United States District Court, D. Arizona
REPORT & RECOMMENDATION
James
F. Metcalf, United States Magistrate Judge
I.
MATTER UNDER CONSIDERATION
This
matter arises out of a complaint by Plaintiff, presently
incarcerated in the Arizona State Prison in Florence,
Arizona, alleging a variety of injuries incurred while a
prisoner. Having been granted leave to do so (Order 11/27/18,
Doc. 64), Plaintiff filed a Second Amended Complaint on
January 16, 2019 (Doc. 73). 28 U.S.C. § 1915A requires
the Court to screen complaints brought by prisoners seeking
relief against a governmental entity or officer or employee
of a governmental entity.
This
matter is before the undersigned on referral from the
District Judge, and the determination of the undersigned on
screening is dispositive of some of Plaintiff's claims.
Accordingly, the undersigned makes the following proposed
findings of fact, report, and recommendation pursuant to Rule
72(b), Federal Rules of Civil Procedure, and 28 U.S.C.
§28(b)(1)(B) and (C).
II.
RELEVANT BACKGROUND
A.
ORIGINAL COMPLAINT
Plaintiff's
original Complaint was filed on November 3, 2017 (Doc. 1).
That complaint was dismissed with leave to amend, based on
Plaintiff's failure to use the required approved form.
(Order 4/6/18, Doc. 6.)
B.
FIRST AMENDED COMPLAINT
1.
Generally
In
response to the dismissal, Plaintiff filed his First Amended
Complaint on May 1, 2018 (Doc. 10). That complaint named the
following Defendants: Arizona Department of Corrections
Director Charles Ryan; Medical Director Babich and Dr. James
Baird; Corizon Medical Services; Browning Unit's Nurse
Practitioner Maureen Gay, Facility Health Administrator M.
Johnson, Licensed Practical Nurse Hawley, Grievance
Coordinator Altigieri, and Grievance Officer McClellon; ASPC
Florence Central Unit's Warden Greg Fizer, Deputy Warden
S. Morris, Lieutenant A. Quintero, Sergeants S. Belt and J.
Ramos, and Corrections Officer (CO) IIs Vasquez and
Castrejon; Security Operations Administrator Keith Smith;
Security Threat Group (STG) Committee Chairperson Scott and
Committee Members/Deputy Wardens Freeland and Shuman;
“STGAC Chair” Ron Towles; and Browning Unit and
Central Unit STG Officers Does 1-10, Property Officers Does
11-16, and Medical Staff Does 17-25.
The
complaint asserted three counts. In Count 1,
Plaintiff asserted a First Amendment
access-to-the-courts claim against Defendant
Defendants “Does, ” Ryan, Fizer, and Quintero,
arguing that in the course of prison procedures related to
his “validation” as a member of a security threat
group (STG), his legal documents were confiscated and used as
evidence to validate him as a STG member, an indefinite and
inescapable classification that results in his detention in
on a supermax unit, and labelling as a “domestic
terrorist” when he is ultimately released from prison.
In Count 2, Plaintiff
asserted a medical care claim arising from
his neuropathy, pain management, hernia, foot injury, knee
pain, and denials of grievances, making various allegations
against Defendants Baird, Gay, Johnson, and Haley, and a
variety of non-parties. In Count 3,
Plaintiff asserted a property claim based on
the confiscation of or loss of various property placed in
prison storage, and denial of related grievances, making
allegations against Defendants Morris, Ramos, Altigierei, and
McClellon.
Plaintiff
sought monetary damages, declaratory and injunctive relief,
and litigation costs.
2.
Defendants
On
screening, the Court concluded that the First Amended
Complaint failed to allege cognizable claims against
Defendants Corizon, because Petitioner
failed to allege a specific policy or custom by Defendant
Corizon, or how such policy or custom violated his
constitutional rights, citing Tsao v. Desert Palace,
Inc., 98 F.3d 1128, 1138-39 (9th Cir.
2012).[1]
The
Court also concluded that Plaintiff failed to adequately
state claims against Defendants Browning and Central
Unit STG Officers Does 1-10, Property Officers Does 11-16,
and Medical Staff Does 17-25. The Court observed:
“Plaintiff makes several allegations throughout his
First Amended Complaint against ‘Defendant' and
‘supervisor Defendants' without providing any
factual specificity as to what each individual defendant did
or failed to do. This is not sufficient to state a claim
under § 1983.” (Order 5/31/18, Doc. 17 at 13.)
3.
Count 1- STG Validation
Regarding
Count 1, the Court dismissed the
access to the courts claim on the basis that
Plaintiff failed to allege facts to show that the
confiscation of his papers rendered him “unable to file
a nonfrivolous claim or that he suffered an actual injury as
a result of Defendants' actions.” (Id. at
14-15.) The Court construed Count 1 to also allege
due process claim in his STG proceedings,
but found Plaintiff failed to adequately allege a claim
related to false allegations, or procedural due process
denials, protected liberty interest in a particular
classification or prison unit assignment, or based on a
violation of prison policies. Accordingly, that portion was
dismissed. (Id. at 15-16.) The Court also construed
Count 1 to allege a claim of failure to
train resulting in retaliation or harassment, but
found it could not be based on respondeat superior and
Plaintiff failed to allege facts to show deficient training,
or that it was a deliberate or conscious choice by the
defendants. Accordingly, that portion was also dismissed.
(Id. at 16-17.)
4.
Count 2 - Medical Care
Regarding
Count 2, the Court found the
allegations based on Defendants Johnson and
Hawley's failure to respond to his grievances
were too vague to establish deliberate indifference, because
Plaintiff failed to allege the Defendants' awareness of
Plaintiff's history or condition, and failure to explain
the responses or which Defendant instructed him to continue
taking medication to which he had reacted. Accordingly,
Defendants Johnson and Hawley were dismissed. (Id.
at 17-18.) The claims against Defendant
Baird were dismissed without prejudice on the basis
that the allegations in Count 2 showed that his claims
against Baird had accrued in 2009 and 2011, far outside the
applicable two year statute of limitations. (Id. at
13-14.) The Court found that Plaintiff adequately stated an
Eighth Amendment medical care claim against Defendants
Babich and Gay in Count 2. (Id. at
20.)
5.
Count 3 - Lost Property
Regarding
Count 3, the Court concluded that
the claim based on lost property failed to
adequately state a claim because of the availability of
meaningful and adequate post-deprivation remedies.
(Id. at 18-19.) The claim based on allegations of an
unprocessed grievance against Defendant
McClellon failed to assert a First Amendment claim because it
showed nothing more than a failure to follow grievance
procedures, or failure to process grievances. These claims
were dismissed. (Id. at 19-20.)
6.
Summary
Based
on the foregoing, the Court dismissed without prejudice
Counts 1 and 3, and Defendants Corizon, Ryan, Fizer, Scott,
Freeland, Baird, Shuman, Smith, Towles, Quintero, Belt,
Ramos, Vasquez, Castrejon, Morris, Johnson, Hawley,
Altigieri, McClellon, and Does 1-25. Defendants Babich and
Gay were ordered to answer Count 2. (Order 5/31/18, Doc. 17
at 22-23.
C.
SECOND ...