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Rozenman v. Ryan

United States District Court, D. Arizona

July 31, 2019

Dimitri Rozenman, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          Hon. Rosemary Marquez Judge

         Plaintiff Dimitri Rozenman, who is currently confined in the Arizona State Prison Complex-Tucson, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendant Mattos moves for summary judgment. (Doc. 16.) Plaintiff was informed of his rights and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 20), and he opposes the Motion. (Doc. 30.) Plaintiff has filed a Motion to Amend his Complaint (Doc. 34), to which Defendant has responded (Doc. 35).

         The Court will deny Defendant's Motion for Summary Judgment and grant Plaintiff's Motion to Amend.

         I. Background

         On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim in Count One against Defendant Mattos and directed him to answer the claim. (Doc. 8.) The Court dismissed the remaining claims and Defendants. (Id.) . . . .

         II. Summary Judgment Standard

         A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and (1) that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and (2) that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

         At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

         III. Facts

         A. ADC's Drug Testing Policy

         ADC Department Order (DO) 709 governs substance abuse and provides for substance abuse prevention and interdiction tactics, as well as disciplinary actions for inmates who violate rules related to illegal alcohol and substance abuse. (Doc. 17 at 1 ¶ 1.)[1] Inmates housed in institutions and correctional release centers are charged with the appropriate disciplinary rule violation when: (1) they produce a urine specimen which tests positive for illegal drugs or alcohol; (2) they are found in possession of illegal drugs, drugs not legally prescribed, or alcohol; (3) they are involved in smuggling illegal substances or alcohol; or (4) they disobey a direct order from staff by refusing or failing to produce a urine specimen. (Id. ¶ 2.) Disciplinary sanctions are imposed for all violations resulting in guilty findings. (Id.)

         Inmates are urinalysis (“UA”) tested on a random basis. (Id. ¶ 3.) When an inmate either refuses a UA, tests positive, or fails to produce a sample, he is tested on a targeted basis for three months. (Id.) At the end of three months, the inmate is placed back on random testing. (Id.) There is no provision in DO 709 for methods other than urinalysis for testing for illegal substances. (Id. ¶ 4.)

         B. ADC's Disciplinary Procedures

         Disciplinary sanctions applicable to inmates found guilty of a 38B violation, “positive test or refusal of UA, ” are set forth in DO 803, Inmate Discipline System. (Id. ¶ 5.) Sanctions include loss of privileges, such as contact visitation; loss of earned release credits; restitution; extra duty hours; or placement in non-earning parole class III. (Id.) Disciplinary sanctions are determined by the Disciplinary Hearing Officer, who hears the case and renders a decision. (Id. ¶ 8.) Following each hearing conducted by a Disciplinary Hearing Officer, the unit Deputy Warden performs an administrative review of the documentation. (Id. ¶ 9.) If the inmate appeals a disciplinary finding, “the focus of the review is whether the inmate was afforded due process, whether there was adequate proof, whether the case was appropriately charged, and whether penalties were properly assessed.” (Id. ¶ 10.)

         C. Plaintiff's Disciplinary Proceedings

         Plaintiff has been assigned to the Santa Rita Unit since July 2015. (Id. ¶ 6.) Plaintiff has received four disciplinary tickets for “positive test or refusal of UA” since his arrival at the Santa Rita Unit. (Id. ¶ 7; Doc. 17-1 at 50.) Plaintiff has not received any new disciplinary tickets since May 2018. (Doc. 17 ¶ 12.)

         1. March 30, 2017 Disciplinary Ticket

         On March 30, 2017, Sergeant Coleman filed an Inmate Disciplinary Report because Plaintiff had failed to produce a urine sample within two hours. (Doc. 17-1 at 52.) Officer Luke verbally placed Plaintiff on report, and Sergeant Coleman wrote the report. (Id.) Officer Barraza investigated the charge and referred it to the Disciplinary Hearing Officer as a felony violation. (Id.) The Disciplinary Hearing was conducted on March 30, 2017, and Hearing Officer Stangl found Plaintiff guilty of a felony violation. (Id. at 53.) Stangl's finding of guilt was based on the Disciplinary Report and Investigative Reports.

         On May 1, 2017, Plaintiff submitted an Inmate Letter to Deputy Warden McAdorey. (Id. at 62.) Plaintiff noted that he had filed an appeal of Stangl's finding of guilty and that Plaintiff had spoken to McAdorey in person, explaining that he has a medical condition, interstitial cystitis, for which he takes three separate medications. (Id.) Plaintiff stated that one of the medications he takes is Flexeril, which he takes specifically because he has “a hard time relaxing his bladder to urinate.” (Id.) Plaintiff wrote that McAdorey had told Plaintiff to remind him in his appeal that they had a verbal conversation on that topic, but Plaintiff had not heard back and was concerned, “since it ha[d] been a while.” (Id.) Plaintiff stated that he can urinate if he is left alone for 10 minutes in a day room and noted that officers could take him to a day room, where kitchen workers get strip-searched, and have Plaintiff strip-searched to make sure he had nothing hidden. (Id.) Plaintiff stated that if he were given 10 minutes, he would be able to produce a full cup and that he was more than willing to provide any other test, such as blood or hair, at his own expense. (Id.)

         On May 15, 2017, McAdorey sent Plaintiff an Inmate Letter Response, stating that he had answered Plaintiff's appeal in his favor “due to some cloudy wording by medical staff.” (Id. at 63.) McAdorey noted that the decision stipulated that from that point forward, Plaintiff would need to follow the UA policy to the letter or request a catheter. (Id.)

         2. February 24, 2018 Disciplinary Ticket

         On February 24, 2018, Officer Hernandez submitted an Inmate Disciplinary Report against Plaintiff. (Id. at 55.) Hernandez stated that Plaintiff had failed to produce a sample after two hours, and CO II Morrison and Hernandez advised Plaintiff that if they opened the UA cup and he could not produce, he would be charged for the cup. (Id.) Plaintiff stated that he had a medical issue. (Id.) Hernandez's report stated that Plaintiff had told him and Officer Morrison that he could not produce a sample because officers were watching him and that he had a medical waiver and agreement with Deputy Warden McAdorey. (Id. at 56.) Lieutenant ...


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