United States District Court, D. Arizona
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, ” ...