STEPHEN M. McNAMEE, Senior District Judge.
On July 30, 2014, Plaintiff Damien Lakieth Dudley, who is confined in the Arizona State Prison Complex-Lewis, filed a pro se civil rights Complaint (Doc. 1, Attach. 1, Ex. C) in the Maricopa County Superior Court against Deputy Warden Wayne Mooney, and the Arizona Department of Corrections (ADOC). On September 5, 2014, Plaintiff filed a "First Amended Special Action Complaint" (Doc. 1, Attach. 1, Ex. C) in Maricopa County Superior Court against Deputy Warden Wayne Mooney and the State of Arizona. On September 11, 2014, the ADOC filed a Notice of Removal based on federal question jurisdiction and paid the $400.00 filing fee. The ADOC states that it was served with the original Complaint on August 11, 2014.
The ADOC's counsel fails to address the fact that the ADOC is not a named Defendant in the First Amended Special Action Complaint filed in state court and, in the Notice of Removal, refers to Plaintiff's claims in both the original Complaint and the First Amended Special Action Complaint. As such, it is difficult for the Court to determine whether the ADOC properly removed this case. Nonetheless, referral to the Maricopa County Superior Court docket indicates that Plaintiff's First Amended Special Action Complaint was filed outside the time frame allowed by Arizona Rule of Civil Procedure 15(a) and the Maricopa County Superior Court docket still lists Defendants as the ADOC and Wayne Mooney. See The Judicial Branch of Arizona, Maricopa County, Civil Court Case Information Case History, available at http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/caseInfo.asp (last visited Dec. 18, 2014). Moreover, Plaintiff has not moved to remand within thirty days of the Notice of Removal, so the Court assumes the ADOC was a proper Defendant at the time of removal.
After removal, Plaintiff filed a "First Amended Complaint" (Doc. 7) on this Court's form alleging claims against Deputy Warden Wayne Mooney, the ADOC, and Sergeant John Doe. The Court will consider this "First Amended Complaint" to be the operative Complaint and will screen it accordingly. Because Plaintiff filed his First Amended Complaint prior to screening, it is the operative complaint and the Court will treat the original Complaint and the First Amended Special Action Complaint as nonexistent. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
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.
Rule 8(a) of the Federal Rules of Civil Procedure requires a "short and plain statement of the claim." Fed. R. Civ. P. 8(a)(2). Rule 8(d)(1) states that "[e]ach allegation must be simple, concise, and direct." A complaint having the factual elements of a cause of action scattered throughout the complaint and not organized into a "short and plain statement of the claim" may be dismissed for failure to satisfy Rule 8(a). See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996). To comply with Rule 8, a plaintiff should set forth "who is being sued, for what relief, and on what theory, with enough detail to guide discovery." McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). It is not the responsibility of the Court to review a rambling narrative in an attempt to determine the number and nature of a plaintiff's claims.
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)).
In his First Amended Complaint, Plaintiff alleges one count against Deputy Warden Wayne Mooney, the ADOC, and Sergeant John Doe. Plaintiff seeks injunctive relief, costs, and fees.
In his First Amended Complaint, Plaintiff alleges that his Fourteenth Amendment due process rights were violated as follows: On July 6, 2013, he was charged with violating rule "11-B Disrupting Institution Count and/or Being Out of Place." Plaintiff contends that at his disciplinary hearing, Sergeant John Doe denied Plaintiff's requests to see the Disciplinary Hearing Officer and seek the testimony of relevant witnesses. Plaintiff was found guilty of the violation. Doe told Plaintiff "the next time an officer tells [him] to drop [his] grievances[, he] should listen [and] not file a grievance against that officer for retaliation." Plaintiff asked Doe for the forms to appeal the disciplinary charge; Doe smiled at Plaintiff and told him that Doe "would have to get back to [Plaintiff] on that one." Plaintiff then wrote to Defendant Mooney requesting the appeal form; Mooney never responded to this request.
In the remainder of his First Amended Complaint, Plaintiff does not allege any facts against any of the named Defendants and, as a result, has failed to state a claim against the named Defendants in the remainder of his allegations.
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).
Plaintiff does not allege any facts against the ADOC. Accordingly, Plaintiff fails to state a claim against the ADOC, and it will be dismissed.
Plaintiff sues Deputy Warden Wayne Mooney. While Mooney may be sued under § 1983, Plaintiff fails to state a claim against him. To state a claim against a defendant, "[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). There is no respondeat superior liability under §1983, so a defendant's position as the supervisor of someone who allegedly violated a plaintiff's constitutional rights does not make him liable. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 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, 880 F.2d at 1045.
Plaintiff alleges that he wrote to Defendant Mooney requesting the appeal form and that Mooney never responded to this request. These allegations are insufficient to support a federal claim against Mooney. Accordingly, Defendant Mooney will be dismissed.
Plaintiff asserts a violation of due process. Prisoners are entitled to due process protections when subject to disciplinary sanctions. See Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974). However, the Supreme Court held that these procedural protections are not implicated unless the deprivation involves a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 484 (1995). Liberty interests that entitle an inmate to due process are "generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. (internal citations omitted). Thus, "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight." Montanye v. Haymes, 427 U.S. 236, 242 (1976).
In analyzing whether a hardship is atypical and significant, three guideposts to consider are: (1) the conditions of confinement; (2) the duration of the condition and the degree of restraint imposed; and (3) whether the sanction will affect the duration of the prisoner's sentence. Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.2003); Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996). "Atypicality" requires not merely an empirical comparison, but turns on the importance of the right taken away from the prisoner. See Carlo v. City of Chino, 105 F.3d 493, 499 (9th Cir. 1997); see, e.g., Sandin, 515 U.S. at 472 (30 days disciplinary segregation is not atypical and significant); Torres v. Fauver, 292 F.3d 141, 151 (3d Cir. 2002) (4 months in ad-seg is not atypical and significant); Griffin v. Vaughn, 112 F.3d 703, 706708 (3d Cir. 1997) (15 months ad-seg is not atypical and significant); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (6 months of confinement in especially disgusting conditions that were "more burdensome than those imposed on the general prison population were not atypical . . . in relation to the ordinary incidents of prison life."); Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (2 years in ad-seg is not atypical and significant); Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997) (denial of year sentence reduction is not an atypical and significant hardship). Thus, to determine whether an inmate is entitled to the procedural protections afforded by the Due Process Clause, the Court must look to the particular restrictions imposed and ask whether they "`present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.'" Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (quoting Sandin, 515 U.S. at 486).
If a court determines that a protected liberty interest is implicated, a plaintiff must also specify the due process safeguard he was denied and by whom. "Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff, 418 U.S. at 556. Procedural due process safeguards in a prison disciplinary hearing require that the defendant receive: (1) written notice of the charges, no less than twenty-four hours prior to the hearing; (2) a written statement by the fact-finder as to the evidence relied on and reasons for the disciplinary action and (3) a limited right to call witnesses and present documentary evidence when it would not be unduly hazardous to institutional safety or correctional goals to allow the defendant to do so. Id. at 565-66.
In this case, although it is not entirely clear, Plaintiff appears to be complaining about his classification.
To the extent that Plaintiff is attempting to claim that the duration of his confinement has been affected by this disciplinary violation, habeas corpus is the appropriate vehicle to seek relief; a civil rights action pursuant to § 1983 is not available unless and until the prisoner has obtained a "favorable termination" of the underlying disciplinary action. Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004). Accordingly, Plaintiff fails to state a claim in Count One, and Count One will be dismissed.
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second 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 "Second Amended Complaint." The second 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 or First Amended Complaint by reference. Plaintiff may include only one claim per count.
If Plaintiff files a second amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim.
A second amended complaint supersedes the original Complaint, the First Amended Special Action Complaint, and the First Amended 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 the original Complaint, First Amended Special Action Complaint, and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint, First Amended Special Action Complaint, or First Amended Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
On September 22, 2014, Plaintiff filed a Motion for a Case Number and Request for Sanctions (Doc. 5). Plaintiff's Motion for a Case Number is granted to the extent set forth herein. Plaintiff's request for sanctions is denied.
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.
Because Plaintiff is currently confined in an Arizona Department of Corrections unit subject to General Order 14-17, Plaintiff is not required to submit an additional copy of every filing for use by the Court, as would ordinarily be required by Local Rule of Civil Procedure 5.4. If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he will be notified of the requirements regarding copies for the Court that are required for inmates whose cases are not subject to General Order 14-17.
Because the First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in this Order, the dismissal may 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).
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, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
(1) The First Amended Complaint (Doc. 7) is
(2) The Motion for a Case Number is
(3) The Request for Sanctions is
(4) If Plaintiff fails to file a second 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 may count as a "strike" under 28 U.S.C. § 1915(g).
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
