Opinion
CV-20-1557-PHX-DLR (JFM)
05-19-2021
Shawn Charles Goff, Plaintiff v. Anthony Coleman, et al., Defendants.
REPORT & RECOMMENDATION SCREENING THIRD AMENDED COMPLAINT
James F. Metcalf United States Magistrate Judge
A. REPORT AND RECOMMENDATION
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of screening of the amended pleading is dispositive of some of Plaintiff's claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
B. BACKGROUND
1. Prior Complaints
On July 31, 2020, pro se Plaintiff Goff, who is confined in the Arizona State Prison Complex-Lewis, filed his original Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983 and an Application to Proceed in Forma Pauperis. In an Order filed August 14, 2020 (Doc. 9), the Court granted Plaintiff's IFP application, and dismissed the original Complaint with leave to amend, for failure to comply with Federal Rule of Civil Procedure 8 and 10.
On September 14, 2020, Plaintiff filed his First Amended Complaint (Doc. 11). The Court screened the First Amended Complaint, found it failed to state a claim for relief, and dismissed it with leave to amend. (Order 9/28/20, Doc. 12.)
On October 28, 2020, Plaintiff filed his Second Amended Complaint (“SAC”) (Doc. 13). Plaintiff's complaint arises out of the prison's confiscation of various explicit materials containing violence and sexuality, which Plaintiff contends are part of the practice of his Wiccan religious faith. Plaintiff sued former Arizona Department of Corrections (ADC) Director Charles L. Ryan, current ADC Director David Shinn, Deputy Warden Anthony Coleman, and Correctional Officer (CO) IV Morris. Plaintiff asserted First and Fourteenth Amendment claims related to his exercise of his religion and possession of religious materials. He sought declaratory, injunctive, and monetary relief, as well as his attorney's fees and costs of suit.
The Court screened the SAC, dismissed Plaintiff's claims for monetary relief, dismissed Defendants Ryan, Coleman and Morris, and dismissed Defendant Shinn in his individual capacity. Defendant Shinn was required to answer the claims in his official capacity. (Order 11/2/20, Doc. 14.)
On February 25, 2021, Defendant Shinn filed his Answer (Doc. 19) to the SAC.
2. Current Amendment
On March 16, 2021, Plaintiff's filed a Notice of Filing Amended Pleading (Doc. 23), asserting an intent to file an amended pleading as a matter of course, and submitted a redlined version pursuant to Local Rule of Civil Procedure 15.1. The Court awaited the filing of the actual amended leading, but none was filed and the deadline for an amendment of right expired on March 22, 2021, 21 days after service of the Answer (Doc. 19). See Fed.R.Civ.P. 15(a)(1)(A). Accordingly, the Court construed the motion as one for leave to amend and denied it without prejudice for failure to file a proposed pleading rather than just a redlined version. (Order 4/7/21, Doc. 24.)
As discussed hereinafter, rather than providing a copy of his amended pleading in accordance with Local Rule of Civil Procedure 15.1, Plaintiff has attempted to denote his changes in his filed Third Amended Complaint. Although he denotes various changes, he has largely designated entire sections as new material (by underlining them), despite the fact that they are largely or wholly unchanged. This does not comply with the directions of the rule to denote “the text that was deleted” and the “the text that was added.” Moreover, it increases the effort of the Court and the other parties in attempting to identify the actual changes made. Rather than belabor the point with Plaintiff (who has argued he has complied with the rule (Motion, Doc. 26 at 1)), the undersigned has worked to identify the actual additions and deletions.
Plaintiff filed a Motion for Reconsideration (Doc. 26) arguing the Court had misconstrued his filing, and the form of complaint submitted was intended to be his Third Amended Complaint. Because the Court was inclined to at least reconsider its Order, Defendant was given an opportunity to respond. (Order 4/21/21, Doc. 27.) Defendant responded (Doc. 30) voicing no objection to reconsideration. On May 10, 2021, the Court granted reconsideration, vacated the prior order, and directed the filing of the Third Amended Complaint (“TAC”) (Doc. 33).
C. SCREENING OF THIRD AMENDED COMPLAINT
1. Screening Required
In cases filed by persons appearing in forma pauperis the court is required by 28 U.S.C. § 1915(e)(2) to dismiss cases that are frivolous, malicious, fail to adequately state a claim, or seek monetary relief from a defendant who is immune. Further, 28 U.S.C. § 1915A requires the Court to actively screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. The Court must dismiss a complaint or portion thereof if the 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). 42 U.S.C. § 1997e(c) applies the same standard to such complaints by prisoners/detainees even if the defendants are not governmental entities, or officers or employees of a governmental entity.
2. Pleading Standards
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.
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Iqbal, 556 U.S. at 678.
Reasonable inferences can be drawn from the facts. “Iqbal demands more of plaintiffs than bare notice pleading, but it does not require us to flyspeck complaints looking for any gap in the facts.” Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012).
And, 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)).
3. Application to Amended Complaint
In his TAC, Plaintiff leaves the substance of the claims unchanged, and incorporates limited changes, including: (1) adding two other non-signing persons (Holguin and Benavidez, apparently other inmates) as Plaintiffs; (2) eliminating all defendants other than Defendant Shinn; and (3) adding a request for injunctive relief of access to satellite/cable TV.
a. Class Action
In the SAC, Plaintiff requested certification of this case as a class action and appointment of class counsel. On screening, the Court denied that request, finding no showing of the requisite numerosity, typicality, commonality and adequacy of representation. (Order 11/2/20, Doc. 14 at 9-10, 11.) Plaintiff renews those requests. (TAC at 6.) But he offers nothing new to show he meets the requirements. Accordingly, these requests should again be denied.
b. Additional Plaintiffs
Plaintiff now lists inmates Holguin and Benavidez as named Plaintiffs. (TAC at 3.) Federal Rule of Civil Procedure 11(a) requires that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name-or by a party personally if the party is unrepresented.” None of these inmates have signed the TAC. Plaintiff, who is not a member of the bar of this Court, cannot sign as attorney of record. See LRCiv 83.1 (governing admission of attorneys to bar of the Court). Plaintiff does not show that he has been or should be appointed as representative of these inmates, e.g. that they are minors or incompetents. See Fed. R. Civ. P. 17(c).
Accordingly, Plaintiffs Holguin and Benavidez should be dismissed without prejudice as plaintiffs to this action.
c. Claims
Plaintiff's Counts I and II appear to have no changes from the same counts in the SAC. For the reasons expressed in the prior Screening Order, these counts adequately state claims against Defendant Shinn in his official capacity “for prospective injunctive and declaratory relief with respect to the confiscation of his religious material.” (Order 11/2/20, Doc. 14 at 7.)
d. Individual Capacity
The SAC sought relief from Defendants in their individual and official capacities. (SAC at 14.) The Court concluded: “Plaintiff's allegations fail to plausibly show that Defendants Ryan and Shinn were personally involved in the deprivation of his civil rights but rather stem solely from their roles as ADC Director. Accordingly, the Court will construe Plaintiff's claims as directed against Defendants Ryan and Shinn in their official capacities only and evaluate them accordingly.” (Order 11/2/20, Doc. 14 at 6.)
Plaintiff again sues Defendants in both their individual and official capacity (TAC at 15), but still fails to show that Defendant Shinn was personally involved in the claimed deprivations. Thus, Shinn should be dismissed as a defendant in his individual capacity.
e. Requested Relief
The SAC sought declaratory, injunctive, and monetary relief, as well as attorney's fees and costs of suit. The Court dismissed the claims for monetary relief, noting that claims for such relief cannot lie against state officials named in their official capacity. (Order 11/2/20, Doc. 14 at 6-7.)
In the TAC, Plaintiff again seeks declaratory, injunctive, and monetary relief, as well as attorney's fees and costs of suit. For the reasons expressed in the original screening Order, Plaintiff's claims for monetary relief must again be dismissed.
Plaintiff adds a request for injunctive relief in the form of “full access to their entire, satellite/cable T.V. package, that inmates already participate in paying for through ADCRR deductions of inmates wages, money placed in I/M accounts, $2 monthly service fees, 1% service fees, all placed in the special services fund, including state taxes.” The addition of a specific form of injunctive relief does alter the nature of his claims made. Without offering any opinion on the appropriateness of such relief, the undersigned finds no reason to dismiss this request for relief for failure to state a claim.
D. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72, 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. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
E. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) Plaintiff's requests for certification as a class and appointment of class counsel be DENIED.
(B) Plaintiffs Holguin and Benavidez be DISMISSED WITHOUT PREJUDICE.
(C) Plaintiff's claims for monetary relief be DISMISSED WITHOUT PREJUDICE.
(D) Defendant Shinn in his individual capacity be DISMISSED WITHOUT PREJUDICE.
(E) Defendant Shinn be required to answer, within 14 days of an order ruling on this Report & Recommendation, the claims for prospective injunctive and declaratory relief in the Third Amended Complaint.