Mason v. Ryan

          ORDER

          DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE

         On August 19, 2019, Plaintiff Nathan Sterling Mason, who is confined in the Arizona State Prison Complex-Lewis (ASPC-Lewis) in Buckeye, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, an Application to Proceed In Forma Pauperis, and a Motion for Preliminary Injunction (Doc. 4).

         On August 26, 2019, Plaintiff filed two additional Motions for Preliminary Injunction (Docs. 7 and 8), a Notice to the Court Regarding Application to Proceed In Forma Pauperis, a “First Amended Complaint” containing bracketed text and text that had been struck through, and a second Application to Proceed In Forma Pauperis. On September 9, 2019, he filed a “Motion to File Attached Motion Under Seal for Plaintiff[']s Protection” (Doc. 13), lodged under seal Plaintiff's “Supplement Evidence to Support Motions for Order of Protection and Other Preliminary Relief Requested on an Expedited/Emergency Basis” (Doc. 14); and filed two documents containing supplemental evidence in support of his motions for injunctive relief.

         In a September 11, 2019 Order, the Court granted Plaintiff's first Application to Proceed In Forma Pauperis, denied as duplicative his second Application to Proceed, and directed the Clerk of Court to change the docket to reflect that the August 26 “First Amended Complaint” was a “Notice of Filing of First Amended Complaint.” The Court gave Plaintiff thirty days to file a clean version of the amended complaint that did not contain brackets and strike-throughs.

         On September 23, 2019, Plaintiff filed a First Amended Complaint (Doc. 19) and another document containing supplemental evidence. On October 7, 2019, he filed a Motion to File Notice to Court Under Seal (Doc. 21) and lodged under seal a Notice to the Court (Doc. 22). On October 17, 2019, Plaintiff filed a Request for Expedited Ruling on Requests for Relief (Doc. 23). On November 4, 2019, he filed a Notice of Change of Address and a Motion to File Motion Under Seal (Doc. 25), lodged under seal his “Supplement Facts to Pending Motions for Relief” (Doc. 26), and filed a Request for Court Order (Doc. 27).

         The Court will (1) order Defendant Ryan to answer Count One in his individual capacity; (2) substitute David Shinn for Defendant Ryan in his official capacity; (3) order David Shinn to answer Count One in his official capacity; (4) order Defendants Ryan, Taylor, Lowe, Williams, Abbl, Evans, Kila, Vargas, and Hernandez to answer limited portions of Count Three in their individual capacities; (5) order Defendant Ende to answer Count Four in his individual capacity; and (6) dismiss the remaining claims and Defendants without prejudice. The Court will order David Shinn to respond to the August 19 Motion for Preliminary Injunction and will deny the August 26 Motions for Preliminary Injunction. In addition, the Court will grant the three motions to file under seal and will direct the Clerk of Court to file under seal the three documents that were lodged under seal. Finally, the Court will deny the Request for Expedited Ruling and Request for Court Order.

         In an effort to expediate consideration of this matter, the Court will direct the United States Marshal to immediately serve Defendant Shinn and will direct Defendant Shinn to respond to the August 19 Motion for Preliminary Injunction within ten days of service.

         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. First Amended Complaint

         In his eight-count First Amended Complaint, Plaintiff sues the following Defendants: the State of Arizona; Arizona Governor Douglas Ducey; Assistant Arizona Attorney General Michelle Lombino; former Arizona Department of Corrections (ADC) Director Charles Ryan; Deputy Wardens Weiss and Ronald Abbl; Assistant Deputy Warden Kaufman; Security Operation Administrator Ronald Lee; Captain Whiting; Lieutenant Randall Lowe; Corrections Officer (CO) IVs McCain and Mary-Ellen Ohshita; CO IIIs Wade, Jaymond Williams, Vance, and Greg Cortez; CO IIs Evans, Kila, Vargas, Garcia, and Hernandez; Special Security Unit Officer Taylor; ADC Employees Doe 1-100; the Buckeye City Fire Marshal; Centurion; and Centurion Nurse Practitioner Ende. Plaintiff sues all of the Defendants in their individual and official capacities, except for Defendants State of Arizona and Centurion, which are sued in their official capacities only.

         In Counts One, Two, Four, and Eight, Plaintiff alleges violations of his Eighth Amendment rights regarding his medical care (Counts One and Four) and his conditions of confinement (Counts Two and Eight). In Count Three, he alleges First Amendment retaliation claims. In Count Five, he contends a state statute violates his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights. In Counts Six and Seven, he alleges he was deprived of his liberty (Count Six) and his property (Count Seven) in violation of the Fourteenth Amendment. In his Request for Relief, Plaintiff seeks declaratory and injunctive relief and monetary damages.

         III. Discussion of First Amended Complaint

         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 suit against a defendant in his or her official capacity represents only another way of pleading an action against the entity that employs the defendant. Kentucky v. Graham, 473 U.S. 159, 165 (1985). That is, the real party in interest is not the named defendant, but the entity that employs the defendant. Id. To bring a claim against an individual in his official capacity, a plaintiff must show that the constitutional deprivation resulted from the entity's policy, custom, or practice. Id.; Monell, 436 U.S. at 694.

         A suit against a defendant in his or her individual capacity seeks to impose personal liability upon the official. Kentucky v. Graham, 473 U.S. at 165-66. Plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). “A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

         A. Official Capacity Claims

         1. Defendant Ende

         An official capacity claim against Defendant Ende is duplicative because Plaintiff is suing Defendant Centurion. Thus, the Court will dismiss as duplicative Plaintiff's official-capacity claim against Defendant Ende.

         2. Defendant Buckeye City Fire Marshal

         Plaintiff has failed to show that he suffered any constitutional deprivation as a result of a specific policy, practice, or custom of Buckeye City or the Buckeye City Fire Department, the entities that employ Defendant Buckeye City Fire Marshal. Thus, the Court will dismiss Plaintiff's official capacity claim against Defendant Buckeye City Fire Marshal.

         3. Arizona Employees

         “[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). . . . .

         Plaintiff cannot maintain a lawsuit for damages against Arizona employees in their official capacities. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State officials sued for damages in their official capacity are not ‘persons' for purposes of the suit because they assume the identity of the government that employs them.”); see also Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991). Thus, the Court will dismiss Plaintiff's official capacity claims for damages against Defendants who are Arizona employees.

         Plaintiff may maintain a lawsuit against Arizona employees in their official capacities for prospective declaratory and injunctive relief. See Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012). However, “in an official-capacity suit the entity's ‘policy or custom' must have played a part in the violation of federal law.” Kentucky v. Graham, 473 U.S. at 166; see also Los Angeles County v. Humphries, 562 U.S. 29, 39 (2010) (the “‘policy or custom' requirement [in Monell] applies in § 1983 cases irrespective of whether the relief sought is monetary or prospective.”). A plaintiff must allege, as a matter of law, that the policy or custom caused him to suffer constitutional injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006).

         Except as specifically discussed below, Plaintiff's allegations against Arizona employees fail to plausibly show that any policy, practice, or custom of any state entity has resulted in his alleged injuries. Thus, the Court will dismiss without prejudice Plaintiff's official capacity claims, except those specifically identified below, against Defendants who are Arizona employees.

         B. Eighth Amendment Medical Care Claims - Counts One and Four

         1. Count One

         In Count One, Plaintiff contends Defendant Ryan breached his duty to provide adequate healthcare by delegating his duty to Defendant Centurion, which is “incompetent [and] profit driven” and “has a long history of providing inadequate healthcare.” He asserts Defendant Ryan knew of the risk to Plaintiff's health and disregarded it so he could “reap financial gain by rec[ei]ving kickback checks/incentives” from Defendant Centurion. Plaintiff contends that Defendant Ryan has continued to delegate his duty to profit-driven companies for his own personal financial gain, despite years of “proven deficiencies” when using “profit-driven companies.” Plaintiff asserts Defendant Ryan has “adopted polic[ie]s” and instructed Defendant Centurion to restrict care and medications prescribed by specialists. He claims that “[a]t [Defendant] Ryan[']s direction[, ] thr[ough] his adopted polic[ie]s, ” Defendant Ryan has failed to treat Plaintiff's chronic pain as a serious medical need. Plaintiff claims this caused him pain and suffering, increased pain, “worsening symptomology, ” worsening of his degenerative spine condition and hypertension, a loss of mobility and quality of life, a life-long disability, chronic sleep deprivation, anxiety, depression, emotional distress, and “severe retaliation.”

         Liberally construed, Plaintiff has stated an Eighth Amendment claim against Defendant Ryan in his individual capacity for damages and in his official capacity for prospective declaratory and injunctive relief. The Court will require Defendant Ryan to answer Count One in his individual capacity. On September 13, 2019, Defendant Ryan stepped down as the ADC Director. The new Director is David Shinn. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court will substitute Director Shinn for Defendant Ryan in his official capacity only. See Fed. R. Civ. P. 25(d) (permitting the court to order substitution of a public officer who is a party in an official capacity when the party ceases to hold office while the action is pending). The Court will require David Shinn to answer the official capacity claim in Count One.

         2. Count Four

         In Count Four, Plaintiff contends Defendant Ende, who works for Defendant Centurion, initially refused to see him and said he could not do anything for Plaintiff. However, Plaintiff saw Defendant Ende on July 2, 2019, and explained that he has herniated/bulging cervical discs; spinal stenosis; radiculopathy; levoscoliosis; debilitating and chronic pain in his neck, left shoulder/arm, and upper back; and cannot sit, sleep, read, write, or “live life” without excruciating pain. He told Defendant Ende that ibuprofen was ineffective and that a specialist had prescribed Ultram. Plaintiff claims Defendant Ende said, “no court order stated he had to give [Plaintiff] different pain meds”; offered to prescribe Tylenol in addition to ibuprofen; and refused to order any diagnostic testing. Plaintiff contends Defendant Ende has subsequently refused to see Plaintiff at all and is intentionally inflicting pain on Plaintiff by denying him the prescription prescribed by the specialist.

         a. Defendant Ende

         Liberally construed, Plaintiff has stated a claim against Defendant Ende in his individual capacity. The Court will require Defendant Ende to answer Count Four in his individual capacity.

         b. Defendant Centurion

         To state a claim under § 1983 against a private entity performing a traditional public function, such as providing medical care for prisoners, a plaintiff must allege facts to support that his constitutional rights were violated as a result of a policy, decision, or custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997). A plaintiff must allege the specific policy or custom and how it violated his constitutional rights. A private entity is not liable merely because it employs persons who allegedly violated a plaintiff's constitutional rights. See Tsao, 698 F.3d at 1138-39; Buckner, 116 F.3d at 452.

         Plaintiff has not alleged that the conduct described in Count Four was the result of a specific policy or custom of Defendant Centurion, as opposed to decisions by Defendant Ende. Thus, the Court will dismiss without prejudice Defendant Centurion.

         C. Eighth Amendment Conditions of Confinement Claims - Counts Two and Eight

         To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must meet a two-part test. “First, the alleged constitutional deprivation must be, objectively, sufficiently serious” such that the “official's act or omission must result in the denial of the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted). Second, the prison official must have a “sufficiently culpable state of mind, ” i.e., he must act with “deliberate indifference to inmate health or safety.” Id. (internal quotations omitted). Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Id. at 835. In defining “deliberate indifference” in this context, the Supreme Court has imposed a subjective test: “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 (emphasis added).

         1. Count Two

         In Count Two, Plaintiff alleges Defendant Ryan has failed to provide adequate cooling because he chose to use swamp coolers to cool the cells and dorms where Plaintiff resides. Plaintiff contends Defendant Ryan knows of the risk to Plaintiff's health and safety from using swamp coolers, but has disregarded that risk.

         Plaintiff claims using swamp coolers violates the professional standards for correctional facilities, which indicate that Arizona's state prisons should have air conditioning, and alleges administrative areas, CO III offices, and control bubbles at the Arizona prisons are cooled by air conditioning, while he “bake[s] all day long.” He alleges swamp coolers are incapable of adequately cooling the living areas, cannot compete with the Arizona sun “baking the concrete walls all day long, ” are not maintained, leak, and do not work in high humidity, such as during Arizona's summer monsoon season. He claims “temperature checks show the temperature in excess of 90-100° during the summer months” and the heat index, when using the swamp coolers and taking humidity into account, is “well over 100°.” He claims the excessive heat exacerbates his hypertension, he is at an increased risk of heat-related illnesses because he has hypertension, and he has experienced depression, fatigue, dehydration, chronic respiratory sickness, sleep deprivation, emotional distress, heat-related illness, cervical lymphadenopathy, a generally poor quality of life, and a loss of property when the swamp cooler leaked on his television. . . . .

         Plaintiff's allegation that Defendant Ryan knew of a risk to Plaintiff's health and safety from using swamp coolers, but disregarded that risk, is too vague and conclusory to state a claim. Plaintiff does not identify how Defendant Ryan became aware of an excessive risk^[1] to Plaintiff's health and safety and what he did that would constitute disregard of that risk. See Farmer, 511 U.S. at 837. Plaintiff does not allege he notified Defendant Ryan of the risk to his safety and, if he did, what information he provided to Defendant Ryan; what actions, if any, he requested Defendant Ryan take, such as providing additional fans or moving Plaintiff to a different facility; what response, if any, Defendant Ryan provided; and how this rose to the level of deliberate indifference. Absent more, Plaintiff's allegations are insufficient to state a claim against Defendant Ryan. Thus, the Court will dismiss without prejudice Count Two.

         2. Count Eight

         In Count Eight, Plaintiff alleges Defendant Ryan, unknown Doe Defendants who are the current deputy warden and assistant deputy warden at ASPC-Lewis's Buckley Unit, and a non-party complex warden at ASPC-Lewis, “promote and create unconstitutional conditions of confinement” in violation of Plaintiff's Eighth Amendment rights. He claims Defendant Ryan and ASPC-Lewis's administration “blatantly ignore” Arizona law and fire code safety and “engage in a campaign of harassment and unconstitutional conditions of confinement in direct retaliation for the media exposing all of the corruption.” Plaintiff contends all cell doors are padlocked and this, “coupled with severe short staff or staff laziness, ” violates State law and fire codes, places him at risk of serious injury or death if there is a fire or an emergency, and has led to frequently missed showers. He also claims that after the media exposed these conditions, “[the Tactical Support Unit (TSU)] was called multiple times daily” to harass and intimidate inmates and break or steal property.

         In addition, Plaintiff contends he was placed in a cell without a mattress for 48 hours and received “disciplinary” when he “refused to subject [him]self to it for a [third] night.” He asserts he is housed in a pod where inmates kick the doors and scream all night, break cable outlets, cut the power, and set fires, but corrections officers ignore the inmates. Plaintiff contends Defendant Ryan and Doe Defendants who are administrators instruct inmates to “police your own, ” which results in frequent assaults, robberies, and thefts. He claims he has the ability to e-file once every two weeks; corrections officers “always” deny requests to call a supervisor; and the Buckley Unit receives different food than other units. Plaintiff alleges he is subjected to a filthy environment because his cell, pod, and building are plagued with rats, roaches, mice, ants, and scorpions; he is intentionally not provided with an opportunity to clean; and Defendant Ryan is aware, through a court ruling in another case, that the cleaning supplies are grossly inadequate. Finally, Plaintiff contends Defendant Buckeye City Fire Marshal “allows” Defendant Ryan to violate the fire code.

         As to Plaintiff's claims regarding padlocking cells, harassment in retaliation for exposing issues to the medical, and instructions to “police your own, ” Plaintiff has simply made vague and conclusory allegations against groups of Defendants, without any factual specificity as to what any particular Defendant did or failed to do. This is insufficient. See Marcilis v. Township of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (upholding dismissal of Bivens complaint that referred to all defendants “generally and categorically” because the plaintiff had failed to “‘allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right.'” (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))); Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint's use of either the collective term ‘Defendants' or a list of the defendants named individually but with no distinction as to what acts are attributable to whom, it is impossible for any of these individuals to ascertain what particular unconstitutional acts they are alleged to have committed.”). Thus, the Court will dismiss this portion of Count Eight.

         Regarding Plaintiff's allegations about being placed in a cell without a mattress for 48 hours, being disciplined when he refused to be deprived of a mattress for a third night, being subjected to loud and unruly inmates, e-filing limitations, denials of requests to contact supervisors, and exposure to rodents, ants, and scorpions, Plaintiff has failed to link his claims to the conduct of any specific defendant. Therefore, the Court will dismiss this portion of Count Eight.

         Although Plaintiff claims Defendant Ryan is aware, through other litigation, that the provided cleaning supplies are grossly inadequate, Plaintiff does not allege what actions, if any, he requested Defendant Ryan take, such as providing more or different cleaning supplies; what response, if any, Defendant Ryan provided; and how this rose to the level of deliberate indifference. Absent more, Plaintiff's allegations against Defendant Ryan are too vague and conclusory to state a claim, and the Court will dismiss this portion of Count Eight.

         Regarding Plaintiff's allegation that Defendant Buckeye City Fire Marshal “allows” Defendant Ryan to violate the fire code, Plaintiff does not indicate when Defendant Buckeye City Fire Marshal inspected the facility, whether Defendant Buckeye City Fire Marshal discovered fire code violations, and, if he did, what actions, if any, he took to require Defendant Ryan to remedy those violations. Thus, the Court will dismiss this portion of Count Eight.

         D. Count Three

         A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an inmate to show (1) that the prison official acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action “advanced no legitimate penological interest”). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants' conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).

         In Count Three, Plaintiff alleges he has been, and continues to be, subjected to retaliation, in violation of the First Amendment, “for addressing grievances of conditions of [his] confinement by litigating against [Defendant] Ryan in District Court.” He claims he had critical evidence seized, lost good time credits and had his release date extended, lost contact visits and telephone privileges, was assaulted, likely contracted hepatitis C during an assault, was subjected to stricter conditions of confinement because he was unjustly classified to a higher custody level, had his medical records falsified, was disciplined, is being mentally tortured, lost personal property, and constantly fears assaults from inmates and prison staff.

         Plaintiff alleges his lawsuit began in March 2017, he has been retaliated against since then, and the following events, “combined and/or alone, ” ...