You should not submit exhibits with the
complaint. Instead, the relevant information should be
paraphrased in the complaint. You should keep the exhibits
to use to support or oppose a motion for summary judgment
or at trial.
H. Change of Address. You must immediately notify the clerk
and the opposing party or their attorney in writing of any
change in your mailing address. Failure to notify the court
of any change in your mailing address may result in the
dismissal of your case.
I. Amended Complaint. If you need to change any of the
information in the initial complaint, you must file an
amended complaint. The amended complaint must be written on
the court-approved civil rights complaint form. Rule 15(a)
of the Federal Rules of Civil Procedure allows you to file
one amended complaint prior to any defendant filing an
answer. After any defendant has filed an answer, you must
file a motion for leave to amend and lodge a proposed
amended complaint. Local Rule of Civil Procedure 15.1(a)(2)
prohibits any amended pleading from referencing any prior
pleading. Further, any allegations or defendants not
included in the amended complaint are considered dismissed.
J. Letters and Motions. It is generally inappropriate to
write a letter to any of the District Judges, Magistrates
Judges, or the staff of any of the judicial officers. The
appropriate way to communicate with these persons is by
filing a written pleading or motion. Page 3
II. Completing the Civil Rights Complaint Form:
HEADING:
1. Your Name. Print your name, prison or jail inmate
number, and mailing address on the lines provided.
2. Defendants. Print the names of each of your
defendants. If you name more than four defendants, you
should print the name of one defendant and “see additional
page for defendants” in the space provided. On the
additional page you must list the names of all of the
defendants. This additional page should be inserted after
page 1 and numbered as page “1-A” at the bottom of the
page. The initial complaint must contain the names of all
of the parties (plaintiffs as well as defendants) in the
heading (or on the additional page if more than four
defendants). See Rule 10(a) of the Federal Rules of Civil
Procedure.
3. Jury Demand. If you want a jury trial, you must write
“JURY TRIAL DEMANDED” on the line below “CIVIL RIGHTS
COMPLAINT BY A PRISONER.” Failure to do so will result in
the loss of the right to a jury trial. A jury trial is not
available if you are seeking only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the
complaint pursuant to 42 U.S.C. § 1983 for state,
county, or city defendants; “Bivens v. Six Unknown Federal
Narcotics Agents” for federal defendants; or “other.” If
you mark “other,” identify the source of that authority.
2. Plaintiff. Print all of the requested information on
the spaces provided. Identify the institution and city
where the alleged violation of your rights occurred.
3. Defendants. Print all of the requested information
about each of the defendants in the spaces provided. If
you are naming more than four defendants, you must provide
the necessary information about each additional defendant
on a separate page. Label the page(s) as “2-A,” “2-B,”
etc., at the bottom of the page and insert the additional
page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in
either state or federal court while you were a prisoner.
Print all of the requested information about each lawsuit
in the spaces provided. If you have filed more than three
lawsuits, you must provide the necessary information about
each additional lawsuit on a separate page. Label the
page(s) as “2-A,” “2-B,” etc., at the bottom of the page
and insert the additional page(s) immediately behind page
2.
Part C. CAUSE OF ACTION:
You must identify what rights the defendant(s) violated.
The form provides space to allege three separate counts
(one violation per count). If you are alleging more than
three Page 4 counts, you must provide the necessary
information about each additional count on a separate page.
Number the additional pages “5-A”, “5-B”, etc., and insert
them immediately behind page 5. Remember that you are
limited to a total of fifteen additional pages.
1. Counts. You must identify which civil right was
violated. YOU MAY ALLEGE THE VIOLATION OF ONLY ONE CIVIL
RIGHTS CLAIM PER COUNT.
2. Issue Involved. Check the box that most closely
identifies the issue involved in your claim. YOU MAY CHECK
ONLY ONE BOX PER COUNT. If you check the box marked
“Other,” you must identify the specific issue involved in
the space provided.
3. Supporting Facts. After you have identified which
civil right was violated, you need to state the supporting
facts. Be as specific as possible. You must state what
each individual defendant did to violate your rights. If
there is more than one defendant, you need to identify
which defendant did what act. You also need to state the
date(s) on which the act(s) occurred if possible.
4. Injury. State precisely how you were injured by the
alleged violation of your rights.
5. Administrative Remedies. Exhaustion of administrative
remedies is a prerequisite to filing a civil rights
complaint. 42 U.S.C. § 1997e requires prisoners to
exhaust the available administrative remedies before being
allowed to file a civil rights action. Consequently, you
must disclose whether you have exhausted the inmate
grievance procedures or administrative appeals for each
count in your complaint. If one of your counts is exempt
from the grievance procedures or administrative appeals,
fully explain the exemption on the lines provided.
Part D. REQUEST FOR RELIEF:
Print the relief you are seeking in the space provided.
SIGNATURE:
You must sign your name and print the date you signed the
complaint. Your signature must be an original signature, not
a photocopy.
FINAL NOTE
You should follow these instructions carefully. Failure to
do so may result in your complaint being stricken or
dismissed by the court. All questions must be answered
concisely in the proper space on the form. If needed, you
may attach no more than fifteen additional pages. The form,
however, must be completely filled in to the extent
applicable. If you attach additional pages, be sure to
identify which section of the complaint is being continued
and number the pages.