Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Andrich v. Dusek

United States District Court, D. Arizona

July 30, 2018

Devin Andrich, Plaintiff,
v.
Kevin Dusek, et al., Defendants.

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant Charles Ryan's Motion to Dismiss (Doc. 56) and Plaintiff Devin Andrich's Motion to Amend Complaint (Doc. 66). For the following reasons, Defendant's Motion will be granted, and Plaintiff's Motion will be granted.

         I. Motion to Dismiss

         As relevant to the Motion to Dismiss, Ryan was sued only in his official capacity as Director of the Arizona Department of Corrections (“ADC”). (Doc. 40, ¶ 14.) Plaintiff seeks only monetary damages. (Id. at 37.)

         Ryan correctly points out (and Plaintiff concedes) that damages are not available for official capacity claims brought under 42 U.S.C. § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, Ryan's Motion to Dismiss will be granted. Plaintiff argues that dismissal with prejudice is improper because he can amend the First Amended Complaint to seek prospective declaratory relief against Ryan. See Wolfe v. Strankman, 392 F.3d 358, 365 (9th Cir. 2004). The issue of whether Plaintiff should be granted leave to amend his official capacity claim is resolved below in the discussion of Plaintiff's Motion to Amend.

         II. Motion to Amend

         A. Standard of Review[1]

         Except for amendments made as a matter of course or with the opposing party's written consent, leave of Court is required to amend a pleading. Fed.R.Civ.P. 15(a). The district court has discretion in determining whether to grant or deny leave to amend, Foman v. Davis, 371 U.S. 178, 182 (1962), but leave should freely be given “when justice so requires, ” Fed.R.Civ.P. 15(a)(2). There is a “strong policy to permit the amending of pleadings.” Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). In determining whether to grant leave to amend, the Court considers whether there has been “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam) (quoting Foman, 371 U.S. at 182).

         B. Proposed Second Amended Complaint

         1. Charles Ryan

         Ryan is named both in his official and personal capacities. (Doc. 66-1, ¶¶ 15, 16.) Plaintiff alleges the following: Ryan regularly tours ADC prisons, including detention/segregation units. (Id. ¶ 164.) Ryan instructed officers (either directly or through the ADC chain of command) to: withhold warm clothing when inmates participate in out-of-cell recreation time in freezing or near-freezing temperatures; deny out-of-cell recreation time to inmates who request warm clothing when temperatures are freezing or near-freezing; and illuminate detention/segregation cells 24 hours per day, 7 days per week. (Id. ¶¶ 165-166, 175.) Pursuant to those instructions, Plaintiff was forced to choose between forgoing out-of-cell recreation time and participating in out-of-cell recreation time without warm clothing in freezing or near-freezing temperatures. (Id. ¶¶ 168-170.) Plaintiff was also subjected to a constantly illuminated cell over a 10-week period. (Id. ¶¶ 176-179.) As a result, Plaintiff suffered physical and emotional injuries. (Id. ¶ 171, 180.)

         Based on the foregoing allegations, Plaintiff alleges two Counts against Ryan. In Count Thirteen, Plaintiff alleges that Ryan's clothing policy caused the deprivation of Plaintiff's rights under the Eighth and Fourteenth Amendments. In Count Fourteen, Plaintiff alleges that Ryan's cell-illumination policy caused the deprivation of Plaintiff's rights under the Eighth and Fourteenth Amendments.

         2. Melody Jones, Y. Robinson, and W. Galloway

         Plaintiff alleges the following: Jones inventoried all of Plaintiff's personal property upon Plaintiff's transfer to Arizona State Prison Complex (“ASPC”) Tucson. (Doc. 66-1, ¶¶ 18-19.) Jones informed Plaintiff that she was confiscating his prescription eyeglasses, although there had been no issues with his eyeglasses during the numerous searches and security screenings of Plaintiff prior to arriving at ASPC Tucson. (Id. ¶¶ 20-21.) Jones instructed Plaintiff to either provide an address where the eyeglasses could be shipped or authorize destruction of the eyeglasses; Plaintiff provided an address. (Id. ¶ 25.) Plaintiff has since confirmed that the eyeglasses were not shipped. (Id. ¶ 26.)

         Between October 27, 2015, the date of Plaintiff's transfer, and November 24, 2015, Jones would not allow Plaintiff access to indigent legal mail. (Id. ¶ 29.) On November 6, Plaintiff submitted an Inmate Letter to his unit's deputy warden, complaining that Jones was refusing him access to indigent legal mail. (Id. ¶ 30.) Plaintiff submitted two more Inmate Letters with identical complaints on November 15 and November 20. (Id. ΒΆΒΆ 31, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.