Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Case 2:04-cv—OO293-EHC—IVIEA Document 15-2 Filed 11/O7/2005 Page1 0fI3`|
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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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`H-` 9 Ralph Slusher, No. CV 04-0293-PHX-EHC (MEA)
10 Plaintiff, ORDER
ll vs.
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Maricopa County Sheriff s Office, et al.,
13 Defendants.
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16 Ralph Slusher, currently confined in the Arizona State Prison in Douglas, Arizona,
17 filed a pro se First Amended Complaint pursuant to 42 U.S.C. § 1983. The Court will order
18 Defendant Goal to answer the Complaint.
19 A. Statutory Screening of Prisoner Complaints.
20 The Court is required to screen complaints brought by prisoners seeking relief against
21 a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
22 § l9l5A(a). The Court must dismiss a complaint or portion thereof if the Plaintiff has raised
23 claims that are legally "frivolous or malicious," that fail to state a claim upon which relief
24 may be granted, or that seek monetary relief from a defendant who is immune from such
25 relief. 28 U.S.C. § l915A(b)(1),(2). The Court also must dismiss a complaint or portion
26 thereof if Plaintiff fails to exhaust any administrative remedy available to him. 42 U.S.C.
27 § l997e(a).
TERMPSREF 28
Case 2:04-cv—OO293-EHC—IVIEA Document 15-2 Filed 11/O7/2005 Page 2 of 3

1 F.2d 1040, 1045 (9th Cir. 1989). "A plaintiff must allege facts, not simply conclusions, that
2 show that an individual was personally involved in the deprivation of his civil rights?
3 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154
4 (1999).
5 Plaintiff alleges that Defendant Arpaio was deliberately indifferent to his medical
6 needs because he is vicariously liable for the actions of his employees. Plaintiff further
7 acknowledges that he received medical attention after he filed his grievance. Accordingly,
8 because Plaintiff does not sufficiently allege that Defendant Arpaio directly acted with
9 deliberate indifference to Plaintiffs medical needs or had a custom or policy in place to do
10 such, Count III will be dismissed without prejudice. Moreover, because both Counts
11 involving Defendant Arpaio will be dismissed, Defendant Arpaio also will be dismissed
12 without prejudice.
13 D. Claims For Which An Answer Will be Reguired.
14 At this early stage, Plaintiff sufficiently sets forth a claim that Defendant Goal and
15 John Doe were deliberately indifferent to his medical needs when, after witnessing that
16 Plaintiff was injined in a car wreck, they refused to provide Plaintiff medical attention.
17 Defendant Goal will be ordered to answer this claim.
18 John Doe
19 Plaintiff named as a defendant an unknown Deputy "John Doe." Generally, the use
20 of anonymous type appellations to identify defendants is not favored. Rule l0(a) of the
21 Federal Rules of Civil Procedure requires the plaintiff to include the names of the parties in
22 the action. As a practical matter, it is impossible in most instances for the United States
23 Marshal or his designee to serve a summons and complaint or amended complaint upon an
24 anonymous defendant.
25 The Ninth Circuit has held that where identitynis unknown prior to the filing of a
26 complaint, the plaintiff should be given an opportunity through discovery to identify the
27 unknown defendants, unless it is clear that discovery would not uncover the identities, or that
28 the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 F .3d
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