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Hernandez v. Ryan

United States District Court, D. Arizona

April 30, 2018

Fabian Hernandez, et al., Plaintiffs,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Plaintiffs, 10 men who were formerly incarcerated in the Arizona State Prison Complex-Eyman, Cook Unit, [1] brought this action against multiple Arizona Department of Corrections (ADC) employees, including Director Charles Ryan, Deputy Warden Jeffrey Freeland, Assistant Deputy Warden Shannon Thielman, 31 correctional officers and members of the ADC Tactical Support Unit, and 7 officers involved in security and criminal investigations. (Doc. 43.)[2] Plaintiffs allege violations of their constitutional rights under 42 U.S.C. §§ 1983 and 1985. (Id. ¶¶ 101-113.) Before the Court are State Defendants' Motion to Partially Dismiss Plaintiffs' Second Amended Complaint (Doc. 44)[3] and Defendant Steven Dingman's Motion to Dismiss Second Amended Complaint. (Doc. 45.) The Court will grant in part and deny in part State Defendants' Motion and deny Dingman's Motion.

         I. Federal Rule of Civil Procedure 12(b)(6)

         A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Dismissal of the complaint, or any claim within it, may be based on either a “‘lack of a cognizable legal theory' or ‘the absence of sufficient facts alleged under a cognizable legal theory.'” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In determining whether a complaint states a claim under this standard, the allegations in the complaint are taken as true and the pleadings are construed in the light most favorable to the nonmovant. Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007).

         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). But “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         In ruling on a motion to dismiss, a court's review is normally limited to the complaint itself, but a court may consider documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). Documents not physically attached to the complaint may be considered if their authenticity is not contested and “the plaintiff's complaint necessarily relies on them.” Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation omitted); see Marder v. Lopez, 450 F.3d 445 448 (9th Cir. 2006).

         II. State Defendants' Motion to Partially Dismiss

         State Defendants argue that some of the individual Plaintiffs fail to sufficiently state Eighth Amendment claims for excessive force. (Doc. 44 at 4-6.) Defendants further argue that Plaintiffs fail to state supervisory-liability claims against Freeland and Thielman. (Id. at 6-8.)

         A. Eighth Amendment Claims

         1. Governing Standard

         Under the Eighth Amendment, a defendant is liable for use of excessive physical force against prisoners. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). To state an Eighth Amendment claim, a plaintiff must allege that the use of force was an “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir.2001). A plaintiff must allege facts that, if proven, would establish that prison officials applied force “maliciously and sadistically to cause harm, ” rather than in a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S 1, 7 (1992). In determining whether the constitutional line has been crossed, courts may consider the need for application of force, the relationship between that need and the amount of force used, the extent of injury inflicted, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Id. Not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of ‘cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9-10.

         The Eighth Amendment does not exclude liability for officers who stand by when another uses excessive force. Officers have a duty to intercede - a constitutional violation by a passive officer standing by is no different than a violation by an officer delivering blows. See United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994)), rev'd on other grounds, 518 U.S. 81 (1996); Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000); Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). Further, an excessive force claim may still lie even if a plaintiff does not have a clear recollection of the defendants' exact actions that caused injury, or if a plaintiff cannot identify the specific defendant officers who assaulted him. See Santos v. Gates, 287 F.3d 846, 851- 52 (9th Cir. 2002) (the fact that the plaintiff had no clear recollection of the defendants' exact actions that caused his alleged injuries did not preclude the plaintiff's excessive force claims as a matter of law); Rutherford v. City of Berkeley, 780 F.2d 1444, 1448 (9th Cir. 1986) (where the plaintiff could not identify the defendant officers who punched him, but he alleged that they were among the five officers around him when he was beaten, a jury could reasonably infer that the defendant officers were participants in punching and kicking the plaintiff), abrogated on other grounds by Graham v. Connor, 490 U.S. 396 (1989).

         2. Second Amended Complaint

         Plaintiffs' claims arose during their confinement at the Cook Unit in June 2014. (Doc. 43 ¶ 3.) The Second Amended Complaint sets forth the following allegations:

         On June 9 and 10, 2014, the Tactical Support Unit (TSU) conducted an operation that was ostensibly a Quarterly Search. (Id. ¶¶ 4, 38.) The operation's mission was to achieve a “full compliance” search of the Unit. (Id. ¶ 72.) Approximately 40 to 45 TSU officers participated. (Id. ¶ 19.) The identities of all participating TSU officers is presently unknown because officers disguised their identities during the operation by refusing to identify themselves to Plaintiffs upon request; by removing their names and badge numbers from their uniforms prior to the operation; and by requiring Plaintiffs and other victim-inmates to keep their chins on their chests throughout the operation so as to make it difficult for the inmates to see around them. (Id. ¶¶ 20, 70(c) & (g).) Also, when the TSU Defendants entered the Unit, they were allowed to bypass the required check-in process at the main control room. (Id. ¶ 70(a).)

         On each of the two days, June 9 and 10, 2014, the TSU Defendants ordered Plaintiffs and other victim inmates out of their cells. (Id. ¶ 38) Plaintiffs and the other inmates were wearing only their underwear, T-shirts, and shower sandals. (Id.) The TSU Defendants ordered the inmates to stand in a single-file line outdoors, where the temperatures exceeded 100 degrees, without shade or any UV protection. (Id. ¶ 39.) Various TSU officers were giving orders, which led to conflicting orders and confusion. (Id. ¶ 40.) Some of the inmates requested clarification as to which orders to follow. (Id. ¶ 41.) In response, one or more TSU Defendants would assault the inmates, often from behind. (Id. ¶ 42.) Once all the inmates were standing outside in a line, various inmates were assaulted by TSU Defendants for no reason or for reasons such as standing too far from the next inmate in line, failing to keep one's chin on his chest, or not moving quickly enough. (Id. ¶¶ 44-48.)

         During the operation, the inmates were placed in handcuffs behind their backs. (Id. ¶ 68.) The TSU Defendants used K9s during their assaults on Plaintiffs and the other inmates. (Id. ¶ 58.) The assaults on victim inmates included “take downs, ” after which victim inmates were placed face down on the dirt while cuffed and, in some cases, left in this position for over two hours despite the high temperatures. (Id. ¶ 72(a).) Eventually, Plaintiffs and other victim inmates were escorted to the Day Room, near the showers, where the TSU Defendants searched each inmate. (Id. ¶ 50.) Much of the abuse occurred in the shower area, where there is limited use of security cameras purportedly to protect inmates' privacy. (Id. ¶ 70(f).) Throughout the operation, TSU Defendants repeatedly used expletives and profanity and referenced the nature of Plaintiffs' convictions, some of which include sexual offenses. (Id. ¶¶ 37, 85.)

         Several Plaintiffs and other inmates required medical attention for the injuries caused by the TSU Defendants. (Id. ¶ 61.) But when Plaintiffs and other inmates requested medical attention, the TSU Defendants required that before being taken to medical, an inmate had to make a statement into a video recorder that the inmate had assaulted the TSU Defendants. (Id. ¶¶ 62, 66.) As a result, several Plaintiffs were coerced to refuse medical attention despite their injuries, and other Plaintiffs complied with the demand to provide a false recorded statement because they felt they could not go without medical attention. (Id. ¶¶ 63-64.)

         During the operation, TSU Defendants seized “nuisance contraband, ” including TVs, stereo equipment, hobby crafts, clothing, blankets, etc. from more than 200 inmates. (Id. ¶ 72(g).) More than 9 truckloads of seized property were removed from the facility following the 2-day operation, and much of the seized property was disposed of contrary to ADC policy. (Id. ¶ 72(i) & (j).)

         3. Plaintiffs' Allegations Subject to the Motion to Dismiss

         a. Hernandez

         Plaintiff Hernandez alleged that TSU officers came into his housing area yelling directions to strip to boxers and shower shoes, and he was directed to take off his long-sleeved shirt. (Doc. 43 ¶ 88.) As he was trying to comply, he receive conflicting instructions; he was assaulted and suffered injuries to his knees and back, which continue to cause significant pain; and he suffered cuts to his left forearm, scratches to his head and knees, injury to his lower back and knees, and numbness in his left hand. (Id. ¶¶ 88- 89.) State Defendants argue that these allegations inadequately plead how and why the alleged assault constituted force that was sadistic and malicious and that Hernandez fails to allege that the force used was unjustified by the circumstances. (Doc. 44 at 4.)

         Plaintiffs attach to their Response copies of grievance documents Hernandez submitted about the incident. (Doc. 50, Ex. A.) In his grievances, Hernandez stated that he had just taken off his long-sleeved shirt and was walking to the back of the line as ordered when an officer smacked him in the back of the head. (Doc. 50-1 at 7, 9.) Then another officer grabbed Hernandez and slammed him down on the top of a small garbage can, cuffed him, and elbowed him in the back of the head. (Id.) Officers picked Hernandez up by the arms and brought him outside where they forced him to his knees and then shoved his face in the dirt. (Id.) The officers yelled obscenities at Hernandez and kept calling him a “faggot piece of shit.” (Id.) The officers kicked dirt in his face and left him lying there for 15-20 minutes. (Id.)

         The grievances were not attached to the Second Amended Complaint, but they are referred to in the pleading. Plaintiffs allege that they participated in the prison's grievance process and submitted to the administrative resolution of their claims. (Doc. 43 ¶ 99.) Plaintiffs allege that they were not provided any information as to the resolution of their grievances against the officers, and that Defendants repeatedly denied their administrative pleas for redress. (Id. ¶¶ 2, 100.) Plaintiffs also allege that approximately 55 victim inmates filed or attempted to file complaints against the TSU Defendants for violently assaulting them without cause, but an internal investigation concluded that all 55 complaints were unsubstantiated due to lack of evidence. (Id. ¶¶ 60, 74.)

         Hernandez's grievances are central to his claim. They set forth facts supporting essential elements of an Eighth Amendment excessive force claim, and State Defendants do not object to the grievance documents or contest their authenticity. (See Doc. 55.) Accordingly, the Court will consider the documents. See Marder, 450 F.3d at 448; Ritchie, 342 F.3d at 908; see also Clinton v. Luke, No. CV 08-4179-DOC (OP), 2010 WL 114208, at *5 (C.D. Cal. Jan. 8, 2010) (although the plaintiff's grievance documents were not attached to or referenced in the complaint, the district court took judicial notice of the grievances submitted with the plaintiff's response to the motion to dismiss because the plaintiff's deliberate indifference claim necessarily relied on the grievances).

         Taking Hernandez's allegations as true, he was complying or attempting to comply with orders, he posed no threat to the officers or other inmates, and there was no exigency or need to restore order. And yet officers hit and elbowed Hernandez in the head, slammed him onto a garbage can, and shoved him face first into the dirt while he was cuffed. In the circumstances alleged by Hernandez, there was no need for force. See Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979) (officers may use force only in proportion to the need in each situation). Further, the officers' alleged use of profane and obscene language with references to the nature of Hernandez's convictions could be found to manifest a malicious intent to punish Hernandez. (Doc. 43 ¶¶ 37, 85.) The TSU officers' alleged affirmative steps to hide their identities from Plaintiffs also suggest the intent to cause harm in a malicious manner and to avoid punishment. (Id. ¶ 70(a), (c), (e)-(g).) Hernandez's and the Second Amended Complaint's allegations are sufficient to state a plausible claim for excessive force. State Defendants' Motion to Dismiss will be denied as to Hernandez's claim.

         b. ...


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