United States District Court, D. Arizona
G. Campbell United States District Judge
10 men who were formerly incarcerated in the Arizona State
Prison Complex-Eyman, Cook Unit,  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.) 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.
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
Federal Rule of Civil Procedure 12(b)(6)
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).
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.
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).
State Defendants' Motion to Partially Dismiss
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.)
Eighth Amendment Claims
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.
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).
Second Amended Complaint
claims arose during their confinement at the Cook Unit in
June 2014. (Doc. 43 ¶ 3.) The Second Amended Complaint
sets forth the following allegations:
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).)
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.)
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.)
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.)
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) &
Plaintiffs' Allegations Subject to the Motion to
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.)
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.)
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.)
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).
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.