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Finkle v. Ryan

United States District Court, D. Arizona

July 8, 2014

Hunter Alan Finkle, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Hunter Alan Finkle, who is confined in the Arizona State Prison Complex-Florence ("ASPC-Florence") in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will order Defendants Fizer, Norris, Parker and Smith to answer the Complaint and will dismiss the remaining claims and Defendants without prejudice.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 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, 556 U.S. 662, 678 (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 679. 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 681.

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, 94 (2007) ( per curiam )).

III. Complaint

In his Complaint, Plaintiff names as Defendants: Charles L. Ryan, Director of the Arizona Department of Corrections ("ADOC"); Fizer, Deputy Warden at ASPC-Florence; Hetmer, Warden at ASPC-Florence; Keith Smith, a security administrator with the ADOC; Evans, a Lieutenant at ASPC-Florence; Brown, a Sergeant at ASPC-Florence; Norris, a Sergeant at ASPC-Florence; Parker; a Sergeant at ASPC-Florence; and French, a mental health doctor at ASPC-Florence.

Plaintiff alleges that Defendants violated his Eighth Amendment rights by failing to place him in protective custody. According to Plaintiff, between May and June of 2007, Plaintiff was housed in the Yavapai County Jail. While there, Plaintiff observed another inmate kill a bird and spit its carcass at a jail officer. The next day, Plaintiff was questioned by a jail supervisor about the incident. Plaintiff answered the supervisor's questions, and his statements aided in the prosecution of the other inmate for charges related to animal cruelty. As a result of his cooperation with the Yavapai County Jail officers, Plaintiff was labeled a "snitch" by other inmates.

Between June and July of 2007, two of Plaintiff's cellmates were ordered - by a third inmate named Sean Patrick Kyle - to assault Plaintiff because he was a "snitch." Officers at the Yavapai County Jail realized that Plaintiff was in danger, and placed him in protective custody.

Later in 2007, Plaintiff was transferred from the Yavapai County Jail to ASPC-Florence and was housed in the Cook Unit. In June of 2008, Plaintiff was approached by an inmate named Ty Randell. Randell threatened to tell the Aryan Brotherhood - a violent prison gang - that Plaintiff was a "snitch" unless Plaintiff paid Randell $20 every two weeks. Plaintiff agreed to pay Randell protection money, until, a week later, he requested that he be placed in protective custody due to Randell's extortion scheme and his fear of the Aryan Brotherhood. Plaintiff was put through the 805 process - which is the ADOC's process for determining whether protective custody is necessary and appropriate - but protective custody was denied. However, Randell was placed on Plaintiff's "Do Not House" list.[1] Plaintiff asserts that the Aryan Brotherhood has a standing rule to harass, assault, and, if possible, kill any inmate known to be a "snitch." Plaintiff also asserts that the Aryan Brotherhood has an identical rule for those known to have requested protective custody.

On November 25, 2010, Randell was able to gain access to Plaintiff's cell block due to Randell's job as a porter. Randell informed all of the other inmates in the cell block that Plaintiff was a "snitch" and that Plaintiff had requested protective custody. As a result, on December 3, 2010, Plaintiff informed Defendants Fizer and Brown via a letter that he was in danger, was receiving threats, felt he would be assaulted, and needed protective custody. Fizer and Brown advised Plaintiff that they would put his letter in the report box. On December 15, 2010, after receiving no response to his letter, Plaintiff asked Defendant Brown if he would be receiving a response. Defendant Brown responded that he was going home in 20 minutes, and that it was not his problem.

On December 24, 2010, Defendant Brown went to Plaintiff's cell and informed Plaintiff that Plaintiff would be switching cells with an inmate named Randolph in the same cell block. While walking to his new cell, Plaintiff was assaulted by Randolph, who was outside of his cell in violation of prison policy. Plaintiff asserts that Randolph's assault was prompted by Randell's presence in the cell block on November 25, 2010. After the assault, but still on December 24, 2010, Plaintiff again requested protective custody from Defendant Brown. Defendant Brown began the 805 process for Plaintiff.

On January 3, 2011, while the 805 process was ongoing, Plaintiff was interviewed by a "SSU J. McCune" about why Plaintiff was seeking protective custody. Plaintiff recounted the issues he was having and why he was in danger, including his previous cooperation with the Yavapai County Jail officers. McCune informed Plaintiff that he had called Yavapai County and put all of the information he received from Yavapai County into the Plaintiff's 805 file. Nevertheless, Plaintiff was denied protective custody on February 17, 2011. His appeal of that decision was denied on March 2, 2011. Sometime later in 2012, Plaintiff's family called ADOC's central office asking that Plaintiff's protective custody request be reconsidered. Again, the protective custody requests were denied. On June 19, 2012, Plaintiff again sought protective custody, and was again denied.

On January 16, 2013, an inmate nicknamed "Dirt Bike" handed Plaintiff a note while Plaintiff was walking to the shower. The note indicated that "Dirt Bike" knew of Plaintiff's "issues, " and stated that "Dirt Bike" could fix those issues if Plaintiff would assault another inmate. "Dirt Bike" told Plaintiff that he (i.e., Plaintiff) was to stab a particular inmate the next day during recreation, and gave Plaintiff a prison-made knife with which to do so. "Dirt Bike" further told Plaintiff that if Plaintiff did not stab the other inmate, then Plaintiff would be killed.

The next day, after refusing to go out to recreation, Plaintiff informed a jail officer about the situation and requested protective custody. Shortly thereafter, another jail officer came to Plaintiff's cell asking what was going on. Plaintiff explained to the officer about the threat against him, and told the officer where the knife and "Dirt Bike's" letter were in his cell. The Plaintiff was removed from his cell, and brought to the yard office, where Defendant Evans filled out the 805 process paperwork. Defendant Fizer was also present and told Plaintiff, "Thanks for doing the right thing."

In February of 2013, Plaintiff's protective custody request was denied. An appeal of that decision was also denied. On May 23, 2013, Plaintiff again requested protective custody, and was again denied.

On or about August 19, 2013, Plaintiff attempted suicide by hanging himself from a light fixture in his cell. The attempt failed when the light fixture broke. As a result, Plaintiff was moved to Kasson Unit 2-B-32. On August 24, 2013, Plaintiff notified Control Officer Sauceda that he (i.e., Plaintiff) was in danger in Kasson Unit. Plaintiff told Sauceda that the inmate in cell 2-B-19, Ronald Doty, was telling an inmate known as "Mike" in cell 2-B-31 to shoot Plaintiff with a prison-made dart gun. Plaintiff asked Sauceda to ask Lieutenant Hernandez to move Plaintiff out of Kasson Unit and into a unit with solid doors on the cells. Plaintiff was removed from Kasson Unit on August 28, 2013.

On September 27, 2013, a Control Officer named Castro removed Plaintiff from his cell because Castro had received information that Plaintiff was going to be assaulted. Castro took Plaintiff to the yard office and told the Lieutenant on duty what she (i.e., Castro) had learned. The Lieutenant told Castro and Plaintiff that he had received the same information on September 24, 2013 and had filed an incident report. Plaintiff told the Lieutenant that he (i.e., Plaintiff) was on a list to be assaulted or killed by the Aryan Brotherhood. Plaintiff asked the Lieutenant why he had not been moved off the yard when the Lieutenant learned of the threat to Plaintiff. According to Plaintiff, the Lieutenant responded that "stuff like that happened in prison." This caused Plaintiff extreme ...


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