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Pryor v. Penzone

United States District Court, D. Arizona

December 7, 2017

Brian William Pryor, Plaintiff,
v.
Paul Penzone, et al., Defendants.

          ORDER

          James A. Teilborg, Senior United States District Judge.

         Plaintiff Brian William Pryor, who is confined in a Maricopa County Jail, has filed a pro se civil rights Second Amended Complaint pursuant to 42 U.S.C. §1983. The Court will order Defendants Hilmo, Arpaio, Penzone, Willette, Wilkins, Taylor, and Von Reeden to answer portions of Counts One, Two, and Three of the Second Amended Complaint, and will dismiss the remaining claims and Defendants without prejudice. Plaintiff has also filed several motions which will be denied.

         I. 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)).

         II. Second Amended Complaint

         Plaintiff names the following Defendants in his Second Amended Complaint: Maricopa County Sheriff Paul Penzone; Maricopa County Correctional Health Services Director Jeffry J. Alvarez; Physician Assistant Paul Hilmo; Detention Officer Sergeant Von Reeden; former Maricopa County Sheriff Joseph Arpaio; Detention Officers Cori Willette, Julian Taylor, and Tyler Glagovich; Detention Captain Michael Wilkins; and Detention Lieutenant Paul Noble. Plaintiff raises four counts for relief and seeks monetary damages and injunctive relief.[1]

         III. Discussion

         A. Count One

         In Count One, Plaintiff alleges his Eighth Amendment rights were violated when he was denied adequate medical care. Plaintiff alleges that beginning in October 2016, he submitted multiple Health Needs Requests because he was experiencing chronic vomiting. On December 14, 2016, Plaintiff had a chronic care appointment with Defendant Hilmo, during which they discussed Plaintiff's diabetes care, low blood pressure, hypertension, and vomiting. Plaintiff alleges that Defendant Hilmo accused Plaintiff of lying about his conditions and told Plaintiff “you just want better food.” Plaintiff claims Defendant Hilmo was deliberately indifferent to the vomiting issue as well as to Plaintiff's need for diabetes care. Plaintiff claims Defendant Hilmo said Plaintiff's very low glucose levels did not concern him and told Plaintiff “I don't care about your diabetes.” Plaintiff alleges that he grieved the visit in grievances #16-55151 and #16-083265, that the grievances were escalated, and that an unknown CHS employee stated that Alvarez had reviewed Plaintiff's chart and dismissed his grievances as not grievable issues.

         Plaintiff alleges that Defendant Hilmo ignored his vomiting and that as a result of the vomiting and inability to eat the food he is given, he has lost 80 pounds since entering the Maricopa County Jail. Plaintiff further claims that he vomited his dinner which caused low blood sugar which, in turn, caused him to black out and fall on January 1, 2017. Plaintiff contends that, when he awoke, C. Zerwinski (B3578) asked him if he was ok. Plaintiff claims that he reported head and back injuries which continue to cause him pain.

         Plaintiff contends that Defendant Alvarez has created or allowed a custom of ignoring health needs request (“HNR”) forms and that this, combined with Defendant Hilmo's inaction in providing adequate medical care, led to the January 1, 2017 hypoglycemic incident. Plaintiff contends that Defendant Hilmo's deliberate indifference showed gross negligence. Plaintiff further contends that Defendants Penzone, Arpaio, and Alvarez “hold a policy, practice, or custom of hindering prisoners such as the Plaintiff from grieving medical decisions” through their approval of rules and regulations. Specifically, Plaintiff contends that Defendants Penzone and Arpaio approved Section 19-F of the MCSO Rules and Regulations for Inmates and Defendant Alvarez approves policy JA-11-CHS and that, together, these policies make medical decisions “not grievable.” Plaintiff claims that, if his grievances had been allowed, his January 1, 2017 blackout “may not have occurred.” Plaintiff contends that Defendants Penzone, Arpaio, and Alvarez foster a culture of deliberate indifference to the well-being of prisoners.

         1. Failure to State a Claim

         Plaintiff has failed to state claim against Defendant Alvarez. First, there is no respondeat superior liability under § 1983, and therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Further, to the extent Plaintiff claims Defendant Alvarez implement policies, practices, or customs that led to “negligent” medical care, Plaintiff has failed to identify or describe those policies or provide any facts linking the policies to his injuries.

         Plaintiff's allegations that Defendants Penzone, Arpaio, and Alvarez “hold a policy, practice, or custom of hindering prisoners such as the Plaintiff from grieving medical decisions” and that they “foster a culture of deliberate indifference” are too vague to state a claim and Plaintiff acknowledges that he has filed several grievances.

         Plaintiff has failed to state a claim against Defendants Alvarez, Penzone, and Arpaio in Count One and these portions of Count One will be dismissed.

         2. Claim for which an Answer will be Required

         Liberally construed, Plaintiff has adequately stated an Eighth Amendment medical claim against Defendant Hilmo in Count One and the Court will require Defendant Hilmo to answer this claim.

         B. Count Two

         In Count Two, Plaintiff alleges Defendants Arpaio and Penzone violated his rights under the Eighth and Fourteenth Amendments by providing him with food that lacks sufficient nutrition to maintain his health. Plaintiff states that he has been confined in the Maricopa County Jail since August 31, 2016, and that he is frequently served food that is often rotten, overripe, and inedible. Plaintiff alleges that he informed Defendant Taylor that he has diabetes in December 2016 and that he similarly informed Defendant Willette before February 2017. Plaintiff further asserts that Defendants Taylor and Willette were made aware of his diabetes after an entry was made in the “Op Log” following Plaintiff's January 1, 2017 hypoglycemic incident.

         Plaintiff asserts that from August 2016 to March 2017, he has lost at least 80 pounds and that this was because of inadequate nutrition. Plaintiff also states he has followed “MCSO policy to attempt to get replacement food each time, ” but that in January and February 2017, Defendants Taylor, Carbajal, and Willette repeatedly refused to get him any replacement food. Plaintiff alleges that, after Defendant Willette refused to get replacement food on February 7, 2017, Defendant Willette said “Bet he won't grieve me again.” Plaintiff further alleges that in March 2017, Defendant Taylor was repeatedly reluctant or refused to get replacement food for Plaintiff and that in June 2017, Defendant Taylor again refused to get replacement food for Plaintiff until Plaintiff threated to file a grievance.

         Plaintiff alleges that Defendant Arpaio “boasted about the low cost 35 cent meals and his workers in media reports boasted about the low cost of the food.” Plaintiff contends that Defendants Penzone, Arpaio, Taylor, and Willette are deliberately indifferent “to Plaintiff's need for proper nutrition to maintain health [and] this is a violation of his constitutional rights.”

         1. Failure to State a Claim

         A pretrial detainee's claim for unconstitutional conditions of confinement arises from the Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 and n.16 (1979). Nevertheless, the same standards are applied. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

         To state a conditions-of-confinement claim, plaintiffs must meet a two-part test. “First, the alleged constitutional deprivation must be, objectively, sufficiently serious” such that the “official's act or omission must result in the denial of the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted). Second, the prison official must have a “sufficiently culpable state of mind, ” i.e., he must act with “deliberate indifference to inmate health or safety.” Id. (internal quotations omitted). Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Id. at 835. In defining “deliberate indifference” in this context, the Supreme Court has imposed a subjective test: “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 (emphasis added).

         Plaintiff has not alleged sufficient facts to demonstrate that the Defendant Detention Officers were deliberately indifferent to a serious risk of harm to Plaintiff. Liberally construed, Plaintiff has alleged Defendants were aware that he is diabetic but Plaintiff makes no allegations about how or when Defendants became aware of this information and Plaintiff has not alleged facts showing that the failure to provide him with a replacement tray was more than mere negligence; negligence is not sufficient to state a Fourteenth Amendment claim. Accordingly, the Court will dismiss Plaintiff's allegations in Count Two against Defendants Taylor and Willette.

         2. Claim for which an Answer will be Required

         Plaintiff also claims that, for the purpose of saving money, Defendants Arpaio and Penzone have implemented a policy of “providing food that lacks nutrition to maintain health” and that this policy has resulted in Plaintiff experiencing significant weight loss since entering the Maricopa County Jail system. Liberally construed, these allegations adequately state a Fourteenth Amendment ...


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