Jackson v. Ryan et al

Filing 13

ORDER, Plaintiff's Second Amended Complaint 12 and this action are dismissed for failure to state a claim; the Clerk must enter judgment accordingly; 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. § 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 Senior Judge Stephen M McNamee on 4/28/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Jackson II,

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No. CV 13-630-PHX-RCB (LOA)
Plaintiff,

vs.

ORDER

Charles Ryan, et al.,

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Defendants.

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On March 28, 2013, Plaintiff Anthony Jackson, who is confined in the Arizona

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State Prison Complex-Lewis (ASPC-Lewis) in Buckeye, Arizona, filed a “Notice of

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Intention to File Tort Claim.” On June 24, 2013, he filed a “Notice to Court,” in which

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he states that he made a mistake and “will be filing a 42 USC 1983 Civil Rights

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Complaint.”

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In a July 17, 2013 Order, the Court noted that Plaintiff had not paid the $350.00

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filing fee or filed an Application to Proceed In Forma Pauperis. The Court gave Plaintiff

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30 days to either pay the filing fee or file a complete Application to Proceed. In addition,

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the Court construed the “Notice of Intention to File Tort Claim” as a “Complaint” and

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dismissed it because it was not filed on a court-approved form, as required by Local Rule

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of Civil Procedure 3.4. The Court gave Plaintiff 30 days to file an amended complaint on

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a court-approved form.

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On July 31, 2013, Plaintiff filed a First Amended Complaint pursuant to 42 U.S.C.

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§ 1983, a Motion for a Temporary Restraining Order, and an Application to Proceed In

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Forma Pauperis. In an October 28, 2013 Order, the Court granted the Application to

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Proceed, dismissed the First Amended Complaint for failure to state a claim, and denied

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without prejudice the Motion for a Temporary Restraining Order.

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Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified

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in the Order.

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The Court gave

On December 2, 2013, Plaintiff filed a Second Amended Complaint (Doc. 12).

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The Court will dismiss the Second Amended Complaint and this action.

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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

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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

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

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immune from 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

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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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

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

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

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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

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

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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II.

Second Amended Complaint

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In his one-count Second Amended Complaint, Plaintiff sues the following

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Defendants, who are employed in the Barchey Unit at ASPC-Lewis: Deputy Warden

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Kimberly Currier, “S.S.U.” Sergeants Kindall and King, Correctional Officer IV Baca,

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and Sergeants Grant and Hilbun.

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Plaintiff alleges that his Eighth Amendment rights were violated. Plaintiff asserts

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that in August 2012, inmates attempted to extort him and another inmate and threatened

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them with bodily harm and death if they did not agree to help facilitate bringing

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contraband into the prison. Plaintiff claims that “[a]n attempt was made [by someone] to

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provide notice to Defendants [Kindall and King] through the inmate letter system” and to

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a nonparty by electronic mail, but “[n]o response was ever received from either of them”

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and they did not “call Plaintiff in.” Plaintiff states that the inmates’ threats escalated and

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he and the other inmate “came up with the idea[] to give the information to the visitation

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officer via letter to family.”

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“disciplinary action would be written and forward[ed] with documents to insure that the

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issue would be brought to the attention of appropriate staff,” but staff was also warned by

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someone that Plaintiff’s life would be in danger if he remained on the unit. Plaintiff

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states that Defendant Currier failed to transfer Plaintiff to a different unit after she was

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“notified of such action.”

Plaintiff states that he was told by someone that

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Plaintiff also claims that he told prison staff that his life was in danger, they told

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him to return to a unit, and he informed them that he could not because he had “[do not

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house] issues” in that unit. Plaintiff contends that at that point, Defendants Baca, Grant,

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and Hilbun placed Plaintiff on report for refusing to house. Plaintiff also states that after

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he filed a lawsuit in January 2012, Defendant Baca again asked Plaintiff to return to the

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unit, Plaintiff stated that his life was in danger in that unit, and Defendant Baca again

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placed Plaintiff on report for refusing to house. Plaintiff states that he believes this was

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“out of retaliation.” Plaintiff asserts that a disciplinary sergeant found Plaintiff guilty,

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without allowing Plaintiff to call witnesses or submit a witness statement.

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Plaintiff alleges that he suffered mental anguish.

In his Request for Relief,

Plaintiff seeks injunctive relief, monetary damages, and his costs of suit.
III.

Failure to State a Claim

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

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

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v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a

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

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claim that were not initially pled. Id.

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An Eighth Amendment claim requires a sufficiently culpable state of mind by the

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Defendants, known as “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834

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(1994). Deliberate indifference is a higher standard than negligence or lack of ordinary

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due care for the prisoner’s safety. Id. at 835. To state a claim of deliberate indifference,

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plaintiffs must meet a two-part test. First, the alleged constitutional deprivation must be,

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objectively, “sufficiently serious”; the official’s act or omission must result in the denial

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of “the minimal civilized measure of life’s necessities.” Id. at 834. Second, the prison

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official must have a “sufficiently culpable state of mind,” i.e., he must act with deliberate

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indifference to inmate health or safety. Id. In defining “deliberate indifference” in this

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context, the Supreme Court has imposed a subjective test: “the official must both be

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

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harm exists, and he must also draw the inference.”

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Id. at 837 (emphasis added).

Plaintiff’s allegations are too vague and conclusory to state a deliberate

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indifference claim.

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submitted to Defendants Kindall and King, and, if it was, who submitted it or what it

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stated. Plaintiff does not claim that Defendants Kindall and King were deliberately

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indifferent to a substantial risk to Plaintiff’s safety. Specifically, Plaintiff does not

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indicate whether Defendants Kindall and King actually received the letter, whether they

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completely disregarded the letter, whether they took no action at all as a result of the

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letter, whether their failure to respond or “call Plaintiff in” was more than mere

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negligence, or whether they investigated the issue and did not respond because they

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determined that no substantial risk to Plaintiff’s safety existed.

Plaintiff does not allege whether an inmate letter was actually

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Similarly, Plaintiff does not identify the actions about which Defendant Currier

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was notified and does not allege that Defendant Currier was deliberately indifferent. He

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does not claim that she failed to act; he simply alleges that she did not transfer him. Nor

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does he indicate whether she completely disregarded the information, whether her failure

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to transfer him was more than mere negligence, or whether she investigated the issue and

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did not transfer Plaintiff because she determined that no substantial risk to his safety

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existed. The Court also notes that Plaintiff is not currently confined in the unit in which

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he was threatened and that Plaintiff does not allege that he was injured at all by the

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inmates.

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As to Plaintiff’s claims regarding being placed on disciplinary report by

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Defendants Baca, Grant, and Hilbun, Plaintiff does not allege that these Defendants acted

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with deliberate indifference to a serious risk of harm. Thus, he has failed to state an

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Eighth Amendment deliberate indifference claim.

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Moreover, the Court notes that in his Request for Relief, Plaintiff seeks, among

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other things, for his disciplinary proceedings or sanctions to be vacated and for his good

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time credits and parole class three to be reinstated. “[A] state prisoner seeking injunctive

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relief against the denial or revocation of good-time credits must proceed in habeas

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corpus, and not under § 1983.” Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002). In

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addition, if a judgment for Plaintiff regarding the denial of due process in a prison

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disciplinary proceeding would invalidate or imply the invalidity of the deprivation of

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good-time credits, the claim is barred under Heck v. Humphrey, 512 U.S. 477 (1994),

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unless Plaintiff can show that the disciplinary conviction has been previously invalidated.

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See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997); Heck, 512 U.S. at 486-87;

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Nonnette, 316 F.3d at 875. See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)

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(“[A] state prisoner’s § 1983 action is barred (absent prior invalidation)–no matter the

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relief sought (damages or equitable relief), no matter the target of the prisoner’s suit

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(state conduct leading to conviction or internal prison proceedings)–if success in that

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action would necessarily demonstrate the invalidity of confinement or its duration.”).

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Here, Plaintiff’s claim regarding the disciplinary reports, if decided in his favor, would

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either invalidate or imply the invalidity of the loss of his good time credits. Because

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Plaintiff has not demonstrated that his prison disciplinary proceedings have been

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reversed, expunged, declared invalid, or called into question by a federal court’s issuance

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of a writ of habeas corpus, his claim is barred by Heck.

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Finally, Plaintiff’s vague and conclusory allegation that Defendant Baca acted

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“out of retaliation” is insufficient to state a retaliation claim. A viable claim of First

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Amendment retaliation contains five basic elements: (1) an assertion that a state actor

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took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment

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rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably

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advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims

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requires an inmate to show (1) that the prison official acted in retaliation for the exercise

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of a constitutionally protected right, and (2) that the action “advanced no legitimate

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penological interest”). The plaintiff has the burden of demonstrating that his exercise of

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his First Amendment rights was a substantial or motivating factor behind the defendants’

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conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);

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Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Plaintiff does

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not allege that his filing of the other lawsuit was a substantial or motivating factor behind

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Defendant Baca’s conduct, that Plaintiff suffered more than minimal harm or his First

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Amendment rights were chilled, or that Defendant Baca’s conduct did not advance a

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legitimate penological goal.

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Thus, the Court will dismiss Plaintiff’s Second Amended Complaint.
IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given

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if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express,

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Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996).

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Repeated failure to cure deficiencies is one of the factors to be considered in deciding

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whether justice requires granting leave to amend. Moore, 885 F.2d at 538.

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Plaintiff has made multiple efforts at crafting a viable complaint and appears

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unable to do so despite specific instructions from the Court. The Court finds that further

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opportunities to amend would be futile. Therefore, the Court, in its discretion, will

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dismiss Plaintiff’s Second Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s Second Amended Complaint (Doc. 12) and this action are

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dismissed for failure to state a claim, 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

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dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).

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....

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....

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(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

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this decision would not be taken in good faith.

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DATED this 28th day of April, 2014.

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