Olmos et al v. Ryan et al

Filing 27

ORDER that Plaintiff's Motion For Enlargement Of Time To File First Amended Complaint 19 is granted and Plaintiff's First Amended Complaint (Doc. 21), which was filed on March 14, 2011, is accepted as being timely filed. Plaintiff's Motion For Leave To Suspend Enforcement Of Local Rules Upon Pro Se Litigant 23 is granted to the extent that the Court accepts Plaintiff's First Amended Complaint (Doc. 21) in the form in which it was filed. Plaintiff's Motion For Order To Return Of Documents Not Filed By Clerk 20 is granted and the Clerk of Court must return Plaintiff's unfiled "556-page 'Complaint Addendum'" (Docs. 2 [part] and 3) and "Memorandum Establishing Conformance With 42 U.S .C. § 1997(e)" (Doc. 8) to Plaintiff. Plaintiff's Motion For Assistance In Locating Select Defendants For Service Of Pleadings 25 is denied without prejudice. Defendants GEO Group, Inc.; Compass Group North America Division, d.b.a. Canteen Correctional Services; Keefe Group, d.b.a. Keefe Commissary Network; Janice K. Brewer; Ferris D. Ahee; Daniel Cardoza; "Unknown ADC Security Officer(s)" at the Mail Room of the Arizona State Prison Complex-Lewis and/or the Morey Un it of ASPC- Lewis; Eric Hall; Thomas C. Horne; and Timothy Brockman are dismissed from this action. The following claims in the First Amended Complaint (Doc. 21) are dismissed for failure to state a claim upon which relief may be granted (see order for full details). The following Defendants must answer the following claims in the First Amended Complaint (Doc. 21) (see order for details as to claims): (a) Defendant Charles L. Ryan and (b) Defendant Allen Ortega. The Clerk of Court must send Pla intiff a service packet including the First Amended Complaint (Doc. 21), this Order, and both summons and request for waiver forms for Defendants Charles L. Ryan and Allen Ortega. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Mark E. Aspey for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge G Murray Snow on 5/10/11.(DMT)

1

WO

RP

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Timothy P. Olmos, et al.,
Plaintiffs,

10
11

vs.

12

David Stokes, II, et al.,

13

Defendants.

14

)
)
)
)
)
)
)
)
)
)
)

No. CV 10-2564-PHX-GMS (MEA)
ORDER

15
16

Pending before the Court are Plaintiff’s “Motion For Enlargement Of Time To File

17

First Amended Complaint” (Doc. 19), “Motion For Order To Return Of Documents Not

18

Filed By Clerk” (Doc. 20), First Amended Complaint (Doc. 21), “Affidavit In Support Of

19

Complaint (Vol. II, §§ 47-85)” (Doc. 22), “Motion For Leave To Suspend Enforcement Of

20

Local Rules Upon Pro Se Litigant” (Doc. 23), “Memorandum In Support Of Motion For

21

Leave To Suspend Enforcement Of Local Rules Upon Pro Se Litigant” (Doc. 24), and

22

“Motion For Assistance In Locating Select Defendants For Service Of Pleadings” (Doc. 25).

23

I.

Procedural Background

24

On November 28, 2010, Plaintiff Timothy P. Olmos, who is confined in the Arizona

25

State Prison Complex-Florence (ASPC-Florence), filed “Plaintiffs’ Motion For Leave To File

26

Lengthy Complaint And Related Pleadings” (Doc. 1). In conjunction with his Motion,

27

Plaintiff Olmos submitted the following documents which were lodged in this case by the

28
TERMPSREF

1

Clerk of Court: a pro se “Civil Rights Complaint By A Prisoner” (Doc. 2), which included

2

a “Complaint Addendum” (Docs. 2 [part] and 3); a “Notice Of Appearance As Lead

3

Plaintiff” (Doc. 4); an “Application to Proceed In Forma Pauperis By A Prisoner Civil (Non-

4

Habeas)” (Doc. 5); a certified “Inmate Bank Account” statement (Doc. 6); an “Affidavit In

5

Support Of Complaint” (Doc. 7); a “Memorandum Establishing Conformance With 42

6

U.S.C. § 1997e(a)” (Doc. 8), which included “Appendices To Memorandum Establishing

7

Conformance With 42 U.S.C. § 1997e(a)”; and an “Ex Parte Motion To Modify

8

Requirements For Service Of Process” (Doc. 10).

9

By Order filed February 9, 2011 (Doc. 11), the Court granted “Plaintiffs’ Motion For

10

Leave To File Lengthy Complaint And Related Pleadings” (Doc. 1) in part, to the extent that

11

the Court directed the Clerk of Court to file Plaintiff’s lodged “Civil Rights Complaint By

12

A Prisoner” (Doc. 2); “Notice Of Appearance As Lead Plaintiff” (Doc. 4); “Application to

13

Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)” (Doc. 5); certified “Inmate

14

Bank Account” statement (Doc. 6); “Affidavit In Support Of Complaint” (Doc. 7); and “Ex

15

Parte Motion To Modify Requirements For Service Of Process” (Doc. 10). “Plaintiffs’

16

Motion For Leave To File Lengthy Complaint And Related Pleadings” (Doc. 1) was denied

17

in part, to the extent that the Court directed the Clerk of Court not to file Plaintiffs’ lodged

18

556-page “Complaint Addendum” (Docs. 2 [part] and 3) and “Memorandum Establishing

19

Conformance With 42 U.S.C. § 1997e(a)” (Doc. 8).

20
21

denied as moot the “Notice Of Appearance As Lead Plaintiff” and “Ex Parte Motion To

22

Modify Requirements For Service Of Process,” granted the “Application to Proceed In

23

Forma Pauperis By A Prisoner Civil (Non-Habeas),” assessed an initial partial filing fee,

24

dismissed the “Civil Rights Complaint By A Prisoner” for failure to comply with Rule 8 of

25

the Federal Rules of Civil Procedure, and gave Plaintiff Olmos 30 days from the filing date

26

of the Order to file a first amended complaint in compliance with the Order. Lastly, the

27

Order dismissed Plaintiffs David Stokes, II; James Walker; Jose Ulloa; Roger Clark; William

28
TERMPSREF

The Court’s Order also directed that this action may not proceed as a class action,

McEnany; and “all others similarly situated” from this action.
-2-

1

II.

Motion for Enlargement of Time to File First Amended Complaint

2

On February 22, 2011, Plaintiff filed a “Motion For Enlargement Of Time To File

3

First Amended Complaint” (Doc. 19), in which Plaintiff seeks a 30-day enlargement of time

4

to file his First Amended Complaint. Plaintiff’s Motion will be granted and Plaintiff’s First

5

Amended Complaint (Doc. 21), which was filed on March 14, 2011, will be accepted as

6

being timely filed.

7

III.

Motion for Order to Suspend Enforcement of Local Rules

8

On March 21, 2011, Plaintiff filed a “Motion For Leave To Suspend Enforcement Of

9

Local Rules Upon Pro Se Litigant” (Doc. 23) and “Memorandum In Support Of Motion For

10

Leave To Suspend Enforcement Of Local Rules Upon Pro Se Litigant” (Doc. 24). In his

11

Motion, Plaintiff requests that the Court accept his First Amended Complaint (Doc. 21) with

12

“a slight modification to the original forms provided by the Clerk.” Plaintiff’s Motion will

13

be granted to the extent that Court will accept Plaintiff’s First Amended Complaint in the

14

form that it was filed.

15

IV.

Statutory Screening of Prisoner Complaints

16

The Court is required to screen complaints brought by prisoners seeking relief against

17

a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

18

§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

19

claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

20

be granted, or that seek monetary relief from a defendant who is immune from such relief.

21

28 U.S.C. § 1915A(b)(1), (2).

22

A pleading must contain a “short and plain statement of the claim showing that the

23

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

24

demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

25

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

26

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

27

statements, do not suffice.” Id.

28
TERMPSREF

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
-3-

1

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

2

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

3

that allows the court to draw the reasonable inference that the defendant is liable for the

4

misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

5

relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

6

experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

7

allegations may be consistent with a constitutional claim, a court must assess whether there

8

are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

9

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

10

must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

11

Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

12

than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

13

94 (2007) (per curiam)).

14

V.

First Amended Complaint

15

Plaintiff should take notice that all causes of action alleged in an original complaint

16

which are not alleged in an amended complaint are waived. Hal Roach Studios v. Richard

17

Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (“an amended pleading supersedes the

18

original”); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Accordingly, the Court will

19

consider only those claims specifically asserted in Plaintiff’s First Amended Complaint

20

(Doc. 21) with respect to only those Defendants specifically named in the First Amended

21

Complaint.

22
23

Director of the Arizona Department of Corrections (ADC); (2) GEO Group, Inc. (GEO),

24

Private Prison Contractor – Operator at the Central Arizona Correctional Facility (CACF);

25

(3) Compass Group – North America Division, d.b.a. Canteen Correctional Services

26

(Canteen), Food Services Contractor at all ADC-run prison units; (4) Keefe Group, d.b.a.

27

Keefe Commissary Network (Keefe), Inmate Store Contractor at every prison unit housing

28
TERMPSREF

Named as Defendants in the First Amended Complaint are: (1) Charles L. Ryan,

ADC inmates; (5) Janice K. Brewer, Governor of Arizona; (6) Ferris D. Ahee, Dentist at the
-4-

1

Winchester Unit of the Arizona State Prison Complex-Tucson (ASPC-Tucson); (7) Daniel

2

Cardoza, Lieutenant at the North Unit of ASPC-Florence; (8) “Unknown ADC Security

3

Officer(s)” at the Mail Room of the Arizona State Prison Complex-Lewis (ASPC-Lewis)

4

and/or the Morey Unit of ASPC-Lewis; (9) “Unknown ADC Administrator(s)”; (10) Eric

5

Hall, Correctional Officer (CO) IV at the Winchester Unit of ASPC-Tucson; (11) Thomas

6

C. Horne, Arizona Attorney General; (12) Allen Ortega, CO II/SSU Officer at ASPC-

7

Florence Complex Administration; and (13) Timothy Brockman, Captain at ASPC-Florence

8

Complex Administration.

9

Plaintiff alleges 15 counts in the First Amended Complaint and seeks a jury trial,

10

declaratory and injunctive relief, appointment of a special master, all fees and costs, and

11

compensatory and punitive monetary damages, with compound interest.

12

VI.

Discussion

13

A.

Count I

14

In Count I, Plaintiff claims that his Eighth and Fourteenth Amendment rights were

15

violated by Defendant GEO’s practice of operating “CACF with constantly-illuminated

16

dorms, including the dorm that Plaintiff was housed in.” In support of his claim, Plaintiff

17

contends that “constantly-illuminated dorms impose physical and psychological harm with

18

no legitimate penological justification.” Plaintiff alleges that the actions of Defendant GEO

19

“posed an unreasonable risk of serious damage to Plaintiff Olmos’ future health.”

20
21

conditions must meet two requirements, one objective and one subjective.’ ‘Under the

22

objective requirement, the prison official’s acts or omissions must deprive an inmate of the

23

minimal civilized measure of life’s necessities.’” Lopez v. Smith, 203 F.3d 1122, 1132-33

24

(9th Cir. 2000) (internal citations and citations omitted). The subjective prong requires the

25

inmate to demonstrate that the deprivation was a product of “deliberate indifference” by

26

prison personnel. Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Such indifference can only

27

occur if “the official knows of and disregards an excessive risk to inmate health or safety; the

28
TERMPSREF

“‘An Eighth Amendment claim that a prison official has deprived inmates of humane

official must both be aware of facts from which the inference could be drawn that a
-5-

1

substantial risk of serious harm exits, and he must also draw the inference.” Farmer v.

2

Brennan, 511 U.S. 825, 837 (1994).

3

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519,

4

520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v.

5

Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further,

6

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

7

claim that were not initially pled. Id. “Threadbare recitals of the elements of a cause of

8

action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.

9

Plaintiff’s allegations in Count I are too conclusory and vague to state a claim for

10

relief under the Eighth and Fourteenth Amendments. While subjecting an inmate to constant

11

illumination may, under certain circumstances, rise to the level of an Eighth Amendment

12

violation, see Keenan v. Hall, 83 F.3d 1083, 1091-91 (9th Cir. 1996) (plaintiff alleged “that

13

large florescent lights directly in front of and behind his cell shone into his cell 24 hours a

14

day”), Plaintiff has not alleged enough facts for his claim to rise to the level of a

15

constitutional violation. Plaintiff does not describe the type of illumination at issue and does

16

not explain how he was specifically harmed by the constant illumination.

17
18

Accordingly, the Court will dismiss Count I for failure to state a claim upon which
relief may be granted.

19

B.

Count II

20

In Count II, Plaintiff claims that his Eighth and Fourteenth Amendment rights to

21

“constitutionally sufficient medical care” and to “freedom from cruel and unusual

22

punishment” were violated by Defendants Ryan, Brewer, Ahee, and Horne.

23
24

Plaintiff Olmos when ADC medical staff enforced those policies by (a) refusing to process

25

medical request forms . . . , (b) refusing to provide Plaintiff Olmos medical care with over-

26

the-counter medications and medical remedies . . . and, (c) refusing to treat his flu and the

27

pandemic at Winchester per CDC outlines for prisons.” Plaintiff further alleges that

28
TERMPSREF

Plaintiff alleges that the policies of Defendant Ryan “served to deny medical care to

“Defendant Ryan’s systemwide understaffing of ADC’s medical and health care system led
-6-

1

to delays in care for Plaintiff.” Plaintiff also alleges that “Defendant Ryan’s medical

2

prescription policies led to Plaintiff Olmos being prescribed ineffective allergy medicine as

3

part of the inappropriate treatment he received.”

4

Plaintiff’s allegations against Defendant Ryan in Count II are too conclusory and

5

vague to state a claim for relief under the Eighth and Fourteenth Amendments. Although

6

Plaintiff alleges that Defendant Ryan’s policies served to deny medical care to Plaintiff and

7

led to being prescribed ineffective allergy medicine, Plaintiff has not described the policies

8

at all. Also, Plaintiff’s allegation of systemwide understaffing is not only vague but also

9

insufficient because a mere delay in medical care, without more, is insufficient to state a

10

claim against prison officials for deliberate indifference under the Eighth Amendment. See

11

Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

12

Plaintiff alleges that Defendant Ahee “provided Plaintiff Olmos with insufficient pain

13

medication (according to prevailing professional standards) after performing oral surgery on

14

him for an impacted wisdom tooth.”

15

Not every claim by a prisoner relating to inadequate medical treatment states a

16

violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show

17

that the defendants acted with “deliberate indifference to serious medical needs.” Jett v.

18

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104

19

(1976)). A plaintiff must show (1) a “serious medical need” by demonstrating that failure

20

to treat the condition could result in further significant injury or the unnecessary and wanton

21

infliction of pain and (2) the defendant’s response was deliberately indifferent. Jett, 439 F.3d

22

at 1096 (quotations omitted).

23
24

1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know

25

of and disregard an excessive risk to inmate health; “the official must both be aware of facts

26

from which the inference could be drawn that a substantial risk of serious harm exists, and

27

he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate indifference in the

28
TERMPSREF

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

medical context may be shown by a purposeful act or failure to respond to a prisoner’s pain
-7-

1

or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096.

2

Medical malpractice or negligence is insufficient to establish a violation. Toguchi,

3

391 F.3d at 1060. Thus, mere negligence in diagnosing or treating a condition does not

4

violate the Eighth Amendment. Toguchi, 391 F.3d at 1057. Also, an inadvertent failure to

5

provide adequate medical care alone does not rise to the Eighth Amendment level. Jett, 429

6

F.3d at 1096.

7

indifference. Toguchi, 391 F.3d at 1058.

A difference in medical opinion also does not amount to deliberate

8

Plaintiff’s allegation against Defendant Ahee is insufficient to state an Eighth

9

Amendment claim for inadequate medical care. Plaintiff’s allegation is conclusory and

10

vague because Plaintiff does not allege what medication he was given and show how it was

11

“insufficient.” Moreover, Plaintiff does not allege deliberate indifference on the part of

12

Defendant Ahee.

13

Plaintiff also alleges that Defendants Brewer and Horne “are responsible for [state

14

legislation that] served to diminish the medical and health services available to Plaintiff

15

Olmos.” Plaintiff further alleges that this state legislation mandated “the privatization of

16

ADC’s medical and health care system” at lower funding levels and “a 5% reduction in force

17

for all state departments.” Plaintiff asserts that “Defendant Brewer, in her official capacity

18

as head of Arizona’s Executive Branch of Government, is responsible for the implementation

19

of these laws” and that “Defendant Horne, in his official capacity as Attorney General of the

20

State of Arizona, is responsible for the enforcement of the foregoing laws.”

21
22

law in general are simply too attenuated to personally link them to the denial of

23

constitutionally sufficient medical care to Plaintiff in prison. Rizzo v. Goode, 423 U.S. 362,

24

371-72 (1976). To state a claim against a state official, the civil rights complainant must

25

allege that the official personally participated in the constitutional deprivation, or that a state

26

supervisory official was aware of the widespread abuses and with deliberate indifference to

27

the inmate's constitutional rights failed to take action to prevent further misconduct. King,

28
TERMPSREF

The roles that Defendants Brewer and Horne play in implementing and enforcing state

814 F.2d at 568; see also Monell v. New York City Department of Social Services, 436 U.S.
-8-

1

658, 691 (1978); Williams v. Cash, 836 F.2d 1318, 1320 (11th Cir. 1988). Plaintiff has done

2

neither.

3
4

Accordingly, the Court will dismiss Count II for failure to state a claim upon which
relief may be granted.

5

C.

Count III

6

In Count III, Plaintiff claims that his Eighth and Fourteenth Amendment rights were

7

violated by Defendant Ryan when he failed to provide Plaintiff with basic necessities at state

8

expense and by Defendant Canteen when it provided him with constitutionally insufficient

9

food.

10

Plaintiff alleges that Defendant Ryan fails to provide Plaintiff with “sufficient

11

(a) nutrition that meets the U.S. Department of Agriculture’s latest Dietary Guidelines for

12

Americans, (b) clothing between launderings, (c) hygiene products . . . ,

13

(d) cleaning/sanitation supplies, and (e) living facilities.”

14

Defendant Ryan “continues to house inmates in overcrowded dorms” and “fails to provide

15

sufficient numbers of security staff” and “a working system at Winchester and South to

16

notify staff of emergencies after all doors are locked.” Plaintiff asserts that the “combination

17

of overcrowding and understaffing has led to large increases in violence among inmates.”

18

Liberally construed, Plaintiff has stated an Eighth and Fourteenth Amendment claim

19

in Count III against Defendant Ryan. Accordingly, the Court will required Defendants Ryan

20

to answer Count III.

Plaintiff also alleges that

21

Plaintiff alleges that Defendant Canteen “continues its practice of underfeeding

22

Plaintiff Olmos by either watering down food or serving smaller portions than the contract

23

calls for” and “has also served expired food.” Plaintiff’s allegations against Defendant

24

Canteen do not rise to the level of constitutional violations. Simply failing “to provide food

25

pursuant to its food service contract” or occasionally serving “expired food” is not sufficient

26

to state a claim under the Eighth and Fourteenth Amendments.

27
28
TERMPSREF

Accordingly, the Court will dismiss Plaintiff’s claims in Count III against Defendant
Canteen for failure to state a claim upon which relief may be granted.
-9-

1

D.

Count IV

2

In Count IV, Plaintiff claims that his First, Fifth, and Fourteenth Amendment rights

3

were violated by Defendant Ryan when he “violated Plaintiff Olmos’ right to adequate,

4

meaningful access to the courts” by continuing “ADC’s longstanding policy of not providing

5

the generalized legal research tools needed by inmates in order to attack their sentences,

6

directly or collaterally, or to challenge the conditions of their confinement.”

7

Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S.

8

343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Coronet v. Donovan, 51 F.3d

9

894, 897 (9th Cir. 1995). The constitutional source of the right of access to the courts is not

10

settled. See Lewis, 518 U.S. at 366-67 (Thomas, J., concurring). The Supreme Court in

11

Bounds appears to consider the source to be the Fourteenth Amendment. See Bounds, 430

12

U.S. at 818. The Ninth Circuit Court of Appeals has stated that “[t]he right of access is

13

grounded in the Due Process and Equal Protection Clauses.” Coronet, 51 F.3d at 897. In any

14

event, the right of access to the courts is a “fundamental constitutional right.” Bounds, 430

15

U.S. at 828.

16

To establish that he was denied meaningful access to the courts, a plaintiff must

17

submit evidence showing that he suffered an “actual injury” as a result of the defendants’

18

actions. Lewis, 518 U.S. at 349. However, “the injury requirement is not satisfied by just

19

any type of frustrated legal claim.” Id. at 354. The legal claim must be “an actionable claim”

20

challenging “sentences or conditions of confinement.” Id. at 356. “Impairment of any other

21

litigating capacity is simply one of the incidental (and perfectly constitutional) consequences

22

of conviction and incarceration.” Id. at 355. Also, “the constitutional right of access requires

23

a state to provide a law library or legal assistance only during the pleading stage of a habeas

24

or civil rights action.” Coronet, 894 F.3d at 898.

25
26

prison’s law library or legal assistance program is sub-par in some theoretical sense.” Lewis,

27

518 U.S. at 351. “[T]he Constitution does not require that prisoners (literate or illiterate) be

28
TERMPSREF

“[A]n inmate cannot establish relevant actual injury simply by establishing that his

able to conduct generalized research, but only that they be able to present their grievances
- 10 -

1

to the courts – a more limited capability that can be produced by a much more limited degree

2

of legal assistance.” Id. at 360.

3

Plaintiff has failed to show in Count IV that he has suffered actual injury by being

4

prevented from filing an actionable claim. Plaintiff’s conclusory and vague claim that he has

5

“suffered the loss of legal cases at the federal and state courts” is insufficient.

6
7

Accordingly, the Court will dismiss Count IV for failure to state a claim upon which
relief may be granted.

8

E.

Count V

9

In Count V, Plaintiff claims that his Fifth and Fourteenth Amendment rights were

10

violated by Defendant Keefe, who operates the “inmate store,” when Defendant Keefe

11

violated a state statute by “(1) charging inmate store prices that were and still are higher than

12

the prices of similar retail products; and (2) continuing to raise prices on inmate store

13

products after the authorized time frame to do so had expired.”

14

Inmates do not have a constitutional right to “canteen products.” Keenan, 83 F.3d at

15

1092. Because Plaintiff does not have a constitutional right to purchase items from the

16

“inmate store,” it follows that he does not have a constitutional right to lower prices.

17
18

Accordingly, the Court will dismiss Count V for failure to state a claim upon which
relief may be granted.

19

F.

Count VI

20

In Count VI, Plaintiff claims that his Fifth, Eighth, and Fourteenth Amendment rights,

21

as well as his rights under “federal OSHA regulations (codified as 29 CFR §§ 1903, -1904,

22

-1910, -1990),” were violated by Defendants Ryan and Canteen when they failed to provide

23

him with a “safe working environment as an inmate kitchen worker.”

24

The Court will treat Count VI as being brought solely under the Eighth and Fourteenth

25

Amendments because Plaintiff has not explained how any of the actions he complains about

26

in Count VI violated his Fifth Amendment rights and the Court is unable to ascertain a Fifth

27

Amendment right that may be implicated by Plaintiff’s allegations..

28
TERMPSREF

Plaintiff alleges that Defendant Ryan’s “facilities at Winchester violated OSHA
- 11 -

1

requirements via an undersized workspace that placed Plaintiff Olmos at constant risk of

2

being burned or suffering injuries” and also “violated OSHA requirements by not providing

3

the required number of toilets for the total number of inmates from all shifts that worked

4

there.”

5

As previously noted, the subjective prong needed to show a violation of the Eighth

6

Amendment relating to the denial of humane conditions requires that the inmate demonstrate

7

that the deprivation was a product of “deliberate indifference” by prison personnel. Wilson,

8

501 U.S. at 302-03. Such indifference can only occur if “the official knows of and disregards

9

an excessive risk to inmate health or safety; the official must both be aware of facts from

10

which the inference could be drawn that a substantial risk of serious harm exits, and he must

11

also draw the inference.” Farmer, 511 U.S. at 837. However, Plaintiff has failed to show

12

that Defendant Ryan personally knew of the conditions about which Plaintiff complains in

13

Count VI. It is insufficient to allege that these conditions existed at one of “Defendant

14

Ryan’s facilities.”

15

Plaintiff alleges that Defendant Canteen “violated OSHA requirements by

16

promulgating a rule that excludes inmates from drinking water while working.” This claim

17

against Defendant Canteen must fail because Plaintiff does not allege any injury from this

18

rule. Instead, Plaintiff alleges that the “water prohibition did not inflict any physical injuries

19

outside of the attempted imposition of this illegal rule, for Plaintiff Olmos disregarded the

20

rule by sneaking drinks of water anyway.” Moreover, the Court notes that “complete

21

compliance with the numerous OSHA regulations” has not been found to be required under

22

the Eighth Amendment. French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985); see also

23

Sampson v. King, 693 F.2d 566, 569 (5th Cir. 1982) (citation omitted) (“In operating a

24

prison, . . . the state is not constitutionally required to observe all the safety and health

25

standards applicable to private industry.”).

26
27

Winchester” he “was not provided proper personal protection equipment for the hands, face,

28
TERMPSREF

Plaintiff also alleges that while he was “working at the kitchen facilities at Morey and

body, and feet,” and “he witnessed that the vermin control program for the Winchester
- 12 -

1

Kitchen was inadequate to control its problem with mice and roaches.” Plaintiff further

2

alleges that he “does not know whether it is the responsibility of Defendant Ryan or

3

Defendant Canteen” to “fulfill personal protection equipment requirements” or “to control

4

kitchen vermin.” These allegations fail to state claim under the Eighth Amendment because

5

the are conclusory and vague and not only has Plaintiff failed to link them to the actions of

6

either Defendant Ryan or Defendant Canteen, but also Plaintiff has failed to allege any

7

deliberate indifference by either Defendant.

8
9

Accordingly, the Court will dismiss Count VI for failure to state a claim upon which
relief may be granted.

10

G.

Count VII

11

In Count VII, Plaintiff claims that his Fifth and Fourteenth Amendment rights to “due

12

process, equal protection, and freedom from unconstitutional takings” were violated by

13

Defendants Ryan, Brewer, and Horne when “illegal deductions” were made from Plaintiff’s

14

“prisoner spendable account.”

15

Plaintiff alleges that Defendant Ryan “violated Plaintiff Olmos’ right to be free from

16

paying assessments and fees that have not been authorized by the legislature via a properly

17

enacted statute,” as required by the Arizona Constitution, by “promulgating ADC policies

18

that charge inmates for photocopies, legal phone calls, legal supplies (paper, pens, etc.), legal

19

mail postage, repayment for positive urinalysis tests, uneaten special diets, follow-up visits

20

and prescription renewals for chronic diseases in violation of A.R.S. § 31-201.01(I)(12),

21

replacement ID cards and ID clips, and GED testing.” Plaintiff alleges that none of these

22

charges is “grounded by a properly-enacted statute.”

23

Liberally construed, Plaintiff has stated a due process against Defendant Ryan.

24

Accordingly, the Court will required Defendant Ryan to answer Plaintiff’s due process claim

25

in Count VII. However, the Court will not require Defendant Ryan to answer Plaintiff’s

26

equal protection and “unconstitutional takings” claims in Count VII.

27
28
TERMPSREF

Generally, “[t]o state a claim . . . for a violation of the Equal Protection Clause . . . [,]
a plaintiff must show that the defendants acted with an intent or purpose to discriminate
- 13 -

1

against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 152

2

F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged he is a member of a protected

3

class.

4

The United States Supreme Court has also recognized “successful equal protection

5

claims brought by a ‘class of one,’ where the plaintiff alleges that [he] has been intentionally

6

treated differently from others similarly situated and that there is no rational basis for the

7

difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see

8

also SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.

9

2002). Even under this standard, Plaintiff has failed to state a claim. Plaintiff has failed to

10

allege that he is being treated differently than other similarly situated individuals and that

11

there was no rational basis for treating him differently. Therefore, Plaintiff has failed to state

12

an equal protection claim against Defendant Ryan in Count VII.

13

The Fifth Amendment Takings Clause prohibits the taking of private property for

14

public use without just compensation. “In order to state a claim under the Takings Clause,

15

a plaintiff must first demonstrate that he possesses a ‘property interest’ that is constitutionally

16

protected.” Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1198 (9th Cir.

17

1998). Additionally, a prisoner cannot establish a taking under the Fifth Amendment absent

18

a showing that his property was taken for public use. Allen v. Wood, 970 F. Supp. 824, 831

19

(E.D. Wash. 1997). Plaintiff has not alleged that Defendant Ryan took his property and

20

converted it for public use. Therefore, Plaintiff has failed to state a Takings Clause claim

21

against Defendant Ryan in Count VII.

22
23

state laws “to fund a transition program” and that Defendant Horne “is responsible for the

24

enforcement” of the these laws. Plaintiff further alleges that these state laws “order[] a 5%

25

deduction from an inmate’s gross wages to fund a transition program, even if the inmate is

26

statutorily excluded form participating in said program.” Plaintiff asserts that Defendants

27

Brewer and Horn have violated his constitutional rights “by the implementation and

28
TERMPSREF

Plaintiff alleges that Defendant Brewer is “responsible for the implementation” of

enforcement of statutes that serve to make illegal deductions from Plaintiff Olmos’ prisoner
- 14 -

1

spendable account, for Plaintiff Olmos is statutorily excluded from participating in the

2

transition program.”

3

Plaintiff’s allegations against Defendants Brewer and Horn are conclusory and vague.

4

Plaintiff does not allege how the statute requiring a 5% deduction from his wages is “illegal.”

5

Moreover, the roles that Defendants Brewer and Horne play in implementing and enforcing

6

state law in general are too attenuated to personally link them to the denial of any

7

constitutional rights Plaintiff may have in not having deductions made from his wages in

8

prison. Rizzo, 423 U.S. at 371-72.

9

As previously noted, to state a claim against a state official, the civil rights

10

complainant must allege that the official personally participated in the constitutional

11

deprivation, or that a state supervisory official was aware of the widespread abuses and with

12

deliberate indifference to the inmate's constitutional rights failed to take action to prevent

13

further misconduct. King, 814 F.2d 5at 568; see also Monell, 436 U.S. at 691; Williams, 836

14

F.2d at 1320. Plaintiff has done neither.

15
16

Accordingly, the Court will dismiss Plaintiff’s claims in Count VII against Defendants
Brewer and Horne for failure to state a claim upon which relief may be granted.

17

H.

Count VIII

18

In Count VIII, Plaintiff claims that his Fifth and Fourteenth Amendment rights were

19

violated by Defendant Ryan when he “failed to pay either actual or constructive interest on

20

moneys that have been held in Plaintiff Olmos’ prisoner spendable account and dedicated

21

discharge account.” Plaintiff alleges that this amounts to “an unconstitutional taking of his

22

property.”

23
24

Count VIII. See Schneider v. California Dep’t of Corrections, 151 F.3d 1194 (9th Cir. 1998)

25

(despite California statute to the contrary, inmate possesses constitutionally cognizable

26

property interest in interest earned on funds in inmate’s personal account); see also Tellis v.

27

Godinez, 5 F.3d 1314 (9th Cir. 1993) (under provisions of Nevada statute, inmates had

28
TERMPSREF

Liberally construed, Plaintiff has stated a Fifth and Fourteenth Amendment claim in

property interest in interest earned on funds in inmate’s personal account).
- 15 -

1

Accordingly, the Court will required Defendant Ryan to answer Count VIII.

2

I.

3

In Count IX, Plaintiff claims that his Fifth and Fourteenth Amendment rights to “due

4

process, equal protection, and freedom from unconstitutional takings” were violated by

5

Defendants Ryan and Hall when they abridged his “state-created property interests.”

Count IX

6

Plaintiff alleges that Defendant Ryan “violated the inmate compensation

7

requirements of A.R.S. § 31-254(A) and A.R.S. § 41-1624.01(A)-(B),” that he “downgraded

8

the skill level of education aides . . . from skilled to semi-skilled when an automated system

9

(called TOSS) was rolled out without changing any of the duties of the position to reflect the

10

lowered skill level, resulting in a 5¢ per hour decrease in compensation,” and that he has

11

“continued the ADC’s policy of not paying kitchen and inmate store workers (who perform

12

labor or services for Defendants Canteen and Keefe, who are private contractors) a minimum

13

of $2.00 per hour.” Plaintiff further alleges that Defendant Ryan “financially injured” him

14

“by underpaying him 5¢/hour in his current position as an education aide.”

15

Liberally construed, Plaintiff has stated a due process against Defendant Ryan. See

16

Piatt v. MacDougall, 773 F.2d 1032 (9th Cir. 1985) (en banc) (where state statute provides

17

inmates right to compensation, state cannot deny compensation without due process).

18

Accordingly, the Court will required Defendant Ryan to answer Plaintiff’s due process

19

claim in Count IX. However, as explained in more detail below, the Court will not require

20

Defendant Ryan to answer Plaintiff’s equal protection and “unconstitutional takings” claims

21

in Count IX.

22

Plaintiff alleges that Defendant Hall “refused to pay Winchester inmates pursuant to

23

ADC’s pay scale outlined in DO 903, in violation of his duties as the inmate pay

24

coordinator.” Plaintiff further alleges that Defendant Hall “financially injured” him “by

25

underpaying him for his past work as a Winchester kitchen worker.”

26
27

property does not violate the Due Process Clause if a meaningful post-deprivation remedy

28
TERMPSREF

A state employee who intentionally and without authorization deprives a person of his

for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). A prison grievance
- 16 -

1

procedure for property loss claims can provide an adequate post-deprivation remedy. See

2

Al-Ra’id v. Ingle, 69 F.3d 28, 32 (5th Cir. 1995); see also Wright v. Riveland, 219 F.3d 905,

3

918 (9th Cir. 2000) (prisoners in Washington have adequate post-deprivation remedies to

4

challenge deductions from inmate accounts by utilizing the prison grievance procedure or by

5

filing a state tort action).

6

The ADC provides a grievance procedure for property claims. See Department Order

7

909.12. Arizona prison inmates can use the inmate grievance system to file claims seeking

8

reimbursement for property loss or damage. Id. Because Plaintiff has an adequate post-

9

deprivation remedy through the prison grievance procedure, he has failed to state a claim

10

under the Due Process Clause against Defendant Hall in Count IX.

11

Plaintiff has failed to state an equal protection claim against either Defendant Ryan

12

or Hall in Count IX because he does not allege in Count IX that he is being treated differently

13

than other similarly situated individuals and that there was no rational basis for treating him

14

differently. Also, Plaintiff has failed to state a Takings Clause claim against either Defendant

15

Ryan or Hall in Count IX because he has not alleged that Defendant Ryan or Hall took his

16

property and converted it for public use.

17

Accordingly, the Court will dismiss Plaintiff’s claims in Count IX against Defendant

18

Hall and will dismiss Plaintiff’s equal protection and Takings Clause claims against

19

Defendant Ryan for failure to state a claim upon which relief may be granted.

20
21

In Count X, Plaintiff claims that his Fifth and Fourteenth Amendment rights to “due

22

process, equal protection, and freedom from unconstitutional takings” were violated by

23

Defendant Ryan when he promulgated “an ADC policy that demands that Plaintiff Olmos

24

surrender all orange-colored clothing purchased at the inmate store to ADC staff on his

25

release date without any compensation.” Plaintiff alleges that “[u]pon release,” he “will

26

incur a property injury by having his clothing taken by ADC staff due to Defendant Ryan’s

27

policy” and he will be injured financially by “being compelled to purchase replacement

28
TERMPSREF

J.

Count X

clothing.” Although Plaintiff does not allege that he has actually been injured yet, he does
- 17 -

1

seek both declaratory and prospective injunctive relief.

2

Liberally construed, Plaintiff has stated a due process against Defendant Ryan.

3

Accordingly, the Court will required Defendant Ryan to answer Plaintiff’s due process claim

4

in Count X. However, for the same reasons discussed above in Count VII, the Court will

5

dismiss Plaintiff’s equal protection and Takings Clause claims in Count X against Defendant

6

Ryan for failure to state a claim upon which relief may be granted.

7

K.

Count XI

8

In Count XI, Plaintiff claims that his right to be free from prison mail policies that

9

either violate the First, Fifth, Sixth, and Fourteenth Amendments or “do not pass the tests of

10

Turner v. Safley, 482 U.S. 78 (1987), or Procunier v. Martinez, 416 U.S. 396 (1974),” was

11

violated by Defendant Ryan when he enacted “ADC mail policies that do not pass legal

12

muster.” Plaintiff alleges that Defendant Ryan has “enacted a legal mail definition that is

13

too narrow in scope” and that has led to his “legal mail being opened on multiple occasions.”

14

Plaintiff further alleges that Defendant Ryan has instituted “incoming mail policies” that

15

“abridg[e] his free speech rights in a manner that does not pass the Turner test” and also has

16

instituted a “policy that all outgoing legal mail must be mailed using first[-]class postal

17

delivery” that violates Plaintiff’s rights to “due process, equal protection, freedom from

18

unconstitutional takings, and freedom from outgoing mail policies that do not pass the strict

19

scrutiny test of Procunier by compelling Plaintiff Olmos to pay more postage than is

20

necessary to mail his legal mail.”

21

Plaintiff’s claim that Defendant Ryan’s legal mail definition is “too narrow” will be

22

dismissed for failure to state a claim upon which relief may be granted. This claim is very

23

conclusory and vague. Plaintiff does not allege what the legal mail definition is or why it is

24

“too narrow.”

25
26

mail must be mailed using first[-]class postal delivery” will be dismissed for failure to state

27

a claim upon which relief may be granted. This claim is also very conclusory and vague.

28
TERMPSREF

Additionally, Plaintiff’s claim that Defendant Ryan’s “policy that all outgoing legal

Plaintiff does not allege how he is being denied due process or equal protection by this policy
- 18 -

1

and does not allege how being required to use first-class postal delivery constitutes an

2

unconstitutional taking or does not pass the strict scrutiny test of Procunier. The Court is

3

unaware of any constitutional right requiring an inmate to be allowed to use the cheapest

4

method of postal delivery for his outgoing legal mail. Indeed, in certain instances the use of

5

first-class postage is important in federal court. For example, Rule 4(c)(1) of the Federal

6

Rules of Appellate Procedure provides in part that the filing of a notice of appeal by an

7

inmate in either a civil or criminal case “is timely if it is deposited in the institution’s internal

8

mail system on or before the last day for filing” and “timely filing may be shown by a

9

declaration . . . or by a notarized statement, either of which must set forth the date of deposit

10

and state that first-class postage was prepaid.”

11

Liberally construed, Plaintiff has stated a First and Fourteenth Amendment claim

12

against Defendant Ryan in Count XI regarding his incoming mail policies. Accordingly, the

13

Court will require Defendant Ryan to answer this claim.

14

L.

Count XII

15

In Count XII, Plaintiff claims that his First, Fifth, and Fourteenth Amendment rights

16

were violated by Defendants “Unknown ADC mail room staff at ASPC Lewis Complex

17

and/or Morey” when, on or about November 29, 2007, they “seized a subpoena that Plaintiff

18

Olmos was informally serving upon the Chandler Unified School District.” Plaintiff alleges

19

that “unknown ADC staff censured the aforementioned subpoena by faxing a copy of it to

20

the County Attorney’s Office,”

21

Title 28 U.S.C. § 1915A(b)(1) mandates that the Court dismiss a complaint if it is

22

frivolous, malicious, or fails to state a claim upon which relief may be granted. Moreover,

23

“an action may be dismissed . . . where the defense is complete and obvious from the face

24

of the pleadings.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). In the absence

25

of waiver, the Court may raise the defense of statute of limitations sua sponte. Levald, Inc.

26

v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993).

27
28
TERMPSREF

In actions under 42 U.S.C. § 1983, the applicable statute of limitations is the forum
state’s statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266,
- 19 -

1

274-76 (1985); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991). The Arizona statute

2

of limitations for personal injury actions is two years. See Ariz. Rev. Stat. § 12-542(1);

3

Madden-Tyler v. Maricopa County, 943 P.2d 822, 824 (Ariz. Ct. App. 1997); Vaughan, 927

4

F.2d at 478.

5

Plaintiff’s allegations in Count XII involved actions that occurred on November 2,

6

2007, over three years before Plaintiff filed the original Complaint in this action. Thus,

7

Plaintiff’s claim in Count XII is barred by the statute of limitations.

8
9

Accordingly, the Court will dismiss Count XII for failure to state a claim upon which
relief may be granted.

10

M.

Count XIII

11

In Count XIII, Plaintiff claims that his Fourteenth Amendment rights were violated

12

by Defendant Ryan when he failed “to protect [Plaintiff’s] personal property against damage

13

during a non-disciplinary-related institutional move.” Plaintiff alleges that Defendant Ryan’s

14

“property policy requires, that when an inmate is moved a distance of fifteen miles or more,

15

his appliances are to be packed in boxes.” Thus, Plaintiff asserts that the “onus was on

16

Defendant Ryan to provide ADC staff with boxes pursuant to ADC policy” and that

17

Defendant Ryan “personally participated in this deprivation by refusing to provide packing

18

material to ADC staff as required by the aforementioned ADC policy.”

19

Because Plaintiff has an adequate post-deprivation remedy through the prison

20

grievance procedure for Defendant Ryan’s allegedly intentional and unauthorized deprivation

21

of packing boxes to safely transport Plaintiff’s appliances, he has failed to state a claim under

22

the Due Process Clause of the Fourteenth Amendment against Defendant Ryan in Count

23

XIII. See Hudson, 468 U.S. at 533.

24
25

Accordingly, the Court will dismiss Count XIII for failure to state a claim upon which
relief may be granted.

26
27

In Count XIV, Plaintiff claims that his right to be free from prison policies that do not

28
TERMPSREF

N.

Count XIV

pass the test set out in Turner v. Safley, 482 U.S. 78 (1987), was violated by Defendant
- 20 -

1

Ryan.

Plaintiff alleges that Defendant Ryan is “responsible” for numerous “ADC

2

Department Orders that do not pass the Turner test,” including “Orders” that deal with such

3

things as hair length, banning beards, tucking in shirts, the wearing of sweat pants and gym

4

shorts, going shirtless, covering up thermal shirts, appearance changes, the use of empty

5

containers to organize living areas, homemade lamp shades, making beds, limiting television

6

channels, providing legal assistance to other inmates, possessing legal materials of other

7

inmates, possessing typewriters and computers, limiting clothing and laundry bags, limiting

8

legal books, regulating the identification and storage of religious items, limiting the value of

9

an inmate’s property, inmate property specifications, and eating leftovers.

10

In order to state a claim under 42 U.S.C. § 1983, Plaintiff must show that the conduct

11

of a Defendant deprived him of a constitutional right. Haygood v. Younger, 769 F.2d 1350,

12

1354 (9th Cir. 1985) (en banc). However, Plaintiff has failed to allege the violation of any

13

specific constitutional provision in Count XIV. The test set out in Turner to which Plaintiff

14

refers is a test used by the courts to determine if a prison regulation that “impinges on

15

inmates’ constitutional rights” is valid. Turner, 482 U.S. at 89. However, Plaintiff has not

16

alleged that any of the “Orders” that he complains about in Count XIV impinge on a

17

particular constitutional right.

18
19

Accordingly, the Court will dismiss Count XIV for failure to state a claim upon which
relief may be granted.

20

O.

Count XV

21

In Count XV, Plaintiff claims that his First, Fifth, and Fourteenth Amendment rights

22

were violated by Defendants “Unknown ADC staff,” Ortega, Cardoza, and Brockman when

23

they used the “ADC’s disciplinary policy to retaliate” against Plaintiff “without a legitimate

24

penological interest for properly exercising his right to free speech.”

25
26

order to acquire information regarding the access to the courts it provides to inmates,” and

27

that “in addition to providing Plaintiff Olmos with the information,” the “KDOC notified

28
TERMPSREF

Plaintiff alleges that he wrote to the Kansas Department of Corrections (KDOC) “in

ADC administration of the inquiry out of courtesy and included a copy of Plaintiff Olmos’
- 21 -

1

letter.” Plaintiff further alleges that Defendant Unknown ADC staff “ordered Defendant

2

Ortega to ‘take care’ of Plaintiff Olmos, even though an unbiased review of the letter in

3

question made it clear that the letter did not violate either state law or ADC policy,” and that

4

Defendant Ortega “initiated disciplinary proceedings by charging Plaintiff Olmos with

5

fraud, even though Plaintiff Olmos’ actions did not satisfy the fraud elements.”

6

Liberally construed, Plaintiff has stated a retaliation claim against Defendant

7

“Unknown ADC staff” and Defendant Ortega. The Court will therefore require Defendant

8

Ortega to answer Count XV. However, the Court will not direct that service be made on

9

Defendant “Unknown ADC Administrator(s)” at ADC at this time.1

10

Plaintiff may use the discovery processes to obtain the name of the person who he

11

believes violated his constitutional rights. If Plaintiff discovers the true identity of this

12

fictitious party through the discovery process, or otherwise, he may seek leave of the Court

13

to amend his Complaint to name the individual in place of Defendant “Unknown ADC

14

Administrator(s).”

15

Plaintiff also alleges that Defendant Cardoza “called Plaintiff Olmos to defend

16

himself in a disciplinary hearing, even though the disciplinary clearly showed that Plaintiff

17

Olmos had not been served a copy of the disciplinary report prior to the hearing,” and that

18

“Defendant Cardoza abused his discretion by modifying the fraud charge” to a charge that

19

“not only did not exist in ADC policy as a disciplinable offense, but also did not share a

20

single element of the original fraud charge.” Lastly, Plaintiff alleges that Defendant

21

Brockman sustained the “invalid disciplinary report” against Plaintiff.

22

Plaintiff has failed to state a claim for retaliation against Defendants Cardoza and

23

Brockman because Plaintiff does not allege that they acted with a retaliatory motive. Also,

24

to the extent that Plaintiff may be attempting to bring a due process claim against them, the

25

due process claim must fail.

26
27
28
TERMPSREF

1

The Court presumes that the Defendant “Unknown ADC staff” that Plaintiff is
referring to is the Defendant named in the First Amended Complaint as “Unknown ADC
Administrator(s).”
- 22 -

1

In analyzing a due process claim, the Court must first decide whether Plaintiff was

2

entitled to any process, and if so, whether he was denied any constitutionally required

3

procedural safeguard. Liberty interests which entitle an inmate to due process are “generally

4

limited to freedom from restraint which, while not exceeding the sentence in such an

5

unexpected manner as to give rise to protection by the Due Process Clause of its own force,

6

nonetheless imposes atypical and significant hardship on the inmate in relation to the

7

ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal

8

citations omitted).

9

Therefore, to determine whether an inmate is entitled to the procedural protections

10

afforded by the Due Process Clause of the Fourteenth Amendment, the Court must look to

11

the particular restrictions imposed and ask whether they “‘present the type of atypical,

12

significant deprivation in which a state might conceivably create a liberty interest.’” Mujahid

13

v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (quoting Sandin, 515 U.S. at 486).

14
15

to prisoner’s conditions of confinement, the duration of the sanction, and whether the

16

sanction will affect the duration of the prisoner’s sentence. See Keenan, 83 F.3d at 1088-89.

17

“Atypicality” requires not merely an empirical comparison, but turns on the importance of

18

the right taken away from the prisoner. See Carlo v. City of Chino, 105 F.3d 493, 499 (9th

19

Cir. 1997). See e.g., Sandin, 515 U.S. at 472 (30 days’ disciplinary segregation is not

20

atypical and significant); Torres v. Fauver, 292 F.3d 141, 151 (3rd Cir. 2002) (four months

21

in administrative segregation is not atypical and significant); Jacks v. Crabtree, 114 F.3d

22

983 (9th Cir. 1997) (denial of year sentence reduction is not an atypical and significant

23

hardship); Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (two and one-half years of

24

administrative segregation is not atypical and significant); Griffin v. Vaughn, 112 F.3d 703,

25

706-708 (3rd Cir. 1997) (fifteen months’ administrative segregation is not atypical and

26

significant); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (six months of confinement

27

in especially disgusting conditions that were “more burdensome than those imposed on the

28
TERMPSREF

To determine whether the sanctions are atypical and a significant hardship, courts look

general prison population” were not “atypical . . . in relation to the ordinary incidents of
- 23 -

1

prison life”).

2

In Count XV, Plaintiff has not alleged or shown that sanctions imposed as a result of

3

his disciplinary conviction violated a liberty interest he had under the Due Process Clause

4

itself, or imposed an “atypical and significant hardship” on him. Sandin, 515 U.S. at 484.

5

Indeed, Plaintiff has not identified any of the sanctions imposed on him. Therefore, Plaintiff

6

has failed to state a cognizable due process claim against Defendants Cardoza and Brockman.

7

Accordingly, Plaintiff’s claims against Defendants Cardoza and Brockman in Count

8

XV will be dismissed for failure to state a claim upon which relief may be granted.

9

VII.

Dismissal of Defendants

10

Because no claims remain against them, the Court will dismiss Defendants GEO,

11

Canteen, Keefe, Brewer, Ahee, Cardoza, “Unknown ADC Security Officer(s)” at the Mail

12

Room of the Arizona State Prison Complex-Lewis (ASPC-Lewis) and/or the Morey Unit of

13

ASPC-Lewis, Hall, Horne, and Brockman from this action for failure to state a claim upon

14

which relief may be granted.

15

VIII. Motion for Order to Return Documents Not Filed by Clerk

16

On March 2, 2011, Plaintiff filed a “Motion For Order To Return Of Documents Not

17 Filed By Clerk” (Doc. 20), in which he moves the Court to order the Clerk of Court to return
18 the “556-page ‘Complaint Addendum’ (Docs. 2 [part] and 3) and ‘Memorandum Establishing
19 Conformance With 42 U.S.C. § 1997(e)[’] (Doc. 8), which is over 150 pages in length.”
20 Plaintiff alleges that he cannot afford to recopy these documents.
21

By Order filed February 9, 2011 (Doc. 11), the Court directed the Clerk of Court not

22 to file these two lodged documents. For good cause shown, the Court will grant Plaintiff’s
23 Motion and direct the Clerk of Court to return the unfiled documents to Plaintiff.
24 IX.

Motion for Assistance in Locating Select Defendants for Service

25

On May 2, 2011, Plaintiff filed a “Motion For Assistance In Locating Select

26 Defendants For Service Of Pleadings” (Doc. 25), in which Plaintiff moves the Court to “order
27 Defendant Ryan and/or the Arizona Attorney General to assist Plaintiff and the U.S. Marshal[]
28 in locating and serving Defendants Ahee, Hall, Ortega, and Brockman.” Plaintiff’s Motion
TERMPSREF

- 24 -

1 will be denied without prejudice.
2

This Order dismisses Defendants Ahee, Hall, and Brockman from this action and

3 therefore, there is no need for Plaintiff to locate and serve these Defendants. As to Defendant
4 Ortega, Plaintiff states that his “only confirmed information on Defendant Ortega is his officer
5 badge number (CO II # 2083) at the time of the incident described in Count XV” and that
6 Defendant Ortega’s “first name and current employment information/location was provided
7 to Plaintiff by a prison staff member that did not know Defendant Ortega personally.”
8 Accordingly, it appears that Plaintiff has sufficient information to complete a service packet
9 for Defendant Ortega. If Plaintiff’s information proves to be insufficient, and the U.S.
10 Marshal is unable to obtain enough information to serve Defendant Ortega, then Plaintiff may
11 approach the Court with this matter again.
12 X.

Warnings

13

A.

14

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

Release

15 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay
16 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result
17 in dismissal of this action.
18

B.

Address Changes

19

Plaintiff must file and serve a notice of a change of address in accordance with Rule

20 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other
21 relief with a notice of change of address. Failure to comply may result in dismissal of this
22 action.
23

C.

Copies

24

Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy

25 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate
26 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit
27 an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply
28 may result in the filing being stricken without further notice to Plaintiff.
TERMPSREF

- 25 -

1

D.

Possible Dismissal

2

If Plaintiff fails to timely comply with every provision of this Order, including these

3 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,
4 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to
5 comply with any order of the Court).
6 IT IS ORDERED:
7

(1)

Plaintiff’s “Motion For Enlargement Of Time To File First Amended

8 Complaint” (Doc. 19) is granted and Plaintiff’s First Amended Complaint (Doc. 21), which
9 was filed on March 14, 2011, is accepted as being timely filed.
10

(2)

Plaintiff’s “Motion For Leave To Suspend Enforcement Of Local Rules Upon

11 Pro Se Litigant” (Doc. 23) is granted to the extent that the Court accepts Plaintiff’s First
12 Amended Complaint (Doc. 21) in the form in which it was filed.
13

(3)

Plaintiff’s “Motion For Order To Return Of Documents Not Filed By Clerk”

14 (Doc. 20) is granted and the Clerk of Court must return Plaintiff’s unfiled “556-page
15 ‘Complaint Addendum’” (Docs. 2 [part] and 3) and “Memorandum Establishing Conformance
16 With 42 U.S.C. § 1997(e)” (Doc. 8) to Plaintiff.
17

(4)

Plaintiff’s “Motion For Assistance In Locating Select Defendants For Service

18 Of Pleadings” (Doc. 25) is denied without prejudice.
19

(5)

Defendants GEO Group, Inc.; Compass Group – North America Division, d.b.a.

20 Canteen Correctional Services; Keefe Group, d.b.a. Keefe Commissary Network; Janice K.
21 Brewer; Ferris D. Ahee; Daniel Cardoza; “Unknown ADC Security Officer(s)” at the Mail
22 Room of the Arizona State Prison Complex-Lewis and/or the Morey Unit of ASPC-Lewis;
23 Eric Hall; Thomas C. Horne; and Timothy Brockman are dismissed from this action.
24

(6)

The following claims in the First Amended Complaint (Doc. 21) are dismissed

25 for failure to state a claim upon which relief may be granted:
26

(a)

Charles L. Ryan in Counts VII, IX, and X;

27
28
TERMPSREF

Plaintiff’s equal protection and Takings Clause claims against Defendant

(b)

Plaintiff’s legal mail policy claims, including his claim regarding the
- 26 -

1

requirement to use first-class postal delivery for legal mail, against

2

Defendant Ryan in Count XI; and

3
4

(c)
(7)

Counts I, II, IV, V, VI, XII, XIII, and XIV.

The following Defendants must answer the following claims in the First

5 Amended Complaint (Doc. 21):
6

(a)

Defendant Charles L. Ryan—Plaintiff’s due process claims in Counts

7

VII, IX, and X; Counts III and VIII; and Plaintiff’s free speech claim

8

regarding his incoming mail policy in Count XI; and

9
10

(b)
(8)

Defendant Allen Ortega—Plaintiff’s retaliation claim in Count XV.

The Clerk of Court must send Plaintiff a service packet including the First

11 Amended Complaint (Doc. 21), this Order, and both summons and request for waiver forms
12 for Defendants Charles L. Ryan and Allen Ortega.
13

(9)

Plaintiff must complete2 and return the service packet to the Clerk of Court

14 within 21 days of the date of filing of this Order. The United States Marshal will not provide
15 service of process if Plaintiff fails to comply with this Order.
16

(10)

If Plaintiff does not either obtain a waiver of service of the summons or

17 complete service of the Summons and First Amended Complaint on a Defendant within 120
18 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is
19 later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m);
20 LRCiv 16.2(b)(2)(B)(i).
21

(11)

The United States Marshal must retain the Summons, a copy of the First

22 Amended Complaint, and a copy of this Order for future use.
23

(12)

The United States Marshal must notify Defendants Charles L. Ryan and Allen

24 Ortega of the commencement of this action and request waiver of service of the summons
25 pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants must
26
2

27
28
TERMPSREF

If a Defendant is an officer or employee of the Arizona Department of Corrections,
Plaintiff must list the address of the specific institution where the officer or employee works.
Service cannot be effected on an officer or employee at the Central Office of the Arizona
Department of Corrections unless the officer or employee works there.
- 27 -

1 include a copy of this Order. The Marshal must immediately file signed waivers of service
2 of the summons. If a waiver of service of summons is returned as undeliverable or is not
3 returned by a Defendant within 30 days from the date the request for waiver was sent
4 by the Marshal, the Marshal must:
5

(a)

personally serve copies of the Summons, First Amended Complaint, and

6

this Order upon the Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil

7

Procedure; and

8

(b)

within 10 days after personal service is effected, file the return of service

9

for Defendant, along with evidence of the attempt to secure a waiver of service of the

10

summons and of the costs subsequently incurred in effecting service upon Defendant.

11

The costs of service must be enumerated on the return of service form (USM-285) and

12

must include the costs incurred by the Marshal for photocopying additional copies of

13

the Summons, First Amended Complaint, or this Order and for preparing new process

14

receipt and return forms (USM-285), if required. Costs of service will be taxed against

15

the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil

16

Procedure, unless otherwise ordered by the Court.

17

(13)

A Defendant who agrees to waive service of the Summons and First

18 Amended Complaint must return the signed waiver forms to the United States Marshal,
19 not the Plaintiff.
20

(14)

Defendants Charles L. Ryan and Allen Ortega must answer the First Amended

21 Complaint or otherwise respond by appropriate motion within the time provided by the
22 applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
23

(15)

Any answer or response must state the specific Defendant by name on whose

24 behalf it is filed. The Court may strike any answer, response, or other motion or paper that
25 does not identify the specific Defendant by name on whose behalf it is filed.
26 \ \
27 \ \
28
TERMPSREF

- 28 -

1

(16)

This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules

2 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized
3 under 28 U.S.C. § 636(b)(1).
4

DATED this 10th day of May, 2011.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TERMPSREF

- 29 -