United States District Court, D. Arizona
Rosemary Marquez Judge
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).
Court will deny Defendant's Motion for Summary Judgment
and grant Plaintiff's Motion to Amend.
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.) . . . .
Summary Judgment Standard
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.
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).
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).
ADC's Drug Testing Policy
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.) 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
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.)
ADC's Disciplinary Procedures
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.)
Plaintiff's Disciplinary Proceedings
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.)
March 30, 2017 Disciplinary Ticket
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.
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.
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
February 24, 2018 Disciplinary Ticket
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 ...