ASH WO Steven Sentre Merchant, No. CV 21-01593-PHX-JAT (ESW) Plaintiff, v. ORDER Unknown Smith, et al., Defendants.
Plaintiff Steven Sentre Merchant, who is confined in the Arizona State Prison Complex-Lewis, 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. 5). The Court will order Defendants Smith and Calvin to answer Counts One and Three of the Complaint and will dismiss the remaining claim and Defendants without prejudice. I. Application to Proceed In Forma Pauperis and Filing Fee The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 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)). . . . . III. Complaint In his three-count Complaint, Plaintiff names as Defendants: Red Rock Correctional Center Warden Bruno Stolc; Correctional Officers Smith and Calvin; and Captain Site. Plaintiff seeks monetary relief. Plaintiff’s claims arise from a common core of operative facts, as follows: On September 19, 2019, Plaintiff saw an officer sleeping while on duty, and reported it to Defendant Site. Site informed Defendants Smith and Calvin, who then entered Plaintiff’s pod and told other inmates that Plaintiff was a “snitch.” As a result, Plaintiff alleges that he was assaulted by other inmates, “force[d] to use a ‘pill,’” and “was force[d] to ‘805’ off the complex.” Accordingly, Plaintiff alleges an Eighth Amendment “retaliation” claim in Count One, a First Amendment “intrusion on [] liberty and [] intellectual privacy [and] freedom of speech” claim in Count Two, and an Eighth Amendment “deliberate indifference” claim in Count Three. 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). A. Stolc Plaintiff makes no allegations against Stolc. Accordingly, Stolc will be dismissed. B. Site Plaintiff’s only allegations against Site are that after Plaintiff informed Site that an officer was sleeping on duty, Site told Defendants Smith and Calvin. These allegations do not support that Site knew, or should have known, that Smith and Calvin would tell other inmates that Plaintiff was a snitch, or that Site otherwise violated Plaintiff’s civil rights. Accordingly, Site will be dismissed. C. Count Two Plaintiff styles Count Two as a First Amendment “intrusion on [] liberty and [] intellectual privacy [and] freedom of speech” claim. Plaintiff alleges that he has “a right to report a violation to a higher ranking officer,” and that Smith and Calvin “put [him] in danger” by “disclos[ing] what [Plaintiff] told.” As such, it appears that Plaintiff is attempting to allege a First Amendment retaliation claim. Accordingly, Count Two is duplicative of Count One, and will be dismissed. V. Claims for Which an Answer Will be Required The Court construes Count One as a First Amendment retaliation claim, and Count Three as an Eighth Amendment threat-to-safety claim. So construed, the Court finds that Plaintiff has sufficiently stated such claims against Defendants Smith and Calvin, and they will thus be required to answer those portions of the Complaint. VI. Warnings A. Release If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. 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 acco
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ASH WO Steven Sentre Merchant, No. CV 21-01593-PHX-JAT (ESW) Plaintiff, v. ORDER Unknown Smith, et al., Defendants.
Plaintiff Steven Sentre Merchant, who is confined in the Arizona State Prison Complex-Lewis, 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. 5). The Court will order Defendants Smith and Calvin to answer Counts One and Three of the Complaint and will dismiss the remaining claim and Defendants without prejudice. I. Application to Proceed In Forma Pauperis and Filing Fee The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 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)). . . . . III. Complaint In his three-count Complaint, Plaintiff names as Defendants: Red Rock Correctional Center Warden Bruno Stolc; Correctional Officers Smith and Calvin; and Captain Site. Plaintiff seeks monetary relief. Plaintiff’s claims arise from a common core of operative facts, as follows: On September 19, 2019, Plaintiff saw an officer sleeping while on duty, and reported it to Defendant Site. Site informed Defendants Smith and Calvin, who then entered Plaintiff’s pod and told other inmates that Plaintiff was a “snitch.” As a result, Plaintiff alleges that he was assaulted by other inmates, “force[d] to use a ‘pill,’” and “was force[d] to ‘805’ off the complex.” Accordingly, Plaintiff alleges an Eighth Amendment “retaliation” claim in Count One, a First Amendment “intrusion on [] liberty and [] intellectual privacy [and] freedom of speech” claim in Count Two, and an Eighth Amendment “deliberate indifference” claim in Count Three. 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). A. Stolc Plaintiff makes no allegations against Stolc. Accordingly, Stolc will be dismissed. B. Site Plaintiff’s only allegations against Site are that after Plaintiff informed Site that an officer was sleeping on duty, Site told Defendants Smith and Calvin. These allegations do not support that Site knew, or should have known, that Smith and Calvin would tell other inmates that Plaintiff was a snitch, or that Site otherwise violated Plaintiff’s civil rights. Accordingly, Site will be dismissed. C. Count Two Plaintiff styles Count Two as a First Amendment “intrusion on [] liberty and [] intellectual privacy [and] freedom of speech” claim. Plaintiff alleges that he has “a right to report a violation to a higher ranking officer,” and that Smith and Calvin “put [him] in danger” by “disclos[ing] what [Plaintiff] told.” As such, it appears that Plaintiff is attempting to allege a First Amendment retaliation claim. Accordingly, Count Two is duplicative of Count One, and will be dismissed. V. Claims for Which an Answer Will be Required The Court construes Count One as a First Amendment retaliation claim, and Count Three as an Eighth Amendment threat-to-safety claim. So construed, the Court finds that Plaintiff has sufficiently stated such claims against Defendants Smith and Calvin, and they will thus be required to answer those portions of the Complaint. VI. Warnings A. Release If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. 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 serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, 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 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 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (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 (Doc. 5) is granted. (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) Count Two is dismissed without prejudice. (4) Defendants Stolc and Site are dismissed without prejudice. (5) Defendants Smith and Calvin must answer Counts One and Three. (6) The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and both summons and request for waiver forms for Defendants Smith and Calvin. (7) Plaintiff must complete1 and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.
1 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. (8) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). (9) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. (10) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. (11) A Defendant who agrees to waive service of the Summons and Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 30 days of the date of the notice and request for waiver of service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. (12) The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: (a) personally serve copies of the Summons, Complaint, and this Order upon Defendants pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and (b) within 10 days after personal service is effected, file the return of service for each Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Complaint, or this Order and for 1 preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (13) Defendants Smith and Calvin must answer the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (14) Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed. (15) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 12} 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Dated this 9th day of November, 2021. a _ James A. Teil Org Senior United States District Judge