Opinion
CV-21-0702-PHX-DLR (JFM)
10-01-2021
Shawn Charles Goff, Plaintiff v. Trinity Services Group, et al., Defendants.
REPORT & 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 Second Amended Complaint (Doc. 24) and the renewed Motion for Class Certification (Doc. 23) 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).
A. BACKGROUND
1. Original Complaint
On April 16, 2021, Plaintiffs Shawn Charles Goff, Cleveland Yarrow Cook, Dino Joseph Bennetti, Steven A Benavidez, Matt Lester, Elia MN Holguin, Johnny Portillo, and Tonatihu Aguilar, all of whom are confined in the Arizona State Prison Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 in CV-21-0670-PHX-DLR-JFM. Due to the management issues attendant to pro se multi-prisoner litigation, the Court ordered the claims of the various Plaintiffs severed into separate actions, and because of an inability to differentiate those claims, the original pleadings were dismissed with leave for each plaintiff to file their own amended complaint. (Order 5/23/21, Doc. 1.)
Plaintiff had filed an Application to Proceed In Forma Pauperis (Doc. 3), which was granted. (Order 5/7/21, Doc. 8.)
2. First Amended Complaint
On April 30, 2021, Plaintiff filed his First Amended Complaint (Doc. 7) (FAC).
Plaintiff named as Defendants: Trinity Services Group, Inc. (“Trinity”), Keefe Commissary Network, LLC (“Keefe”), Arizona Department of Corrections (ADC) Director David Shinn, and Facility Health Administrator Amber Puckett.
Plaintiff asserted claims of deliberate indifference and religious freedom regarding diet, arising out of allegations that his religious ovo-lacto vegetarian diet (which was purportedly accommodated by the prison's “common fare” diet, a combination of vegan, kosher and other religious diets) was nutritionally insufficient and harmful, and was shorted to make up for theft of food, decrease costs, and increase profits. Plaintiff sought declaratory, injunctive, and monetary relief, and costs and fees. On screening, the Court found Plaintiff's claims related to events prior to December 21, 2020 and Plaintiff's religious freedoms to be duplicative of his claims in CV-20-1288-PHX-DLR-JFM, insufficiently stated as to Defendant Puckett and, in his individual capacity, Defendant Shinn. Defendants Trinity, Keefe, and in his official capacity Shinn, were ordered to respond to the deliberate indifference to diet claims in Count One, to the extent based o events since December 21, 2020. (Order 5/7/21, Doc. 8.)
Plaintiff proceeded with service, and answers to the FAC have been filed by Defendants Trinity and Keefe (Doc. 20), and Shinn (Doc. 27).
3. Second Amended Complaint
On August 23, 2021, Plaintiff filed his Second Amended Complaint (Doc. 24), along with a Motion for Class Certification (Doc. 23), and a redlined copy (Doc. 23-1) of his Second Amended Complaint. Plaintiff again seeks to denominate this as a class action, and identifies as Plaintiffs additional inmates, including Holguin, Benavidez, Delgado, Darrington, Acosta, Hernandez, Ward, DeYoung, Dawkins, Devine and Randall, each of whom have signed the SAC (Doc. 24 at 17), and identifies their prior suits. These additional Plaintiffs no longer include Cleveland Yarrow Cook, Dino Joseph Bennetti, Matt Lester, Johnny Portillo, and Tonatihu Aguilar. Benavidez and Holguin have again been included, and Delgado, Darrington, Acosta, Hernandez, Ward, DeYoung, Dawkins, Devine and Randall are all newly added.
Plaintiff eliminates previously dismissed Defendant Puckett, and asserts all defendants are sued in their individual and official capacities. Plaintiff makes various modifications concerning the corporate relationship between Defendants Trinity and Keefe. He makes various modifications to Count 1, e.g. to refer to the multiple Plaintiffs and their various injuries, adding or revising facts about the nature of the nutritional adequacy and content of the meals, the obligations of dismissed Defendant Puckett, and to assert there are additional unknown claimants. (Doc. 23-1 at 1 to 13.) He adds arguments about the appropriateness of class certifications, offers to settle for injunctive relief, and the particular injuries of various Plaintiffs, adds allegations that meals are not handled hygienically (e.g. left out for extended times), asserts efforts to resolve the disputes, the desire to not proceed individually and the desire to have counsel appointed.
Count Two is deleted.
Plaintiff seeks declaratory, injunctive, and monetary relief, and costs and fees, and appointment of a special master to for 10 years.
B. AMENDMENT AS A MATTER OF COURSE
Federal Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course, ” provided it is timely. Plaintiff's First Amended Complaint was made by leave of the Court following a dismissal. Accordingly, he has not previously amended as a matter of course.
An amendment of a complaint made as a matter of course is timely if made within “21 days after service of a responsive pleading.” Defendants Trinity and Keef's Answer was filed on July 27, 2021 (Doc. 20) and served by mail the same date. (Doc. 20 at 9.) Including the additional three days for service by mail, Fed.R.Civ.P. 6(d), the deadline for an amendment expired 23 days later, on Thursday, August 19, 2021. Plaintiff's Notice of Mailing (Doc. 22) asserts that he had prepared his filing to be picked up by the legal librarian on August 13, 2021. It was not picked up and on August 17, 2021 he had the “Legal Mail Officer” retrieve it and place it into an envelope & mail document…on this 18th day of August, 2021.” (Doc. 22 at 1.)
Under the prison mailbox rule, a pro se prisoner's filings are deemed “filed” at the time they are delivered to prison officials for mailing. See Stillman v. LaMarque, 319 F.3d 1199 (9th Cir. 2003). It does not matter whether the inmate personally delivers the filing to prison officials or enlists another inmate to do so. In either case, filing is deemed complete when the filing is received by prison officials. Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014).
In the absence of any evidence to the contrary, the undersigned finds that the Plaintiff effectively delivered the SAC to the “Legal Mail Officer” for mailing on August 18, 2021, by directing him to retrieve it from the librarian's office for mailing. Consequently, the SAC should be deemed filed as of August 18, 2021, and thus within the time limits of Fed.R.Civ.P. 15(a).
Moreover, Defendant Shinn did not answer until September 1, 2021 (Doc. 22), after the SAC was filed. See Wright & Miller, Amendments as of Course-Actions By or Against More Than One Party, 6 Fed. Prac. & Proc. Civ. § 1481 (3d ed.) (treating as severable the time for amendment among responding and non-responding defendants).
C. CLASS ACTION / SEVERANCE
Joinder/Severance - To the extent that the new Plaintiffs would seek to prosecute their claims individually, they make no showing why their claims should not again be severed under Fed.R.Civ.P. 23(a).
However, the various Plaintiffs apart from Goff purport to appear solely as representative members of a class action, and not to prosecute their claims individually.
They assert:
Co-Plaintiffs agree that they do not wish to individually prosecute/defend this class action, as most are uneducated & wish to have counsel appointed to adequately represent them/us.
(SAC, Doc. 24 at 15 (“3-G”).) However, the undersigned construes this assertion to exclude Plaintiff Goff, who has continued to prosecute his claims separately, and appears content to do so if he cannot proceed in a class action.
Accordingly, if class certification is not granted, the Court should not again sever the Plaintiffs claims into separate actions, but should honor Plaintiffs' decisions to not proceed individually, and instead dismiss all but Plaintiff Goff from this suit, without prejudice.
Class Certification - The Court denied certification of a class under the FAC, finding no basis for appointment of counsel in this case, and that the Plaintiffs could not proceed pro se as representatives of the class. The Court reached its conclusion on counsel by finding no constitutional right to counsel in this proceeding, no authority to compel counsel to appear, and an absence of a showing of exceptional circumstances to request counsel under 28 U.S.C. § 1915(e)(1). The Court found a lack of sufficient showing of a likelihood of success, nor exceptional difficulty of the various prisoners in representing themselves. (Order 5/7/21, Doc. 8 at 8-9.)
The SAC and the Motion for Class Certification still proffer no basis for appointment of counsel. No showing of a constitutional right to counsel, authority to appoint counsel, or exceptional circumstances is made. At best, they assert that most of the plaintiffs are uneducated. (Doc. 23 at 2; Doc. 24 at 15 (“3-G”).) The screening Order observed: “Circumstances common to most prisoners, such as a lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.” (Order 5/7/21, Doc. 8 at 9, citing Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
Accordingly, the Motion for Class Certification should be denied, and Plaintiffs Holguin, Benavidez, Delgado, Darrington, Acosta, Hernandez, Ward, DeYoung, Dawkins, Devine and Randall should be dismissed without prejudice.
D. SCREENING OF 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 Second Amended Complaint
Apart from the attempt to readd additional Plaintiffs, and the requests for class certification, the bulk of substantive changes in the SAC are those which simply accept the modifications made on screening of the FAC, i.e. to delete Count Two and Defendant Puckett.
Plaintiff also includes in Count One allegations that could be construed as claims of First Amendment Retaliation or Denial of Access with regard to Plaintiff Holguin. Plaintiff alleges Holguin was “pepper sprayed, after being verbally threatened & intimidated by ADC personnel for trying to have said abuses corrected.” (Doc. 24 at 15.) However, the designation of the nature of the claims suggests that a First Amendment claim is not intended in Count One. Because Plaintiff Holguin should be dismissed, this claim need
Duplicate Claims - Plaintiff makes no modifications to differentiate his temporally related claims in this case from that in Goff v. Trinity Services Group, CV 20-1288-PHX-DLR (JFM). Accordingly, the Court should again dismiss the claims based on events that allegedly occurred before December 21, 2020 as duplicative of the claims in CV-20-1288.
Moreover, co-Plaintiffs Benavidez and Holguin previously brought these claims in the original action, CV-21-0670-PHX-DLR-JFM, and those claims were severed into the new cases. The undersigned observes, however, that Benavidez's case, CV-21-0704-PHX-DGC-MTM, was dismissed without prejudice on June 15, 2021 for failure to file an amended complaint, and Holguin's case, CV-21-0707-PHX-DLR-JFM, was similarly dismissed without prejudice on May 27, 2021. Thus, there appear to be no ongoing cases for these Plaintiffs on these claims, or cases finally resolving these claims with prejudice.
Eleventh Amendment Immunity - Plaintiff does again assert claims against Defendant Shinn in his individual and official capacity. On screening of the FAC, the Court concluded that the Eleventh Amendment precluded a claim for damages against Defendant Shinn in his official capacity, but could seek only prospective declaratory or injunctive relief. (Order 5/7/21, Doc. 8 at 10.) For the same reasons, the Court should again require Defendant Shinn's response in his official capacity to be limited to claims for prospective injunctive relief.
Shinn Individual Capacity - The screening Order dismissed Plaintiff's individual capacity claims against Defendant Shinn on the basis that Plaintiff had not “alleged that Defendant Shinn personally participated in a deprivation of Plaintiff's constitutional rights, was aware of a deprivation and failed to act, or formed policies that resulted in Plaintiff's injuries.” (Order 5/7/21, Doc. 8 at 11.) The SAC does not address this issue, and Plaintiff still makes no allegations of Defendant Shinn's personal participation.
4. Conclusions
Plaintiff continues to adequately state an Eighth Amendment claim against Defendants Keefe and Trinity based on his allegations that since December 21, 2020, Defendants have shorted prisoner meals to make up for theft of food, decrease costs, and increase profits. The Court should require Defendants Keefe and Trinity to answer the Second Amended Complaint and should require Defendant Shinn in his official capacity only to answer Plaintiff's claims for prospective injunctive relief.
E. SERVICE
Because no new defendants are added, no additional service of the SAC is required.
F. 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.”
IT IS THEREFORE RECOMMENDED:
(A) Plaintiff's Motion for Class Certification (Doc. 23) be DENIED.
(B) Plaintiffs Holguin, Benavidez, Delgado, Darrington, Acosta, Hernandez, Ward, DeYoung, Dawkins, Devine and Randall be DISMISSED WITHOUT PREJUDICE
(C) Plaintiffs claims based on events that allegedly occurred before December 21, 2020, BE DISMISSED as duplicative of Plaintiff s claims in CV-20-1288.
(D) Plaintiffs claims against Defendant Shinn in his individual capacity be DISMISSED
(E) Defendants Trinity and Keefe be required to answer Count One to the extent that the allegations are based on events that occurred after December 21, 2020.
(F) Defendant Shinn in his official capacity only be required to answer Plaintiffs claims for injunctive relief
(G) Defendants Trinity, Keefe and Shinn be given 14 days from an order on this Report & Recommendation to file an answer to the Second Amended Complaint (Doc. 24).