1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nina Mae Becker, No. CV-23-01216-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 Paul Penzone, 13 Defendant.
15 On July 3, 2023, Plaintiff Nina Mae Becker, who was then confined in a Maricopa 16 County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an 17 Application to Proceed In Forma Pauperis. In a July 18, 2023 Order, the Court granted the 18 Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a 19 claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the 20 deficiencies identified in the Order. 21 On July 31, 2023, Plaintiff filed a Notice of Change of Address indicating she is no 22 longer in custody and a non-prisoner Application to Proceed In District Court Without 23 Prepaying Fees or Costs (Doc. 9). On August 9, 2023, Plaintiff filed her First Amended 24 Complaint (Doc. 11). The Court will grant the non-prisoner Application to Proceed and 25 dismiss the First Amended Complaint with leave to amend. 26 I. Statutory Screening of Prisoner Complaints 27 The Court is required to screen complaints brought by prisoners seeking relief 28 against a governmental entity or an officer or an employee of a governmental entity. 28 1 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 2 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 3 relief may be granted, or that seek monetary relief from a defendant who is immune from 4 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 5 A pleading must contain a “short and plain statement of the claim showing that the 6 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 7 not demand detailed factual allegations, “it demands more than an unadorned, the- 8 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 9 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Id. 11 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 13 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 14 that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 16 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 18 allegations may be consistent with a constitutional claim, a court must assess whether there 19 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 20 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 21 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 22 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 23 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 24 U.S. 89, 94 (2007) (per curiam)). 25 If the Court determines that a pleading could be cured by the allegation of other 26 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 27 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 28 Plaintiff’s First Amended Complaint will be dismissed for failure to state a claim, but 1 because it may possibly be amended to state a claim, the Court will dismiss it with leave 2 to amend. 3 II. First Amended Complaint 4 In her single-count First Amended Complaint, Plaintiff seeks monetary relief from 5 Maricopa County Sheriff Paul Penzone. Plaintiff alleges that she entered the jail with a 6 severe staph infection and mental illness. She claims she was denied treatment for the 7 staph infection for 45 days and was denied mental health medication for 68 days. Plaintiff 8 asserts she was “constantly coughing and had trouble breathing due to black mold.” As 9 her injury, Plaintiff alleges that her post-traumatic stress disorder is much worse because 10 she was denied her medication for 68 days, she had a bladder infection, and she continues 11 to have breathing problems. 12 III. Failure to State a Claim 13 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 14 (2) under color of state law (3) deprived her of federal rights, privileges or immunities and 15 (4) caused her damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 16 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 17 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that she suffered a specific injury 18 as a result of the conduct of a particular defendant and she must allege an affirmative link 19 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 20 72, 377 (1976). 21 A pretrial detainee has a right under the Due Process Clause of the Fourteenth 22 Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, 23 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, 24 shelter, sanitation, medical care, and personal safety.’” Alvarez-Machain v. United States, 25 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 26 1982)). To state a claim of unconstitutional conditions of confinement against an 27 individual defendant, a pretrial detainee must allege facts that show: 28 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of 1 suffering serious harm; (iii) the defendant did not take 2 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have 3 appreciated the high degree of risk involved—making the 4 consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s 5 injuries. 6 7 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 8 Whether the conditions and conduct rise to the level of a constitutional violation is 9 an objective assessment that turns on the facts and circumstances of each particular case. 10 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005).
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1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nina Mae Becker, No. CV-23-01216-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 Paul Penzone, 13 Defendant.
15 On July 3, 2023, Plaintiff Nina Mae Becker, who was then confined in a Maricopa 16 County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an 17 Application to Proceed In Forma Pauperis. In a July 18, 2023 Order, the Court granted the 18 Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a 19 claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the 20 deficiencies identified in the Order. 21 On July 31, 2023, Plaintiff filed a Notice of Change of Address indicating she is no 22 longer in custody and a non-prisoner Application to Proceed In District Court Without 23 Prepaying Fees or Costs (Doc. 9). On August 9, 2023, Plaintiff filed her First Amended 24 Complaint (Doc. 11). The Court will grant the non-prisoner Application to Proceed and 25 dismiss the First Amended Complaint with leave to amend. 26 I. Statutory Screening of Prisoner Complaints 27 The Court is required to screen complaints brought by prisoners seeking relief 28 against a governmental entity or an officer or an employee of a governmental entity. 28 1 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 2 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 3 relief may be granted, or that seek monetary relief from a defendant who is immune from 4 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 5 A pleading must contain a “short and plain statement of the claim showing that the 6 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 7 not demand detailed factual allegations, “it demands more than an unadorned, the- 8 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 9 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Id. 11 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 13 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 14 that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 16 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 18 allegations may be consistent with a constitutional claim, a court must assess whether there 19 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 20 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 21 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 22 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 23 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 24 U.S. 89, 94 (2007) (per curiam)). 25 If the Court determines that a pleading could be cured by the allegation of other 26 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 27 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 28 Plaintiff’s First Amended Complaint will be dismissed for failure to state a claim, but 1 because it may possibly be amended to state a claim, the Court will dismiss it with leave 2 to amend. 3 II. First Amended Complaint 4 In her single-count First Amended Complaint, Plaintiff seeks monetary relief from 5 Maricopa County Sheriff Paul Penzone. Plaintiff alleges that she entered the jail with a 6 severe staph infection and mental illness. She claims she was denied treatment for the 7 staph infection for 45 days and was denied mental health medication for 68 days. Plaintiff 8 asserts she was “constantly coughing and had trouble breathing due to black mold.” As 9 her injury, Plaintiff alleges that her post-traumatic stress disorder is much worse because 10 she was denied her medication for 68 days, she had a bladder infection, and she continues 11 to have breathing problems. 12 III. Failure to State a Claim 13 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 14 (2) under color of state law (3) deprived her of federal rights, privileges or immunities and 15 (4) caused her damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 16 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 17 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that she suffered a specific injury 18 as a result of the conduct of a particular defendant and she must allege an affirmative link 19 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 20 72, 377 (1976). 21 A pretrial detainee has a right under the Due Process Clause of the Fourteenth 22 Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, 23 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, 24 shelter, sanitation, medical care, and personal safety.’” Alvarez-Machain v. United States, 25 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 26 1982)). To state a claim of unconstitutional conditions of confinement against an 27 individual defendant, a pretrial detainee must allege facts that show: 28 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of 1 suffering serious harm; (iii) the defendant did not take 2 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have 3 appreciated the high degree of risk involved—making the 4 consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s 5 injuries. 6 7 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 8 Whether the conditions and conduct rise to the level of a constitutional violation is 9 an objective assessment that turns on the facts and circumstances of each particular case. 10 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 11 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack 12 of due care by a state official’ does not deprive an individual of life, liberty, or property 13 under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 14 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a 15 plaintiff must “prove more than negligence but less than subjective intent—something akin 16 to reckless disregard.” Id. 17 Plaintiff’s allegations are too vague to support that Defendant Penzone made an 18 intentional decision that put her at substantial risk of serious harm. Plaintiff does not allege 19 that Defendant Penzone was aware that she was denied treatment and medication, nor does 20 she allege that Penzone was aware of black mold in the jail. Indeed, Plaintiff makes no 21 allegations at all against Defendant Penzone. Thus, Plaintiff fails to state a claim against 22 the sole Defendant. 23 IV. Leave to Amend 24 For the foregoing reasons, the Court will dismiss Plaintiff’s First Amended 25 Complaint for failure to state a claim upon which relief may be granted. Within 30 days, 26 Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. 27 Plaintiff must clearly designate on the face of the document that it is the “Second 28 Amended Complaint.” The second amended complaint must be retyped or rewritten in its 1 entirety and may not incorporate any part of the original Complaint or First Amended 2 Complaint by reference. Plaintiff may include only one claim per count. 3 A second amended complaint supersedes the original Complaint and First Amended 4 Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. 5 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court 6 will treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 7 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or First 8 Amended Complaint and that was voluntarily dismissed or was dismissed without 9 prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa 10 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 11 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 12 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 13 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 14 do; (4) how the action or inaction of that Defendant is connected to the violation of 15 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 16 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 17 Plaintiff must repeat this process for each person she names as a Defendant. If 18 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 19 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 20 failure to state a claim. Conclusory allegations that a Defendant or group of 21 Defendants has violated a constitutional right are not acceptable and will be 22 dismissed. 23 Plaintiff should be aware that the Ninth Circuit Court of Appeals has held that 24 “claims for violations of the right to adequate medical care ‘brought by pretrial detainees 25 against individual defendants under the Fourteenth Amendment’ must be evaluated under 26 an objective deliberate indifference standard.” Gordon, 888 F.3d at 1124-25 (quoting 27 Castro, 833 F.3d at 1070. Like a conditions-of-confinement claim, to state a medical care 28 claim, a pretrial detainee must show (i) the defendant made an intentional decision with respect to 1 the conditions under which the plaintiff was confined; (ii) those 2 conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable 3 available measures to abate that risk, even though a reasonable 4 official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the 5 defendant’s conduct obvious; and (iv) by not taking such 6 measures, the defendant caused the plaintiff’s injuries.
7 Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively 8 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each 9 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 10 389, 397 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)). 11 The “‘mere lack of due care by a state official’ does not deprive an individual of 12 life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 13 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more 14 than negligence but less than subjective intent—something akin to reckless disregard.” Id. 15 A mere delay in medical care, without more, is insufficient to state a claim against prison 16 officials for deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 17 F.2d 404, 407 (9th Cir. 1985). 18 V. Warnings 19 A. Address Changes 20 Plaintiff must file and serve a notice of a change of address in accordance with Rule 21 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 22 relief with a notice of change of address. Failure to comply may result in dismissal of this 23 action. 24 B. Possible “Strike” 25 Because the First Amended Complaint has been dismissed for failure to state a 26 claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies 27 identified in this Order, the dismissal may count as a “strike” under the “3-strikes” 28 provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring acivil 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 5 | granted, unless the prisoner is under imminent danger of serious physical injury.” 28 6| U.S.C. § 1915(g). 7 C. Possible Dismissal 8 If Plaintiff fails to timely comply with every provision of this Order, including these 9| warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 10 | at 1260-61 (a district court may dismiss an action for failure to comply with any order of 11 | the Court). 12| ITIS ORDERED: 13 (1) ‘Plaintiffs non-prisoner Application to Proceed In District Court Without Prepaying Fees or Costs (Doc. 9) is granted. Plaintiff is not required to pay the balance 15 | of the filing fee. 16 (2) | The First Amended Complaint (Doc. 11) is dismissed for failure to state a 17 | claim. Plaintiff has 30 days from the date this Order is filed to file a second amended 18 | complaint in compliance with this Order. 19 (3) — If Plaintiff fails to file a second amended complaint within 30 days, the Clerk 20 | 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) 22 | and deny any pending unrelated motions as moot. 23 Dated this 23rd day of October, 2023. 24 25 a 3 26 7 _ James A. Teil Org Senior United States District Judge 28