Pember v. Ryan

          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 ...