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Deroche v. Smith

United States District Court, D. Arizona

July 21, 2014

Joshua DeRoche, Plaintiff,
v.
Keith Smith, et al., Defendants.

ORDER

STEVEN P. LOGAN, District Judge.

Plaintiff Joshua DeRoche, who is confined in the Arizona State Prison Complex, Special Management Unit, in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 2.) Plaintiff has since filed a motion for injunctive relief and a motion to amend his Complaint to identify the name of one Defendant. The Court will order Defendants Goodale and Costello to answer Count I of the Complaint and will dismiss the remaining claims and Defendants without prejudice. The Court will deny Plaintiff's motion for injunctive relief.

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

Plaintiff alleges two counts for threat to safety. Plaintiff sues the following current or former employees of the Arizona Department of Corrections (ADC): Security Operations Administrator Keith Smith; Protective Custody (PC) Administrator John Doe; unknown PC Committee members; Corrections Officers II (CO IIs) Special Security Unit Goodale and Costello. Plaintiff also sues Pinal County Attorney Michael L. Voyles and Pinal County Public Defender Mary Wisdom. Plaintiff has filed a motion to correct his Complaint to substitute April Elliott for Mary Wisdom with his allegations against Wisdom to be considered made against Elliott. The Court will grant that motion and substitute Elliott for Wisdom.

In Count I, Plaintiff alleges the following facts: in early 2011, three convicted sex offenders assaulted a female correctional officer in the Rynning Unit, which is in the Eyman Complex. The Pinal County Attorney prosecuted charges against the inmates. One of the assailants, Kenneth Vickers, was transferred to SMU, also in the Eyman Complex.[1]

In November 2011, Plaintiff was housed in the same pod as Vickers. Plaintiff sent a letter to the Pinal County Attorney's Office expressing his desire to see Vickers prosecuted and he offered to cooperate with the Pinal County Attorney by providing information from Vickers about the assault.

In January 2012, Plaintiff gave a recorded interview to investigator Kathy Ingulli of the ASPC-Florence Criminal Investigation Unit (CIU) about the assault. Vickers and his co-defendants obtained discovery from the Pinal County Attorney's Office, including a witness list with Plaintiff's name on it, a copy of the letter Plaintiff sent to the office, and a copy of Plaintiff's CIU interview. Vickers and his co-defendants made copies of the paperwork and distributed it to other inmates. According to Plaintiff, at each location he was thereafter housed, at least one inmate had copies or access to copies of that paperwork and inmates were otherwise generally aware of Plaintiff's role. Plaintiff was considered a "snitch" and he was repeatedly verbally threatened. Plaintiff avoided serious injury only because he was held in a single occupancy maximum security cell.

In September 2012, Eyman Complex staff attempted to house Plaintiff in the Rynning Unit. Plaintiff informed staff of the potential threat to his safety. Nevertheless, SSU officer Goodale refused to initiate the protective segregation process under Director's Order (DO) 805. Goodale told Plaintiff that Plaintiff could not have problems on a yard he never been to. Plaintiff told Goodale that inmates with whom he had previously had issues were held in the Rynning Unit and he identified those inmates and their locations in the Rynning Unit. Goodale still refused to initiate the DO 805 process, to contact CIU or interview inmates who would have substantiated Plaintiff's information. Plaintiff refused to house for which he was sanctioned. Plaintiff contends that Goodale acted with deliberate indifference to a threat to his safety.

In June 2013, Plaintiff was housed in ASPC-Phoenix, when he again sought to initiate the DO 805 process. Plaintiff submitted a written statement setting out incidents to support the existence of a threat to his safety. The PC Administrator and the PC Committee denied Plaintiff's request for protective custody. On June 25, 2013, Security Operations Administrator Smith denied Plaintiff's appeal from the denial of PC. Plaintiff claims that Doe, the PC Committee, and Smith failed to contact Investigator Ingulli to verify Plaintiff's recorded interview or the Pinal County Attorney's Office to confirm the release of the witness list containing Plaintiff's name, and failed to interview inmates about the asserted threat to safety. Plaintiff contends that they thereby acted with deliberate indifference to a threat to his safety.

In January 2014, Plaintiff was being held in SMU, when three inmates called him a "rat" and told him that he would "get smashed" if he went to outside recreation. One of the inmates threatened to sharpen chicken bones to stab Plaintiff. Plaintiff submitted a letter to Defendant Costello with a summary of threats to his safety and again sought initiation of the DO 805 process, but received no response. Two days later, the inmate who had threatened Plaintiff was moved. Nevertheless, Plaintiff did not go to outside recreation because of threats from other inmates. Costello did not initiate the DO 805 process or update Plaintiff's "Do Not House With" (DNHW) list. Plaintiff contends that Costello thereby acted with deliberate indifference to a threat to his safety.

On April 16, 2014, Plaintiff was moved from a single inmate cell to a double inmate cell and Inmate Stephen Hall was celled with Plaintiff. Within a week, inmates in adjacent cells began yelling that Plaintiff was an informant. Plaintiff told Hall about the situation with Vickers and his name appearing on a witness list. Hall stated that he did not wish to get involved because he was due to be released in three months.

On April 25, 2014, Plaintiff and Hall were moved to the Rynning Complex Detention Unit (CDU) for reasons that are not explained. On April 28, 2014, an inmate came to their cell door and told Plaintiff that he was in a lot of trouble. He showed Hall the Pinal County Attorney's witness list and told Hall that he needed to attack Plaintiff. Hall refused. The inmate noted Hall's name and told him that he was on a hit list for not attacking Plaintiff. The same day, Plaintiff submitted a letter to the Caseload Manager, CO III Donaldson describing the incident. Plaintiff and Hall were returned to SMU that day. When they entered their living area, inmates began saying "There's Roach" referring to Plaintiff and saying "he snitched on GoGo, Happy, and A.R." (Doc. 1 at 3F.) An inmate told Hall that the witness list was in the pod next door and that he would send it to Hall as soon as he received it. Another inmate tried to persuade Hall to attack Plaintiff, but Hall refused.

Plaintiff contends that since 2011, the only safe option for him has been to remain in a lockdown unit by violating rules to keep him in maximum custody, but where he does not have outside recreation or involvement with other inmates. He contends that prison officials are well aware of the dangers to inmates posed by court paperwork circulating among inmates that reflects that an inmate is an informant. Plaintiff fears that the next inmate celled with him will be more likely to assault Plaintiff in response to pressure to do so.

In Count II, Plaintiff sues "Lando" Voyles in his official capacity for failing to implement an administrative policy to ensure the identity of individuals providing confidential information, such as Plaintiff, from being included in disclosures to defense counsel. As a result, Plaintiff's name was included on a witness list, which ...


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