Higdon v. Ryan et al

Filing 3

ORDER that the Complaint (Doc. 1-2, Ex. C, Attach. 1) is dismissed for failure to state a claim. The Clerk 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. & #167; 1915(g). The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge David G Campbell on 6/26/13. (LSP)

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JWB

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David A. Higdon,
Plaintiff,

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vs.

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Charles L. Ryan, et al.,

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Defendants.

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No. CV 13-0475-PHX-DGC (JFM)
ORDER

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Plaintiff David A. Higdon, who is currently confined in the Arizona State Prison
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Complex-Lewis Rast Unit in Buckeye, Arizona, filed a complaint in Maricopa County
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Superior Court, matter No. CV2012-018711. In his Complaint, Plaintiff asserted violations
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of his constitutional rights (Doc. 1-2, Ex. C, Attach. 1 at 10) (“Compl.”). Plaintiff sued six
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Arizona Department of Corrections (ADC) officials: Director Charles Ryan, General Counsel
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Karen Klausner, Deputy Warden Dorsey, Captain Summers, Sergeant Trujillo, and
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Correctional Officer II Stapleton (id. at 2). Defendant Ryan timely removed the case to
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federal court based on federal question subject matter jurisdiction on March 7, 2013.1

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The Complaint facially supports that subject matter jurisdiction is proper in federal
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court and that the case was timely removed. 28 U.S.C. § 1446(b). The Court will dismiss
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Plaintiff’s Complaint and this action.
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Ryan received a request for waiver of service of summons on February 8, 2013
(Doc. 1 at 1).

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I.

Statutory Screening of Prisoner Complaints

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

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

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§ 1915A(a), (e)(2). The Court must dismiss a complaint or portion thereof if a plaintiff has

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

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

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such relief. 28 U.S.C. § 1915A(b)(1), (2).

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

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

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

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

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

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statements, do not suffice.” Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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94 (2007) (per curiam)).

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II.

Complaint

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Plaintiff alleges violations of his First, Eighth, and Fourteenth Amendment rights

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(Compl. at 10). He presents the following facts: on December 4, 2011, Plaintiff received a

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visit from his wife, father, and three children, which was supervised by Stapleton (id. at 3).

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While standing in the outside visitation area, Plaintiff was holding his six-month-old baby

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while his wife stood next to him. Plaintiff’s father and other two children (ages six and

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seven) were standing in front of Plaintiff. Plaintiff and his visitors were in direct view of a

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video surveillance camera as well as other visitors and inmates (id.).

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At approximately 11:50 a.m., Stapleton came outside and ordered Plaintiff and his

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family to come inside. Stapleton informed them that their visit was terminated but she would

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not explain why (id. at 3-4). Before exiting the unit, CO Card detained Plaintiff’s wife for

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approximately 15 minutes and repeatedly asked her to “just admit what she’d done wrong

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and that way it would go easier on her” (id. at 4).

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On December 5 at 10:00 a.m., Trujillo delivered to Plaintiff a misconduct report for

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Sexual Abuse (id.). Trujillo explained that Stapleton reported that she observed Plaintiff’s

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erect penis being manually manipulated by Plaintiff’s wife while they were standing outside.

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Plaintiff told Trujillo that there were numerous witnesses who could controvert Stapleton’s

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allegations and that the videotape surveillance would similarly disprove the allegations.

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Trujillo gave Plaintiff two witness statement forms, one for Stapleton and one for inmate

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Tony Brown and informed Plaintiff that he (Trujillo) would investigate the incident

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thoroughly and refer the case to a Disciplinary Hearing Officer (id. at 4-5). Plaintiff

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contacted his wife later that day, explaining the situation. She, in turn, contacted CIU Officer

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Williams and informed him of the incident and the falsity of the allegations. She asked

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Williams to review the videotape evidence and to help exonerate Plaintiff (id. at 5).

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At 7:30 a.m. on December 7, Plaintiff was directed to turn in his witness statement

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forms; Plaintiff complied at 8:00 a.m. Summers conducted Plaintiff’s disciplinary hearing

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at 12:00 p.m. on December 7 (id. at 5-6). Summers denied Plaintiff the right to present

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witnesses, was not given 48 hours to prepare for the hearing, and known witnesses were not
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called or interviewed. Trujillo failed to conduct a minimal investigation by not contacting

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known civilian and inmates witnesses and by failing to review the video surveillance

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evidence. Plaintiff also learned that Stapleton had the misconduct report returned to her

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three times for rewriting and/or to change details contained therein (id. at 6).

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Plaintiff was found guilty of Sexual Abuse and lost 90 days Earned Release Credits

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(id. at 6-7). Plaintiff also was sanctioned to 30 days in Parole Class III, which deprived him

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of the right to earn release credits, visitation, and all other privileges (id. at 7). Plaintiff

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appealed the disciplinary charge through two levels of appeal, but Dorsey, Klausner, and

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Ryan took no action other than to uphold the findings (id. at 7-8).

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Plaintiff argues that Defendants actions violated his First, Eighth, and Fourteenth

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Amendment rights and seeks costs, compensatory and punitive damages, transfer to an out-

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of-state facility, and injunctive relief.

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III.

Failure to State a Claim under § 1983 – Heck v. Humphrey Bar

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When success on a claim could potentially affect the duration of confinement, habeas

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corpus is the appropriate and exclusive vehicle to seek relief; a civil rights action pursuant

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to § 1983 is not available unless and until the prisoner has obtained a “favorable termination”

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of the underlying disciplinary action. Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004).

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That is, a civil rights claim under § 1983 does not accrue unless or until the prisoner has

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obtained a “favorable termination”of the underlying disciplinary action. See Heck v.

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Humphrey, 512 U.S. 477, 489 (1994). Under the “favorable termination” rule:

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In order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by action whose unlawfulness would
render a conviction of sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal . . . or called into question
by a federal court’s issuance of a writ of habeas corpus . . .

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Heck, 512 U.S. at 486-87. The “favorable termination” rule has been extended to prison
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disciplinary actions, when alleged due process defects, if established, would “necessarily
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imply the invalidity of the deprivation of [the prisoner’s] good-time credits.” Edwards v.
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Balisok, 520 U.S. 641, 646 (1997); cf. Butterfield v. Bail, 120 F.3d 1023 (9th Cir. 1997)
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(applying the “favorable termination rule” in challenge to parole revocation). Thus, where
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success in a prisoner’s action would decrease the length of his sentence, a § 1983 claim is not

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cognizable until the disciplinary conviction has been invalidated. That appears to be the case

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here. To prevail on any of his claims for damages under § 1983 would necessarily

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undermine the validity of his disciplinary proceedings. Therefore, Plaintiff must seek review

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of the disciplinary proceedings and obtain a “favorable termination” before he may seek

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damages pursuant to § 1983 for his First, Eighth, and Fourteenth Amendment claims.

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To challenge disciplinary proceedings, a prisoner may seek federal habeas relief

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pursuant to 28 U.S.C. § 2254, which is the “exclusive vehicle” for a state prisoner to seek

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relief from an administrative decision in federal court. See White v. Lambert, 370 F.3d 1002,

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1009-10 (9th Cir. 2004). Before a federal court may grant habeas relief, however, a prisoner

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must first have exhausted remedies available in the state courts. See 28 U.S.C. § 2254(b)(1);

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O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The federal court will not entertain a

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petition for writ of habeas corpus unless each and every issue has been exhausted. Rose v.

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Lundy, 455 U.S. 509, 521-22 (1982); Olvera v. Guirbino, 371 F.3d 569, 572 (9th Cir. 2004)

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(district court may not consider a claim until petitioner has properly exhausted all available

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remedies). When seeking habeas relief, the burden is on the habeas petitioner to show that

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he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir.

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1981) (per curiam).

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Plaintiff indicates that he has only challenged his disciplinary conviction in the

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prison’s internal process and not in the state courts. To exhaust claims, however, a prisoner

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must give the state courts a “fair opportunity” to act on his claims. Castillo v. McFadden,

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370 F.3d 882 (9th Cir. 2004). He must describe both the operative facts and the federal legal

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theory so that the state courts have a “fair opportunity” to apply controlling legal principles

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to the facts bearing upon his constitutional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th

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Cir. 2003). A prisoner seeking to exhaust claims in state court before filing a federal habeas

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action should diligently pursue his available state remedies to avoid application of the one-

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year limitation period. See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) (applying

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§ 2244(d) to a habeas petition challenging a disciplinary order).
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Plaintiff appears to have an available remedy in state court to exhaust his claims

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challenging the disciplinary proceedings prior to filing a federal habeas corpus petition.

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Although Arizona’s Administrative Review Act does not authorize state judicial review of

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prison disciplinary proceedings, an inmate may seek such review by bringing a special action

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in superior court. Rose v. Arizona Dep’t of Corr., 804 P.2d 845, 847-50 (Ariz. Ct. App.

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1991). If unsuccessful, the inmate must then appeal the superior court’s ruling to the Arizona

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Court of Appeals to exhaust his claims before seeking federal habeas relief. See Swoopes

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v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). For these reasons, Plaintiff’s Complaint

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must be dismissed.

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IT IS ORDERED:

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(1)

The Complaint (Doc. 1-2, Ex. C, Attach. 1) is dismissed for failure to state a

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claim pursuant to 28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment

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accordingly.

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(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).
(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.

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DATED this 26th day of June, 2013.

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