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Moreno v. Ryan

United States District Court, D. Arizona

May 19, 2017

Jorge Herberto Moreno, Plaintiff,
v.
Charles Ryan, et al., Defendants.

          ORDER

          Susan R. Bolton United States District Judge.

         On 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.

         Pending 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.

         I. Plaintiff's Motion to Amend

         Rule 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.

         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. Plaintiff's First Amended Complaint

         In his 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.

         In 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.

         Plaintiff 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).[1]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.

         Also in 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.

         In 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.

         With 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.

         With 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.

         Finally, 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.

         In 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 away.”[2]

         IV. Failure to State a Claim

         To 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).

         In 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.

         Further, 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 ...


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