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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Shirley Bishop,

Plaintiff,

v. 

Frank Reyes,

Defendant.

No. CV-16-00009-PHX-ESW 

ORDER 

Plaintiff has consented to the exercise of Magistrate Judge jurisdiction. (Doc. 7). 

Pending before the Court is Plaintiff’s Application to Proceed in District Court without 

Prepaying Fees or Costs (Doc. 2). For good cause shown, the Application is granted, and 

Plaintiff is allowed to proceed in forma pauperis. The Court, however, must screen the 

Complaint (Doc. 1) before it is allowed to be served. 28 U.S.C. § 1915(e)(2). As the 

Ninth Circuit Court of Appeals has explained, “section 1915(e) not only permits but 

requires a district court to dismiss an in forma pauperis complaint that fails to state a 

claim.” Lopez v. Smith, 203 F. 3d 1122, 1127 (9th Cir. 2000).

I. Statutory Screening of In Forma Pauperis Complaint

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 

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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 litigant] ‘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).

II. Complaint

A. Conditions of Confinement Claim

To prevail in a 42 U.S.C. § 1983 claim, a plaintiff must show that (1) acts by the 

defendant (2) under color of state law (3) deprived her of federal rights, privileges or 

immunities and (4) caused her damage. Thornton v. City of St. Helens, 425 F.3d 1158, 

1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game

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Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that she 

suffered a specific injury as a result of the conduct of a particular defendant, and she 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).

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). Further, a 

liberal interpretation of a civil rights complaint may not supply essential elements of the 

claim that were not initially pled. Id.

Plaintiff appears to be seeking relief for allegedly unconstitutional conditions of 

confinement. A pretrial detainee’s claim for unconstitutional conditions of confinement 

arises from the Fourteenth Amendment’s Due Process Clause rather than from the Eighth 

Amendment’s prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 

U.S. 520, 535 n.16 (1979). Nevertheless, the same standards are applied, requiring proof 

that the defendant acted with “deliberate indifference.” See Frost v. Agnos, 152 F.3d 

1124, 1128 (9th Cir. 1998).

“Deliberate indifference” is a higher standard than negligence or lack of ordinary 

due care for the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 835 

(1994). To state a claim of deliberate indifference, plaintiff must meet a two-part test. 

First, the alleged constitutional deprivation must objectively be “sufficiently serious”; 

that is, the official’s act or omission must result in the denial of “the minimal civilized 

measure of life’s necessities.” Id. at 834 (citations omitted). Second, the prison official 

must have a “sufficiently culpable state of mind”; that is, “the official must be both aware 

of facts from which the inference could be drawn that a substantial risk of serious harm 

exists, and he must also draw that inference.” Id. at 837 (emphasis added). “The 

circumstances, nature, and duration of a deprivation of [] necessities must be considered 

in determining whether a constitutional violation has occurred.” Hearns v. Terhune, 413 

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F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 

2000)).

Allegations of overcrowding, without more, do not state a claim under the Eighth 

and Fourteenth Amendments. See Hoptowit v. Ray, 682 F.2d 1237, 1248-49 (9th Cir. 

1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). A 

plaintiff may, however, state a cognizable claim where she alleges that overcrowding 

results in some unconstitutional condition. See, e.g., Akao v. Shimoda, 832 F.2d 119, 120 

(9th Cir. 1987) (reversing district court’s dismissal of claim that overcrowding caused 

increased stress, tension and communicable disease among inmate population); see also 

Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming that an Eighth 

Amendment violation may occur as a result of overcrowded prison conditions causing 

increased violence, tension and psychiatric problems).

B. Defendant Sheriff Frank Reyes

To state a valid claim under § 1983, plaintiff must allege that she suffered a 

specific injury as a result of specific conduct by a specific defendant and show an 

affirmative link between the injury and the conduct of that defendant. See Rizzo v.

Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior liability 

under § 1983, and therefore, a defendant’s position as the supervisor of persons who 

allegedly violated Plaintiff’s constitutional rights does not impose liability. Monell v. 

New York City Dep’t of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 

981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 

“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must 

plead that each Government-official defendant, through the official’s own individual 

actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.

Plaintiff has failed to allege any facts regarding Defendant Reyes in her 

Complaint. Plaintiff does not allege that Defendant Reyes directly violated Plaintiff’s 

constitutional rights. Moreover, Plaintiff does not allege facts that Defendant Reyes 

violated Plaintiff’s constitutional rights pursuant to a policy, practice, or custom, or that 

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Defendant Reyes participated in or directed any violations of Plaintiff’s rights, or knew of 

any violations of Plaintiff’s rights but failed to act to prevent them. Accordingly, 

Plaintiff fails to state a claim against Defendant Reyes, and all claims as to Defendant 

Reyes will be dismissed. Because the Court has determined that Plaintiff has not stated a 

claim against any named Defendant for which relief could be granted, the Complaint will 

be dismissed.

III. Leave to Amend

For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to 

state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 

first amended complaint to cure the deficiencies outlined above. Plaintiff must clearly 

designate on the face of the document that it is the “First Amended Complaint.” 

A first amended complaint supersedes the original 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 an original 

complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 

in the original complaint and that was voluntarily dismissed or was dismissed without 

prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa

County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). If Plaintiff files an 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, 423 U.S. at 377. Plaintiff must repeat this process for each person she 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. Conclusory allegations that a 

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Defendant or group of Defendants has violated a constitutional right are not acceptable 

and will be dismissed. 

IV. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, 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). 

V. Conclusion 

For the reasons set forth herein, 

IT IS ORDERED granting Plaintiff’s Application to Proceed in District Court 

without Prepaying Fees or Costs (Doc. 2). 

IT IS FURTHER ORDERED dismissing Plaintiff’s Complaint (Doc. 1) for 

failure to state a cause of action. 

IT IS FURTHER ORDERED that Plaintiff shall file a First Amended Complaint 

within thirty (30) days of the filing of this Order. 

IT IS FURTHER ORDERED that 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 without prejudice. 

Dated this 19th day of May, 2016. 

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