STEPHEN M. McNAMEE, Senior District Judge.
Plaintiff Benjamin Freeman, who is confined in the Fourth Avenue Jail in Phoenix Arizona, filed a pro se civil rights Complaint in Maricopa County Superior Court, case# CV15-003568, on March 13, 2015. (Doc. 1-2, Ex.2.) In his Complaint, Plaintiff alleged violations of his federal constitutional rights. Plaintiff sued Maricopa County Sheriff Joseph M. Arpaio, and the following staff of the Maricopa County Sheriff's Office (MCSO): Inmate Legal Services (ILS) Supervisor C. Lillie; and Detention Officers John or Jane Does B1328 and B0429. Further, although not expressly identified as Defendants, Plaintiff included allegations against Sergeant Haider, Lieutenants Beyerle and A4226, L. Estrada, notary publics C. Gerdes and R.A. Perry, and Maricopa County. Plaintiff issued summons to Maricopa County, Arpaio, Lillie, Doe #B0429, Gerdes, Haider, Beyerle, Doe #B1328, Perry, and Estrada.
Defendants Arpaio, Lillie, Beyerle, Gerdes, Estrada, Perry, Doe B0429, Doe B1328, and Haider were served with the Complaint on March 17, 2015, and Maricopa County was served on March 25, 2015. On April 1, 2015, Maricopa County removed the case to this Court based on federal question jurisdiction. (Doc. 1-3.) Plaintiff then filed a motion to invoke the imminent danger exception, motion to remand, and motion for appointment of counsel, to which the Defendants have responded and Plaintiff has replied. (Doc. 3-11.)
The Complaint facially supports that subject matter jurisdiction is proper in federal court and that the case was timely removed. 28 U.S.C. § 1446(b). Therefore, the Court will deny Plaintiff's motion to remand. The Court will also deny Plaintiff's motion to invoke imminent danger exception under 28 U.S.C. § 1915(g), because this case was not brought in federal court, but was instead removed to federal court, and the Court will deny Plaintiff's motion to appoint counsel. The Court will dismiss the Complaint with leave to amend using the Court-approved form complaint.
A defendant may remove any civil action brought in state court over which the federal court would have original jurisdiction. 28 U.S.C. §1441(a). That is, a civil action that could have originally been brought in federal court may be removed from state to federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal court has original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
The Complaint in this case facially supports that subject matter jurisdiction exists in federal court because Plaintiff alleges violation of his federal constitutional rights. 28 U.S.C. §§ 1441. Further, the case was timely removed. 28 U.S.C. § 1446(b). Accordingly, the Court has subject matter jurisdiction and the Court will deny Plaintiff's motion to remand.
Local Rule 3.4 requires prisoners to use a court-approved form complaint. As noted above, Plaintiff used a state court form complaint. The Court will dismiss the Complaint with leave to file a first amended complaint using this District's approved form. The Court describes the relevant standards for the type of claims that Plaintiff appears to be attempting to bring.
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)).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Plaintiff's Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
Plaintiff ostensibly appears to be attempting to allege a claim for violation of the Establishment Clause of the First Amendment and denial of access to the court. He alleges that he was a pretrial detainee at relevant times and that he is an atheist. Plaintiff further alleges the following: on September 24, 2013, Plaintiff was arrested by Scottsdale police and his 2000 Mercedes Benz was seized. At the Fourth Avenue Jail, American flag decals are present in every cell. Further, patriotic songs with religious overtones, specifically the national anthem, Amazing Grace, My Country Tis of Thee, God Bless America, and the 23rd Psalm, are played every morning and evening on the Jail's televisions. Plaintiff contends that the presence of the flag decals and the repeated broadcasts of the patriotic/religious music has caused him to suffer nightmares concerning torture of women and children. He further contends that the religious overtones of the music infringe his right to be free from indoctrination in the Christian, or other, religion. Plaintiff also asserts that ILS staff failed to provide him case law and statutes, and that he was refused services of a notary public to contest the civil forfeiture proceedings concerning the 2000 Mercedes Benz seized from him.
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).
To state a claim against a defendant, "[a] plaintiff must allege facts, not simply conclusions [to] 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 injuries resulting from a policy, practice, or custom of the agency over which that individual has final policy-making authority. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). Further, 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, absent more, 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 personal 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. In addition, where a defendant's only involvement in allegedly unconstitutional conduct is the denial of administrative grievances, the failure to intervene on a prisoner's behalf to remedy the alleged unconstitutional behavior does not amount to active unconstitutional behavior for purposes of § 1983. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); accord Proctor v. Applegate, 661 F.Supp.2d 743, 765 (W.D. Mich. 2009); Stocker v. Warden, No. 1:07-CV-00589, 2009 WL 981323, at *10 (E.D. Cal. Apr. 13, 2009); Mintun v. Blades, No. CV-06-139, 2008 WL 711636, at *7 (D. Idaho Mar. 14, 2008); see also Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (a plaintiff must allege that a supervisor defendant did more than play a passive role in an alleged violation or mere tacit approval thereof; a plaintiff must allege that the supervisor defendant somehow encouraged or condoned the actions of their subordinates).
Plaintiff appears in part to be attempting to allege an Establishment Clause claim under the First Amendment. The Establishment Clause of the First Amendment, which is applicable to the States, Community House, Inc. v. City of Boise, 623 F.3d 945, 970 (9th Cir. 2010), provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I; Lee v. Weisman, 505 U.S. 577, 580 (1992). Thus, the Establishment Clause bars governmental approval or disapproval of a particular religion or belief. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). The basic test for Establishment Clause violations is set out in Lemon v. Kurtzman, 403 U.S. 602, 612-13, (1971); to avoid violating the Establishment Clause, government acts (1) must have a "secular legislative purpose," (2) must not have a "principal or primary effect" that either "advances [or] inhibits religion," and (3) must not foster "an excessive government entanglement" with religion. Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir. 2007).
Plaintiff also appears to be attempting to assert a denial of access to the court. The right of meaningful access to the courts prohibits officials from actively interfering with inmates' attempts to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring petitions or complaints to federal court and not a right to discover such claims or even to ligate them effectively once filed with a court. Id. at 354. The right "guarantees no particular methodology but rather the conferral of a capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Id. at 356.
As a matter of standing, for an access-to-courts claim, a plaintiff must show that he suffered an "actual injury" with respect to contemplated litigation. Id. at 349. To show actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the defendants' conduct frustrated or impeded him from bringing to court a nonfrivolous claim that he wished to present. Id. at 352-53.
"[T]he injury requirement is not satisfied by just any type of frustrated legal claim." Id. at 354. The right of access to the courts "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." Id. at 355. The nonfrivolous claim must be a direct or collateral attack on the inmate's sentence or a challenge to the conditions of his confinement. Id. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. (emphasis in original).
Plaintiff seeks the appointment of counsel based on his indigence, lack of legal training and limited access to legal resources, complexity of the issues, need for expert testimony, and his unsuccessful attempts to find pro bono counsel. There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court may request an attorney to represent any person unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when "exceptional circumstances" are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional circumstances requires an evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issue involved. Id. "Neither of these factors is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
Having considered the above elements, it does not appear at this time that exceptional circumstances are present that require the appointment of counsel in this case. Plaintiff is in no different position than many pro se prisoner litigants. Therefore, the Court will deny without prejudice Plaintiff's motion for appointment of counsel.
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.
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.
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.
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).
(1) Plaintiff's motions to remand, invoke the imminent danger exception, and appoint counsel are
(2) The Complaint (Doc. 1) is
(3) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice.
(4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
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You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as "2-A," "2-B," etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
You must identify what rights each defendant violated. The form provides space to allege three separate counts (
Print the relief you are seeking in the space provided.
You must sign your name and print the date you signed the complaint. Failure to sign the complaint will delay the processing of your action. Unless you are an attorney, you may not bring an action on behalf of anyone but yourself.
You should follow these instructions carefully. Failure to do so may result in your complaint being stricken or dismissed. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number the pages.
