United States District Court, D. Arizona
R. Bolton United States District Judge.
December 31, 2015, Plaintiff, who is confined in the Special
Management Unit I (SMU I), in Florence, Arizona, filed a
pro se civil rights Complaint pursuant to 42 U.S.C.
§ 1983. (Doc. 1.) On February 17, 2016, the Court
screened the Complaint and ordered Defendant Marshall to
answer Count One. (Doc. 5.) The Court dismissed the remaining
Defendants and claims without prejudice.
before the Court is Plaintiff's Motion for Leave to File
his First Amended Complaint, and Plaintiff's lodged
proposed First Amended Complaint. (Docs. 37, 38.) For the
reasons below, the Court will grant Plaintiff's Motion to
Amend and, after screening, will order Defendant Marshall to
answer Count One of the First Amended Complaint and dismiss
the remaining Defendants and claims.
Plaintiff's Motion to Amend
15(a)(2) of the Federal Rules of Civil Procedure provides
that “[t]he court should freely give leave [to amend]
when justice so requires.” Fed. R. Civ. P 15(a)(2). In
accordance with the Local Rules of Civil Procedure, Plaintiff
lodged a proposed First Amended Complaint. (Doc. 38.) The
Court finds that Plaintiff's Motion to Amend is timely as
it was filed prior to the Court's deadline for amending
pleadings. (Docs. 31, 37, 38.) Therefore, the Court will
grant Plaintiff's Motion to Amend and order the Clerk of
Court to file Plaintiff's First Amended Complaint, lodged
at Doc. 38.
Statutory Screening of Prisoner Complaints
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. §
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
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
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)).
Plaintiff's First Amended Complaint
Three-Count First Amended Complaint, Plaintiff sues the
Arizona Department of Corrections (ADC), as well as the
following current or former employees of the ADC: Director
Charles Ryan; Sergeant Marshall; Lieutenant Greene; Deputy
Warden (DW) Pruett; Corrections Officer (CO) IV Branch;
Assistant DW Rode; DW Hemsley; and Sergeant Trotti.
Count One, Plaintiff asserts excessive use of force and
Fourth Amendment claims. More specifically, Plaintiff asserts
that on July 2, 2013, Marshall sexually assaulted him by
repeatedly strip searching him. Plaintiff claims that during
one of the strip searches, Marshall, with a flashlight in
hand, focused on Plaintiff's buttocks. After Plaintiff
refused to comply five times, Marshall told Plaintiff
“I want to see your asshole, ” “show me
you're asshole.” Plaintiff claims that Marshall
told Plaintiff he was “on disciplinary” for
refusing to comply. Plaintiff also appears to assert Marshall
then gave Plaintiff his clothes, but moved the flashlight
closer to Plaintiff's buttocks.
alleges that he was taken to Greene for disobeying orders. At
that time, Plaintiff asserts, he complained to Greene about
Marshall's “sexual assault, ” to which Greene
responded by ordering Plaintiff to strip again “or go
to defecation watch.” Plaintiff claims Greene's
conduct violates the Prison Rape Elimination Act
(PREA).Plaintiff asserts that Sergeant Trotti
subsequently witnessed Marshall “sexually
assault” Plaintiff two more times. Plaintiff claims
that the exposure to the flashlight caused Plaintiff's
hemorrhoids to flare up for up to two weeks.
Count One, Plaintiff asserts that the ADC is liable for its
employees' conduct, including Marshall's conduct.
Plaintiff further claims that the ADC employs witnesses to be
deposed and houses inmate witnesses that “need to be
made available.” Finally, Plaintiff asserts that the
ADC was “deliberately indifferen[t]” towards
Plaintiff by providing “poor training” and
failing to protect Plaintiff from Marshall's conduct.
Count Two, Plaintiff asserts Eighth Amendment and retaliation
claims against Ryan, Greene, Trotti, and Pruett. Plaintiff
claims that Ryan was aware of “the crimes committed
against” Plaintiff, but failed to protect Plaintiff.
Plaintiff further asserts that Ryan “created an
environment of impunity from prosecution and retaliatory
behavior, which [has] resulted in the ongoing retaliation 4
years after being sexually assaulted in July 2, 2013.”
Finally, Plaintiff claims that Ryan was “deliberately
indifferent” to Plaintiff's well-being by not
properly training staff according to the PREA.
regard to Greene, Plaintiff asserts that he was deliberately
indifferent to Plaintiff in that as a supervisor of Marshall,
“he failed in his duties to protect Plaintiff who was
in the care and custody and a vulnerable adult were reckless
in exposing Plaintiff to further sexual assaults by his
permission.” Plaintiff claims that the PREA
“guidelines prohibit any further contact between
Marshall and Plaintiff” once Plaintiff made a complaint
to Greene of sexual assault.
regard to Trotti, Plaintiff claims that he witnessed two
subsequent strip searches by Marshall of Plaintiff “for
no obvious reason, ” and had an obligation to report
the conduct to Greene or other supervisors under the PREA,
but did not do so.
with regard to Pruett, Plaintiff asserts that he retaliated
against Plaintiff “by her response” to
Plaintiff's grievance regarding Plaintiff's sexual
assault. Plaintiff also asserts that he lost his visits for
nine months and he was put in the “Hole (CDU)”
two months after the incident with Marshall.
Count Three, Plaintiff asserts Eighth Amendment and
retaliation claims against Branch, Rode, and Hemsley.
Plaintiff asserts that Branch “had full knowledge of
the sexual assault, ” but ignored the PREA, hindered
the prosecution of Marshall and Greene, and failed to protect
Plaintiff. Plaintiff alleges her “callous
indifference” resulted from a “lack of
training.” Plaintiff asserts Rode “violated
Plaintiff's equal protection and due process rights, and
retaliated against . . . Plaintiff, by issuing Plaintiff
disciplinary sanctions for assaulting six inmates, even
though ADW Rode knew that Plaintiff was the victim of the
assault by the six inmates.” Plaintiff claims
Rode's “actions were preplanned to protect those 6
inmates and raise my custody level without cause and justify
the assault.” Finally, with regard to Hemsley,
Plaintiff asserts that he retaliated against Plaintiff by
denying him a kitchen job, making Plaintiff “max
custody, ” and approving Plaintiff's move to a
restricted program. Plaintiff claims that “[t]his shows
the ongoing retaliatory behavior 4 years after the sexual
assault at another complex another city hundreds of miles
Failure to State a Claim
prevail in a § 1983 claim, a plaintiff must show that
(1) acts by the defendants (2) under color of state law (3)
deprived him of federal rights, privileges or immunities and
(4) caused him damage. Thornton v. City of St.
Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting
Shoshone-Bannock Tribes v. Idaho Fish & Game
Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). 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 affirmative link between the injury and
the conduct of that defendant. Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976).
addition, to state a claim against a defendant, “[a]
plaintiff must allege facts, not simply conclusions [to] show
that an individual was personally involved in the deprivation
of his civil rights.” Barren v. Harrington,
152 F.3d 1193, 1194 (9th Cir. 1998). There is no respondeat
superior liability under § 1983, so a defendant's
position as the supervisor of someone who allegedly violated
a plaintiff's constitutional rights, absent more, does
not make him liable. Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691 (1978); Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor
in his personal capacity “is only liable for
constitutional violations of his subordinates if the
supervisor participated in or directed the violations, or
knew of the violations and failed to act to prevent
them.” Taylor, 880 F.2d at 1045.
where a defendant's only involvement in allegedly
unconstitutional conduct is the denial of administrative
grievances, the failure to intervene on a prisoner's
behalf to remedy the alleged unconstitutional behavior does
not amount to active unconstitutional behavior for purposes
of § 1983. See Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999); accord Proctor v.
Applegate, 661 F.Supp.2d 743, 765 (W.D. Mich. 2009);
Stocker v. Warden, No. 1:07-CV-00589, 2009 WL
981323, at *10 (E.D. Cal. Apr. 13, 2009); Mintun v.
Blades, No. CV-06-139, 2008 WL 711636, at *7 (D. Idaho
Mar. 14, 2008); see also Gregory v. City of
Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (a
plaintiff must allege that a supervisor defendant did more