Opinion
CV-21-08044-PCT-JJT (ESW)
12-17-2021
Frank Karl Hertel, Plaintiff, v. David Shinn, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
This is a civil rights action brought by Arizona state prisoner Frank Karl Hertel (“Plaintiff”) pursuant to 42 U.S.C. § 1983. On April 26, 2021, the Court issued an Order (Doc. 8) screening Plaintiff's Complaint (Doc. 1). The Court allowed a number of claims to proceed against Arizona Department of Corrections Director David Shinn and Kitchen Manager Montiel in their official capacities. Defendant Montiel was subsequently succeeded by Ronald McGill, who has been substituted for Defendant Montiel. (Docs. 13, 23).
By separate Order, the undersigned granted Plaintiff's “Motion to Amend the Complaint” (Doc. 63) and screened Plaintiff's lodged First Amended Complaint. The First Amended Complaint reasserts Counts One through Four of the original Complaint and added Counts Five through Seven against Defendant Shinn. The undersigned allowed Counts One through Four of the First Amended Complaint to proceed to the same extent allowed by the Court's Order screening the original Complaint. (Doc. 8 at 15). The undersigned also allowed newly added Counts Five through Seven to proceed against Defendant Shinn in his official capacity.
In its Order screening the original Complaint, the Court found that Plaintiff's allegations are too vague and conclusory to plausibly show that any Defendant was personally involved in the deprivation of Plaintiff's civil rights. The Court thus dismissed without prejudice Plaintiff's individual capacity claims against Defendants. (Doc. 8 at 14).
Plaintiff clarifies in his Replies in support of his Motion to Amend that the First Amended Complaint asserts claims against Defendants Shinn and McGill in both their official and individual capacities. (Doc. 75 at 6-7l; Doc. 76 at 5-6). A suit against a defendant in his or her individual capacity seeks to impose personal liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For a person to be liable in his or her individual capacity, “[a] plaintiff must allege facts, not simply conclusions, that show that the individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A person deprives another of a constitutional right under Section 1983, where that person “does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Id. at 743-44.
Counts One, Two, and Four of the First Amended Complaint are identical to Counts One, Two, and Four of the original Complaint, except for the omission of the equal protection claim in Count Four that the Court dismissed in its prior Screening Order (Doc. 8 at 16). The undersigned finds that Plaintiff has failed to correct the deficiencies with respect to his individual capacity claims in Counts One, Two, and Four. It is recommended that the Court dismiss the individual capacity claims in Counts One, Two, and Four of the First Amended Complaint.
Count Three of the First Amended Complaint includes additional factual allegations concerning Plaintiff's health status. The undersigned finds that Count Three of the First Amended Complaint does not plausibly show that Defendants Shinn and McGill were personally involved in the deprivation of Plaintiff's civil rights. The undersigned recommends that the Court dismiss the individual capacity claims against Defendants Shinn and McGill in Count Three of the First Amended Complaint.
Counts Five through Seven of the First Amended Complaint are directed to Defendant Shinn. Plaintiff alleges that Departmental Order 902 unconstitutionally restricts his access to legal research materials. The undersigned finds that Counts Five through Seven do not plausibly show that Defendant Shinn was personally involved in the deprivation of Plaintiff's civil rights. It is recommended that the Court dismiss the individual capacity claims against Defendant Shinn in Counts Five through Seven of the First Amended Complaint.
In light of the recommendation that the First Amended Complaint proceed against Defendants Shinn and McGill in their official capacities only, it is recommended that the Court dismiss Plaintiff's request for punitive damages. Wilson v. Maricopa County, 463 F.Supp.2d 987, 998 (D. Ariz. 2006) (“Punitive damages under § 1983 are not recoverable against . . . an officer sued in his official capacity[.]”) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)). It is further recommended that the Court dismiss Plaintiff's request for release from prison and a transfer to Canada as such relief is not available in this proceeding. See, e.g., Dunlap v. Shinn, No. CV-21-00111-TUC-RCC-EJM, 2021 WL 3089110, at *4 (D. Ariz. July 22, 2021) (prisoner “cannot be immediately released if he brings a § 1983 claim and may only pursue release through habeas”).
Accordingly, IT IS RECOMMENDED that the Court dismiss Defendants Shinn and McGill from the First Amended Complaint in their individual capacities.
IT IS FURTHER RECOMMENDED that the Court dismiss Plaintiff's requests for punitive damages, release from prison, and transfer to Canada that are contained in the First 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. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 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 Fed.R.Civ.P. 72.