Opinion
CV-20-1123-PHX-DLR (JFM)
04-28-2021
Charles E. Nealy, Plaintiff v. David Shinn, et al., Defendants.
REPORT AND RECOMMENDATION ON MOTION TO AMEND
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
A. REPORT AND RECOMMENDATION
Plaintiff seeks leave to file a Second Amended Complaint. 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 Motion to Amend is dispositive of some of Plaintiff's proposed 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. First Amended Complaint
On July 30, 2020, pro se Plaintiff Nealy, who is confined in the Arizona State Prison Complex-Eyman, filed his First Amended Complaint (“FAC”) (Doc. 9) pursuant to 42 U.S.C. § 1983. The Court had previously granted Plaintiff's Application to Proceed In Forma Pauperis, and dismissed the original Complaint (Doc. 1) with leave to amend. (Order 7/8/20, Doc. 6.)
Plaintiff named as Defendants: Arizona Department of Corrections (ADC) Director David Shinn: Deputy Warden Karr; Disciplinary Hearing Officer Captain S. Brennan; “L.O.P.” Supervisor Sergeant Milligan; Disciplinary Coordinator/Correctional Officer (CO) III Moore; Chaplain Willis; and CO II John Doe. Plaintiff asserted four counts, including: Count 1 (free exercise of religion); Count 2 (violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA)); Count 3 (excessive force); and Court 4 (free exercise of religion).
In an Order filed August 27, 2020 (Doc. 11), the Court screened the FAC, dismissed Counts Three, Four and Five for failure to state a claim, and dismissed Defendants Shinn, Karr, Brennan, and Moore. Answers were directed from Defendants Milligan and Willis to Counts 1 and 2. The Court found Counts 1 and 2 adequately stated claims against Defendant Doe, and set a deadline for Plaintiff to name Defendant Doe. Defendants Milligan and Willis have since been served and filed Answers (Docs. 19, 20). Plaintiff has never named Defendant Doe, and the deadline for Plaintiff to file a Notice of Substitution expired on April 6, 2021. (Order 1/13/21, Doc. 34.)
Currently pending is a belated Motion to Extend (Doc. 71) the time to name Doe, and a Motion for Subpoenas (Doc. 73), seeking to gain information to name and served Doe. Defendants have responded (Doc. 76), objecting to the third party subpoena and asserting Plaintiff has bene provided incident reports which identify the participants, and thus presumably Defendant Doe.
2. Second Amended Complaint
Plaintiff seeks leave to file his proposed Second Amended Complaint (Doc. 66.) In the SAC, Plaintiff still names as defendants: (1) Arizona Department of Corrections (ADC) Director David Shinn; (2) Deputy Warden R. Carr (previously identified as “Karr”); (3) Disciplinary Hearing Officer Captain S. Brennan; (4) “L.O.P.” Supervisor Sergeant Milligan; (5) Disciplinary Coordinator/Correctional Officer (CO) III Moore; (6) Chaplain Willis; and (7) CO II Jhon Doe. Plaintiff adds as Defendants: (8) Designee C.R. Glynn; (9) Deputy Warden L. Stickley; (10) Assistant Warden D. Walker; (11) Grievance Coordinator CO IV R. Brier; (12) Disciplinary Coordinator CO III M. Pulve; (13) CO III Pekrol; and (14) CO II Davis. Plaintiff asserts three counts: Count 1 asserts claims of the denial of free exercise of religion; Count 2 asserts violations of RLUIPA; and Count 3 asserts the use of excessive force.
Plaintiff repeatedly references an “Exhibit A” in his SAC. No exhibit was attached to either his lodged SAC (Doc. 66), or the redlined version (Doc. 68).
Plaintiff alleges that on November 22, 2019, in the Arizona Department of Corrections, Rehabilitation and Reentry (AzDCRR) Eyman Prison Complex, he was engaged in an approved Muslim prayer service, kneeling on the floor. He alleges that Defendant officers Willis and Milligan instituted an “Incident Command System” response by falsely claiming the prayer service was unauthorized. He alleges Willis and Milligan had a history of animosity toward the Muslim religion, and that Milligan threatened to have Plaintiff classified for maximum security so he could not engage in prayer services.
Plaintiff alleges that in the ensuing response, the fictitiously named Defendant “Jhon [sic] Doe” entered the room, began yelling obscenities and denouncing the Muslim religion, and aggressively grabbed Plaintiff who was in a kneeling position, and placed handcuffs on him so tightly that he cried out in pain, suffered swelling, long term pain and was required to receive medical attention, braces and physical therapy to recover.
Plaintiff then describes disciplinary actions against him resulting in the loss of various privileges, security reclassification, and the loss of earned release credits. He further describes efforts to grieve his issues regarding his religious services, and asserts that his grievances were either denied, not properly considered, or not properly forwarded up the chain of command for action. He attributes such actions to Defendants Shinn, Glynn, Stickley, Walker, Brier, Carr, Brennan, Moore, Pulve, and Pekrol.
He further alleges these defendants failed to take action to protect his religious freedoms, and instead conspired with other defendants to carry out the complained of actions (e.g. denial or burden of religious freedoms, and failure to protect from the attack by Jhon Doe). He alleges Defendant Pekrol denied him forms for witness statements to support his grievances.
In challenging the handling of his various appeals and grievances, Plaintiff asserts violations of various AzDCRR Department Orders.
Plaintiff makes no allegations against Defendant Davis but asks for injunctive relief against Davis.
Plaintiff seeks declaratory and injunctive relief, and compensatory and punitive damages.
C. MOTION TO AMEND
Plaintiff seeks leave to amend his complaint. Federal Rule of Civil Procedure 15(a)(2) provides that the “court should freely give leave [to amend] when justice so requires.” “In assessing the propriety of a motion for leave to amend, we consider five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004).
1. Compliance with LRCiv 15.1
Local Rule of Civil Procedure 15.1(a) requires a party moving to amend a pleading to file with the motion a “redlined” copy of his proposed pleading showing the additions and deletions. Plaintiff purports to have filed a “redlined” copy of his amended complaint (Docs. 67 and 68).
Defendants respond (Doc. 69) noting the Court's prior efforts to have Plaintiff comply with Local Rule of Civil Procedure 15.1(a). (See Order 1/29/21, Doc. 46; Order 3/11/21, Doc. 60.) They argue that although Plaintiff purported to be adding new defendants, he instead has modified dismissed claims against existing defendants, in an attempt to cure deficiencies on screening, and instead of identifying the changes Plaintiff has simply designated the counts wholesale as new. They argue the motion should be denied for failure to comply with LRCiv 15.1(a) and failure to comply with the Court's order.
Plaintiff has replied (Doc. 71) apparently arguing that he is attempting to cure the deficiencies in the First Amended Complaint, and treated the dismissed counts as non-existent, and thus identified them as entirely new.
While Plaintiff's approach is not without logic, it fails to appreciate that the purpose of Local Rule of Civil Procedure 15.1 is to assist the Court and other parties in identifying specific changes being made to the prior pleading. In light of the screening obligation, that requirement is particularly important in helping the Court identify changes being made to cure deficiencies identified on screening. Plaintiff's approach makes his redlined version useless for that purpose. Even so, Plaintiff's failure to comply with Rule 15.1 appears to flow from ignorance not obstinance or bad faith. Accordingly, the Court will not reject his motion to amend on that basis.
2. Application to Current Motion
Here, there appears no basis to find bad faith, undue delay, or prejudice. Plaintiff appears to be attempting, in good faith, to correct deficiencies revealed in the screening Order, and no defendant has yet appeared who might suffer prejudice. Accordingly, only the last two factors are relevant, futility and prior amendments.
“Repeated failure to cure deficiencies by amendments previously allowed is another valid reason for a district court to deny a party leave to amend.” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809-10 (9th Cir. 1988) (emphasis added). The current amended complaint has been proceeded by only one “allowed” amendment, namely the First Amended Complaint, which was allowed after dismissal of the original Complaint with leave to amend.
“Futility alone can justify the denial of a motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995). Futility can be legal or factual in nature. “Where the legal basis for a cause of action is tenuous, futility supports the refusal to grant leave to amend.” Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). However, leave to amend should be denied as futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense. Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018).
For the reasons discussed hereinafter, the Court concludes that upon screening, the filing of the proposed amendment would be futile.
Accordingly, the undersigned recommends the motion to amend be denied.
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 SAC
a. Pre-Existing Claims
Plaintiff's proposed pleading continues to adequately state claims against Defendants Willis, Milligan, and Doe for denial of free exercise of religion and RLUIPA violations.
b. Excessive Force Claims
On screening the FAC, the Court found that Plaintiff failed to adequately state a claim of excessive force. The Court noted that the allegations of “attacking” the prayer service were too vague, yelling obscenities does not amount to excessive force, and placing Plaintiff in overly tight handcuffs was not sufficient to state an Eighth Amendment claim.
Plaintiff still fails to allege specific facts which would render his allegation of an “attack, ” threats or yelling obscenities sufficient to state a claim of excessive force. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 87) (defendants' threats of bodily harm to convince plaintiff not to pursue legal redress were insufficient to state a claim under § 1983; “it trivializes the eighth amendment to believe a threat constitutes a constitutional wrong”); Oltarzewski v. Ruggiero, 830 F.2d 6, 139 (9th Cir. 1987) (“‘[v]erbal harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983'” (quoting Collins v. Cundy, 603 F.2d 25, 827 (10th Cir. 1979))); see also McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (“mere threatening language and gestures . . . do not, even if true, amount to constitutional violations” (quoting Coyle v. Hughes, 436 F.Supp. 591, 593 (W.D. Okla. 1977))).
His allegation that he was “aggressively grabbed” fails to state a claim of excessive force. When an inmate claims that prison officials violated his Eighth Amendment rights by using excessive physical force, the relevant inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). However, the Supreme Court has made it clear that not every use of physical force violates the Eighth Amendment:
That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d [1028, 33 (2nd Cir. 1973)] (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights”).Id. at 9.
With regard to the placement of the handcuffs, Plaintiff's only additional allegation is that he suffered swelling and required treatment. The Eighth Amendment protects against excessive force, not against injury. “The ‘core judicial inquiry,' [is] not whether a certain quantum of injury was sustained, but rather ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “‘[T]he extent of injury suffered by an inmate is one factor that may suggest ‘whether the use of force could plausibly have been thought necessary' in a particular situation.'” Ibid. Here, the degree of injury (swelling requiring conservative medical treatment) standing alone does not indicate that the force used in placing the handcuffs was malicious and sadistic, as opposed to that applied in a good faith effort to secure Plaintiff.
Plaintiff continues to fail to adequately allege a claim of excessive force.
c. Respondeat Superior
Plaintiff makes various allegations that various defendants had supervisory responsibilities and failed to take appropriate disciplinary or other action after the prayer service incident. There is no respondeat superior liability under § 1983, and therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 40, 1045 (9th Cir. 1989).
Moreover, the failure to take disciplinary action after a violation does not constitute a violation. “A mere failure to overrule a subordinate's actions, without more, is insufficient to support a § 1983 claim.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). At most, it might establish the adoption of a policy permitting future violations. But Plaintiff does not allege that the prayer service incident has been repeated.
Plaintiff fails to state claims against the defendants based upon their supervisory roles.
d. Conspiracy
Plaintiff alleges that various defendants involved in the grievance and disciplinary proceedings conspired in the denials of his First Amendment and RLUIPA rights. “To prove a conspiracy between the state and private parties under [§] 1983, the [plaintiff] must show an agreement or meeting of the minds to violate constitutional rights. To be liable, each participant in the conspiracy need not know the exact details of the plan, but each must at least share the common objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (en banc) (citations and internal quotation marks omitted). Conclusory allegations are insufficient to state a claim of conspiracy. Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003). Plaintiff alleges no facts to show the existence of such a conspiracy. At best, he suggests that the various defendants knew the true facts of the prayer service incident. But he offers no facts to show that is the case, rather than these other defendants simply not believing (albeit perhaps erroneously) Plaintiff's version of the facts.
e. Processing of Grievances
Plaintiff complains that various grievances were denied or handled improperly. The denial of a grievance does not in and of itself rise to the level of a constitutional violation. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988) (“There is no legitimate claim of entitlement to a grievance procedure”); and Ramirez v. Galaza, 334 F.3d 850 (9th Cir.2003) (same). Similarly, the failure to follow grievance procedures does not give rise to a due process claim. See Flournoy v. Fairman, 897 F.Supp. 350, 354 (N.D. Ill. 1995) (jail grievance procedures did not create a substantive right enforceable under § 1983); Spencer v. Moore, 638 F.Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance system procedures do not deprive inmates of constitutional rights).
Moreover, Plaintiff fails to allege facts to show how the denials resulted in an actionable injury. Indeed, he fails to identify the nature of the grievances, simply identifying them by date or reference number.
Finally, as the Court observed in dismissing Plaintiff's due process claims from the FAC, Plaintiff fails to show a protected liberty interest infringed by the denial of the grievances, i.e. the imposition of an atypical and significant hardship rather than a simple loss of privileges or change of security classification. (See Order 8/27/20, Doc. 11 at 10-11.)
f. Processing of Disciplinary Actions
In disposing of claims in the FAC based on disciplinary proceedings, the Court concluded:
Plaintiff does not state what disciplinary violations he was charged with, describe how the charges were related to the November 22, 2019 incident, or explain why the charges were false. Accordingly, Plaintiff's facts fail to demonstrate there was no legitimate penological purpose to the disciplinary charges.(Order 8/27/20, Doc. 11 at 8.) Plaintiff still fails to offer facts to make these showings. At best, he alleges that Defendants Milligan and Willis instituted the disruption of the prayer service on the false assertion that the service was unauthorized. But he fails to allege the nature of the disciplinary charges or why they were false, or how they related to First Amendment and RLUIPA protections.
Plaintiff alleges that in July, 2020 Defendant Pekrol denied Plaintiff's request for witness statement forms in connection with a disciplinary action. (SAC, Doc. 66 at 4F.) But Plaintiff fails to allege any harm from the denial of such forms, e.g. that he had an available witness, the witness statement could not be presented because of the lack of a form, and the witness statement would have altered the outcome.
Moreover, Plaintiff alleges that the disciplinary actions wrongly resulted in the loss of earned release credits. “[A] prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.' He must seek federal habeas corpus relief (or appropriate state relief) instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Thus, his challenges to the results of the disciplinary actions (as opposed to the process) are not cognizable in this § 1983 action.
4. Conclusions
Plaintiff continues to adequately state claims against Defendants Willis, Milligan, and Doe for violations of Plaintiff's right of Free Exercise of Religion, and RLUIPA. Plaintiff fails to adequately state claims against the remaining defendants. Thus, the amendment would not alter the case, and is futile.
Accordingly, the undersigned will recommend denial of the Motion to Amend.
E. 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.”
F. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED Plaintiffs Motion for Leave to Amend (Doc. 65) be DENIED.