Higdon v. Ryan et al

Filing 9

ORDER (Service Packet), Plaintiff's Motion for an Extension of Time to file his First Amended Complaint 8 is denied as moot; Counts I (in part), II, and III (in part) are dismissed without prejudice; Defendants Ryan, Klausner, Richardson, Truj illo, and Williams are dismissed without prejudice; Defendants Stapleton and Dorsey must answer Counts I (in part) and III (in part); the Clerk must send Plaintiff a service packet including the First Amended Complaint 7 , this Order, and both summo ns and request for waiver forms for Defendants Stapleton and Dorsey; Plaintiff must complete and return the service packet to the Clerk within 21 days; this matter is referred to Magistrate Judge James F Metcalf for all pretrial proceedings. Signed by Judge David G Campbell on 5/7/14. (REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David A. Higdon, 10 11 12 No. CV 13-0475-PHX-DGC (JFM) Plaintiff, vs. ORDER Charles L. Ryan, 13 Defendant. 14 15 David Higdon, who is currently confined in the Arizona State Prison Complex- 16 Lewis Buckley Unit in Buckeye, Arizona, filed a complaint in Maricopa County Superior 17 Court, matter No. CV2012-018711, suing six Arizona Department of Corrections (ADC) 18 officials (Doc. 1-2, Ex. C, Attach. 1 at 10). Defendant Ryan timely removed the case to 19 federal court based on federal question subject matter jurisdiction on March 7, 2013. 20 Before the Court is Plaintiff’s First Amended Complaint (Doc. 7), filed in compliance 21 with the Court’s December 30, 2013 Order. The Court will direct Stapleton and Dorsey 22 to answer Counts I (in part) and III (in part), and will dismiss the remaining claims and 23 Defendants without prejudice. 24 I. Statutory Screening of Prisoner Complaints 25 The Court is required to screen complaints brought by prisoners seeking relief 26 against a governmental entity or an officer or an employee of a governmental entity. 28 27 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 28 has raised claims that are legally frivolous or malicious, that fail to state a claim upon TERMPSREF 1 which relief may be granted, or that seek monetary relief from a defendant who is 2 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A pleading must contain a “short and plain statement of the claim showing that the 4 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 5 does not demand detailed factual allegations, “it demands more than an unadorned, the- 6 defendant-unlawfully-harmed-me accusation.” 7 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 9 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 10 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 11 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 12 content that allows the court to draw the reasonable inference that the defendant is liable 13 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 14 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 15 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 16 specific factual allegations may be consistent with a constitutional claim, a court must 17 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 18 at 681. 19 But as the United States Court of Appeals for the Ninth Circuit has instructed, 20 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 21 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 22 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 23 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 24 II. First Amended Complaint 25 Plaintiff presents three counts for relief alleging violations of his First Amendment 26 rights, his due process rights, and his Eighth Amendment rights (Doc. 7 at 3-5). Plaintiff 27 sues the following ADC officials: Charles Ryan, Director; Karen Klausner, General 28 Counsel; Regina Dorsey, Buckley Unit Deputy Warden; Bobby Williams, Criminal TERMPSREF -2- 1 Investigations Unit Supervisor; Richardson,1 Lewis Complex Captain; Trujillo, Lewis 2 Complex Lieutenant; and Tracy Stapleton, Lewis Complex Correctional Officer II 3 (Doc. 7 at 1-1(a)). Plaintiff seeks declaratory, injunctive, and compensatory relief (id. at 4 6-6(b)). 5 In Count I, Plaintiff alleges that in late November, 2011, he learned of a planned 6 attack on a black inmate by a member of a white supremacist prison gang. Plaintiff 7 spoke with his wife on the telephone and they decided to try to prevent the attack from 8 occurring. Plaintiff’s wife called Buckley Unit visitation staff and informed them of the 9 planned attack. Buckley staff failed to take action and the black inmate was stabbed in 10 his heart/chest area. After the incident, Plaintiff informed the Buckley staff members that 11 he was going to have his wife report their deliberate indifference to the ACLU and that 12 his wife would testify for the victim if a civil suit was filed. Plaintiff alleges that he was 13 subjected to the following retaliatory acts after this incident: (1) Stapleton and Dorsey 14 issued a false disciplinary report against Plaintiff on December 4, 2011, alleging acts of 15 public sexual indecency, which resulted in the termination of Plaintiff’s visitation and 16 discredited Plaintiff and his wife; (2) Ryan, Williams, Dorsey, and Stapleton had a 17 criminal complaint filed against Plaintiff’s wife in January 2013 after Plaintiff filed this 18 lawsuit; (3) in April/May 2013, Plaintiff was moved back to Buckley Unit and Stapleton, 19 under Dorsey’s authority, offered two inmates a favorable job recommendation if they 20 would assault Plaintiff, which the inmates carried out on May 18, 2013; (4) between 21 April and July 2013, Buckley visitation staff refused to allow Plaintiff’s father to visit 22 while carrying his nitroglycerin medication; (5) between July and October 2013, Dorsey 23 suspended Plaintiff’s visitation privileges again without due process; (6) after Plaintiff 24 had his visitation restored, Buckley unit staff refused to allow Plaintiff’s children to 25 remove their jackets when it became warm outside during visitation; and (7) on 26 December 6, 2013, Dorsey suspended Plaintiff’s visitation privileges indefinitely (id. at 27 28 TERMPSREF 1 Plaintiff states that Captain Richardson’s last name changed from Summers due to a change in marital status. -3- 1 3-3(b)). 2 In Count II, Plaintiff alleged that he was denied due process during the December 3 2011 disciplinary proceedings because he was not given 48 hours to prepare for the 4 hearing and he was not given the opportunity to present witnesses in his defense. 5 Further, Trujillo failed to conduct a minimal investigation where he failed to contact 6 known civilian and inmate witnesses and failed to review the video surveillance 7 evidence. Similarly, Richardson found Plaintiff guilty despite the absence of “some 8 evidence” required where there was no inculpatory evidence, she did not review the 9 videotape surveillance of the alleged incident, she allowed Stapleton to fill out 10 Stapleton’s witness statement after the conclusion of the formal hearing, and she refused 11 to allow Plaintiff to offer any evidence or witnesses in his defense. Plaintiff appealed the 12 disciplinary charge through two levels of appeal, but Dorsey, Klausner, and Ryan upheld 13 the findings (id. at 4-4(b)). 14 In Count III, Plaintiff contends that the false disciplinary charge leveled against 15 him placed him at serious risk of physical harm. Plaintiff asserts that Ryan and Dorsey’s 16 failure to move Plaintiff from the Buckley yard; Trujillo and Summers’ actions in finding 17 Plaintiff guilty; and Dorsey, Klausner, and Ryan’s decision to uphold the disciplinary 18 findings exacerbated that risk. In early 2012, Plaintiff began treatment for fear, anxiety, 19 and depression, and, in June 2012, he was transferred to the Rast Unit, where he lived for 20 10 months without incident. In April 2013, Dorsey and Ryan allowed Plaintiff to be 21 moved back to the Buckley Unit, again placing him at great risk of serious physical harm. 22 Thereafter, on May 1, 2013, Stapleton provided two inmates with a copy of 23 Plaintiff’s disciplinary report and instructed them to assault the Plaintiff, which was 24 carried out on May 18. Since the assault, Dorsey has administratively attacked Plaintiff 25 with the deprivation of his visitation privileges (id. at 5-5(a)). 26 IV. Failure to State a Claim Under § 1983 27 A plaintiff may seek relief for violations of his federal constitutional or statutory 28 rights under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege TERMPSREF -4- 1 facts supporting that (1) the conduct about which he complains was committed by a 2 person acting under the color of state law and (2) the conduct deprived him of a federal 3 constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). 4 In addition, a plaintiff must allege that he suffered a specific injury as a result of the 5 conduct of a particular defendant and he must allege an affirmative link between the 6 injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 7 (1976). 8 A. 9 In Count I, Plaintiff alleges a series of seven retaliatory acts by Defendants. A 10 viable claim of First Amendment retaliation contains five basic elements: (1) an assertion 11 that a state actor took some adverse action against the plaintiff (2) because of (3) the 12 plaintiff’s protected conduct, and that such action (4) chilled the plaintiff’s exercise of his 13 First Amendment rights (or the plaintiff suffered more than minimal harm) and (5) did 14 not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 15 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997). 16 The plaintiff has the burden of demonstrating that his exercise of his First Amendment 17 rights was a substantial or motivating factor behind the defendants’ conduct. Mt. Healthy 18 City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. 19 v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Count I (in part) 20 Six of the alleged retaliatory acts fail to state a claim. In three instances, Plaintiff 21 asserts that Defendants took adverse actions against his wife, father, and children. But 22 the alleged adverse action in a viable retaliation claim must be taken against Plaintiff. 23 Rhodes v. Robinson, 408 F.3d 559, 567-68. There is no case law supporting the notion 24 that actions taken against his wife, father, or children can be imputed to Plaintiff for 25 purposes of a retaliation claim. These incidents, therefore, fail to state a claim. 26 With respect to Plaintiff’s allegations that Stapleton and Dorsey orchestrated an 27 assault against Plaintiff and Defendants suspended Plaintiff’s visitation privileges on 28 TERMPSREF -5- 1 multiple occasions, Plaintiff does not connect those actions to his protected conduct.2 He 2 assumes that all actions after November 2011 are in retaliation for reporting staff’s failure 3 to protect another inmate, but these alleged retaliatory acts occurred between 6 and 18 4 months after Plaintiff’s protected conduct and Plaintiff supplies no facts to link the acts 5 with his report. 6 evidence of retaliatory intent,” there generally must be something more than timing alone 7 to support an inference of retaliatory intent.” Pratt, 65 F.3d at 808. Retaliation is not 8 established simply by showing adverse activity by defendant after protected speech; 9 plaintiff must show a nexus between the two. See Huskey v. City of San Jose, 204 F.3d 10 893, 899 (9th Cir.2000) (a retaliation claim cannot rest on the logical fallacy of post hoc, 11 ergo propter hoc, i.e., “after this, therefore because of this”). Because Plaintiff fails to 12 provide any nexus between his protected conduct and the alleged assault or the loss of 13 visitation, those retaliation claims will be dismissed. Thus, while “timing can be properly considered as circumstantial 14 B. 15 Plaintiff again presents a due process claim in Count II stemming from his 16 December 2011 disciplinary charges. In analyzing a due process claim, the Court must 17 first decide whether Plaintiff was entitled to any process, and if so, whether he was 18 denied any constitutionally required procedural safeguard. Count II 19 Liberty interests that entitle an inmate to due process are “generally limited to 20 freedom from restraint which, while not exceeding the sentence in such an unexpected 21 manner as to give rise to protection by the Due Process Clause of its own force, 22 nonetheless imposes atypical and significant hardship on the inmate in relation to the 23 ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal 24 citations omitted). Therefore, to determine whether an inmate is entitled to the procedural 25 protections afforded by the Due Process Clause, the Court must look to the particular 26 restrictions imposed and ask whether they “‘present the type of atypical, significant 27 28 TERMPSREF 2 The Court considers this claim again as an independent Eighth Amendment violation, as discussed below. -6- 1 deprivation in which a state might conceivably create a liberty interest.’” Mujahid v. 2 Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (quoting Sandin, 515 U.S. at 486). 3 To determine whether a sanction constitutes an atypical and a significant hardship, 4 courts look to a prisoner’s conditions of confinement, the duration of the sanction, and 5 whether the sanction will affect the duration of the prisoner’s sentence. See Keenan v. 6 Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996). “Atypicality” requires not merely an 7 empirical comparison, but turns on the importance of the right taken away from the 8 prisoner. See Carlo v. City of Chino, 105 F.3d 493, 499 (9th Cir. 1997). See, e.g., 9 Sandin, 515 U.S. at 472 (30 days disciplinary segregation is not atypical and significant); 10 Torres v. Fauver, 292 F.3d 141, 151 (3rd Cir. 2002) (four months in administrative 11 segregation is not atypical and significant); Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 12 1997) (denial of year sentence reduction is not an atypical and significant hardship); 13 Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (two and one-half years of administrative 14 segregation is not atypical and significant); Griffin v. Vaughn, 112 F.3d 703, 706-708 15 (3rd Cir. 1997) (fifteen months’ administrative segregation not atypical and significant); 16 Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (six months of confinement in 17 especially disgusting conditions that were “more burdensome than those imposed on the 18 general prison population were not “atypical ... in relation to the ordinary incidents of 19 prison life.”). 20 Plaintiff alleges that he suffered 30 days’ loss of visits and privileges, but none of 21 the sanctions imposed constitute atypical or significant hardships that would trigger a 22 liberty interest. Plaintiff also alleges that he lost all contact visitation privileges, but the 23 Due Process Clause does not guarantee a right of unfettered visitation. See Kentucky 24 Dep’t. of Corr. v. Thompson, 490 U.S. 454, 460 (1989); Keenan, 83 F.3d at 1092 . 25 Additionally, the Ninth Circuit has squarely held that prisoners have no right to contact 26 visitation. Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994); Toussaint v. McCarthy, 27 801 F.2d 1080, 1113 (9th Cir.). Even a blanket prohibition of contact visitation between 28 pretrial detainees and their families is constitutionally sound. Block v. Rutherford, 468 TERMPSREF -7- 1 U.S. 576 (1984). 2 independent due process violation. Nothing in Plaintiff’s amended pleading supports a 3 finding that the denial of contact visitation was a significant and atypical hardship and 4 Plaintiff’s due process claim must again be dismissed. Thus, a loss of contact visitation cannot form the basis for an 5 C. 6 In Count III, Plaintiff alleges that Defendants’ roles in issuing a false disciplinary 7 violation or failing to reverse it “put [him] at serious risk of physical harm.” To state a 8 claim under § 1983 for failure to protect or threats to safety, an inmate must allege facts 9 to support that he was incarcerated under conditions posing a substantial risk of harm and 10 that prison officials were “deliberately indifferent” to those risks. Farmer v. Brennan, 11 511 U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff 12 must allege facts to support that a defendant knew of, but disregarded, an excessive risk 13 to inmate safety. Id. at 837. That is, “the official must both [have been] aware of facts 14 from which the inference could be drawn that a substantial risk of serious harm exist[ed], 15 and he must also [have] draw[n] the inference.” Id. In this claim, however, Plaintiff fails 16 to allege any facts to support how the disciplinary charges levied against him placed him 17 at risk or how each Defendant knew, or should have known, that their actions would 18 place Plaintiff at a substantial risk of serious harm. Thus, this aspect of Plaintiff’s 19 failure-to-protect count fails to state a claim. Count III (in part) 20 D. 21 Because no claims remain against Ryan, Klausner, Williams, Trujillo, and Dismissal of Defendants 22 Richardson, they will be dismissed. 23 IV. Claims for Which an Answer Will be Required 24 In Count I (in part), Plaintiff alleges that Defendants Stapleton and Dorsey filed 25 false disciplinary charges against him to discredit him in retaliation for exposing staff 26 failure to prevent an inmate assault. This states a plausible retaliation clam. And in 27 Count III (in part), Plaintiff asserts that Stapleton, under Dorsey’s authority, orchestrated 28 an assault on Plaintiff that occurred on May 18, 2013. This sufficiently states an Eighth TERMPSREF -8- 1 Amendment threat to safety claim. Defendants Stapleton and Dorsey will be required to 2 respond to these claims. 3 V. Warnings 4 A. 5 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his 6 release. Also, within 30 days of his release, he must either (1) notify the Court that he 7 intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to 8 comply may result in dismissal of this action. 9 B. Release Address Changes 10 Plaintiff must file and serve a notice of a change of address in accordance with 11 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 12 for other relief with a notice of change of address. Failure to comply may result in 13 dismissal of this action. 14 C. 15 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 16 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 17 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, 18 Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 19 5.4. Failure to comply may result in the filing being stricken without further notice to 20 Plaintiff. 21 D. 22 If Plaintiff fails to timely comply with every provision of this Order, including 23 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 24 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 25 for failure to comply with any order of the Court). 26 IT IS ORDERED: 27 28 TERMPSREF (1) Copies Possible Dismissal Plaintiff’s Motion for an Extension of Time to file his First Amended Complaint (Doc. 8) is denied as moot. -9- 1 2 (2) (Doc. 7.) 3 4 Counts I (in part), II, and III (in part) are dismissed without prejudice. (3) Defendants Ryan, Klausner, Richardson, Trujillo, and Williams are dismissed without prejudice. (Doc. 7.) 5 (4) 6 part). (Doc. 7.) 7 (5) Defendants Stapleton and Dorsey must answer Counts I (in part) and III (in The Clerk of Court must send Plaintiff a service packet including the First 8 Amended Complaint (Doc. 7), this Order, and both summons and request for waiver 9 forms for Defendants Stapleton and Dorsey. (6) 10 Plaintiff must complete3 and return the service packet to the Clerk of Court 11 within 21 days of the date of filing of this Order. The United States Marshal will not 12 provide service of process if Plaintiff fails to comply with this Order. (7) 13 If Plaintiff does not either obtain a waiver of service of the summons or 14 complete service of the Summons and First Amended Complaint on a Defendant within 15 120 days of the filing of the First Amended Complaint or within 60 days of the filing of 16 this Order, whichever is later, the action may be dismissed as to each Defendant not 17 served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i). (8) 18 19 The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (9) 20 The United States Marshal must notify Defendants of the commencement 21 of this action and request waiver of service of the summons pursuant to Rule 4(d) of the 22 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 23 Order. 24 summons. If a waiver of service of summons is returned as undeliverable or is not 25 returned by a Defendant within 30 days from the date the request for waiver was The Marshal must immediately file signed waivers of service of the 26 3 27 28 TERMPSREF Error! Main Document Only.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. - 10 - 1 sent by the Marshal, the Marshal must: 2 (a) personally serve copies of the Summons, First Amended Complaint, 3 and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of 4 Civil Procedure; and 5 (b) within 10 days after personal service is effected, file the return of 6 service for Defendant, along with evidence of the attempt to secure a waiver of 7 service of the summons and of the costs subsequently incurred in effecting service 8 upon Defendant. The costs of service must be enumerated on the return of service 9 form (USM-285) and must include the costs incurred by the Marshal for 10 photocopying additional copies of the Summons, First Amended Complaint, or 11 this Order and for preparing new process receipt and return forms (USM-285), if 12 required. Costs of service will be taxed against the personally served Defendant 13 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 14 ordered by the Court. 15 (10) A Defendant who agrees to waive service of the Summons and First 16 Amended Complaint must return the signed waiver forms to the United States 17 Marshal, not the Plaintiff. 18 (11) Defendant must answer the First Amended Complaint or otherwise respond 19 by appropriate motion within the time provided by the applicable provisions of Rule 20 12(a) of the Federal Rules of Civil Procedure. 21 (12) Any answer or response must state the specific Defendant by name on 22 whose behalf it is filed. The Court may strike any answer, response, or other motion or 23 paper that does not identify the specific Defendant by name on whose behalf it is filed. 24 25 26 27 28 TERMPSREF - 11 - 1 (13) This matter is referred to Magistrate Judge James F. Metcalf pursuant to 2 Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 3 authorized under 28 U.S.C. § 636(b)(1). 4 Dated this 7th day of May, 2014. 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 - 12 -

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