Andrich v. Dusek et al

Filing 140

ORDER Defendants' Motion for Reconsideration (Doc. 131 ) is denied, but the request for clarification is granted to the extent this Order clarifies the Court's previous Order. (Doc. 122 ). Signed by Judge Rosemary Marquez on 8/13/2019. (DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Devin Andrich,
Plaintiff,

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ORDER

v.

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No. CV-17-00173-TUC-RM

Kevin Dusek, et al.,

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Defendants.

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Pending before the Court is Defendants’ Motion for Reconsideration. (Doc. 131.)

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Defendants move for reconsideration or clarification of the Court’s previous Order

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resolving a dispute as to whether Plaintiff could compel Charles Ryan, the director of the

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Arizona Department of Corrections, to sit for a deposition. (Id.) Defendants seek

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reconsideration or clarification of the Court’s statement that Defendant Ryan possesses

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“knowledge of facts directly related to” Plaintiff’s allegations. (Doc. 131.) Defendants “do

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not seek reconsideration of any other aspects of the Court’s Order, nor its ultimate

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conclusion.” (Id.) The Court denies Defendants’ Motion for Reconsideration, but grants

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Defendants’ request for clarification to the extent that the discussion herein clarifies the

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Court’s previous Order. (Doc. 122.)

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The Court previously granted Defendants’ Motion to Dismiss as to Plaintiff’s

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official capacity claims against Director Ryan but denied Defendants’ Motion to Dismiss

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as to claims construed as against Director Ryan in his personal capacity. (Id.) (discussing

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Doc. 73 at 6-8.)

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While there is no respondeat superior liability under § 1983, supervisors may be

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held liable “when culpable action, or inaction, is directly attributed to them.” Starr v. Baca,

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652 F.3d 1202, 1205 (9th Cir. 2011). There must be a “sufficient causal connection

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between the supervisor’s wrongful conduct and the constitutional violation.” Id. at 12017

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(quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989.)) “[T]he supervisor’s

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participation could include his own culpable action or inaction in the training, supervision,

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or control of his subordinates, his acquiescence in the constitutional deprivations of which

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the complaint is made, or conduct that showed a reckless or callous indifference to the

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rights of others.” Id. at 1207-08.

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The Court declined to dismiss Plaintiff’s claims against Director Ryan, construed as

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claims against him in his personal capacity, finding that he “adequately alleged that Ryan

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‘set[] in motion a series of acts by others . . . which [he] knew or reasonably should have

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known would cause others to inflict a constitutional injury.’” (Doc. 73) (quoting Starr, 652

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F.3d at 1207-08). Alternatively, the Court found that Plaintiff “adequately alleged that

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Ryan is culpable for action relating to ‘the training, supervision, or control of his

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subordinates’ or for ‘conduct that showed a reckless or callous indifference to the rights of

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others.’” (Id.) Plaintiff subsequently restated these allegations in his Second Amended

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Complaint (SAC). (Doc. 74.)

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In discussing the legal standard governing the dispute regarding the deposition of

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Director Ryan, the Court noted that depositions of top government officials may be allowed

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where the official “has first-hand knowledge related to the claim being litigated.” (Id.)

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(quoting Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007). The Court explained

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that, since the remaining claims against Director Ryan are solely in his personal capacity,

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“Director Ryan clearly has knowledge of facts directly related to these allegations” since

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the allegations “concern his own personal involvement in plaintiff’s alleged mistreatment.”

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(Doc. 122.)

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Defendants argue that this observation was “clear error” and constitutes a finding

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that was “manifestly unjust.” (Doc. 131.) The Court clarifies that its previous statement,

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made in the context of a discovery dispute, was not a finding of fact that would preclude

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Defendants from later “presenting evidence, consistent with his filings throughout this

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case, that he knew nothing about the conditions” of Plaintiff’s confinement. (Doc. 131.)

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Rather, the Court’s observation that Director Ryan necessarily “has knowledge of facts”

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related to allegations against him made solely in his personal capacity merely follows

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logically from the nature of the personal capacity allegations made. Plaintiff’s SAC

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alleged, inter alia, that Director Ryan issued instructions through the Department’s chain

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of command that caused Plaintiff to be subjected to unconstitutional conditions of

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confinement. (Doc. 74 ¶¶ 165, 174.) And the Court previously found that Plaintiff’s

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previously amended Complaint (Doc. 40), which contained less supporting factual material

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than his SAC, “adequately alleged that Ryan ‘set[] in motion a series of acts by others . . .

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which [he] knew or reasonably should have known would cause others to inflict a

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constitutional injury.’” (Doc. 73.)

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It follows that Director Ryan possesses relevant knowledge, but not that such

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knowledge necessarily bolsters Plaintiff’s claims. Rather, the knowledge could well be in

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the negative; Director Ryan may possess knowledge of facts tending to show that he did

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not issue the instructions and set in motion the series of acts as alleged. Either way, the

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Director would have first-hand knowledge and this consideration is relevant to whether

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Plaintiff may compel his deposition. This differs from instances in which a subpoenaed

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agency head is named merely in his official capacity and may not have personal knowledge

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of the claims at issue. See Green v. Baca, 226 F.R.D. 624, 649 (C.D. Cal. 2005), order

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clarified, No. CV-02-204744MMMMANX, 2005 WL 283361 (C.D. Cal. Jan 31, 2005)

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(noting in claim brought for unconstitutional implementation of department policies in toto

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that “unlike other official capacity suits, it cannot be said that [Sheriff] has no personal

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knowledge of the facts at issue.”)

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Defendants also urge that the Court improperly “relied on an Exhibit from Andrich’s

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Motion to Strike.” (Doc. 131.) The Exhibit mentioned was an “Arizona Department of

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Corrections Inmate Grievance Appeal Response.” (Doc. 122.) Defendants argue that it was

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improper for the Court to consider the grievance form because it relates to Plaintiff’s

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placement in segregation, rather than directly to the conditions of his confinement in

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segregation. (Doc. 131.) Defendants also argue that the form should not be considered

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because it was “signed for” Director Ryan and not by him personally. (Doc. 131.) The

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Court reiterates that its previous discussion of the grievance form was merely “[i]in further

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support of” its independent conclusion that Defendant Ryan would have personal

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knowledge as to his own personal involvement in Plaintiff’s allegations, as discussed

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above. (Doc. 122.)

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In summation, the Court’s observation that Director Ryan has “knowledge of facts”

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related to the personal capacity allegations against him is not a factual finding as to the

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merits of those allegations and of course in no way precludes the later introduction of

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evidence “to show that [Director Ryan] was unaware of Andrich’s objections to his

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conditions of confinement at a time when he could have intervened.” (Doc. 131.)

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Defendants remain free to file a Motion for Summary Judgment and to introduce evidence

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in support of that Motion.

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Accordingly,

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IT IS ORDERED that Defendants’ Motion for Reconsideration (Doc. 131) is

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denied, but the request for clarification is granted to the extent this Order clarifies the

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Court’s previous Order. (Doc. 122.)

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Dated this 13th day of August, 2019.

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