Opinion
CV-23-01072-PHX-DJH (ESW)
07-02-2024
Danny Friddle, Plaintiff, v. Todd Thomas, et al., Defendants.
AMENDED REPORT AND RECOMMENDATION
Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE DIANE J. HUMETEWA: UNITED STATES DISTRICT JUDGE:
This is a civil rights action brought by Arizona state prisoner Danny Friddle (“Plaintiff”) pursuant to 42 U.S.C. § 1983. By separate Order (Doc. 34), the undersigned granted Plaintiff's “Motion for Leave to Refile Second Amended Complaint to Correct Deficiencies in Compliance with Local Rules” (Doc. 28) and screened Plaintiff's lodged Second Amended Complaint. The undersigned allowed Counts One through Five of the Second Amended Complaint to proceed against certain Defendants. For the reasons explained below, it is recommended that the Court dismiss portions of Count Two.It is also recommended that the Court dismiss Counts Six and Seven for failure to state a claim. Finally, it is recommended that the Court dismiss Defendants Wead, Valenzuela, Long, Lovelace, Unknown Does 1-4, and the Hawaii Department of Public Safety.
By separate Order, the undersigned granted Defendants' Motion (Doc. 36) requesting clarification as to the precise portion of Count Two that Defendants are required to answer.
I. DISCUSSION
A. The Court's Order Screening the First Amended Complaint
On March 22, 2024, the Court screened Plaintiff's seven-count First Amended Complaint. (Doc. 16). The Court found that (i) Count One of the First Amended Complaint adequately stated an Eighth Amendment threat-to-safety claim against Defendants Loza, Cox, and Hernandez for their alleged failure to respond to safety threats against Plaintiff and failure to protect Plaintiff from attacks by other inmates; (ii) Count Two adequately stated a First Amendment retaliation claim against Defendants Thomas, Bradley, and Carrier for allegedly placing Plaintiff in disciplinary segregation, absent disciplinary charges, in retaliation for Plaintiff filing grievances; (iii) Counts Three and Four adequately stated First and Fourteenth Amendment claims against Defendant Robertson for confiscating Plaintiff's mail without a legitimate penological purpose and failing to notify Plaintiff of the confiscation; and (iv) Count Five adequately stated a state law tort claim against Defendants Glenn, Loza, Hernandez, Dunsing, Jimenez, and CoreCivic for the negligent or intentional loss of Plaintiff's property. (Id. at 9).
The Court dismissed without prejudice portions of Count One related to allegations that Defendants Bradley, Carrier, and Hernandez threatened Plaintiff's safety by moving high custody inmates into the same pod as inmates in the Veterans and Dog Handlers programs. (Id. at 10). The Court explained that Plaintiff has not provided sufficient details to show that Defendants Bradley, Carrier, and Hernandez made the housing decision with deliberate indifference to inmate safety. (Id.). The Court also dismissed portions of Count Two for failure to state a claim. (Id. at 10-12).
Counts Six and Seven of the First Amended Complaint allege state law tort claims for negligence in performance of administrative remedies and disciplinary proceedings. The Court dismissed Counts Six and Seven for failure to allege that Plaintiff suffered physical injury as a result of Defendants' actions and failure to allege sufficient facts to support the contention that prison officials owe Plaintiff a duty of care in their implementation of internal prison regulations. (Id. at 12). In addition, the Court dismissed Defendants Wead, Valenzuela, Long, Lovelace, Unknown Does 1-4, and the Hawaii Department of Public Safety. (Id. at 14).
B. The Second Amended Complaint Does Not Amend Counts Two-Seven
Plaintiff's Second Amended Complaint does not amend Counts Two through Seven.
For the reasons explained in the Court's prior Screening Order (Doc. 16), the undersigned has required (i) Defendants Thomas, Bradley, and Carrier to answer the First Amendment retaliation claim in Count Two for allegedly placing Plaintiff in disciplinary segregation, absent disciplinary charges, in retaliation for Plaintiff filing grievances; (ii) Defendant Robertson to answer Counts Three and Four; and (iii) Defendants Glenn, Loza, Hernandez, Dunsing, Jimenez, and CoreCivic to answer Count Five.
The Second Amended Complaint includes additional allegations in Count One, which the undersigned found cured the deficiencies noted in the Court's prior Screening Order (Doc. 16).
The Court's prior Screening Order (Doc. 16) regarding the First Amended Complaint recounted allegations contained in Count Two that the Court concluded failed to state a claim, as excerpted below:
With respect to Plaintiff's October 19 placement in disciplinary segregation, Plaintiff alleges the segregation was authorized by Defendant Bradley and carried out by Defendants Does 1-4, who are Defendant Wead's direct subordinates. These allegations are insufficient to state a retaliation claim against Defendant Does 1-4 or Defendant Wead. Plaintiff does not allege that Defendants Does 1-4's actions were motivated by retaliatory intent, and Defendant Wead is not liable simply as their direct supervisor.
Plaintiff further claims that on November 4, Defendants Bradley and Carrier intentionally transferred STG-affiliated inmates into the same pod in which Plaintiff was housed, threatening Plaintiff's safety, and then placed Plaintiff in disciplinary segregation for a second time on November 6. Plaintiff's facts are insufficient to show that Plaintiff's filing of grievances was a substantial motivating factor for Defendants Bradley and Carrier's transfer of the STG inmates to Plaintiff pod and that there was no legitimate penological purpose for
the transfer of those inmates. These allegations therefore fail to state a claim. Similarly, Defendant Wead's late response to Plaintiff's October 10 grievance is not sufficient to establish a retaliation claim against Defendant Wead.
With respect to his claims that Defendants Thomas, Wead, Bradley, Glenn, Loza, Hernandez, and Jiminez retaliated against him by destroying his property, Plaintiff alleges no facts in support of his conclusory assertion that any specific Defendant destroyed Plaintiff's property because Plaintiff filed grievances, as opposed to mere negligence.
Similarly, Plaintiff's contention that Defendants Wead and Bradley condoned the October 19 attack because Plaintiff was informed the attacking inmate was paroled soon after the incident, is speculative, at best, and not based on Plaintiff's personal knowledge. The Court will dismiss these portions of Count Two.(Doc. 16 at 11-12). As Plaintiff has not amended Count Two, it is recommended that the Court dismiss the above portions from Count Two of the Second Amended Complaint.
It is also recommended that the Court dismiss Counts Six and Seven of the Second Amended Complaint as Plaintiff has not cured the deficiencies noted in the prior Screening Order (Doc. 16 at 12). Finally, it is recommended that the Court dismiss Defendants Wead, Valenzuela, Long, Lovelace, Unknown Does 1-4, and the Hawaii Department of Public Safety from the Second Amended Complaint for the same reasons they were dismissed from the First Amended Complaint. (Id. at 13-14).
II. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court dismiss the portions of Count Two of the Second Amended Complaint that are set forth above.
IT IS FURTHER RECOMMENDED that the Court dismiss Counts Six and
Seven of the Second Amended Complaint.
IT IS FURTHER RECOMMENDED that the Court dismiss Defendants Wead, Valenzuela, Long, Lovelace, Unknown Does 1-4, and the Hawaii Department of Public Safety from the Second Amended Complaint.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).