Coleman v. Ryan et al

Filing 16

ORDER (Service Packet) - Plaintiff's Application to Proceed In Forma Pauperis (Doc. 14 ) is granted. Plaintiffs Motion to Appoint Counsel (Doc. 4 ) is denied. Plaintiff's "Notice of Non-Compliance, Motion for TRO Reconsideration, M otion for Assignment of Counsel" (Doc. 13 ) is denied. Counts One, Three, Four, and Five; the grievance and disciplinary portions of Count Two; and the retaliation, grievance, and conditions of confinement portions of Count Seven are dismissed without prejudice. Defendants Ryan, Holland, Sullivan, Palosaari, Morrish, Schitter, Clenney, Unknown Grievance Coordinator, Krakenbuhl, and Ryder are dismissed without prejudice. The Clerk of Court must send Plaintiff a service packet including th e Complaint (Doc. 1 ), this Order, and both summons and request for waiver forms for Defendants Schiff, Gordanier, Puckett, and Blackard. This matter is referred to Magistrate Judge James F. Metcalf pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). (See document for full details). Signed by Judge David G Campbell on 9/11/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lon Roger Coleman,

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No. CV 12-8199-PCT-DGC (JFM)

Plaintiff,
vs.

ORDER

Charles L. Ryan, et al.,

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Defendants.

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Plaintiff Lon Roger Coleman, who is confined in the Arizona State Prison

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Complex-Tucson, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983

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(Doc. 1) and an Application to Proceed In Forma Pauperis. In a November 27, 2012

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Order, the Court denied the Application to Proceed with leave to re-file. Plaintiff filed a

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new, deficient Application to Proceed which the Court also denied with leave to re-file.

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On May 20, 2013, Plaintiff filed a third Application to Proceed (Doc. 14). The Court will

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order Defendants Schiff, Gordanier, Puckett, and Blackard to answer Counts Two, Six,

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and Eight of the Complaint, and will dismiss the remaining claims and Defendants

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without prejudice.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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Plaintiff’s third Application to Proceed In Forma Pauperis will be granted. 28

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U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C.

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§ 1915(b)(1).

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§ 1915(b)(1). The statutory fee will be collected monthly in payments of 20% of the

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The Court will not assess an initial partial filing fee.

28 U.S.C.

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previous month’s income each time the amount in the account exceeds $10.00. 28 U.S.C.

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§ 1915(b)(2). The Court will enter a separate Order requiring the appropriate government

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agency to collect and forward the fees according to the statutory formula.

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II.

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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III.

Complaint

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Plaintiff raises eight claims for relief in the Complaint and names the following

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Defendants: Arizona Department of Corrections (ADOC) Director Charles L. Ryan;

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Senior Adult Probation Officer Michael Holland; Warden Sullivan; Assistant Deputy

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Warden Palosaari; Lieutenant Gordanier; Security Staff Sergeant Morrish; Security Staff

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Captain Schitter; Mental Health Supervisor L. Schiff; Medical Health Services

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Administrator J. A. Clenney; Unknown MTC Employee in Charge of Inmate Movement;

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Security Staff Officer Puckett; Unknown Grievance Coordinator; Security Staff Officer

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Krakenbuhl; Warden Ryder; and Security Staff Officer Blackard.

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injunctive relief and money damages.

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IV.

Plaintiff seeks

Discussion

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A.

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In Count One, Plaintiff claims his Sixth and Fourteenth Amendment rights were

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violated when Defendant Holland submitted a report to a trial court judge which was

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“factually inaccurate and grossly distorted, [and] omitted and/or fabricated facts which

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were relied upon for sentencing consideration in a case for which [Plaintiff] was a

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Defendant.” Plaintiff claims that as a result of the inaccurate report, the trial judge was

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denied the opportunity to consider exculpatory evidence and mitigating circumstances

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during sentencing and Plaintiff has suffered psychological harm in prison.

Count One

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A prisoner’s claim for damages cannot be brought under 42 U.S.C. § 1983 if “a

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judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction

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or sentence,” unless the prisoner demonstrates that the conviction or sentence has

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previously been reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512

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U.S. 477, 486-87 (1994).

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exculpatory evidence and mitigating circumstances during sentencing implies the

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Plaintiff’s claim that the trial judge failed to consider

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invalidity of Plaintiff’s sentence, and his claim is therefore barred by Heck. The Court

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will dismiss Count One for failure to state a claim.

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B.

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In Count Two, Plaintiff claims a violation of his Eighth Amendment rights and

Count Two

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rights under the Americans with Disabilities Act (ADA).

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April 3, 2012, Defendant Gordanier directed Plaintiff to go outside while security staff

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conducted a quarterly search of his dorm. Plaintiff informed Defendant Gordanier that

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going outside caused Plaintiff to suffer panic attacks, blackouts, vertigo, personality

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alterations, migraines, and/or nausea due to Plaintiff’s mental illness. Plaintiff also

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explained that he had not been outside of the building in seven months and that during

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previous quarterly searches staff accommodated his disability without a problem.

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Defendant Gordanier told Plaintiff that he had discussed Plaintiff’s situation with

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Defendant Schiff and had been told by Defendant Schiff that Plaintiff’s mental illness did

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not prevent Plaintiff from going outdoors.

Plaintiff alleges that on

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Plaintiff claims that Defendant Gordanier refused to review Plaintiff’s medical

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documentation, handcuffed Plaintiff, and had Plaintiff physically taken out of the

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building and across the yard to disciplinary housing. Plaintiff claims that he blacked out

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at the door and later awoke on the floor of CDU cell. Defendants Gordanier and Morrish

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then issued two disciplinary tickets to Plaintiff for “disobedience” with respect to

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Plaintiff’s failure to leave the building and “obstructing and delaying staff performance of

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duties” with respect to Plaintiff passing out.

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Plaintiff further claims that he sent written complaints to Defendants Sullivan and

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Palosaari, who failed to intervene on his behalf. Finally, Plaintiff claims Defendant

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Schitter conducted Plaintiff’s disciplinary hearing and refused to consider witness

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accounts of Plaintiff’s disability.

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Eighth Amendment and ADA Claims

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Liberally construed, Plaintiff has stated an Eighth Amendment deliberate

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indifference claim against Defendants Gordanier and Schiff with respect to his

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allegations that these Defendants ignored a serious risk of harm to Plaintiff when they

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required him to move outdoors. Plaintiff has also adequately stated an ADA claim

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against these Defendants based on his allegation that Defendants failed to accommodate

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his mental illness.

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2.

Grievances

The mere denial of a grievance does not give rise to the inference of active

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unconstitutional behavior.

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unconstitutional conduct is the denial of administrative grievances, the failure to

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intervene on a prisoner’s behalf to remedy alleged unconstitutional behavior does not

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amount to active unconstitutional behavior for purposes of § 1983. Shehee v. Luttrell,

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199 F.3d 295, 300 (6th Cir. 1999). Accordingly, Plaintiff has failed to state a claim

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against Defendants Sullivan and Palosaari in Count Two.

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3.

Where a defendant=s only involvement in the allegedly

Disciplinary Action

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To the extent Plaintiff claims he was denied due process during disciplinary

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hearings, he has failed to state a claim. In analyzing a due process claim, the Court must

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first decide whether Plaintiff was entitled to any process, and if so, whether he was

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denied any constitutionally required procedural safeguard. Liberty interests which entitle

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an inmate to due process are “generally limited to freedom from restraint which, while

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not exceeding the sentence in such an unexpected manner as to give rise to protection by

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the Due Process Clause of its own force, nonetheless imposes atypical and significant

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hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.

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Conner, 515 U.S. 472, 484 (1995) (internal citations omitted).

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To determine whether an inmate is entitled to the procedural protections afforded

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by the Due Process Clause, the Court must look to the particular restrictions imposed and

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ask whether they “‘present the type of atypical, significant deprivation in which a state

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might conceivably create a liberty interest.’” Mujahid v. Meyer, 59 F.3d 931, 932 (9th

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Cir. 1995) (quoting Sandin, 515 U.S. at 486). “Atypicality” requires not merely an

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empirical comparison, but turns on the importance of the right taken away from the

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prisoner. See Carlo v. City of Chino, 105 F.3d 493, 499 (9th Cir. 1997). To determine

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whether the sanctions are atypical and a significant hardship, courts look to prisoner’s

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conditions of confinement, the duration of the sanction, and whether the sanction will

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affect the duration of the prisoner’s sentence. See Keenan v. Hall, 83 F.3d 1083, 1088-89

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(9th Cir. 1996).

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Plaintiff was not entitled to any due process procedural protections because

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placement in disciplinary segregation is not an atypical and significant hardship. See

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Sandin, 515 U.S. at 475-76, 487 (30 days’ disciplinary segregation is not atypical and

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significant); Smith v. Mensinger, 293 F.3d 641, 654 (3rd Cir. 2002) (seven months of

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disciplinary confinement “does not, on its own, violate a protected liberty interest”);

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

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segregation is not atypical and significant); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.

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1985) (prison authorities may change a prisoner’s “place of confinement even though the

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degree of confinement may be different and prison life may be more disagreeable in one

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institution than in another” without violating a prisoner’s due process rights); Lucero v.

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Russell, 741 F.2d 1129 (9th Cir. 1984) (administrative transfer to maximum security

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without a hearing does not infringe on any protected liberty interest). Plaintiff has

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therefore failed to state a Fourteenth Amendment due process claim with respect to his

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disciplinary proceedings.

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C.

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In Count Three, Plaintiff alleges his Eighth and Fourteenth Amendment rights

Count Three

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were violated by Defendant Clenney.

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Request asking for a medical mattress and pillow to alleviate pain Plaintiff experienced

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from a spinal injury. Plaintiff claims that Defendant Clenney responded by insisting that

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Plaintiff visit the clinic at his facility to be evaluated by the doctor on staff. Plaintiff

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asserts that this was neither possible, due to his mental illness and inability to go outside,

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or necessary.

Plaintiff states that he filed a Health Needs

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

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violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a

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plaintiff must show that the defendants acted with “deliberate indifference to serious

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medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v.

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Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need”

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by demonstrating that failure to treat the condition could result in further significant

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injury or the unnecessary and wanton infliction of pain and (2) the defendant’s response

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was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).

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

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1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must

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both know of and disregard an excessive risk to inmate health; “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.” Farmer v. Brennan, 511 U.S. 825,

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837 (1994).

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purposeful act or failure to respond to a prisoner’s pain or possible medical need and

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harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may

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also be shown when a prison official intentionally denies, delays, or interferes with

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medical treatment or by the way prison doctors respond to the prisoner’s medical needs.

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Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

Deliberate indifference in the medical context may be shown by a

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Deliberate indifference is a higher standard than negligence or lack of ordinary

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due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor

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gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of

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Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter

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Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or

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“medical malpractice” do not support a claim under § 1983). “A difference of opinion

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does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.”

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care,

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without more, is insufficient to state a claim against prison officials for deliberate

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indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407

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(9th Cir. 1985). The indifference must be substantial. The action must rise to a level of

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“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

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Plaintiff has not alleged facts demonstrating that Defendant Clenney was

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deliberately indifferent to Plaintiff’s serious medical needs; Plaintiff’s facts show only

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that Defendant Clenney required Plaintiff to be evaluated by a doctor before issuing the

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medical mattress. This is not sufficient to state an Eighth Amendment medical claim.

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The Court will dismiss Count Three for failure to state a claim.

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D.

Count Four

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Plaintiff claims in Count Four that Defendants Puckett, Blackard, and Krakenbuhl

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processed Plaintiff’s possessions after Plaintiff was transferred to disciplinary

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segregation. Plaintiff claims that several non-contraband items were lost or destroyed.

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Where the negligent conduct of a prison official causes the loss of a prisoner’s

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property, the loss does not amount to a deprivation under the Due Process Clause.

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Daniels v. Williams, 474 U.S. 329, 331-332 (1986) (overruling Parratt v. Taylor, 451

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U.S. 527 (1981), “to the extent that it states that mere lack of due care by a state official

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may ‘deprive’ an individual of life, liberty, or property under the Fourteenth

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Amendment.”). “[T]he Due Process Clause is simply not implicated by a negligent act of

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an official causing unintended loss of or injury to life, liberty or property.” Daniels, 474

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U.S. at 328 (emphasis in original). Therefore, where a prisoner alleges that prison

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officials lost or misplaced his property, or otherwise claims that an official’s negligent act

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caused his property loss, he fails to state a claim. The Court will dismiss Count Four for

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failure to state a claim.

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E.

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In Count Five, Plaintiff claims his Sixth, Eighth, and Fourteenth Amendment

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access-to-the-court rights were violated when he did not receive mail from the Court

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because of his inability to leave his building to pick up his mail. Plaintiff claims that

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Defendants Schiff and Sullivan were aware of Plaintiff’s mental illness, but instructed the

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Count Five

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mail room clerk not to deliver Plaintiff’s mail to Plaintiff in his cell. Plaintiff claims that

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withholding of his mail “affected [his] handling of a habeas petition for which a rul[ing]

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was sent on 9/7/11 and not given to [Plaintiff] until 1/17/12.”

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The right of meaningful access to the courts prohibits officials from actively

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interfering with inmates’ attempts to prepare or file legal documents. Lewis v. Casey,

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518 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring

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petitions or complaints to federal court and not a right to discover such claims or even to

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ligate them effectively once filed with a court. Id. at 354. The right “guarantees no

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particular methodology but rather the conferral of a capability–the capability of bringing

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contemplated challenges to sentences or conditions of confinement before the courts.”

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Id. at 356.

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As a matter of standing, for an access-to-courts claim, a plaintiff must show that

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he suffered an “actual injury” with respect to contemplated litigation. Id. at 349. To

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show actual injury with respect to contemplated litigation, the plaintiff must demonstrate

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that the defendants’ conduct frustrated or impeded him from bringing to court a

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nonfrivolous claim that he wished to present. Id. at 352-53.

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“[T]he injury requirement is not satisfied by just any type of frustrated legal

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claim.” Id. at 354. The right of access to the courts “does not guarantee inmates the

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wherewithal to transform themselves into litigating engines capable of filing everything

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from shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous

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claim must be a direct or collateral attack on the inmate’s sentence or a challenge to the

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conditions of his confinement. Id. “Impairment of any other litigating capacity is simply

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one of the incidental (and perfectly constitutional) consequences of conviction and

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incarceration.” Id. (emphasis in original).

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Plaintiff has not demonstrated that Defendant Schiff or Sullivan actively interfered

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with his right to prepare or file legal documents. Plaintiff’s habeas case was dismissed

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without prejudice as premature on September 7, 2011. This ruling was issued because

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Plaintiff had not exhausted state court remedies; Plaintiff habeas petition was not

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dismissed as result of Plaintiff’s failure to comply with a court order or inability to file

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documents with this court. Accordingly, the Court will dismiss Count Five for failure to

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state a claim.

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F.

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Plaintiff alleges in Count Six that his First Amendment right to free exercise of

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religion was violated when Defendants Puckett and Blackard confiscated Plaintiff’s

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rosary. Plaintiff claims that the rosary was issued to him by the ADOC Chaplaincy and

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was not contraband. Plaintiff claims the confiscation of his rosary violated his right to

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exercise his religion and that he lost the therapeutic value of the rosary. Liberally

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construed, Plaintiff has adequately stated a First Amendment claim against Defendants

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Puckett and Blackard and the Court will require these Defendants to answer Count Six.

Count Six

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Plaintiff further claims that Defendants Ryan and Sullivan promulgated policies

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resulting in the confiscation of Plaintiff’s rosary and were negligent in supervising their

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employees. To state a valid claim under § 1983, plaintiffs must allege that they suffered

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a specific injury as a result of specific conduct of a defendant and show an affirmative

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link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S.

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362, 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and

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therefore, a defendant’s position as the supervisor of persons who allegedly violated

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Plaintiff’s constitutional rights does not impose liability.

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Department of Social Services, 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981

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F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must

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plead that each Government-official defendant, through the official’s own individual

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actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.

Monell v. New York City

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Plaintiff has failed to describe the policies implemented by Defendants Ryan and

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Sullivan that resulted in the confiscation of his rosary; rather Plaintiff’s facts indicate that

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Defendants Puckett and Blackard acted contrary to policy by confiscating a non-

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contraband religious item. Further, Defendants Ryan and Sullivan are not liable based

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solely on their position as supervisors of Defendants Puckett and Blackard. Plaintiff has

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failed to state a claim in Count Six against Defendants Ryan and Sullivan.

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G.

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In Count Seven, Plaintiff claims his Fourth, Eighth, and Fourteenth Amendment

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rights were violated when Defendant Unknown MTC Employee retaliated against him.

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Plaintiff claims that Defendant Unknown MTC Employee directed Plaintiff to move from

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CDU to a regular dorm even though Defendant was aware “that doing so would provoke

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a recurrence of the events of 4/3/2012, resulting in the issuance of more disciplinary

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tickets,” and disregarded a substantial risk of harm to Plaintiff. Plaintiff claims that he

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declined to move and Defendant MTC Employee retaliated by issuing two disciplinary

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tickets to Plaintiff based on Plaintiff’s failure to move.

Count Seven

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Plaintiff has not demonstrated that Defendant Unknown MTC Employee retaliated

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against him for the exercise of his First Amendment rights or that the disciplinary tickets

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were issued without legitimate penological justification. Plaintiff’s facts indicate that

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Defendant directed Plaintiff to move, Plaintiff refused, and Defendant issued the

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disciplinary tickets in response to Plaintiff’s refusal, not in response to Plaintiff’s exercise

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of his First Amendment rights.

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To the extent that Plaintiff also claims Defendants Sullivan, Ryder, and Unknown

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Grievance Coordinator have failed to respond grievances, he has failed to state a claim.

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See Shehee, 199 F.3d at 300 (defendants did not commit constitutional violations when

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they denied administrative grievances, failed to intervene on plaintiff’s behalf, and failed

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to remedy allegedly unconstitutional behavior). Plaintiff’s allegations that he has been

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subjected multiple housing transfers, solitary confinement, and confined in unsanitary

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conditions also fail to state a claim because Plaintiff has not linked these allegations to

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any of the named Defendants. See Rizzo, 423 U.S. at 371-72, 377 (to state a valid claim

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under § 1983, plaintiffs must allege that they suffered a specific injury as a result of

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specific conduct of a defendant and show an affirmative link between the injury and the

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conduct of that defendants).

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The Court will dismiss the retaliation, grievance, and conditions of confinement
claims in Count Seven.
However, Plaintiff’s allegations adequately state an Eighth Amendment claim for

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deliberate indifference against Defendant MTC Employee.

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alleged his claim with enough specificity to require an answer, the Court will not direct

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that service be made on the Defendant Unknown MTC Employee at this time. The use of

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anonymous appellations to identify defendants is not favored, and as a practical matter, it

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is in most instances impossible for the United States Marshal to serve a summons and

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complaint upon an unidentified defendant. If Plaintiff later discovers the identity of

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Defendant Unknown MTC Employee, Plaintiff should amend his Complaint to name

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him. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (where identity of

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alleged defendants will not be known prior to filing of complaint, plaintiff should be

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given an opportunity through discovery to identify the unknown defendants, unless it is

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clear that discovery would not uncover the identities, or that the complaint would be

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dismissed on other grounds (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

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1980))). Plaintiff may amend his Complaint “once as a matter of course at any time

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before a responsive pleading is served.” Fed. R. Civ. P. 15(a). After any Defendant has

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filed an answer or other responsive pleading, however, Plaintiff must file a motion

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requesting leave to amend and submit a proposed amended complaint.

Although Plaintiff has

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F.

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In Count Eight, Plaintiff claims his Eighth and Fourteenth Amendment rights and

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rights under the ADA were violated when Defendant Schiff refused to authorize porter

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assistance for Plaintiff. Plaintiff claims that, because of his mental illness, he needs the

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assistance of a porter to bring him meals. Plaintiff claims that because Defendant Schiff

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refused to authorize the assistance of a porter for Plaintiff, the porter is only able to bring

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Plaintiff meals on an “unofficial” basis and, therefore, Plaintiff does not reliably receive

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food. Liberally construed, these allegations adequately state an Eighth Amendment claim

Count Eight

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and claim under the ADA. The Court will require Defendant Schiff to answer Count

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Eight.

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To the extent that Plaintiff claims Defendants Sullivan, Palosaari, Clenney, and

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Unknown Grievance Coordinator failed to adequately respond to his grievances, he fails

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to state a claim. See Shehee, 199 F.3d at 300.

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V.

Motions

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A.

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Plaintiff filed a Motion to Appoint Counsel with the Complaint. There is no

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constitutional right to the appointment of counsel in a civil case. See Ivey v. Board of

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Regents of the University of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in

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forma pauperis, the court may request an attorney to represent any person unable to

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afford one.

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§ 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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exceptional circumstances requires an evaluation of the likelihood of success on the

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merits as well as the ability of Plaintiff to articulate his claims pro se in light of the

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complexity of the legal issue involved. Id. “Neither of these factors is dispositive and

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both must be viewed together before reaching a decision.” Id. (quoting Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

Motion to Appoint Counsel

28 U.S.C. § 1915(e)(1).

Appointment of counsel under 28 U.S.C.

A determination with respect to

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Having considered both elements, it does not appear at this time that exceptional

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circumstances are present that would require the appointment of counsel in this case.

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Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court

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will deny without prejudice Plaintiff’s Motion to Appoint Counsel.

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B.

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On May 15, 2013, Plaintiff filed a “Notice of Non-Compliance, Motion for TRO

Motion to Reconsider Denial of TRO

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Reconsideration, Motion for Assignment of Counsel.”

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appoint counsel and that the Court reconsider its denial of a Temporary Restraining

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Order. The Court will deny the request for appointment of counsel for the reasons stated

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Plaintiff asks that the Court

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above. Further, the Court has reviewed Plaintiff’s original request for a Temporary

2

Restraining Order, the April 17, 2013 denial of that request, and Plaintiff’s Motion for

3

Reconsideration.

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Temporary Restraining Order and will deny the Motion.

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VI.

The Court finds no basis for reconsideration of the denial of a

Warnings

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A.

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

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release. Also, within 30 days of his release, he must either (1) notify the Court that he

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intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to

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Release

comply may result in dismissal of this action.

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B.

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

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Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

Address Changes

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C.

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

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copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a

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certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also,

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Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv

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5.4. Failure to comply may result in the filing being stricken without further notice to

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Plaintiff.

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D.

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

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these warnings, the Court may dismiss this action without further notice. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action

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for failure to comply with any order of the Court).

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///

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Copies

Possible Dismissal

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 14) is granted.

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(2)

As required by the accompanying Order to the appropriate government

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agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial

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filing fee.

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(3)

Plaintiff’s Motion to Appoint Counsel (Doc. 4) is denied.

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(4)

Plaintiff’s “Notice of Non-Compliance, Motion for TRO Reconsideration,

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9

Motion for Assignment of Counsel” (Doc. 13) is denied.
(5)

Counts One, Three, Four, and Five; the grievance and disciplinary portions

10

of Count Two; and the retaliation, grievance, and conditions of confinement portions of

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Count Seven are dismissed without prejudice.

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(6)

Defendants Ryan, Holland, Sullivan, Palosaari, Morrish, Schitter, Clenney,

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Unknown Grievance Coordinator, Krakenbuhl, and Ryder are dismissed without

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prejudice.

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(7)

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17

Defendants Schiff, Gordanier, Puckett, and Blackard must answer Counts

Two, Six, and Eight.
(8)

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

18

Complaint (Doc. 1), this Order, and both summons and request for waiver forms for

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Defendants Schiff, Gordanier, Puckett, and Blackard.

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(9)

Plaintiff must complete1 and return the service packet to the Clerk of Court

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within 21 days of the date of filing of this Order. The United States Marshal will not

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provide service of process if Plaintiff fails to comply with this Order.

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24

(10)

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

complete service of the Summons and Complaint on a Defendant within 120 days of the

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1

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27
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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.

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filing of the Complaint or within 60 days of the filing of this Order, whichever is later,

2

the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m);

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LRCiv 16.2(b)(2)(B)(i).

4
5

(11)

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

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

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(12)

The United States Marshal must notify Defendants of the commencement

7

of this action and request waiver of service of the summons pursuant to Rule 4(d) of the

8

Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this

9

Order.

The Marshal must immediately file signed waivers of service of the

10

summons. If a waiver of service of summons is returned as undeliverable or is not

11

returned by a Defendant within 30 days from the date the request for waiver was

12

sent by the Marshal, the Marshal must:

13

(a)

personally serve copies of the Summons, Complaint, and this Order

14

upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure;

15

and

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(b)

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

17

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

18

service of the summons and of the costs subsequently incurred in effecting service

19

upon Defendant. The costs of service must be enumerated on the return of service

20

form (USM-285) and must include the costs incurred by the Marshal for

21

photocopying additional copies of the Summons, Complaint, or this Order and for

22

preparing new process receipt and return forms (USM-285), if required. Costs of

23

service will be taxed against the personally served Defendant pursuant to Rule

24

4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the

25

Court.

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(13)

A Defendant who agrees to waive service of the Summons and

27

Complaint must return the signed waiver forms to the United States Marshal, not

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the Plaintiff.

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1

(14)

Defendants must answer the Complaint or otherwise respond by

2

appropriate motion within the time provided by the applicable provisions of Rule 12(a) of

3

the Federal Rules of Civil Procedure.

4

(15)

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

5

whose behalf it is filed. The Court may strike any answer, response, or other motion or

6

paper that does not identify the specific Defendant by name on whose behalf it is filed.

7

(16)

This matter is referred to Magistrate Judge James F. Metcalf pursuant to

8

Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as

9

authorized under 28 U.S.C. § 636(b)(1).

10

Dated this 11th day of September, 2013.

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15
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17
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TERMPSREF

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