Opinion
CV 22-01006 PHX JJT CDB
08-09-2023
Chad Everett Lamar Braxton, Plaintiff, v. David Shinn, et al., Defendants.
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES UNITED STALES MAGISTRATE JUDGE
TO THE HONORABLE JOHN J. TUCHI:
Before the Court is Plaintiff's motion to amend his Second Amended Complaint. (ECF No. 58).
I. Background
Plaintiff, proceeding pro se in this prisoner civil rights matter, filed a complaint and a motion seeking leave to proceed in forma pauperis on June 10, 2022. The motion to proceed in forma pauperis was granted and the complaint dismissed with leave to amend. Plaintiff filed an amended complaint on September 12, 2022, which was dismissed with leave to amend on October 24, 2022.
Plaintiff docketed a second amended complaint on November 7, 2022. (ECF No. 15). In the second amended complaint Plaintiff asserts a threat-to-safety claim against Arizona Department of Corrections, Rehabilitation, & Reentry (“ADCRR”) Sergeants Tafoya, Bond, and Vasquez. In concluding Plaintiff had adequately stated an Eighth Amendment threat-to-safety-claim against these Defendants, the Court stated:
Plaintiff claims that Defendants TaFoya and Bond deliberately allowed an inmate who lived in another pod to enter Plaintiff's pod and assault him with a sock full of rocks. [footnote 1: Although Plaintiff does not state when this incident occurred, he alleged in his original Complaint that it occurred on September 20, 2020. (Doc. 1 at 5.)] According to Plaintiff, TaFoya and Bond questioned the inmate about the item he was carrying and told him that “it look[ed] like he had a weapon” and that somebody was “gone get ‘hit.'” (Doc. 15 at 2.) Instead of escorting the inmate back to his cell, however, as the protocols governing Plaintiff's controlled movement yard require, Defendants TaFoya and Bond allegedly opened the control doors, allowed the inmate to enter the pod, and watched as the inmate assaulted Plaintiff. (Id.) Plaintiff claims that Defendants TaFoya and Bond knew what the inmate intended to do because he told them, “I'ma get Braxton.” (Id.)
Plaintiff also alleges that, prior to the assault, Defendant Vasquez and the “Central Office” had denied Plaintiff's request to be transferred to a “3 yard.” (Id.) According to Plaintiff, he told Vasquez that he feared a retaliatory attack by gang members because he had already been attacked at another yard and other inmates who had been involved in the gang incident that prompted Plaintiff's transfer had been attacked following their relocations. Plaintiff also alleges that Defendant Vasquez visited Plaintiff while he was in the hospital and told him: “it[ wa]s what it [wa]s”; that Plaintiff “had to get [his]” because he had “assaulted one of the[ir] staff members 8 yrs prior,†[footnote 2: Plaintiff was convicted on April 7, 2017, of assaulting a corrections officer with a laundry bag full of rocks. . . . State v. Braxton, [], 2018 WL 3470328, at *1 (Ariz.Ct.App. July 19, 2018) and that Plaintiff could do “nothing about it” because the unit where he had been attacked was closing in under six months and he would thereafter be “hid[d]en away” in protective custody. (Id. at 3.)
As a result of Defendants' conduct, Plaintiff allegedly suffered a broken jaw that had to be surgically repaired. Following surgery, Plaintiff's mouth was wired shut for over two months, and he now suffers from breathing problems and paranoia as a result of the assault.(ECF No. 16 at 3-4).
Defendant Bond waived service and answered the Second Amended Complaint on March 9, 2023. (ECF No. 24). A scheduling order issued, requiring any motion to further amend the complaint be filed no later than May 12, 2023. (ECF No. 25). Defendant Tafoya and Vasquez were served and answered the Second Amended Complaint on April 20, 2023. (ECF No. 34). The parties have engaged in discovery, including the deposition of Plaintiff.
On June 26, 2023, Plaintiff moved for leave to further amend his complaint, asserting he had only recently been provided with discovery that was essential to his claims; Plaintiff did not attach to his motion a proposed third amended complaint. (ECF No. 51). In an order entered June 27, 2023, the Court allowed Plaintiff until July 28, 2023, to file a proper motion to proceed on a third amended complaint. (ECF No. 52). The Court also extended the deadline for completing discovery to September 22, 2023, and extended the deadline for submitting dispositive motions to November 3, 2023. (Id.).
Plaintiff filed a motion to amend his Second Amended Complaint on July 17, 2023, and lodged a proposed third amended complaint. (ECF Nos. 58 & 59). Plaintiff also docketed his proposed third amended complaint on July 31, 2023. (ECF No. 65). Plaintiff seeks to add an additional claim for relief. The proposed third amended complaint adds as defendants Corrections Officer Stowe, a “Disciplinary Investigator,” and ADCRR Captain Rubio, a hearing officer. (ECF No. 59 at 3-4). Plaintiff contends Rubio was “negligent” for failing to report the assault on Plaintiff to the “criminal Investigations unit Florence,” in violation of Plaintiff's Eighth And Fourteen Amendment rights. (ECF No. 59 at 7). Plaintiff contends that because Rubio did not report the assault the video surveillance evidence of the assault was “purged,” and alleges an “investigation [] would have given [Plaintiff] relevant exculpatory evidence.” (Id.). Plaintiff alleges that Stowe was negligent for failing to report “a deadly assault on” Plaintiff to the Criminal Investigations Unit. (Id.). Plaintiff contends Stowe violated his Eighth and Fourteenth Amendment rights by failing to report the assault, and that the failure to report the assault resulted in the video surveillance of the assault being “purged” and also alleges an “investigation [] would have given Braxton retain exculpatory evidence.” (Id.).
II. Law Governing Amendment of § 1983 Complaints
The Prison Litigation Reform Act requires the screening of prisoner complaints and the dismissal of allegations that fail to state a claim upon which relief can be granted prior to ordering service of an amended complaint on a defendant. See 28 U.S.C. § 1915A(a). Rule 15(a) of the Federal Rules of Civil Procedure provides a plaintiff should be given leave to amend their complaint when justice so requires. Granting or denying leave to amend is a matter committed to the Court's discretion. Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). Futility of amendment is sufficient to justify denial of leave to amend. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010). A proposed amended complaint is futile if, accepting all of the facts alleged as true, it would be immediately “subject to dismissal” for failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998); Riverview Health Inst. LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
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). Although 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).
The Court is obliged to liberally construe an incarcerated pro se plaintiff's complaint. See, e.g., Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, although pro se pleadings are liberally construed, conclusory and vague allegations will not support a cause of action. E.g., Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. See also Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014), quoting Pena v. Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992).
To prevail in a § 1983 claim, a plaintiff must show an (1) act by the named defendant; (2) under color of state law; (3) which deprived him of a federal constitutional right; and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005). Additionally, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 37172, 377 (1976). A claim stated in a §1983 complaint may be properly dismissed when the pleading lacks specific factual allegations showing the named defendant's participation in the alleged constitutional violation. See Iqbal, 556 U.S. at 678; Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Richards v. Harper, 864 F.2d 85 (9th Cir. 1988); Carey v. Von Blanckensee, 515 F.Supp.3d 1051, 1055 (D. Ariz. 2021). The Court need not assume the plaintiff “can prove facts different from those alleged in the complaint.” McGrath v. Scott, 250 F.Supp.2d 1218, 1220 (D. Ariz. 2003). Additionally, “legal conclusions couched as factual allegations are not given a presumption of truthfulness and conclusory allegations of law and unwarranted inferences are not sufficient” to state a claim for relief that will survive a motion to dismiss. Id. (internal quotations omitted and emphasis added).
III. Analysis of Plaintiff's Proposed Third Amended Complaint
Plaintiff asserts his federal constitutional rights were violated because Rubio and Stowe failed to forward information about his assault for criminal investigation. Plaintiff contends that because of the failure to initiate a criminal investigation, video “evidence” that would have been preserved had an investigation been opened was not preserved. The gravamen of Plaintiff's claims rest upon a premise that Plaintiff had a federal constitutional right to a criminal investigation of the assault on Plaintiff and/or a federal constitutional right to preservation of the video surveillance “evidence.” Plaintiff fails to allege a plausible claim that Rubio and Stowe violated a federal constitutional right.
The ADCRR has implemented a Department Order regarding investigations of crimes occurring, inter alia, within the prisons. Department Order 608 provides that “[a]ll on-site criminal activity shall be referred to CIU [the Criminal Investigation Unit] for possible criminal activity that originated on Department property.” Paragraph 3.1 of the Order mandates that “[a]ll employees who encounter a crime or have information about a crime, or possible crime, shall immediately report the information to the closest CIU Office through their chain of command.” After a report is received the CIU is tasked with taking control of the scene, gathering and preserving evidence, and in the cases of suspected aggravated assault, presenting the matter to the county attorney for prosecution. (Id.).
Taking the allegations alleged in the proposed third amended complaint as true, the assault on Plaintiff meets the statutory elements for aggravated assault, a class three felony. See Ariz. Rev. Stat. Ann. §§ 13-1203, 13-1204(E) & 13-1204(A)(1). However, even if Stowe and Rubio violated Department Order 608, the violation of a prison rule or regulation does not per se violate an inmate's Eighth Amendment rights or the inmate's right to due process of law under the Fourteenth Amendment. And, notably, Rubio's and Stowe's alleged failure to report the incident after it occurred did not result in the physical injury to Plaintiff, as such injury had already occurred. Furthermore, there is no clearly established constitutional right to a police investigation of a crime against a citizen. See Pratt v. Helms, 73 F.4th 592, 595 (8th Cir. 2023) (holding a victim has no constitutional right to an investigation of a crime committed against them); Rossi v. City of Chicago, 790 F.3d 729, 734 (7th Cir. 2015); Harrington v. County of Suffolk, 607 F.3d. 31, 35 (2nd Cir. 2010); Banks v. Annucci, 48 F.Supp.3d 394, 414 (N.D.N.Y. 2014) (“The law is clear that inmates do not enjoy a constitutional right to an investigation of any kind by government officials.”); Speer v. Beardsley, 2020 WL 4785426, at *5 (D. Kan. Aug. 18, 2020) (collecting cases); Fisher v. Smith, 2008 WL 11409586, at *5 (C.D. Cal. Mar. 24, 2008) (collecting cases). Similarly, notwithstanding Plaintiff's use of the term “exculpatory” to describe the surveillance video, an inmate does not have a federal constitutional right to the preservation of evidence with regard to their prosecution of a civil claim. Notably, Plaintiff was not the perpetrator of the alleged crime and any rights to “exculpatory” evidence would have inured only to the perpetrator of the crime. Furthermore, the Supreme Court has held that rules concerning the preservation of evidence with regard to a criminal matter “are generally matters of state, not federal constitutional law.” California v. Trombetta, 467 U.S. 479, 491 (1984) (O'Connor, J., concurring). There appears to be no federal constitutional right to the preservation of evidence that could be used in favor of a civil litigant.
Also, there is no constitutional right to have law enforcement investigate complaints against other parties or to have a state actor report an alleged crime to a charging authority. See Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007) (“There is no statutory or common law right, much less a constitutional right, to an investigation”; Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (no “federally protected liberty interest” in a certain resolution or investigation of grievances); Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002) (no entitlement to an internal investigation by Sheriff s Department of police brutality complaint); Banks v. Annucci, 48 F.Supp.3d 394, 414 (N.D.N.Y. 2014) (“inmates do not enjoy a constitutional right to an investigation of any kind by government officials”); see also Burnett v. Allbaugh, 715 Fed.Appx. 848, 850 (10th Cir. 2017) (no constitutional right to a state grievance procedure); Boyd v. Werholtz, 443 Fed.Appx. 331, 332 (10th Cir. 2011) (inmate has no constitutional right to a state administrative grievance procedure). Speer v. Beardsley, 2020 WL 4785426, at *5 (D. Kan. Aug. 18, 2020).
Because there is no federal constitutional right to an investigation of a crime and there is no federal constitutional right to the preservation of evidence for the purpose of using the evidence in a civil matter, Plaintiff fails to adequately allege that Stowe and Rubio violated a federal constitutional right and he therefore fails to state a claim for relief pursuant to § 1983. Accordingly, IT IS RECOMMENDED that the motion at ECF No. 58 be denied, and that the third amended complaint docketed at ECF No. 65 be stricken from the record.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).