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Jonathan Mcallister, Sr v. Arizona Department of Corrections

February 24, 2011



On December 9, 2010, Plaintiff Jonathan McAllister, Sr., who is confined in the Arizona State Prison Complex-Tucson in Tucson, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a December 14, 2010 Order, the Court granted Plaintiff's Application to Proceed and dismissed the Complaint, without prejudice, for failure to comply with Local Rule of Civil Procedure 3.4(a). The Court gave Plaintiff 30 days to file an amended complaint that complied with Local Rule 3.4(a).

On December 23, 2010, Plaintiff filed a "Motion to Exceed Page Limit for Amended Civil Rights Complaint." On January 6, 2011, he filed a "Motion for Enlargement of Time to File (First) Amended Civil Rights Complaint." In a January 25, 2011 Order, the Court denied Plaintiff's Motion to Exceed and granted his Motion for Enlargement of Time. The Court gave Plaintiff an additional 15 days within which to file his first amended complaint.

1 On February 15, 2011, Plaintiff filed his First Amended Complaint (Doc. 10). The

2 Court will require Defendant Preston to answer Count Two of the First Amended Complaint

3 and will dismiss the remaining claims and Defendants.

4 I. Statutory Screening of Prisoner Complaints

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

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

7 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

8 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

9 be granted, or that seek monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 2 94 (2007) (per curiam)). II. First Amended Complaint Plaintiff should take note that all causes of action alleged in his original Complaint that are not alleged in his First Amended Complaint are waived. Hal Roach Studios v. 6 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Accordingly, the Court will consider only those claims and facts specifically asserted in Plaintiff's First 9 Amended Complaint with respect to only those Defendants specifically named in the First Amended Complaint.

In his six-count First Amended Complaint, Plaintiff sues the following Defendants: the Arizona Department of Corrections (ADOC); ADOC Director Charles L. Ryan, ADOC Inspector General Rita Frigo; Arizona State Prison Complex (ASPC)-Eyman Facility Health Administrator Dennis Kendall, Nurse Practitioner Preston, Deputy Warden K. Curran, Librarian T. Hernandez, Disciplinary Hearing Officer Captain Kurtz, and Counselor/Case Manager Correctional Officer (CO) III Penney; ASPC-Lewis Mailroom Supervisor G. Coranado and Deputy Warden Anne Reeder; ASPC-Alhambra Primary Care Provider Dr. Baird; ASPC-Tucson Assistant Deputy Warden D. Lunberg, Librarian Jon Meade, Paralegal French, Grievance Coordinator CO IV Mackenzie, Mail and Property Room CO IIs Talley and Carrillo, Registered Nurse/Supervisor Brenda McMullen, Counselor/Case Manager CO III Merrifield, Grievance Coordinator CO IVs Johnson and R. Schmidt, and Housing Unit CO II Villa; and Corrections Corporation of America's Huerfano County Correctional Center "Arizona Liason" Betty Barnes, Paralegal/Notary Public Pattie Rowe, and Security Threat Group Supervisor Sergeant Montoya. In his Request for Relief, Plaintiff seeks declaratory and injunctive relief, monetary damages, and his costs.

III. Discussion of First Amended Complaint

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. A. Improper Defendant The Arizona Department of Corrections is not a proper Defendant. Under the Eleventh Amendment to the Constitution of the United States, a state or state agency may not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, "a state is not a 'person' for purposes of section 1983. Likewise 'arms of the State' such as the Arizona Department of Corrections are not 'persons' under section 1983." Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted). Therefore, the Court will dismiss Defendant Arizona Department of Corrections.

B. Failure to Link Defendant with Injuries

To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S. Ct. at 1948.

Plaintiff has not alleged that Defendants Frigo, Kurtz, Coranado, Reeder, Lunberg, Meade, French, Mackenzie, Talley, Carrillo, McMullen, Schmidt, Barnes, Rowe, and Montoya personally participated in a deprivation of Plaintiff's constitutional rights, was aware of a deprivation and failed to act, or formed policies that resulted in Plaintiff's injuries. Plaintiff has alleged no conduct at all by these Defendants. Thus, the Court will dismiss without prejudice Defendants Frigo, Kurtz, Coranado, Reeder, Lunberg, Meade, French, Mackenzie, Talley, Carrillo, McMullen, Schmidt, Barnes, Rowe, and Montoya. C. Medical Claims--Counts One, Two, and Four In Counts One, Two, and Four, Plaintiff alleges violations of the Eighth and Fourteenth Amendments relating to his medical and mental health care. Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).

"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference," "negligence," or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does 2 not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference 6 must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105. In Count One, Plaintiff contends that he received an inadequate health screening 9 when he was transferred to ASPC-Alhambra because Defendant Baird only asked Plaintiff health questions, prescribed pain medication, and issued a shaving waiver. Plaintiff alleges that Defendant Baird did not conduct a physical examination of Plaintiff, but falsified medical records by writing that he did. Plaintiff alleges that, when he was later transferred to ASPC-Eyman, he filed an inmate letter with Defendant Penney about Defendant Baird's inadequate medical screening. He claims that Defendant Penney stated that Plaintiff had received a physical examination and "failed to advise the medical unit to conduct a full physical examination." Plaintiff contends that Defendant Kendall responded to a formal grievance Plaintiff filed, concluding that Plaintiff had received a physical examination and advising Plaintiff to submit health needs request forms for his medical issues. Plaintiff claims that Defendant Ryan responded to the Plaintiff's inmate grievance appeal of Defendant Kendall's response, stating that there was no documentation to support Plaintiff's allegations.

Plaintiff's allegations in Count One suggest, at best, that Defendant Baird acted negligently or committed medical malpractice. This is insufficient to state a deliberate-indifference claim against him. Plaintiff's allegations do not support a claim that Defendants Penney, Kendall, or Ryan acted with ...

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