Opinion
CV 22-01413 PHX SRB CDB
04-26-2023
Paul Matus, Plaintiff, v. Pinal County Adult Detention Center, et al., Defendants.
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
TO THE HONORABLE SUSAN R. BOLTON:
Before the Court is Plaintiff's Second Amended Complaint. (ECF No. 22). Plaintiff is pro se and in custody (Plaintiff is a pretrial detainee in the custody of the Pinal County Sheriff), and Plaintiff paid the full filing fee in this matter. Plaintiff asserts claims against state government employees pursuant to 42 U.S.C. § 1983. The Court is required to screen complaints brought by prisoners seeking relief against an officer or an employee of a governmental entity, regardless of whether the prisoner is represented by counsel. See 28 U.S.C. § 1915A(a); In re Prison Litig. Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (“District courts are required to screen all civil cases brought by prisoners, regardless of whether the inmate paid the full filing fee, is a pauper, is pro se, or is represented by counsel, as [§ 1915A] does not differentiate between civil actions brought by prisoners.”).
I. Background
Plaintiff filed a Complaint seeking relief pursuant to 42 U.S.C. § 1983 on August 22, 2022, alleging violations of his federal constitutional rights. In an order entered October 27, 2022, the Court dismissed the Complaint for failure to state a claim on which relief could be granted, with leave to amend. (ECF No. 4). The Court construed Plaintiff's claims as follows:
In Count One, Plaintiff alleges that for approximately four months, Defendants Hendricks and Hoyos, “in ‘claimed' collaboration” with the Federal Bureau of Investigation (FBI) and County Attorney Kent Volkmer, have subjected Plaintiff to illegal investigation “with the use of unprecedented and unauthorized government technology within the confines” of the Pinal County Jail. Plaintiff asserts this includes “unprecedented vast mind accessing capability (reading of mental imag[e]ry, altering speed of mind/body function depending on attempted, uncon[s]cious/semi con[s]cious non consen[sual] hypnosis like technique).” Plaintiff claims there is “[undisclosed 360 [degree] audio/video recorded access into inmates['] cells, audio monitoring of [his] protected ... legal visits, [and] video monitoring of incoming/outgoing legal mail.” Plaintiff alleges that “other efforts to further illegality consist of terminating legal calls, regular calls ., withholding legal/regular mail, restricting the purchase of writing materials, [and] forcing the use of post cards/pencils,” which Plaintiff claims violates “attorney-client privacy” and prohibits protected access to the courts, the “ACLU,” and the right to “process this law suit in [a] timely manner.” Plaintiff asserts two requests demanding that legal counsel see Defendant Hendricks were refused. .
In Count Two, Plaintiff alleges that “[d]ue to malicious retaliatory intent,” Defendant Hoyos terminated Plaintiff's legal calls, real time access to his legal team, clergy, and the “ACLU,” as permitted by law and jail policy. Plaintiff asserts his attorney-client privacy protections were violated when Defendant Hoyos refused him the ability to purchase legal/writing materials, envelopes, paper, and pens and forced him to use indigent postcards and pencils. Plaintiff claims pencils also “fail[] to meet requirements of legal documentation.” He alleges his outgoing and incoming legal mail is withheld, and he is forced to “hand over legal mail to various officers” before reaching “intel,” where “they themselves” put the mail in an envelope and seal it. Plaintiff claims there is audio monitoring of protected legal visits and video monitoring of incoming and outgoing legal mail. He asserts he is restricted to eight envelopes, eight pieces of paper, and one pencil, and “admin failed to honor all above restrictions permitted while serving disciplinary sanction.” Plaintiff alleges
he was also denied reading glasses and prescription glasses, which “failed to cater to [his] disability” and “neglect[ed]” his right to “partake in defense.”
***
As his injury, Plaintiff alleges that he lost real time access to his lawyer, defense strategy, and updates; he is forced to have a “premature trial date,” for which he was not ready; and he suffered mental strain and distress.
In Count Three, Plaintiff alleges that “[d]ue to malicious retaliatory intent,” Defendant Hoyos implemented unprecedent restrictions that “went above and beyond disciplinary sanctions.” He claims these restrictions do not allow him to make phone calls, including legal calls; have visits; purchase basic needs, such as medicine, hygiene, writing materials, clothing, and reading glasses; send and receive “family mail”; and access the “inmate tablet.” Plaintiff also asserts he does not have access to nail clippers, razors, a laundry bag, and shoes. He alleges that he is refused medical treatment; is forced to use “open faced postcards” to access the courts and his lawyer, which violates attorney-client protections; and is forced to use pencils, which fail to meet legal documentation requirements. Plaintiff claims he was moved into “deplorable feces infested housing unfortunately reserved for suicide watch/mental health inmates,” although he is not on mental health/suicide watch. Plaintiff claims he was moved solely to degrade and further punish him, and Defendant Hoyos refused to move Plaintiff “back to prior location,” although Plaintiff's disciplinary segregation sanction date expired six months ago.
Plaintiff further alleges that he experienced “retaliatory alterations” to his religious diet . . . Plaintiff alleges he cannot purchase lighter clothing, he only receives one set of clothing, and he does not have a laundry bag to wash his clothes and bedding, which are “dirty daily” because he has a “leaky” mattress that “admin” refuses to replace. Plaintiff asserts he is restricted from the library, self-help, and all educational programs and material. He claims these restrictions are “unprecedented and retaliatory and go past the 2 month disciplinary sanction that expired 6 months ago.”(ECF No. 4 at 2-6).
The Court determined the Pinal County Jail was not an entity capable of being sued under § 1983. The Court further concluded Plaintiff's claims that he had been subjected to the use of “‘unprecedented and unauthorized government technology,” including “‘unprecedented vast mind accessing capability ...,'” were “fanciful, fantastic, and delusional,” and “[rose] to the level of the irrational or the wholly incredible,” and therefore dismissed these claims. (ECF No. 4 at 6). With regard to Plaintiff's claim that he had been denied access to the courts, the Court concluded Plaintiff had “not identified a nonfrivolous claim he wished to present, let alone alleged facts to support a conclusion that any named Defendant frustrated or impeded Plaintiff from bringing the claim to court.” (ECF No. 4 at 7). The Court also concluded Plaintiff was not “constitutionally entitled to additional information to assist his defense counsel in preparing his defense.” (ECF No. 5 at 7-9).
The Court noted:
Plaintiff is awaiting trial in Pinal County Superior Court case ##S-1100-CR-201900677, S-1100-CR-202002080, and S-1100-CR-202102363, on charges of first-degree murder, dangerous/deadly assault by a prisoner, prisoner possession of contraband, and threatening or intimidating.(ECF No. 4 at 7 n.1).
Addressing Plaintiff's claims regarding his legal mail, the Court determined:
Plaintiff has not alleged that any named Defendant opened and read legal mail related to his criminal proceeding outside his presence. Plaintiff claims his legal visits are audio-monitored, and incoming and outgoing legal mail is video monitored. Plaintiff does not allege any specific facts to support this allegation, and he does not connect it to any named Defendant. Likewise, . . . Plaintiff does not identify any specific instance in which his legal mail was improperly withheld or in which officers read his legal mail outside his presence, as opposed to merely collecting it for mailing.(ECF No. 4 at 8). Accordingly, the Court dismissed all of Plaintiff's access to the courts claims.
With regard to Plaintiff's Eighth Amendment conditions-of-confinement claims, the Court concluded: “Plaintiff does not allege any facts to support a conclusion that any named Defendant was aware of and disregarded a substantial risk of serious harm to Plaintiff with respect to his conditions of confinement. Thus, the Court will dismiss Plaintiff's conditions-of-confinement claims.” (ECF No. 4 at 9). The Court also dismissed Plaintiff's claims regarding his disciplinary proceedings, noting Plaintiff failed to “allege any facts regarding any disciplinary proceeding, such as when or what charge he received, whether and when he had a disciplinary proceeding, the outcome of any such proceeding, and the sanctions he received for any disciplinary conviction.” (ECF No. 4 at 10). The Court also dismissed Plaintiff's retaliation claims, finding Plaintiff had “not alleged that he engaged in any protected conduct, let alone that any named Defendant took an adverse action against Plaintiff because of any protected conduct.” (Id.).
The Court allowed Plaintiff thirty days to amend his complaint, instructing Plaintiff, inter alia:
A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).(ECF No. 4 at 11).
Plaintiff docketed an amended complaint on November 14, 2022, naming as Defendants Hoyos, Riesgo, “DEFTEC” (an ammunition manufacturer), and Hernandez. (ECF No. 6). The Court allowed Plaintiff to proceed on that portion of Count One alleging a Fourteenth Amendment due process claim that Hoyos subjected him to unwarranted disciplinary segregation and restricted his contact with his counsel. (ECF No. 7 at 3-4, 8). The Court noted Plaintiff alleged privileges such as visitation had not been restored although he completed without incident two months of disciplinary sanctions imposed in November of 2021. (ECF No. 7 at 3). The Court allowed Plaintiff to proceed on an Eighth Amendment excessive force claim, i.e., that part of Count Three alleging Riesgo shot Plaintiff twice with non-lethal shotgun rounds, “‘with retaliatory intent,'” while Plaintiff was restrained. (ECF No. 7 at 5, 8). In Count Four, Plaintiff asserted that Hoyos directed other corrections officers to forward Plaintiff's legal mail to an “intelligence unit” where it was read and then mailed, and required Plaintiff to give “legal letters” to officers who put the letters in envelopes, addressed the envelopes, and mailed them, and then reported the contents of the letters to Hoyos. (ECF No. 7 at 5-6).
The Court allowed Plaintiff to proceed on Count Four against Hoyos to the extent Plaintiff stated a First Amendment legal mail claim and a Sixth Amendment right-to-counsel claim. (ECF No. 7 at 8).
The Court dismissed Count Two, asserting Hoyos retaliated against Plaintiff. (ECF No. 7 at 4). The Court found Plaintiff failed to state a claim for retaliation, stating:
Plaintiff's allegations do not support a conclusion that any named Defendant took any adverse action against him because of Plaintiff's constitutionally protected conduct. Plaintiff alleges that Defendant Hoyos committed various acts in retaliation for Plaintiff assaulting an officer, but assaulting an officer is not protected conduct. ...(ECF No. 7 at 8). The Court dismissed that portion of Count Three stating a claim against DEFTECH, and also dismissed Count Five, alleging Hoyos defamed and slandered Plaintiff in the presence of Hoyos' subordinates. (ECF No. 7 at 6).
In an order entered January 11, 2023, the Court ordered Defendant Hoyos to answer the due process claim in Count One and the First Amendment legal mail claim and the Sixth Amendment right-to-counsel claim in Count Four. (ECF No. 7). The Court ordered Defendant Riesgo to answer Count Three, and dismissed the remaining claims and Defendants. (Id.). Defendants Hoyos and Riesgo were served and waived service on January 25, 2023. (ECF Nos. 8 & 9). Defendants have answered per the Court's screening order at ECF No. 7, and a scheduling order has issued. (ECF No. 21).
On February 21, 2023, after Defendants' answered the First Amended Complaint, Plaintiff filed a Second Amended Complaint. (ECF No. 22). The only party named as a defendant in the Second Amended Complaint is Hoyos. (Id.).
Count One of the proposed Second Amended Complaint asserts Plaintiff's Eighth and First Amendment rights are violated. Plaintiff restates the factual and legal basis for relief stated in Count One of Plaintiff's First Amended Complaint. Plaintiff adds that, because Hoyos refused him medical treatment for approximately a year beginning in February of 2022, he sustained head wounds, and back and neck injuries, when he passed-out and fell onto a concrete floor. (ECF No. 22 at 9). Plaintiff further alleges Hoyos' “‘ongoing'” restrictions violate Plaintiff's right to parent his child because the restrictions prohibit visitation and “phone calls regular or legal through the DCS as ordered by the court in reunification plan.” (ECF No. 22 at 9-10). Plaintiff asserts he is also refused the purchase of “sufficient writing materials,” and that all of these restrictions contribute “to pain/suffering,” and health issues such as headaches, weight loss, and other symptoms “that resulted in January 3rd 2023 sustained injuries of head wound, back and neck injuries, further mental duress,” and distress to his son. (ECF No. 22 at 9-10). Plaintiff alleges that after his “2 month disciplinary sanction expired,” he “should have been allowed to call [his] family, fiance and friends,” and he “should of been able to have visits with them as well.” (ECF No. 22 at 13).
In Count Two of the proposed Second Amended Complaint Plaintiff asserts he is being denied his Eighth Amendment right to adequate medical care. (ECF No. 22 at 310). Plaintiff alleges that, since February of 2002, “[d]ue to Captain Hoyos retaliatory motivated refusal to pull me out for test/treatment and the retaliatory cadence/tone set through and by his actions/directives,” Wexford Medical “refuses to see [Plaintiff] for blackouts, falls, [and] seizure like symptoms,” and the failure to receive medical care resulted in Plaintiff sustaining injuries, severe weight loss, and pain and suffering. (ECF No. 22 at 20). Plaintiff alleges the failure to allow and provide him medical care resulted in the fainting incident on January 3, 2023. (ECF No. 22 at 20).
In Count Three of the proposed Second Amended Complaint, Plaintiff “replaces” his prior Count Three (against Riesgo) with a claim that his “constitutional right to visit/parent [his] son (dependent/otherwise)” has been violated by Hoyos. (ECF No. 22-1 at 10). Plaintiff asserts that he is in the “midst of proceedings in juvenile division where the judge ordered a reunification plan through the DCS to include [supervised] visitations/phone calls” with his son. (Id.). Plaintiff alleges Hoyos has “impeded, frustrated & chilled” his “right to parent” his child. (Id.). Plaintiff alleges DCS, a tribal “attorney/case worker,” and his attorney have made efforts to “meet the orders of the court to assess [him] for ordered reunification plan.” (Id.). Plaintiff further asserts he has not been allowed “legal visit accounts” or legal phone calls, with regard to the state court non-criminal proceedings, and he has not been allowed “father son phone calls through DCS.” (Id.). Plaintiff contends these restrictions were placed on him by Hoyos with retaliatory intent, and that the proffered explanation that the restrictions involve “‘security issues'” is not valid. (ECF No. 22-1 at 11). Plaintiff asserts that, because he is allowed frequent access to “jail video” “kiosks” to communicate with his criminal attorney and investigator, there is no legitimate penological reason for refusing him the same type of communication “with DCS, Tohono O'odham Nation and for father and son visitation supervised set up by DCS.” (Id.). He argues he is allowed “in person legal visits,” and therefore he should be able to meet with his son and a DCS supervisor in person and under the same restrictions. (Id.).
In Count Four of the proposed Second Amended Complaint Plaintiff alleges Hoyos violated his First, Sixth, and Eighth Amendment rights by interfering with his legal mail. (ECF No. 22 at 22).
In his Request for Relief Plaintiff seeks injunctive relief, i.e., “immediate reinstatement of all ‘privileges,” and “policy change that prohibits the restrictions” on inmate legal phone calls and calls with “ACLU & clergy;” policy changes that prohibit the restriction of purchases of hygiene products, writing materials, medications, clothing, and reading glasses; and policy changes regarding laundry, cleaning supplies, and library access. (ECF No. 22 at 26). Plaintiff seeks a “specific order to never refuse an inmate medical care and never refuse legal visits,” and he also seeks “1.3 million dollars in damages for outlined injuries.” (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 the defendants. 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). 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.
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 state a valid claim under § 1983, the plaintiff must allege sufficient facts to support a finding the plaintiff suffered a specific injury as a result of specific conduct of a specific defendant, and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). A claim 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
The only Defendant named in the proposed Second Amended Complaint at ECF No. 22 is Defendant Hoyos. (ECF No. 22 at 1-2). The proposed Second Amended Complaint does not name Riesgo as a Defendant nor state any claims against Riesgo. (ECF No. 22 at 21). The proposed Second Amended Complaint expressly deletes Plaintiff's prior claim against Riesgo. (ECF No. 22-1 at 4 (“Count III ‘Excessive Force by officer is scratched'”)). Because an amended complaint supplants a prior complaint, granting Plaintiff leave to proceed on his Second Amended Complaint would entail the dismissal of Riesgo as a party to this matter; Plaintiff was warned of this operation of law in the Court's first screening order. (ECF No. 4 at 11).
A. Count One of the proposed Second Amended Complaint
Count One of the proposed Second Amended Complaint asserts Plaintiff's Eighth and First Amendment rights were violated. Plaintiff restates the factual and legal basis for relief stated in Count One of Plaintiff's First Amended Complaint. Plaintiff adds that, because Hoyos refused him medical treatment for approximately a year beginning in February of 2022 he sustained head wounds and back and neck injuries. (ECF No. 22 at 9). Plaintiff further alleges that Hoyos' “‘ongoing'” restrictions violate Plaintiff's right to parent his child because the restrictions prohibited visitation and “phone calls regular or legal through the DCS as ordered by the court in reunification plan,” and that Plaintiff was refused the purchase of “sufficient writing materials,” all of which “contributed to pain/suffering,” and health issues such as headaches, weight loss, and other symptoms “that resulted in January 3rd 2023 sustained injuries of head wound, back and neck injuries, further mental duress,” and distress to his son. (ECF No. 22 at 9-10). Plaintiff alleges that after his “2 month disciplinary sanction expired,” he “should have been allowed to call [his] family, fiance and friends,” and he “should of been able to have visits with them as well.” (ECF No. 22 at 13).
Count One of Plaintiff's proposed Second Amended Complaint repeats the due process claim in Count One of his First Amended Complaint on which he was allowed to proceed. Plaintiff then adds, broadly construed, a First Amendment familial association claim, and alludes to an Eighth Amendment claim regarding the denial of medical treatment. To the extent Plaintiff asserts the loss of privileges, including visitation, involve Hoyos “retaliating” against Plaintiff, the Court's prior order establishes the law of the case that Plaintiff fails to state a claim of retaliation but instead states a claim for violation of Plaintiff's right to due process. The First Amendment claim regarding Plaintiff's “right” to have visitation and phone calls with his son and those involved in the family (“juvenile”) court proceeding is more clearly stated in Count Three of the proposed Second Amended Complaint and, accordingly, the motion to amend should be denied with regard to Plaintiff's attempt to add a First Amendment claim in Count One of the proposed Second Amended Complaint.
Plaintiff complains that despite completing the two-month period of sanctions, including being kept in disciplinary housing and loss of privileges, such as visitation, Hoyos has continued to impose “retaliatory” restrictions regarding legal phone calls, the ability to obtain writing materials, and visitation. (ECF No. 22 at 3-9).
Plaintiff also seeks to amend Count One to add an Eighth Amendment claim that he was denied adequate medical care, alleging he sustained injuries as a “‘direct' result [of] Captain Hoyos/Wexford Medical refusing [him] treatment for 1 year ...” (ECF No. 22 at 9). Plaintiff does not allege sufficient specific facts in Count One of his proposed Second Amended Complaint to properly state a claim that Hoyos, the only Defendant named in the complaint, is somehow responsible for any failure to provide Plaintiff adequate medical care. Plaintiff broadly asserts Hoyos is responsible for the denial of medical care, while also noting that Wexford is the jail's medical care provider. Plaintiff fails to allege specific facts to establish a link between any disciplinary action and the denial of medical care, and the Court previously concluded Hoyos' actions were not retaliatory. Additionally, Plaintiff re-states a claim of inadequate medical care in Count Two of the proposed Second Amended Complaint. Accordingly, leave to amend Count One to add a claim of inadequate medical care should be denied.
B. Count Two of the proposed Second Amended Complaint
In Count Two of the proposed Second Amended Complaint Plaintiff asserts he is being denied his Eighth Amendment right to adequate medical care. (ECF No. 22 at 310). Plaintiff alleges that since February of 2002, “Captain Hoyos['] retaliatory motivated refusal to pull me out for test/treatment and the retaliatory cadence/tone set through and by his actions/directives,” resulted in Wexford's “refus[al] to see [Plaintiff] for blackouts, falls, [and] seizure like symptoms.” (ECF No. 22 at 20). Plaintiff contends the failure to receive medical care resulted in Plaintiff sustaining a head wound, back and neck injuries, severe weight loss, and pain and suffering. (Id.). Plaintiff alleges the failure to allow him to receive medical care resulted in a fainting incident on January 3, 2023. (Id.). Plaintiff alleges Hoyos, the only named Defendant, is responsible for the denial of medical care, and that this claim may legitimately be added to the instant suit:
Due to Captain Hoyos retaliatory motivated “ongoing” restrictions/refusals previously outlined in my civil rights complaint that arise from the same transactions, occurrence, or series of transactions and that any question of law or fact common to all defendants Captain Hoyos knowingly, intelligently and with culpable mind violated my civil and
constitutional right to medical treatment. Wexford Medical has a professional responsibility and code of ethics to treat all inmates they along with Captain Hoyos “jointly” violated my rights when I was never seen or given required prescribed tests, information, etc. I was seen in Sept 2022 for “different medical reason” and had to ask that DR to see me/administer test prescribed in “Feb 2022.” That was 9 months later. That were not done until “after” I sustained serious injury in Feb 2023. In that years time both medical and administration/Captain Hoyos downplayed my symptoms.(ECF No. 22 at 20).
Plaintiff is a pretrial detainee; accordingly, a claim of inadequate medical care is properly presented as a Fourteenth Amendment claim, rather than an Eighth Amendment claim. See, e.g., Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). Additionally, a basic lawsuit is a single claim against a single defendant. Federal Rule of Civil Procedure 18(a) allows a plaintiff to add claims to a lawsuit when they are against the same defendant. Federal Rule of Civil Procedure 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit where the right to relief arises out of the same “transaction, occurrence, or series of transactions” and when “any question of law or fact common to all defendants will arise in the action.” However, unrelated claims that involve different defendants must be brought in separate lawsuits. See, e.g., George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is not only intended to avoid the confusion that arises out of bloated lawsuits, but also to ensure that prisoners pay the required filing fees for their lawsuits and to prevent prisoners from circumventing the three strikes rule under the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g); George, 507 F.3d at 607. See also Fed.R.Civ.P. 20(a)(2) (joinder of defendants not permitted unless both commonality and same transaction requirements are satisfied).
A request to amend may be denied when allowing a plaintiff to proceed on an amended complaint would delay the on-going proceedings, Premo v. Martin, 119 F.3d 764, 772 (9th Cir. 1997), and when the amendment seeks to add new claims unrelated or related only tangentially to the original allegations, National Treasury Employ. Union v. Helfer, 53 F.3d 1289, 1295 (D.D.C. 1995); Lopez v. Smiley, 375 F.Supp.2d 19, 30 (D. Conn. 2005). Additionally, denial of leave to amend may be appropriate when the denial will not prevent plaintiff from having his additional claims heard. See Stiller v. Colangelo, 221 F.R.D. 316, 317 (D. Conn. 2004).
Although Wexford is not named as a defendant in the Second Amended Complaint, a claim of inadequate medical care would necessarily be brought against Wexford. Allowing Plaintiff to proceed on a claim against Wexford for denial of adequate medical care, which is at best tangentially related to Plaintiff's claims against Hoyos regarding the continuation of sanctions after Plaintiff had been, in effect, discharged from the two-month disciplinary sanctions imposed in late 2021 and/or early 2022, would require delaying resolution of Plaintiff's due process and Sixth Amendment claims against Hoyos due to the process for getting Wexford served and allowing for time for Wexford to answer the complaint or responded with a motion to dismiss. If Plaintiff wishes to proceed in federal court on a § 1983 claim based on the denial of medical care from February of 2022 through January of 2023, which would need to asserted against Wexford, that claim should be presented in a different cause of action against Wexford rather than solely against Hoyos in this matter (where it is doubtful Plaintiff has adequately stated a cognizable claim). There is no statute of limitations issue which prohibits Plaintiff from initiating a lawsuit against Wexford based on actions or inactions occurring in 2022. Because Wexford is not a party to this action, the claim should be presented by means of filing a new case naming Wexford as the defendant and clearly stating a Fourteenth Amendment claim against Wexford.
C. Count Three of the proposed Second Amended Complaint
In Count Three of the proposed Second Amended Complaint, Plaintiff “replaces” his prior Count Three with a claim that his “constitutional right to visit/parent [his] son (dependent/otherwise)” has been violated by Hoyos. (ECF No. 22-1 at 10). Plaintiff asserts that he is in the “midst of proceedings in juvenile division where the judge ordered a reunification plan through the DCS to include [supervised] visitations/phone calls” with his son.” (Id.). Plaintiff alleges Hoyos has “impeded, frustrated & chilled” his “right to parent” his child. Plaintiff alleges DCS, a tribal “attorney/case worker,” and his attorney have made efforts to “meet the orders of the court to assess myself for ordered reunification plan.” (Id.). Plaintiff further asserts that he has not been allowed “legal visit accounts” or legal phone calls, with regard to the state court non-criminal proceedings, and he has not been allowed “father son phone calls through DCS.” (Id.). Plaintiff argues these restrictions have been placed on him by Hoyos with retaliatory intent, and that the proffered explanation that the restrictions involve “‘security issues'” is not valid. (ECF No. 22-1 at 11). Plaintiff asserts that, because he is allowed frequent access to “jail video” “kiosks” to communicate with his criminal attorney and investigator, there is no reason for refusing him the same type of communication “with DCS, Tohono O'odham Nation and for father and son visitation supervised set up by DCS.” (Id.). He further alleges he is allowed “in person legal visits,” and therefore he should be able to meet with his son and a DCS supervisor under the same restrictions. (Id.).
Plaintiff has, arguably, stated a claim for the denial of his First Amendment right to familial association based on the denial of his interest in a relationship with his son. “[F]reedom of association is among the rights least compatible with incarceration,” and some curtailment of this right must be expected in the prison context. Overton v. Bazzetta, 539 U.S. 126, 131 (2003). Accordingly, prison regulations that curtail the right to freedom of association by restricting family visiting privileges are not necessarily unconstitutional. See Block v. Rutherford, 468 U.S. 576, 586, 589 (1984) (“[T]he Constitution does not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility.”); Dunn v. Castro, 621 F.3d 1196, 1201 (9th Cir. 2010) (holding the right to freedom of association is limited in prison, thus, imposition of a prison regulation preventing an inmate from visitation with his children was permissible); Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002); Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994) (holding that prisoners do not have a constitutional right to contact visitation privileges). Furthermore, in Bell v. Wolfish the Supreme Court noted that the practices of a short-term custodial facility may not necessarily violate a pretrial detainee's rights because any deprivation would necessarily be briefer than when the same deprivation was in place in a prison and applied to a prisoner serving a necessarily lengthier sentence. See 441 U.S. 520, 537-40 (1979) (“This Court has recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may.”). See also Dunn, 621 F.3d at 1203-04.
Two other circumstances are relevant to defining the contours of the constitutional right Dunn asserts in this case. First, Dunn is not challenging the constitutionality of any of the prison's regulations as a matter of law. Instead, he is challenging the specific decision restricting his visitation privileges. We note that Dunn is no longer under a permanent restriction on his right to receive visits from his children. Since July 28, 2005, Dunn has been aware of his entitlement to receive visits from his children. Thus, Dunn is essentially challenging an 18-month suspension of his visitation privileges. Our conclusion might be different if Dunn were presently subject to a blanket ban on his visitation privileges. ... Dunn v. Castro, 621 F.3d 1196, 1203-04 (9th Cir. 2010).
However, the federal courts have repeatedly held that a restriction on a pretrial detainee's freedoms, although the detainee is in custody, may not be intended to serve as a pre-conviction “punishment.” See, e.g., Bell, 441 U.S. at 535; Pierce v. County of Orange, 526 F.3d 1190, 1209 (9th Cir. 2008). But see Block, 468 U.S. at 586-87.Furthermore, the Supreme Court and the Ninth Circuit have held that incarceration does not terminate a person's rights, whatever they may be, to familial association. Overton, 539 U.S. at 132 (2003) (“We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners.”); Dunn, 621 F.3d at 1205 (“[W]e do not hold or imply that incarceration entirely extinguishes the right to receive visits from family members.”). Although incarceration necessarily brings with it limitations on a person's rights, particularly those of association, a prisoner or detainee nevertheless retains those rights which “are not inconsistent with their status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). In cases involving a visitation policy or its enforcement in a specific context, the Supreme Court and the Ninth Circuit have inquired into whether the regulation restricting visitation is reasonably related to legitimate penological interests under the facts and circumstances of the case. Overton, 539 U.S. at 132, citing Turner v. Safley, 482 U.S. 78, 89 (1987); Dunn, 621 F.3d at 1203-04. The test to be applied for identifying unconstitutional punishment at the pretrial stage of a criminal proceeding asks “whether there was an express intent to punish, or ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].'” Demery v. Arpaio, 378 F.3d 1020, 1028 (9th Cir. 2004) (bracketing in original), quoting Bell, 441 U.S. at 538.
The Block court noted a distinction between case-specific concerns in distinguishing between regulations on prisoners versus inmates, noting it was:
... discussing restrictions on contact visitation at a jail, and noting Detainees-by definition persons unable to meet bail-often are awaiting trial for serious, violent offenses, and many have prior criminal convictions. Exposure of this type person to others, whether family, friends, or jail administrators, necessarily carries with it risks that the safety of innocent individuals will be jeopardized in various ways. They may, for example, be taken as hostages or become innocent pawns in escape attempts. It is no answer, of course, that we deal here with restrictions on pretrial detainees rather than convicted criminals. For, as we observed in Wolfish, in this context, “[t]here is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates.” 441 U.S., at 546 n.28 []. Indeed, we said, “it may be that in certain circumstances [detainees] present a greater risk to jail security and order.” Ibid.Block v. Rutherford, 468 U.S. 576, 586-87 (1984).
Although the majority of cases find that a prison or jail may limit or prohibit contact visitation without running afoul of the Constitution, see, e.g., Block, 468 U.S. at 586 (“That there is a rational connection between a ban on contact visits and internal security of a detention facility is too obvious to warrant discussion.”), it is less likely that a restriction on telephonic or other electronic communication between Plaintiff and his son would pass constitutional muster. The Court has insufficient information at this time, information which may be obtained through discovery, to determine whether Hoyos' and the subject jail's policies with regard to Plaintiff's contact with his son were adopted and/or executed out of the necessity to preserve internal order and discipline and maintain institutional security. At this stage of the proceedings it appears that, broadly construing the proposed Second Amended Complaint, Plaintiff has adequately alleged a claim that his First Amendment rights to familial association have been violated. See White v. Pazin, 587 Fed.Appx. 366, 367 (9th Cir. 2014). Accordingly, allowing Plaintiff to proceed on this First Amendment claim would not be futile.
White alleged that he could not see his children because the jail did not permit visitation by minors under age 12. These allegations, liberally construed, were “sufficient to warrant ordering [defendants] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116, 1123 (9th Cir. 2012); see also Dunn v. Castro, 621 F.3d 1196, 1203, 1205 (9th Cir. 2010) (dismissing a prisoner's claim that he was denied visitation with his minor children on the basis of qualified immunity, but noting that the prisoner was not “challenging the constitutionality of any of the prison's regulations as a matter of law”). Accordingly, dismissal of White's claims relating to his visitation rights was premature, and we vacate and remand for further proceedings. White v. Pazin, 587 Fed.Appx. 366, 367 (9th Cir. 2014). The defendants in White prevailed on this claim on summary judgment. See White v. Pazin, 816 Fed.Appx. 146, 147 (9th Cir. 2020).
D. Count Four of the proposed Second Amended Complaint
In Count Four of the proposed Second Amended Complaint, Plaintiff alleges Hoyos violated his First, Sixth, and Eighth Amendment rights by interfering with his legal mail. (ECF No. 22 at 22). Plaintiff restates the claims on which he was given leave to proceed in Count Four of the First Amended Complaint, and adds additional facts in support of those claims.
Accordingly, IT IS RECOMMENDED that Plaintiff's motion for leave to amend the operative First Amended Complaint be granted to only to the extent Plaintiff seeks leave to proceed on:
1. That portion of Count One of the proposed Second Amended Complaint which restates the portion of Count One of the First Amended Complaint on which Plaintiff was previously allowed to proceed;
2. Count Three of the proposed Second Amended Complaint; and
3. Count Four of the proposed Second Amended Complaint.
IT IS FURTHER RECOMMENDED that Plaintiff's motion for leave to amend the operative First Amended Complaint be denied to the extent he seeks leave to proceed on any additional claims stated in Count One of the proposed Second Amended Complaint, and denied to the extent he seeks leave to proceed on Count Two of the proposed Second Amended Complaint.
IT IS FINALLY RECOMMENDED that Defendant Riesgo be dismissed as a defendant in this matter, because the proposed Second Amended Complaint does not state any claims for relief against Riesgo, and Plaintiff was previously advised that any amended complaint which did not raise a previously-stated claim would have the effect of abandoning that claim.
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) of the Federal Rules of Appellate Procedure 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 recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 7(b)(2). Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), 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 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.