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Smith v. Penzone

United States District Court, D. Arizona

August 10, 2018

Bryce W. Smith, Plaintiff,
Paul Penzone, et al., Defendants.


          David G. Campbell, Senior United States District Judge

         On October 23, 2017, Plaintiff Bryce W. Smith, who is confined in a Maricopa County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a February 21, 2018 Order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days either to pay the filing and administrative fees or file a complete Application to Proceed. On March 5, 2018, Plaintiff filed another Application to Proceed. In an April 27, 2018 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.

         On May 18, 2018, Plaintiff filed his First Amended Complaint. In a June 22, 2018 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified in the Order.

         On July 23, 2018, Plaintiff filed a Second Amended Complaint (Doc. 14). The Court will order Defendant Eide to answer the due process threat to safety claim in Count One and will dismiss the remaining claims and Defendants without prejudice.

         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

         In his five-count Second Amended Complaint, Plaintiff sues Maricopa County Sheriff Paul Penzone; Fourth Avenue Jail Detention Officers Mendoza, Eide, Wiebel, and Miranda; Registered Dietitian Eileen Cowles; and Chaplain Ray. Plaintiff asserts claims of retaliation, “involuntary servitude, ” denial of basic necessities, and denial of free exercise of religion. He seeks injunctive and monetary relief.

         In Count One, Plaintiff alleges that Defendant Eide retaliated against Plaintiff by placing him in a pod that was previously known to be “hostile” to Plaintiff. Plaintiff asserts that, acting upon policies and procedures of “policymaker” Defendant Penzone, Eide “did knowingly without regard place Plaintiff in harm[']s way.” Plaintiff further claims that Eide failed to act and failed to follow federal PREA guidelines when Eide was notified a second time that Plaintiff was in a hostile and threatening situation. Plaintiff contends that Eide's inaction allowed Plaintiff to be “jumped gang-style by 3 other inmates, ” and Eide's conduct was retaliation for the grievances Plaintiff wrote against Eide. Plaintiff alleges that Eide was aware that the pod was “hostile” because Plaintiff had previously been removed from that pod. Plaintiff asserts that Eide was the “senior member” working the pod when “both incidents happened, ” where Plaintiff was threatened and moved from the pod, only to be returned to the same hostile pod under Eide's watch. Plaintiff claims that he suffered substantial injuries as a result of Eide's retaliation in moving Plaintiff back to the pod and failure to protect Plaintiff after Plaintiff “duly made Eide aware of the imminent danger posed by threats from inmates.” As his injury, Plaintiff alleges that he suffered a broken hand, a large hematoma, and a “massive head concussion” that caused him to lose consciousness.

         In Count Two, Plaintiff alleges that Defendant Miranda, acting “by the policies and procedures handed down by policymaker Paul Penzone, ” subjected Plaintiff to “involuntary servitude” when Miranda gave a direct order to Plaintiff to scrub the walls of a cell Plaintiff had just moved into. Plaintiff asserts that he advised Miranda that his hand was broken, but Miranda told Plaintiff to clean the walls or be written up. Plaintiff claims that he did as he was told while suffering great pain and discomfort. Plaintiff alleges that this was an act of retaliation and “another in a long line of things that the Sheriff's Office had been doing because of a previous lawsuit against the Sheriff's Office.” Plaintiff contends that he had a right not to be retaliated against and not to be “made to perform slave labor” for Miranda, but Plaintiff did as he was told by Miranda's “direct order.” As his injury, Plaintiff claims that he suffered serious discomfort and pain in his broken hand.

         In Count Three, Plaintiff alleges that Defendant Cowles, under policies and procedures handed down by Paul Penzone, “made an intentional decision to serve hard brittle crunchy bean patties[, ] knowing full well that Plaintiff could not eat [them] because of soft diet restrictions.” Plaintiff asserts that he suffered sore and bleeding gums and is at substantial risk of suffering more pain and “loss of basic necessities.” Plaintiff contends that Cowles plans and designates all menus as the dietitian, “yet she has refused to change the menu to comply [with] soft diet so calorie count can be met.” Plaintiff claims that he suffered pain and “lack of necessities” because of Cowles's inaction in continuing to serve the fried bean patties. Plaintiff alleges that both Defendant Penzone and Defendant Cowles are at fault and share the burden of providing basic necessities to Plaintiff. Plaintiff asserts that, because he cannot eat the “brittle non soft diet, ” he is not getting the required number of calories “designated throughout the month.” As his injury, Plaintiff claims that he has suffered “sore and bleeding gum pain in teeth, ” lack of nutrition, lack of nutrients, and lack of calories “throughout the month.”

         In Count Four, Plaintiff alleges that “[s]everal requests were sent to MCSO Chaplain Ray requesting assistance” with a three-day fast based on the Christian faith surrounding the Ritualistic Day of Atonement. Plaintiff asserts that the requests explained the purpose of the fast and the method of fasting. Plaintiff claims that he subsequently filed several grievances describing the nature and purpose of the fast. Plaintiff contends that “[i]t was also communicated” that Plaintiff was a minister and that this was a religious request and “not just a passing fad, which should satisfy the standard needed for total compliance.” Plaintiff alleges that Chaplain Ray “did not comply and Plaintiff was denied the ability to be free to practice and participate in his chosen religion.” Plaintiff asserts that he was not afforded the opportunity to offer atonement for sins in the manner described in the Holy Bible and within the parameters Plaintiff expressed to the chaplain. Plaintiff claims that Chaplain Ray, acting on or by orders set down by Defendant Penzone, infringed upon Plaintiff's right to religious freedom. As his injury, Plaintiff alleges that he suffered a “violation of rights.”

         In Count Five, Plaintiff alleges that while he was “in the hole” at the Fourth Avenue Jail, “several requests were sent” to Chaplain Ray asking for religious services. Plaintiff asserts that the requests were clearly marked “Protestant.” Plaintiff contends that the inmate handbook says “they would offer religious services at the cell door, yet they never did.” Plaintiff claims that written grievances were sent “to see if something would be done and still nothing was done to comply with the standard set by the inmate handbook and the United States [C]onstitution.” Plaintiff alleges that Chaplain Ray, acting under the policies and procedures of Defendant Penzone, violated Plaintiff's First Amendment rights. As his injury, Plaintiff claims that he was unable to exercise his right to worship and serve his God.

         III. 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).

         Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.

         A. ...

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