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Nickolich v. Arizona Community Protection and Treatment Center

United States District Court, D. Arizona

September 3, 2014

Dushan Stephan Nickolich II, Plaintiff,
v.
Arizona Community Protection and Treatment Center, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff Dushan Stephan Nickolich, who is currently held in the Arizona Community Protection and Treatment Center (ACPTC), a unit of the Arizona State Hospital (ASH), in Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983[1] and paid the filing and administrative fees.[2] (Doc. 1, 6.) Plaintiff has filed two motions inquiring about the status of this case, which will be granted to the extent set forth herein. (Doc. 5, 14.) Defendants have filed a motion to dismiss, or alternatively, to stay this case pending Plaintiff's state court special action, which is fully briefed. (Doc. 10.)[3] The Court will grant Defendants' motion to dismiss the Complaint for failure to state a claim, but will grant Plaintiff leave to file a first amended complaint in which he attempts to cure the deficiencies in his Complaint.

I. Pleading Standard

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 )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). Defendants' motion to dismiss the Complaint for failure to state a claim will be granted, but Plaintiff will be granted leave to file a first amended complaint in which he attempts to cure the deficiencies of his Complaint.

II. Complaint

Plaintiff alleges four counts for relief for violation of his First, Fifth, Eighth, and Fourteenth Amendment rights and state law violations. Plaintiff sues ACPTC; ASH; Corey Nelson, acting Deputy Director of the Arizona Department of Human Services; Dr. Gary Perrin, Psychology Administrator at ASH; Bruce McMorran, Director of ACPTC; Dr. Bradley Johnson, an ACPTC psychiatrist; and Erick D. Pearson, an ACPTC therapist. Plaintiff seeks compensatory and punitive relief.

Background

Plaintiff was convicted of sexual assault in Maricopa County Superior Court, case# CR1993-09121, and served a sentence in the custody of the Arizona Department of Corrections (ADC) from January 1996 until September 2009.[4] Plaintiff was subsequently civilly committed as a sexually violent predator (SVP) under Arizona Revised Statute (ARS) § 36-3701. Under Arizona law, conviction of sexual assault is a sexually violent offense under ARS § 36-3701(6) for which someone can be civilly committed. ARS § 36-3704. Arizona's SVP statute provides that a "court or jury shall determine beyond a reasonable doubt" if the person named in a petition for civil commitment "is a sexually violent person." ARS § 36-3707(A). Thereafter:

If the court or jury determines that the person is a sexually violent person, the court shall either:
1. Commit the person to the custody of the department of health services for placement in a licensed facility under the supervision of the superintendent of the Arizona state hospital and shall receive care, supervision or treatment until the person's mental disorder has so changed that the person would not be a threat to public safety if the person was conditionally released to a less restrictive alternative or was unconditionally discharged.
2. Order that the person be released to a less restrictive alternative if the conditions under §§ 36-3710 and 36-3711 are met.

ARS § 36-3707(B).

Plaintiff alleges the following facts in his Complaint: "Defendants" attempted to have Plaintiff's probation revoked in emails exchanged with Plaintiff's adult probation officer (APO), Brian Bednar. On July 28, 2011, Plaintiff was arrested on a probation violation warrant. At a hearing on August 4, 2011 in Maricopa County Superior Court, the prosecutor stated that "they will not take Plaintiff [sic] back. They do not want Plaintiff [sic] back." (Doc. 1 at 2.) On September 22, 2011, the violation charges were dismissed and Plaintiff was "returned" to Defendants' custody at ACPTC.[5]

Plaintiff contends that the ACPTC treatment program is the same for all of its residents and is "willfully inadequate, overly generalized, " and lacks clear direction in attaining goals. ( Id. at 3.) He contends that Defendants have breached their duty under state law by failing to provide him individualized treatment necessary to eventually be released from civil commitment. He contends that Defendants' failure to provide him individualized treatment renders his commitment punitive rather than therapeutic.

Plaintiff has previously filed a case in federal court concerning the alleged failure of entities and persons to provide him an individualized treatment plan and asserted that the failure to do so resulted in indefinite and perpetual civil commitment. See Nickolich v. ACPTC, No. CV12-2312-PHX-SMM, doc. 6. In the complaint in that case, Plaintiff alleged that: on August 4, 2011, the ACPTC, through counsel, stated that "... the State Hospital does not want him back'" and that "... the State Hospital will not take him back.'" ( Id., doc. 1 at 3.) The Arizona Attorney General's Office, on behalf of ACPTC, asked to meet with Plaintiff to discuss future treatment. Plaintiff met with ACPTC and the Attorney General's representatives on August 1, 2012, but no treatment plan was presented. On August 8, 2012, ACPTC generated an appointment schedule, which it designated a treatment plan. On September 28, 2012, the ACPTC clinical team ostensibly "granted, " or agreed to prepare, an individualized treatment plan, but no treatment plan was actually provided. Plaintiff was designated as "non-status." ( Id. ) Plaintiff contended that ACPTC had a legal duty under the Constitution and other federal law to provide him individualized treatment. He claimed that rather than provide him an individualized treatment plan, ACPTC was merely civilly incarcerating and warehousing him in violation of due process and equal protection and after he had already served his criminal sentence. He asserted that indefinite civil commitment constituted duplicative punishment in violation of the Fifth Amendment Double Jeopardy Clause. Because Plaintiff filed that action in forma pauperis, the Court screened the complaint under 28 U.S.C. §1915(e)(2) and dismissed the complaint for failure to state a claim with leave to amend. The Court subsequently dismissed Plaintiff's first amended complaint for failure to state a claim and dismissed the action.

In this case, as discussed above, Plaintiff has paid the filing fee and he is not a prisoner within the meaning of the PLRA. Defendants have moved for dismissal of the Complaint for failure to state a claim or for a stay under Younger. The Court will grant Defendants' motion to dismiss the Complaint for failure to state a claim, but will grant Plaintiff leave to file a first amended complaint.

III. Failure to State a Claim

To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an ...


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