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Nickolich v. Arizona Community Protection and Treatment Center

United States District Court, D. Arizona

January 12, 2015

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), filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and paid the filing and administrative fees. On December 10, 2013, Defendants filed a Motion to Dismiss. In a September 5, 2014 Order, the Court granted Defendants' Motion to Dismiss, but gave Plaintiff leave to file a First Amended Complaint to cure the deficiencies identified in the September 5 Order.

On September 8, 2014, Plaintiff filed a Motion for Status (Doc. 17). On September 16, 2014, Plaintiff filed a First Amended Complaint (Doc. 18). Defendants filed an October 16, 2014 Motion to Dismiss (Doc. 19), to which Plaintiff responded on October 16, 2014 (Doc. 20). On December 9, 2014, Plaintiff filed a second Motion for Status (Doc. 21).

The Court will grant Plaintiff's Motions for Status to the extent this Order informs Plaintiff of the status of this case. The Court will also grant the Motion to Dismiss and dismiss the First Amended Complaint and this action.

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 )).

II. First Amended Complaint

In his four-count First Amended Complaint, Plaintiff names ACPTC Director Bruce McMorran and ACPTC Therapist Erick D. Pearson as Defendants.

Plaintiff was convicted of sexual assault in Maricopa County Superior Court, case# CR1993-09121, and was confined in the Arizona Department of Corrections from January 1996 until September 2009.[1] Plaintiff was subsequently civilly committed as a sexually violent predator (SVP) under Arizona Revised Statute (ARS) § 36-3701.

Plaintiff alleges Defendants attempted to have his probation revoked in emails exchanged with Plaintiff's adult probation officer, 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. 18 at 2.) On September 22, 2011, the violation charges were dismissed and Plaintiff was "returned" to Defendants' custody at ACPTC.

Plaintiff claims 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. He alleges that Defendants have breached their duty under state law by failing to provide him individualized treatment necessary to eventually be released from civil commitment and that the failure to provide him individualized treatment renders his commitment punitive rather than therapeutic.

In Count One, Plaintiff claims Defendants have violated his Fifth and Fourteenth Amendment due process rights and his rights under the Arizona State Constitution. He alleges that he has a documented Traumatic Brain Injury and that "ACPTC has failed to treat his brain injury and/or provide a treatment plan addressing and overcoming this specific barrier in order to effect psychosexual treatment, tipping the balance from civil treatment' to the punitive sting of incarceration."

In Count Two, Plaintiff claims his Eighth and Fourteenth Amendment rights, and rights under the Arizona State Constitution, are violated by Defendants' failure to implement a treatment plan that "identifies specific goals and step-by-step ...


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