1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Donald Douglas Smith, No. CV-24-08174-PCT-JAT (MTM) 10 Plaintiff, 11 v. ORDER 12 Arizona Department of Corrections, et al., 13 14 Defendants.
15 16 Self-represented Plaintiff Donald Douglas Smith, who is confined in the Pinal 17 County Adult Detention Center, filed a civil rights Complaint pursuant to 42 U.S.C. 18 § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. After the Court denied 19 the deficient Application to Proceed and gave Plaintiff an opportunity to either pay the 20 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis, 21 Plaintiff filed a second Application to Proceed In Forma Pauperis (Doc. 7). The Court will 22 grant the second Application to Proceed and will dismiss the Complaint and this action. 23 I. Second Application to Proceed In Forma Pauperis and Filing Fee 24 The Court will grant Plaintiff’s second Application to Proceed In Forma Pauperis. 25 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 26 § 1915(b)(1). The Court will assess an initial partial filing fee of $16.00. The remainder 27 of the fee will be collected monthly in payments of 20% of the previous month’s income 28 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 1 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 2 government agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, fail to state a claim upon which 8 relief may be granted, or seek monetary relief from a defendant who is immune from such 9 relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe [self-represented litigant’s] filings liberally.” Hebbe v. Pliler, 27 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a self-represented prisoner] 28 1 ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. 2 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 3 If the Court determines that a pleading could be cured by the allegation of other 4 facts, a self-represented litigant is entitled to an opportunity to amend a complaint before 5 dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en 6 banc). The Court will dismiss Plaintiff’s Complaint for failure to state a claim and because 7 it is frivolous, without leave to amend because the defects cannot be corrected. 8 III. Complaint 9 In his one-count Complaint, Plaintiff names as Defendants the Arizona Department 10 of Corrections, Rehabilitation & Reentry (ADC) and “Unknown Officers.” Plaintiff 11 alleges he was subjected to cruel and unusual punishment while in Defendant ADC’s 12 custody because he “had a device installed in [his] head without [his] knowledge by the 13 authorities,” “without [his] permission or consent.” He claims the surgery occurred in 14 2019, but he “only recently found out about it in February 2024 by an FBI investigation.” 15 He claims he has been lied to and is “scarred, disfigured, traumatized and disabled for life.” 16 Plaintiff seeks monetary damages and an investigation by the Department of Justice.1 17 IV. Dismissal 18 First, the Arizona Department of Corrections, Rehabilitation & Reentry is not a 19 proper Defendant. Under the Eleventh Amendment to the Constitution of the United 20 States, a state or state agency may not be sued in federal court without its consent. 21 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 22 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, “a state is not a ‘person’ for purposes of 23 section 1983. Likewise ‘arms of the State’ such as the Arizona Department of Corrections 24 are not ‘persons’ under section 1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 25 1327 (9th Cir. 1991) (citation omitted). Therefore, the Court will dismiss Defendant ADC.
26 1 The Court does not have the authority to compel the Department of Justice to 27 investigate. See Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982) (affirming denial of request for a writ of mandamus to compel the FBI to investigate plaintiff’s charges of 28 criminal violations of his civil rights because “[i]nitiation of a criminal investigation by the F.B.I. is clearly a discretionary act.”). 1 Second, Plaintiff has simply made vague and conclusory allegations against a group 2 of individuals—“the authorities”—without any factual specificity as to what any particular 3 individual did or failed to do. This is insufficient. See Marcilis v. Twp. of Redford, 693 4 F.3d 589, 596 (6th Cir.
Free access — add to your briefcase to read the full text and ask questions with AI
1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Donald Douglas Smith, No. CV-24-08174-PCT-JAT (MTM) 10 Plaintiff, 11 v. ORDER 12 Arizona Department of Corrections, et al., 13 14 Defendants.
15 16 Self-represented Plaintiff Donald Douglas Smith, who is confined in the Pinal 17 County Adult Detention Center, filed a civil rights Complaint pursuant to 42 U.S.C. 18 § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. After the Court denied 19 the deficient Application to Proceed and gave Plaintiff an opportunity to either pay the 20 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis, 21 Plaintiff filed a second Application to Proceed In Forma Pauperis (Doc. 7). The Court will 22 grant the second Application to Proceed and will dismiss the Complaint and this action. 23 I. Second Application to Proceed In Forma Pauperis and Filing Fee 24 The Court will grant Plaintiff’s second Application to Proceed In Forma Pauperis. 25 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 26 § 1915(b)(1). The Court will assess an initial partial filing fee of $16.00. The remainder 27 of the fee will be collected monthly in payments of 20% of the previous month’s income 28 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 1 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 2 government agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, fail to state a claim upon which 8 relief may be granted, or seek monetary relief from a defendant who is immune from such 9 relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe [self-represented litigant’s] filings liberally.” Hebbe v. Pliler, 27 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a self-represented prisoner] 28 1 ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. 2 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 3 If the Court determines that a pleading could be cured by the allegation of other 4 facts, a self-represented litigant is entitled to an opportunity to amend a complaint before 5 dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en 6 banc). The Court will dismiss Plaintiff’s Complaint for failure to state a claim and because 7 it is frivolous, without leave to amend because the defects cannot be corrected. 8 III. Complaint 9 In his one-count Complaint, Plaintiff names as Defendants the Arizona Department 10 of Corrections, Rehabilitation & Reentry (ADC) and “Unknown Officers.” Plaintiff 11 alleges he was subjected to cruel and unusual punishment while in Defendant ADC’s 12 custody because he “had a device installed in [his] head without [his] knowledge by the 13 authorities,” “without [his] permission or consent.” He claims the surgery occurred in 14 2019, but he “only recently found out about it in February 2024 by an FBI investigation.” 15 He claims he has been lied to and is “scarred, disfigured, traumatized and disabled for life.” 16 Plaintiff seeks monetary damages and an investigation by the Department of Justice.1 17 IV. Dismissal 18 First, the Arizona Department of Corrections, Rehabilitation & Reentry is not a 19 proper Defendant. Under the Eleventh Amendment to the Constitution of the United 20 States, a state or state agency may not be sued in federal court without its consent. 21 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 22 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, “a state is not a ‘person’ for purposes of 23 section 1983. Likewise ‘arms of the State’ such as the Arizona Department of Corrections 24 are not ‘persons’ under section 1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 25 1327 (9th Cir. 1991) (citation omitted). Therefore, the Court will dismiss Defendant ADC.
26 1 The Court does not have the authority to compel the Department of Justice to 27 investigate. See Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982) (affirming denial of request for a writ of mandamus to compel the FBI to investigate plaintiff’s charges of 28 criminal violations of his civil rights because “[i]nitiation of a criminal investigation by the F.B.I. is clearly a discretionary act.”). 1 Second, Plaintiff has simply made vague and conclusory allegations against a group 2 of individuals—“the authorities”—without any factual specificity as to what any particular 3 individual did or failed to do. This is insufficient. See Marcilis v. Twp. of Redford, 693 4 F.3d 589, 596 (6th Cir. 2012) (upholding dismissal of complaint that referred to all 5 defendants “generally and categorically” because the plaintiff had failed to “‘allege, with 6 particularity, facts that demonstrate what each defendant did to violate the asserted 7 constitutional right.’” (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))); 8 Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s use 9 of either the collective term ‘Defendants’ or a list of the defendants named individually but 10 with no distinction as to what acts are attributable to whom, it is impossible for any of these 11 individuals to ascertain what particular unconstitutional acts they are alleged to have 12 committed.”). Thus, the Court will dismiss Defendant Unknown Officers. 13 Finally, pursuant to 28 U.S.C. § 1915A(b)(1), the Court must dismiss an in forma 14 pauperis action if the Court determines the action or complaint is “frivolous.” When 15 evaluating claims under this standard, the Court “is not bound, as it usually is when making 16 a determination based solely on the pleadings, to accept without question the truth of the 17 plaintiff’s allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[A] court may 18 dismiss a claim as factually frivolous only if the facts alleged are ‘clearly baseless,’ a 19 category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’” Id. at 20 32-33 (citations omitted). “[A] finding of factual frivolousness is appropriate when the 21 facts alleged rise to the level of the irrational or the wholly incredible.” Id. at 33. 22 The Court finds Plaintiff’s claim factually frivolous. Alternatively, the Court, 23 drawing on its judicial experience and common sense, finds Plaintiff’s allegations 24 implausible, see Iqbal, 556 U.S. at 678, and incredible on their face. 25 Accordingly, the Court will dismiss the Complaint and this action. 26 IT IS ORDERED: 27 (1) Plaintiff’s second Application to Proceed In Forma Pauperis (Doc. 7) is 28 granted. 1 (2) As required by the accompanying Order to the appropriate government 2| agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $16.00. 4 (3) |The Complaint (Doc. 1) is dismissed for failure to state a claim and as 5 | frivolous pursuant to 28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment 6| accordingly. 7 (4) The Clerk of Court must make an entry on the docket stating that the 8 | dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 9 (5) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) 10| and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 11 | ofthis decision would be taken in good faith and certifies that an appeal would not be taken in good faith for the reasons stated in the Order and because there is no arguable factual or 13 | legal basis for an appeal. 14 Dated this 6th day of March, 2025. 15 16 oe i 17 James A. Teilborg 18 Senior United States District Judge 19 20 21 22 23 24 25 26 27 28