Gaines v. Synes

1 WO KM 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Bradley Ryan Gaines, No. CV 19-05621-PHX-MTL (DMF) 10 Plaintiff, v. ORDER Jessica Synes, et al., 14 Defendants.

16 On November 14, 2019, Plaintiff Bradley Ryan Gaines, who is confined in a Maricopa County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a January 22, 2020 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.

22 On February 24, 2020, Plaintiff filed a First Amended Complaint (Doc. 7). The Court will dismiss the First Amended Complaint and this action.

24 I. Statutory Screening of Prisoner Complaints 25 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).

3 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. 9 “[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.

18 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 22 U.S. 89, 94 (2007) (per curiam)).

23 II. First Amended Complaint 24 Plaintiff names Probation Officer Jessica Synze as Defendant in his one-count First Amended Complaint and seeks money damages. Plaintiff alleges he was retaliated against, in violation of the Eighth Amendment, when Defendant “[k]new no monitor was to be put on [Plaintiff’s] ankle and it was done any way, this was due to her listening to Jeff and Amanda not her own [opinion].” As his injury, Plaintiff states “I had a monitor placed on me to be monitored.”

2 III. Failure to State a Claim 3 A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 8 F.3d 559, 567-68 (9th Cir. 2005). Further, although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. 13 Plaintiff does not allege that Defendant Synze acted because Plaintiff’s protected conduct and therefore fails to state a retaliation claim. Moreover, as in the original Complaint, Plaintiff’s allegations are vague. Plaintiff does alleges when or for how long he was required to wear an ankle monitor, how the monitor violated his terms of probation, or how he was harmed by being required to wear the monitor. Plaintiff has therefore failed to state a claim.

19 IV. Dismissal without Leave to Amend 20 Because Plaintiff has failed to state a claim in his First Amended Complaint, the Court will dismiss his First Amended Complaint. “Leave to amend need not be given if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is particularly broad where Plaintiff has previously been permitted to amend his complaint.

25 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996).

26 Repeated failure to cure deficiencies is one of the factors to be considered in deciding whether justice requires granting leave to amend. Moore, 885 F.2d at 538. The Court finds that further opportunities to amend would be futile. Therefore, the Court, in its | discretion, will dismiss Plaintiff’s First Amended Complaint without leave to amend.

2| ITIS ORDERED: 3 (1) Plaintiff’s First Amended Complaint (Doc. 7) and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly.

5 (2) The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).

7 (3) | The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) | and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 9| of this decision would be taken in good faith and finds Plaintiff may appeal in forma | pauperis.

11 Dated this 30th day of March, 2020.

Michael T. Liburdi 15 United States District Judge