Opinion
CV-19-0724-PHX-JAT (JFM)
06-26-2019
Michael Dewayne Outley, Jr., Plaintiff v. Paul Penzone, et al., Defendants.
Order
Plaintiff has filed his First Amended Complaint (Doc. 9). The Court is required to screen that pleading and direct service as appropriate. A. REPORT AND RECOMMENDATION
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of screening of the amended plea is dispositive of some of Plaintiff's claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B). B. BACKGROUND 1. Original Complaint On February 1, 2019, pro se Plaintiff Michael Outley, Jr., who is confined in the Maricopa County Jail, filed his original Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2).
In his four-count Complaint, Plaintiff sought monetary damages and injunctive relief from the following Defendants from the Maricopa County Sheriff's Office (MCSO):
(1) Maricopa County Sheriff Paul Penzone;
(2) Commander Seibert;
(3) Mailroom Supervisor John/Jane Doe 1;
(4) Mailroom Handler/Supervisor John/Jane Doe 2;
(5) Custody Bureau Hearing Unit Sergeant B0326;
(6) Detention Officer B. Jones;
(7) SRT Sergeant John Doe 1;
(8-10) SRT Officers John Does 2, 3, and 4; and
(11) Maricopa County Attorney Bill Montgomery.
Plaintiff designated these individuals as "John Doe SRT (2)," "John Doe SRT," and "John Doe SRT." For clarity, the Court referred to them as "SRT Officer John Doe 2," "SRT Officer John Doe 3," and "SRT Officer John Doe 4."
Plaintiff asserted four counts, including: (1) Count 1 (mail policies); (2) Count 2 (monitoring visitation); (3) Count 3 (disciplinary proceedings); and (4) Count 4 (excessive force).
In an Order filed April 17, 2019 (Doc. 6), the Court granted Plaintiff's IFP application, screened the original Complaint, and dismissed Counts One through Three and Defendants Penzone, Mailroom Supervisor John/Jane Doe 1, Mailroom Handler/Supervisor John/Jane Doe 2, Sergeant John Doe 1, Seibert, Montgomery, Sergeant B0326, and Jones. Answers were required from Defendants SRT Officers Doe 2, 3, and 4), to the claims of excessive force in Count 4 (Counts ___). The balance of Count 4, including claims of retaliation, failure to train/supervise, conditions of confinement and a "coverup scheme", was to be dismissed. In addition, the Court granted Plaintiff's request to incorporate into the Complaint the more complete statement regarding the exhaustion of administrative remedies regarding Count Four that is set forth on page 2, line 14, through page 4, line 6, of Document 5. Because service could not be ordered on the fictitious defendants, Plaintiff was given 120 days to file notices of substitution as to the remaining defendants. / / / / 2. First Amended Complaint
On June 20, 2019, Plaintiff filed his First Amended Complaint (Doc. 9). Plaintiff again seeks monetary damages and injunctive relief from the following Defendants:
(1) Maricopa County Sheriff Paul Penzone;
(2) Detention Captain Jesse Spurgin, MCSO 4th Ave County Jail;
(3) Ancillary Supervisor Brent Williams (MCSO Central Mailroom);
(4) Deputy Chief Lee, MCSO 4th Ave. County Jail;
(5) Officer J. Fontaine, #B5198, MCSO 4th Ave. County Jail;
(6) Officer N. Price, #B3925, MCSO 4th Ave. County Jail;
(7) Officer C. Lango aka C. Andersen, #B4200, MCSO 4th Ave. County Jail;
(8) Officer Dodd, #B3164, MCSO SRT Officer, MCSO 4th Ave. County Jail;
(9) Officer Gardea, #B4257, MCSO SRT Officer, MCSO 4th Ave. County Jail;
(10) Sergeant Gonzalez, #B4159, MCSO 4th Ave. County Jail;
(11) Officer M. Ngo, #B4159, MCSO 4th Ave. County Jail; and
(12) Officer Collins B2930, #B2930, MCSO SRT Officer, MCSO 4th Ave. County Jail.
Plaintiff no longer names as defendants: (2) Commander Seibert; (3) Mailroom Supervisor John/Jane Doe 1; (4) Mailroom Handler/Supervisor John/Jane Doe 2; (5) Custody Bureau Hearing Unit Sergeant B0326, now identified as Kirk; (6) Detention Officer B. Jones; (7) SRT Sergeant John Doe 1; (8-10) SRT Officers John Does 2, 3, and 4;2 and (11) Maricopa County Attorney Bill Montgomery.
Plaintiff again asserts four claims, including: (1) Count 1 (mail); (2) Count 2 (disciplinary proceedings); (3) Count 3 (excessive force); and (4) Count 4 (clocks). C. 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 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. § 1997 applies the same standard to such complaints even if the defendants are not governmental entities, or officers or employees of a governmental entity. 2. Pleading Standards
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the - defendant- unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Iqbal, 556 U.S. at 678.
Reasonable inferences can be drawn from the facts. "Iqbal demands more of plaintiffs than bare notice pleading, but it does not require us to flyspeck complaints looking for any gap in the facts." Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012).
And, as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 3. Application to Amended Complaint
a. Count 1 (Mail)
In Count 1, Plaintiff alleges violations of his 6th Amendment rights to self representation, 1st Amendment rights, and 14th Amendment rights to due process and equal protection. He alleges Defendants Penzone and Spurgin have adopted policies directing opening legal mail outside of Plaintiff's presence. He alleges that under MCSO policies, "legal mail" is limited to mail received from attorneys, courts, etc., which is to be opened in Plaintiff's presence. Defendant Williams is failing to enforce that requirement, because Plaintiff is proceeding pro per, resulting in the opening of mail that would otherwise go to his attorney, chilling his ability to represent himself. Plaintiff argues that even public records from the Court should be treated as legal mail under MCSO policies, but is not being treated as such. He alleges Defendants Penzone and Spurgin have failed to train and supervise Defendant Williams in enforcing these regulations. He alleges that mail sent to the Central mailroom is not opened outside his presence, only mail sent directly to the 4th Avenue County Jail. He asserts he has grieved the issue, but has been told that mail from the Courts is not properly treated as legal mail. He alleges that as a result of the reading of his mail with the courts he has been forced to forego addressing sensitive issues.
In screening the original Complaint, the Court observed:
The "legal mail" Plaintiff refers to in Count One came from either the state or federal courts. Although prisoners have a constitutional right
to have their legal mail delivered to them uncensored and unread, Lemon v. Dugger, 931 F.2d 1465, 1467 (11th Cir. 1991), mail from the courts is not legal mail and the "First Amendment does not prohibit opening such mail outside the recipient's presence." Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 11 (9th Cir. 2017); see Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996) ("[m]ail from the courts, as contrasted to mail from a prisoner's lawyer, is not legal mail."), amended on other grounds on denial of reh'g, 135 F.3d 1318 (9th Cir. 1998).(Order 4/17/19, Doc. 6 at 13.) Even if not expressing an uncontradicted principle, see e.g. Sallier v. Brooks, 343 F.3d 868, 877 (6th Cir. 2003) ("In order to guard against the possibility of a chilling effect on a prisoner's exercise of his or her First Amendment rights and to protect the right of access to the courts, we hold that mail from a court constitutes "legal mail" and cannot be opened outside the presence of a prisoner who has specifically requested otherwise."), the Court has stated the law of the Ninth Circuit, and just as importantly the law of the case. See U.S. v. Caterino, 29 F.3d 1390, 1395 (9th Cir. 1994) ("The law of the case doctrine ordinarily precludes a court from re-examining an issue previously decided by the same court, or a higher appellate court, in the same case.") Plaintiff's allegations and argument to the contrary do not modify the binding effect of Ninth Circuit precedent or the decisions in this case.
Because Plaintiff's allegations on the impropriety of the opening of his mail are insufficient, his allegations of failure to train or supervise also fail. Moreover, as with his original Complaint, Plaintiff's allegations of failure to train or supervise are too vague and conclusory to state such claims.
Due Process - Although Plaintiff asserts a denial of due process and equal protection, he fails to allege facts to show either of these. With regard to due process, Plaintiff references the denial of his grievances. In analyzing a due process claim, the Court must first decide whether Plaintiff was entitled to any process, and if so, whether he was denied any constitutionally required procedural safeguard. In light of the permissibility of the practice of opening court mail, Plaintiff fails to allege any facts to show a protected liberty interest that entitled him to process. The mere violation of a written policy to the contrary does not suffice. See Baker v. Kernan, 795 F. Supp. 2d 992, 995 (E.D. Cal. 2011) ("that the prison's visitation policy at least violated state regulations, but that alone is insufficient to sustain a suit under section 1983").
Equal Protection - With regard to equal protection, Plaintiff draw the comparison between himself and represented detainees, with the latter being functionally permitted protected delivery of court documents sent through their counsel. "The Equal Protection Clause prohibits disparate treatment by a state 'between classes of individuals whose situations are arguably indistinguishable.'" United States v. Devlin, 13 F.3d 1361, 1363 (9th Cir. 1994) (quoting Ross v. Moffitt, 417 U.S. 600, 609 (1974)). But here, under the facts alleged, the distinction being drawn is not based on representation. Rather, it is based on the sender of the mail. For example, Plaintiff does not allege that mail sent to represented detainees by the court is protected by the jail's policy, while that of self-represented detainees is not.
It may be that the effect is that represented detainees receive court documents in a protected manner. But that is because the court mail is routed through counsel, not because the detainee has elected to proceed with counsel. A disparate impact alone does not amount to an equal protection violation. Rather, a discriminatory intent must lie beneath. See Washington v. Davis, 426 U.S. 229, 246 (1976). Plaintiff alleges no facts to suggest that such a discriminatory intent exists. A "more likely explanation[],"Iqbal, 556 U.S. at 681, is simply that the jail cannot ascertain whether mail from counsel contains only unprotected mail from the courts, and thus errs on the side of caution that mail addressed from counsel contains attorney-client privileged material, and protects it from disclosure by opening it in front of the detainee.
Accordingly, Count 1 fails to adequately state a claim, and must be dismissed.
b. Count 2 (Disciplinary Proceedings)
In Count 2, Plaintiff asserts 6th Amendment and 14th Amendment claims arising from a disciplinary proceeding. He alleges that on January 20, 2019 his cellmate had other inmates, in excess of the allowed number, in their common cell while Plaintiff was absent. Nonetheless, Plaintiff was also subjected to discipline in the form of lockdown in the cell. To gain an audience to raise the issue with a sergeant, Plaintiff withheld a razor during "razor pass," with the result that "everything turned worst [sic]." Plaintiff then put a magazine in the door to prevent MCSO from entering (Plaintiff's second time to do so).
Plaintiff was then subjected to a disciplinary hearing on charges of fighting, assault on an inmate, refusing to obey direct orders, failure to comply with security protocol, and conduct with disrupts security or operation of the institution.
Plaintiff denies the charges, asserting that that the cellmate had sat in the cell with his face wrapped in a towel during the incident, but did not accuse Plaintiff of not letting him out or hitting him, or threatening him with a razor. Plaintiff alleges the razor had not been modified, and was in plain view. He alleges his cellmate was not, to his knowledge, seen by medical. He alleges the willingness of his cellmate to exonerate him is corroborated by the fact that the investigating detective indicated he would interview the cellmate, and since then no criminal charges have been filed.
Plaintiff's complaint now is that at the hearing, Defendant Kirk denied Plaintiff the right to call his cellmate as a witness to address charges of fighting with, assaulting or using a razor as a weapon on the cellmate. Plaintiff alleges under prison policy he was allowed to identify witnesses to be interviewed, but Kirk failed to interview the cellmate, who would have exonerated Plaintiff, despite any coercion or persuasion from Plaintiff. Defendant Kirk then left to consult with Defendant Gonzalez, who corroborated the charged conduct, and Plaintiff was found guilty of some of the offenses.
Plaintiff alleges that Defendant Kirk found him guilty in retaliation for Plaintiff putting the magazine in the door.
As a result, Plaintiff was subjected to various discipline, including "loaf," confinement to his cell with only 15 minutes out on Sundays, no phone access, and permanent razor restrictions. Plaintiff alleges the "loaf" was based only on the charge of assault. While on "loaf", Plaintiff made 20 requests to make legal calls, but was denied all but 2 times. He alleges this was in violation of prison guidelines that permit pro per inmates 25 calls a week, with no exception for being on "loaf." As a result, he has been prevented from talking with an auto reconstructionist and private investigator.
In screening the original Complaint, the Court construed the references to "loaf" as a limitation on Plaintiff's diet. (Order 4/17/19, Doc. 6 at 18.) It is unclear to the Court whether "loaf" references some form of restriction to a cell, etc., or some dietary restriction. The outcome is the same, either way. If, however, it refers to dietary restrictions, Plaintiff still fails to allege that the restriction failed to provide adequate nutrition.
Plaintiff alleges Defendant Kirk was aware the cellmate was being transferred and would be unavailable. When Plaintiff appealed his discipline, Defendant Kirk held the appeal for seven days, before returning it to Plaintiff to redo. By the time Plaintiff resubmitted it and it was received by the Commander for review, the cellmate was transferred. On appeal, one of the charges (fighting) was dismissed.
Plaintiff alleges Defendants Penzone and Spurgin make the disciplinary policies, but ignore the high conviction rates and low percentage of times witnesses are called. He argues the lack of a recording allows hearing officers to simply rely on the disciplinary report.
Denial of Due Process - A pretrial detainee may not be punished prior to an adjudication of guilt without first being afforded the procedural due process protections in Wolff v. McDonnell, 418 U.S. 539 (1974). See also Mitchell v. Dupnik, 75 F.3d 517, 524-25 (9th Cir. 1996). Wolff requires that the detainee receive: (1) written notice of the charges, no less than twenty-four hours prior to the hearing; (2) a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action and (3) a limited right to call witnesses and present documentary evidence when it would not be unduly hazardous to institutional safety or correctional goals to allow the defendant to do so. Wolff, 418 U.S. at 564-66.
For convicted prisoners, the punishment must result in an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," before due process is required. Sandin v. Conner, 515 U.S. 472, 484 (1995). Any punishment of pretrial detainees requires due process. Mitchell, 75 F.3d at 524.
In disposing of the related claims in the original Complaint, the Court reasoned:
Although Plaintiff contends Defendant B0326 violated Plaintiff's right to present witnesses and evidence in his defense, he provides no information supporting this assertion such as what witnesses Defendant B0326 prevented him from calling or what evidence Defendant B0326 prevented him from presenting. Absent more information, Plaintiff's allegations are simply too vague and conclusory to state a due process claim against Defendant B0326.(Order 5/17/19, Doc. 6 at 19.) Plaintiff now supplies the requisite information about the particular witness (Plaintiff's cellmate), and the evidence expected from that witness.
In Wolff, the Court recognized that in prison disciplinary proceedings, the right to call witnesses was a limited one, available to the inmate "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff, 418 U.S. at 566. "Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence." Id.
Thus, the mere fact that Defendant Kirk declined to call or interview the cellmate does not conclusively establish a denial of due process. Indeed, it may be that Defendant Kirk feared reprisals by Plaintiff or other repercussions against the cellmate. Ultimately, the burden lies not with Plaintiff to show the absence of a legitimate reason for the denial, but on the Defendant to do so. See Ponte v. Real, 471 U.S. 491, 499 (1985) ("These reasons are almost by definition not available to the inmate; given the sort of prison conditions that may exist, there may be a sound basis for refusing to tell the inmate what the reasons for denying his witness request are."). But, at the pleading stage, the more likely explanation was fear of reprisal or some other legitimate concern.
It is true that, Plaintiff goes further and argues that Defendant Kirk was motivated not by such legitimate concerns, but solely animus as a result of Plaintiff's misbehavior with the magazine. While certainly Plaintiff's admitted actions (e.g. intentionally violating the razor policy, and intentionally barring entrance to his cell) suggest he was worthy of some discipline, even stringent discipline, one bad act has never been sufficient justification for punishing someone for another bad act. Nonetheless, they may provide a basis for exercising discretion to refuse a witness. And here, Plaintiff proffers no facts to show that Defendant Kirk's decision was based on retaliation, he simply makes the conclusory argument that it was. That is not sufficient to adequately plead an assertion of a retaliatory motive. See Eberhard v. California Highway Patrol, 73 F. Supp. 3d 1122, 1127-1128 (N.D. Cal. 2014) (because an "alternative explanation is every bit as 'consistent with'" the challenged actions a conclusory allegation of retaliatory motive, did not adequately state a claim).
Plaintiff adds allegations that Defendant Kirk did not stop with failing to call the cellmate, but delayed Plaintiff's appeal until the cellmate was no longer available. But Plaintiff proffers no facts to show that the reason for the delay was the loss of access to the cellmate. Under the pled facts (e.g. a 7 day delay), it just as likely that the delay resulted from ordinary administrative processing time. Moreover, while the cellmate may have been unavailable to Plaintiff, Plaintiff proffers nothing to show the cellmate would not have been available to the appeals hearing officer. Indeed, Plaintiff's argues that the cellmate remained available to investigating officers even though transferred to prison.
Further, due process requires only that there be "some evidence" to support the prison officials' decision. Superintendent v. Hill, 472 U.S. 445, 455 (1985). This "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion." Hill, 472 U.S. at 455-56 (emphasis added). Plaintiff alleges no facts to show that Defendant Kirk did not have such evidence, nor that sufficient evidence would not have remained even with testimony from the cellmate.
Accordingly, Plaintiff fails to adequately state a claim against Defendant Kirk.
Policy Makers - Plaintiff also fails to adequately state claims against Defendants Penzone and Spurgin. At most, Plaintiff complains that they ignored a patter of high convictions and low instances of calling witnesses. While relevant to showing whether rejections of witnesses are legitimate, cf. Ponte v. Real, 471 U.S. 491, 496 (1985) (pattern not prerequisite), a pattern of refusing witness requests is not sufficient. Given the nature of disciplinary proceedings and their low evidentiary burden, and the routine risks to witnesses, opportunities for coercion, etc., a high rate of discipline and a low rate of calling witnesses is not surprising, even assuming no abuse of discretion by hearing officers. Moreover, Plaintiff fails to show any connection between any such policies and such results. At best, he alleges that the policies don't require a recording. But Plaintiff fails to draw a logical connection between the absence of a recording and the purported results.
Accordingly, Plaintiff fails to adequately state a claim against Defendants Penzone and Spurgin in Count 2.
Officer Witness - Plaintiff alleges that Defendant Gonzalez corroborated the allegations. But, Plaintiff makes no allegations on the contents of Gonzalez's statements to Kirk. He does allege he did not witness the statements. In Count 3, Plaintiff alleges that Defendant Gonzalez wrote a false report about assaulting the cellmate and using the razor as a weapon. But he does not allege that was the content of the statements made to the hearing officer. Moreover, Plaintiff has admitted in the course of his Complaint various violations.
More importantly, Plaintiff fails to show that whatever process he was due was from Defendant Gonzalez. "The prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest." Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). "[F]iling false allegations by itself does not violate a prisoner's constitutional rights so long as (1) the prisoner receives procedural due process before there is a deprivation of liberty as a result of false allegations, and (2) the false allegations are not in retaliation for the prisoner exercising constitutional rights." Ransom v. Herrera, 2016 WL 7474866, at *6 (E.D. Cal. Dec. 28, 2016), report and recommendation adopted, 2017 WL 1166284 (E.D. Cal. Mar. 28, 2017). Because Plaintiff fails to show he was otherwise denied due process in the disciplinary proceeding, any presumed fabrications by Defendant Gonzales would not be actionable.
Accordingly, Plaintiff fails to adequately state a claim against Defendant Gonzalez in Count 2.
Sixth Amendment - Finally, Plaintiff asserts a Sixth Amendment violation, apparently based on the refusal of his requests for legal calls, resulting in his being limited in his ability to confer with an expert and an investigator. By its own terms, the Sixth Amendment applies only to "criminal prosecutions." U.S. Const., Amend. VI. See Wolff, 418 U.S. at 576. Plaintiff does not allege the litigation he references was a criminal prosecution.
Even if the Court could assume it was, Plaintiff fails to show that restrictions on his ability to confer with witnesses are prohibited. The Ninth Circuit has held that the rights of self-representation under Faretta v. California, 422 U.S. 806 (1975), "mean, at a minimum, that time to prepare and some access to materials and witnesses are fundamental to a meaningful right of representation." Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985). Milton dealt with denial of access on one or more occasions to a court appointed runner to assist in serving subpoenas for trial. The court concluded: "The defendant in this case had no means to prepare a defense. When he was denied communication with the outside world, he was denied due process." Milton, 767 F.2d at 1447.
In the context of applying the deferential "clearly established" standard on habeas review, the Supreme Court recognized a split among the circuits on whether Faretta implies a right to assistance in the form of library access, and declined to resolve the split. Kane v. Garcia Espitia, 126 S.Ct. 407, 408 (2005). This leaves the Milton decision controlling as to the law of the Ninth Circuit.
Even so, Milton did not create a right of unfettered self-representation. Rather, that decision held only that "the state may not unreasonably hinder the defendant's efforts to prepare his own defense." Milton, 767 F.2d at 1446-1447. Here, Plaintiff alleges no facts to show that the restriction to two calls was unreasonable. Although Plaintiff alleges he was restricted to 2 phone calls, the restriction lasted only over one month. Plaintiff alleges the restriction "set me way back" and that he lost "vital time" with the reconstructionist and investigator. But Plaintiff offers no facts to show that the calls allowed were inadequate given his trial date in the proceeding, the time allowed in each call, etc. Nor does he allege that the 25 requested "legal calls" all pertained to these witnesses, nor even the presumed criminal proceeding.
Finally, Plaintiff fails to attribute the limitation on phone calls to any named defendant. Although he alleges it was a result of the disciplinary action by Defendant Kirk, he alleges the limitation was not an intended natural result of the disciplinary finding, but rather that it was against policy.
Accordingly, Plaintiff fails to adequately state a Sixth Amendment claim in Count 2.
Conclusion - Plaintiff fails to adequately state any claim in Count 2 and it must be dismissed.
c. Count 3 (Excessive Force)
In Count 3, Plaintiff again references the events of January 20, 2019, and asserts claims of a denial of due process, and defamation/libel. Plaintiff again admits to placing the magazine in the door and retaining a razor "on the top bunk in clear view," until a sergeant came to the cell. He alleges the sergeant refused to address Plaintiff's complaints. At that point, Defendant Collins threw a can of "Clear Out" in the cell. Plaintiff then removed the magazine from the door, and lay down on the bottom bunk with his arms behind his back, and did not resist. Defendant Price then shot 6-8 paintballs of Mace at Plaintiff from 3 feet away, hitting his leg. Defendant Lango entered the cell and slammed Plaintiff onto the floor and began applying "extreme" pressure to his right ankle. Defendant Dodd placed his knee on Plaintiff's head and punched him in the mouth, lacerating his inner lip & forehead. Defendant Gardea placed handcuffs on Plaintiff, twisting Plaintiff's right wrist "extremely hard." He was also placed in leg irons. After Plaintiff was in handcuffs, Defendant Fontaine tased Plaintiff in the back for up to 30 seconds, causing severe pain, and burns that have scarred. An unknown officer then sprayed Mace in a "spit net" and pressed it onto Plaintiff's face, causing burning and an inability to see. All the while, Plaintiff was not resisting. Plaintiff yelled "You broke it."
Plaintiff alleges he was carried out of the cell by Defendants Lango and Fontaine, and put on the floor. Defendant Dodd said "I should dip you on your face", and applied a pressure point tactic, causing Plaintiff's body seized up, resulting in pain. Defendant Lango again twisted Plaintiff's ankle, resulting in throbbing pain. A sergeant instructed them to "ease up on the pressure guys."
Plaintiff alleges he was told to walk, but could not because of the pain. Defendants Lango, Dodd & Fontaine then slammed him to the ground, then picked him up and carried him. He was placed in a cold cell in his underwear without a blanket for 30 hours, after which Plaintiff was seen by medical, and Xrays were taken of the wrist, but only old breaks were reported. He continues to suffer flare ups of pain in the wrist. Photos of the wrist were taken.
Plaintiff alleges he was told that the use of Mace in a spit nest is a regularly used tactic.
Plaintiff alleges that Defendant Gardea caused Plaintiff to be punished more severely by writing a false report claiming Plaintiff tried to fight and resist. He alleges Defendant Gonzalez also wrote a false report on the attack on the cellmate and the razor. He alleges Defendant Ngo wrote a false report of resisting arrest. He alleges Defendant Collins wrote a false and defamatory report. He alleges the reports were to cover up the use of excessive force, and resulted in the complained of discipline.
Plaintiff alleges that Defendant Penzone and Defendant Spurgin are policy makers and are aware of the custom of treatment by the SRT officers and fail to rectify it, and fail to train to prevent known acts of excessive force, and resulting grievances.
Excessive Force - The Fourteenth Amendment's Due Process Clause, and not the Eighth Amendment, applies to the use of excessive force against pretrial detainees that amounts to punishment. Kingsley v. Hendrickson, ___ U.S.___, ___, 135 S. Ct. 2466, 2473 (2015); Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002). Force is excessive if the officers' use of force was "objectively unreasonable" in light of the facts and circumstances confronting them, without regard to their mental state. Kingsley, 135 S. Ct. at 2472-73; see also Graham v. Connor, 490 U.S. 386, 397 (1989) (applying an objectively unreasonable standard to a Fourth Amendment excessive force claim arising during an investigatory stop). In determining whether the use of force was reasonable, the Court should consider factors including, but not limited to
the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Kingsley, 135 S. Ct. at 2473.
Because officers are often forced to make split-second decisions in rapidly evolving situations, the reasonableness of a particular use of force must be made "from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Id. at 2473-74 (citing Graham, 490 U.S. at 396). Further, "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Constitution. Graham, 490 U.S. at 396 (citation omitted).
Plaintiff's allegations plausibly show he was not resisting, he was already on the bunk with his arms behind his back, with the razor on the bunk above him in plain view, and thus the substantial levels of force used were not reasonably justified, particularly after he had already been restrained in handcuffs and leg irons.
Th undersigned notes that on screening the original Complaint, the Court found that Plaintiff failed to adequately state a claim against then Defendant Jones based on his having "applied pressure to his wrist while handcuffing him." (Order 4/17/19, Doc. 6 at 21-22.) Plaintiff's allegations against Defendant Gardea are that he twisted Plaintiff's right wrist "extremely hard," to the extent of creating a possible fracture and
Plaintiff adequately states excessive force claims against Defendants Collins, Price, Lango, Dodd, Gardea and Fontaine. An answer to this claim should be required from these defendants.
Conditions and Medical - Plaintiff complains about being left cold, and delays in and inadequate medical care. However, Plaintiff fails to relate these to any defendant. No claim is adequately stated based on these allegations.
False Reports - Plaintiff complains about various false reports. As with Count 2, false disciplinary reports do not establish a constitutional claim. Ransom, supra, 2016 WL 7474866.
Defamation - Plaintiff alleges that the false reports were defamatory. Damage to reputation is not an interest protected by the Constitution.
An action for damage to reputation ordinarily "lies . . . in the tort of defamation, not in section 1983." Fleming v. Dep't of Public Safety, 837 F.2d 401, 409 (9th Cir. 1988). To recover damages for defamation under § 1983, a plaintiff must meet the "defamation-plus test," which requires a plaintiff to show either that "the injury to reputation was inflicted in connection with a federally protected right," or that "the injury to reputation caused the denial of a federally protected right." Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999) (emphasis in original).
Here Plaintiff's allegations are insufficient to support that his injury was inflicted in connection with a federally protected right. While the reported events may have been involved with his right to freedom from excessive force, they were not inflicted in the course of such violation, but only in the aftermath. Cf. Nash-Holmes, 169 F.3d at 645 ("prosecutors made defamatory comments in connection with [obtaining] indictments and arrests for which there was no probable cause").
Moreover, they did not cause the denial of a federally protected right. A false disciplinary report does not result in a denial of due process. Ransom, supra, 2016 WL 7474866. And, "the interest in reputation asserted in this case is neither 'liberty' nor 'property' guaranteed against state deprivation without due process of law." Paul v. Davis, 424 U.S. 693, 712 (1976). Cf. Nash-Holmes, 169 F.3d at 646 ("defamatory statements deprived it of business goodwill, a state property right that is afforded constitutional protection").
Thus, any claim for defamation is not a constitutional claim, but must arise under statute or common law. There is no generally applicable federal law on defamation, other than certain First Amendment restrictions on such laws. See e.g. New York Times v. Sullivan, 376 U.S. 254 (1964).
Therefore, any claim for defamation would have to arise under Arizona state law. This Court has jurisdiction over such claims under the Court's supplemental jurisdiction if the state and federal claims "derive from a common nucleus of operative fact," and "are such that he would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). Here, the defamation claims are part of the same operative facts alleged in the excessive force claim. Although the alleged defamation occurred subsequent to the alleged excessive force, it was allegedly an effort to coverup the excessive force.
Arizona generally adheres to the Restatement 2nd of Torts on claims of defamation. Ledvina v. Cerasani, 213 Ariz. 569, 572, 146 P.3d 70, 73 (Ariz.App. 2006) ("in the absence of clearly controlling precedent, Arizona's courts 'view[ ] the Restatement as authority for resolving questions concerning rules in defamation cases'"). Under § 598 of the Restatement, a communication is privileged (and thus free from liability) if "(a) there is information that affects a sufficiently important public interest, and (b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true." Arizona has adopted this statement of the law. See Lewis v. Oliver, 178 Ariz. 330, 335, 873 P.2d 668, 673 (Ariz.App. 1993) (applying § 598 to complaints to government supervisor). Here, a jail incident report would arguably be a communication affecting a sufficiently important public interest (e.g. maintenance of order in the jail), and the interest would require the communication to jail official authorized to take action if the report is true (e.g. supervisors, disciplinary officers, etc.).
Similarly, Arizona has adopted the principle in Restatement 2nd Torts § 577, Comment (i) that communication between co-agents of a principal (e.g. fellow employees) is a publication, but has also adopted the qualified privilege in § 596 "if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know." See Dube v. Likins, 216 Ariz. 406, 418, 167 P.3d 93, 105 (Ariz.App. 2007).
However, the privileges under §§ 598 and 596 are qualified ones, which may be lost if the privilege is abused. "A plaintiff may establish abuse of a conditional privilege by showing either (1) actual malice, i.e., with knowledge of its falseness or with reckless disregard of whether it was true or not; or (2) excessive publication, i.e., publication to an unprivileged recipient not reasonably necessary to protect the interest upon which the privilege is grounded." Lewis, 178 Ariz. at 335, 873 P.2d at 673. Here, at least as to Defendant Collins, Plaintiff alleges facts to show that the reports were made knowing their falsehood, for the purpose of concealing the excessive use of force. But, Plaintiff fails to allege facts to establish either such motive or foreknowledge as to Defendants Gonzalez and Ngo, who he does not allege were present during or participated in the excessive force.
Accordingly, Count 3 adequately states a state law claim for defamation against Defendant Collins.
To sustain an Arizona claim against public employees, Plaintiff is required to give notice of his claims "to both the employee individually and to his employer." Crum v. Superior Court In & For Cnty. of Maricopa, 922 P.2d 316, 317 (Ariz. Ct. App. 1996). See Ariz. Rev. Stat. § 12-821.01. Plaintiff has not alleged compliance with this requirement. However, allegations of compliance with the notice of claim statute apparently need not be included in the complaint to state a claim. See Nored v. City of Tempe, 614 F. Supp. 2d 991, 995 n.3 (D. Ariz. 2008) (discussing lack of clarity whether compliance is a jurisdictional requirement susceptible of adjudication on a "failure to state a claim" standard).
Supervisors - A supervisor cannot be held liable based merely on knowledge and acquiescence in the subordinates' violations. Iqbal, 556 U.S. at 677. To establish supervisor liability under § 1983 after Iqbal, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.
To state a claim based on a failure to train or supervise, a plaintiff must allege facts to support that the alleged failure amounted to deliberate indifference. Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998). A plaintiff must allege facts to support that not only was particular training or supervision inadequate, but also that such inadequacy was the result of "a 'deliberate' or 'conscious' choice" on the part of the defendant. Id. at 1213-14; see Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (a plaintiff must allege facts to support that "in light of the duties assigned to specific officers or employees, the need for more or different training is [so] obvious, and the inadequacy so likely to result in violations of constitutional rights, that the policy[]makers . . . can reasonably be said to have been deliberately indifferent to the need." (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989))). A plaintiff must also show a "sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations omitted). Plaintiff proffers no facts to support the assumption that Defendants have failed to supervise or train. Neither the occurrence of claims of excessive force, nor even actual findings of excessive force, are sufficient alone to create a plausible conclusion of such failure. Claims can be (and often are) baseless. And even the best trained and supervised officers can, in the heat of the moment, engage in excessive force.
Plaintiff's allegations are too vague and conclusory to state a failure to train claim against Defendant Penzone or Defendant Spurgin regarding excessive force.
Conclusions - Based on the foregoing, the undersigned concludes that Plaintiff has adequately state claims in Count 3 on excessive force as to Defendants Collins, Price, Lango, Dodd, Gardea and Fontaine, and on state law defamation as to Defendant Collins.
d. Count 4 (Clocks)
In Count 4, Plaintiff alleges new claims arising from failure to meet his religious need for a clock, asserting violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc, the First Amendment's Free Exercise clause, and the Fourteenth Amendment. Plaintiff alleges that he has extremely limited ability (which worsens the greater the custody/security level of the unit) to view clocks or otherwise determine the time, and his Islamic or Muslim religious beliefs require him to pray at five set times per day, to start fasts at specific times. As a result his ability to comply with his beliefs has been hindered. He alleges he has grieved the issue to a sergeant, the Bureau Hearing Unit sergeant, the Jail Commander, and the External Referee, and has been advised clocks are not made available because of security concerns and/or that his decreased access to clocks due to his custody level have been as a result of his own actions/choices. Plaintiff alleges that Defendant Penzone and Defendant Lee are aware of the Muslim prayer requirements, and are responsible for the policy precluding clocks in the prison. Plaintiff alleges that Defendant Spurgin, has also refused to address his prayer issue.
First Amendment - "A person asserting a free exercise claim must show that the government action in question substantially burdens the person's practice of her religion. A substantial burden places more than an inconvenience on religious exercise; it must have a tendency to coerce individuals into acting contrary to their religious beliefs or exert substantial pressure on an adherent to modify his behavior and to violate his beliefs." Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 2015) (internal quotations, citations, and modifications omitted).
RLUIPA - Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5 (2000) ( "RLUIPA") provides that "[no] [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the government shows that the burden furthers "a compelling governmental interest" and does so by "the least restrictive means." RLUIPA defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A).
A burden is substantial under RLUIPA when the state denies an important benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs. Shakur v. Schriro, 514 F.3d 878, 888 (9th Cir. 2008).
The addition of RLUIPA to a plaintiff's First Amendment claim can be of some moment. "Under Turner [v. Safely, 482 U.S. 78 (1987)], which governs inmate free exercise claims brought under the First Amendment, prison restrictions will be upheld as long as they are 'reasonably related to legitimate penological interests.' By contrast, RLUIPA disallows policies that impose 'a substantial burden on ... religious exercise' unless the burden 'furthers 'a compelling governmental interest,' and does so by 'the least restrictive means'.' " Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2008) (citations omitted). "'[N]o longer can prison officials justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison.' They now must demonstrate that they 'actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.'" Id. at 1156-57 (citations omitted).
No Substantial Burden - Here, Plaintiff's complaint is that the jail refuses to provide him with the means to look at a clock. He relies on the failure of the jail to provide him with the means of complying with his beliefs, but does not show he has been denied any benefit available to other prisoners because of his beliefs (the carrot), nor that he has been pressured to violate his beliefs (e.g. through the imposition of a detriment if he does not) (the stick).
In addressing Establishment Clause concerns, the Ninth Circuit has summarized: "[RLUIPA] does not impose affirmative duties on states that would require them to facilitate or subsidize the exercise of religion. RLUIPA instead calls for exactly the opposite—forbidding states from imposing impermissible burdens on religious worship so that prisoners may practice their religion free from unlawful interference." Mayweathers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir. 2002). The Supreme Court has similarly observed: "Directed at obstructions institutional arrangements place on religious observances, RLUIPA does not require a State to pay for an inmate's devotional accessories. See, e.g., Charles v. Verhagen, 348 F.3d 601, 605 (C.A.7 2003) (overturning prohibition on possession of Islamic prayer oil but leaving inmate-plaintiff with responsibility for purchasing the oil)." Cutter v. Wilkinson, 544 U.S. 709, 720, n. 8 (2005). See also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1320 (10th Cir. 2010) ("RLUIPA requires governments to refrain from substantially burdening religion, not to affirmatively subsidize religion.").
The undersigned finds distinguishable those cases focusing on religious diets. As the Fifth Circuit has observed in discussing Cutter, "food is an 'essential' benefit given to every prisoner, regardless of religious belief." Moussazadeh v. Texas Dept. of Criminal Justice, 703 F.3d 781, 793 (5th Cir. 2012).
Plaintiff was not faced with a denial of an "essential benefit" in order to maintain his religious practice. He has not been prohibited from exercising his religion, or denied some benefit, let alone a necessity, because of his adherence. There was no carrot denied or stick imposed. He simply has not been provided an "accessory" necessary to comply with his beliefs.
Similarly, the First Amendment does not require that the government provide the means for compliance with religious belief. See Hartmann v. California Dept. of Corrections and Rehabilitation, 707 F.3d 1114, 1123 (9th Cir. 2013) (not required to provide chaplain); Cruz v. Beto, 405 U.S. 319, 323 (1972) (Burger, C.J., concurring) ("There cannot possibly be any constitutional or legal requirement that the government provide materials for every religion and sect practiced in this diverse country"); and Frank v. Terrell, 858 F.2d 1090, 1091 (5th Cir. 1988) (no violation in failure to provide books and a prayer shawl, a tallit, sermon tapes, and a kippah).
Plaintiff fails to adequately state a claim in Count 4.
e. Summary re Claims
Based on the foregoing, the undersigned concludes that Plaintiff adequately states claims in Count 2 against of excessive force as to Defendants Collins, Price, Lango, Dodd, Gardea and Fontaine, and on state law defamation as to Defendant Collins. All other claims in Count 2, counts 1, 3, and 4, and all other defendants should be dismissed without prejudice. D. SERVICE
The undersigned will recommend answers as to various claims. In the interests of efficient administration, the undersigned will not recommend an order for service, but will instead defer such orders, which may be issued by the magistrate judge, until after a ruling on this Report & Recommendation. 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 Defendants Collins, Price, Lango, Dodd, Gardea and Fontaine be required to respond to the excessive force claim in Count 2 of the First Amended Complaint (Doc. 9).
IT IS FURTHER RECOMMENDED Defendant Collins be required to respod to the defamation claim in Count 2 of the First Amended Complaint (Doc. 9)., and on state law defamation as to Defendant Collins.
IT IS FURTHER RECOMMENDED that all other claims in Count 2, as well as Counts 1, 3, and 4 be DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER RECOMMENDED Defendants Penzone, Spurgin, Williams, Lee, Gonzalez, Ngo be DISMISSED WITHOUT PREJUDICE. Dated: June 26, 2019
19-0724o Order 19 06 25 re Screen FAC.docx
/s/_________
James F. Metcalf
United States Magistrate Judge