Munoz 214046 v. Saad

Opinion

KM WO Albert Munoz, No. CV-23-01428-PHX-JAT (ASB) Plaintiff, v. ORDER Unknown Saad, et al., Defendants.

Pending before the Court is Plaintiff’s Motion to Amend Complaint (Doc. 6), proposed Amended Complaint (Doc. 6-1), and Application to Proceed In Forma Pauperis (Doc. 4). The Court will grant the Application to Proceed; grant the Motion to Amend and direct the Clerk of Court to file the proposed First Amended Complaint; require Defendant Saad to answer the Count One of the First Amended Complaint; and dismiss without prejudice the remaining claim and Defendant. I. Background On July 20, 2023, pro se Plaintiff Albert Munoz, who is confined in the Arizona State Prison Complex-Lewis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. On August 3, 2023, he filed his Application to Proceed and Motion to Amend. On August 31, 2023, he filed a certified trust account statement. II. 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 assess an initial partial filing fee of $104.63. Id. The remainder of the 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. III. 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)). IV. First Amended Complaint Plaintiff names Correctional Officers II Saad and Toliver in his two-count First Amended Complaint and seeks injunctive relief and money damages. In Count One, Plaintiff alleges Defendant Saad used excessive force on him, in violation of the Eighth Amendment. Plaintiff claims that on the morning of May 15, 2023, he was waiting for Defendant Toliver to take him to work when Defendant Saad came to his cell door and “immediately began yelling at Plaintiff aggressively to come out and go to work as she opened the cell door.” (Doc. 6-1 at 6.) Plaintiff began to gather his work- related items and Defendant Saad slammed and locked the cell door, almost hitting Plaintiff’s face. (Id.) Plaintiff and his cellmate continued to calmly wait for Defendant Toliver. Defendant Saad returned to the cell, opened the door and yelled for Plaintiff to hurry up and come out. Plaintiff gathered his things, exited the cell, and saw Defendant Toliver coming up the stairs. Plaintiff asked Toliver “hey can you come get me for work from now on?” and “pointed at [Defendant Saad].” (Id.) Defendant Toliver “called Plaintiff to come to work.” (Id.) Plaintiff was turned away from Defendant Saad when Defendant Saad “pulled out her tactical stun gun, and shot Plaintiff in the back – discharging the weapon.” (Id. at 6-7). Plaintiff alleges he was “10 ft. away with his back to her, there was no aggression towards [Defendant Saad], who had no penological justification for the assault.” (Id. at 7.) Plaintiff claims Defendant Saad then threatened his cellmate. (Id.) Plaintiff claims that during the incident, Defendant Toliver was at the stairs “but during the entire incident he just did nothing nor said nothing to stop or defuse the assault on Plaintiff or his cellie.” (Id.) As a result “of being electrocuted,” Plaintiff “collapsed to the floor . . . [and] hit his head and shoulder – causing more injury besides the electrification.” (Id.) Another officer initiated an Incident Command System (ICS), and Plaintiff was cuffed behind his back “and treated by security as if he had done something wrong.” Plaintiff alleges Defendant Toliver did not “speak up to say that Plaintiff was not in the wrong until later that day” and allowed “staff [to] get a restraint chair” and then “strap Plaintiff into the chair [and] then . . . push Plaintiff across the yard in front of every prisoner on the yard.” (Id. at 7-8.) Plaintiff was taken to medical where “people were shining lights into his eyes.” (Id. at 8.) Plaintiff closed his eyes in response, and was deemed to have “refused medical treatment because of his eye squinting.” (Id.) Plaintiff was then transported toward the yard supervisor’s office, but on the way there, he requested medical and “asked a staff [sergeant] to call medical and apologize for Plaintiff as he knew they were trying to help.” (Id.) Plaintiff was taken to medical where he “conveyed his head hurt where he landed and the light was hurting his eyes.” (Id.) He was then taken to the supervisor’s office for questioning. Plaintiff alleges “administration took [Defendant Saad] out of her job duties and sent her home.” (Id. at 9.) In Count Two, Plaintiff alleges the same facts and asserts Defendant Saad’s actions threatened his safety and caused him “physical and mental injury – unnecessary and wanton pain, and suffering.” (Id. at 16.) V. Failure to State a Claim A. Defendant Toliver Officials can be held liable for failing to intercede when their fellow officers violate constitutional rights and the officials have a reasonable opportunity to intercede. See Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000); see also Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Plaintiff’s facts indicate Defendant Saad’s use of force was rapid and unexpected; he does not allege Defendant Toliver had an opportunity to intervene to prevent or stop Defendant Saad’s use of force. To the extent Plaintiff claims Toliver failed to prevent security officers from placing Plaintiff in a restraint chair and pushing him across the yard, he has not alleged facts demonstrating that these actions violated his constitutional rights. Plaintiff does not identify and name as Defendants the officers responsible for placing him in the restraint chair, nor does he allege that the officers placed him in the chair for the purpose of causing him harm—as necessary to state an excessive force claim—or that they were deliberately indifferent to a serious risk of harm to Plaintiff’s safety—as necessary to state a threat to safety claim. Because Plaintiff’s facts do not show the underlying actions violated his constitutional rights, Defendant Toliver cannot be liable for failing to intervene in these actions. The Court will dismiss without prejudice Defendant Toliver for failure to state a claim. B. Count Two The Court will dismiss Count Two as duplicative of Plaintiff’s better-pleaded allegations in Count One. VI. Claims for Which an Answer Will Be Required Liberally construed, Plaintiff has adequately stated an Eighth Amendment excessive force claim against Defendant Saad in Count One and the Court will require Defendant Saad to answer this claim. VII. 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 Because Plaintiff is currently confined in an Arizona Department of Corrections, Rehabilitation & Reentry unit subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy of every document he files or to submit an additional copy of every filing for use by the Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by including, with every document he files, a certificate of service stating that this case is subject to General Order 14-17 and indicating the date the document was delivered to prison officials for filing with the Court. If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files, and include a certificate stating that a copy of the filing was served; and (b) submit an additional copy of every filing for use by the Court. See Fed. R. Civ. P. 5(a) and (d); 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. 4) 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 $104.63. (3) Plaintiff’s Motion to Amend (Doc. 6) is granted; the Clerk of Court must file the First Amended Complaint (lodged at Doc. 6-1). (4) Count Two of the First Amended Complaint is dismissed without prejudice. (5) Defendant Toliver is dismissed without prejudice. (6) If Plaintiff attempts to amend to address the shortcomings identified in this Order, the amended complaint must be retyped or rewritten in its entirety (including those claims and Defendants that were not dismissed), and Plaintiff must comply with Rule 15 of the Federal Rules of Civil Procedure and Rule 15.1 of the Local Rules of Civil Procedure. (7) Defendant Saad must answer Count One. (8) The Clerk of Court must send Plaintiff this Order, and a copy of the Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver of Service of Summons form for Defendant Saad. (9) 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. (10) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and First Amended Complaint on 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. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). (11) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (12) The United States Marshal must notify Defendant of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the

1 If a Defendant is an officer or employee of the Arizona Department of Corrections, Rehabilitation & Reentry, 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, Rehabilitation & Reentry unless the officer or employee works there. Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. (13) If Defendant agrees to waive service of the Summons and First Amended Complaint, Defendant 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. (14) 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 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, First Amended Complaint, and this Order upon Defendant 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 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, First Amended Complaint, or this Order and for 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. . . . . . . . . . . . . . . . . 1 (15) This matter is referred to Magistrate Judge Alison S. Bachus pursuant to Rules 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 16th day of October, 2023. '

g James A. Teil Org Senior United States District Judge