Opinion
CV-19-0724-PHX-JAT (JFM)
07-31-2019
Michael Dewayne Outley, Jr., Plaintiff v. Paul Penzone, et al., Defendants.
Report & Recommendation Screening Second Amended Complaint
Plaintiff has filed his Second Amended Complaint (Doc. 15). 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, Plaintiff Michael Outley, Jr., who is confined in the Maricopa County Jail, filed his pro se 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;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).
(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."
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. The balance of Count 4, including claims of retaliation, failure to train/supervise, conditions of confinement and a "coverup scheme," was 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
Instead of filing notices of substitution, on June 20, 2019, Plaintiff filed a "redlined" version of his First Amended Complaint (Doc. 9), along with a request (Doc. 8) asking the Court to accept the redlined version. The Court accepted the redlined version as an amendment as a "matter of course" pursuant to Federal Rules of Civil Procedure 15(a)(1) (despite the fact that the redlining was of essentially the entire complaint), and stayed service pending screening pursuant to 28 U.S.C. § 1915A(a).
Plaintiff again sought monetary damages and injunctive relief. He named the following Defendants:
(1) Maricopa County Sheriff Paul Penzone;Plaintiff again asserted four claims, including: (1) Count 1 (mail); (2) Count 2 (disciplinary proceedings); (3) Count 3 (excessive force); and (4) Count 4 (clocks).
(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 named 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.
On June 27, 2019, the undersigned screened the First Amended Complaint, concluding that Plaintiff adequately stated claims in Count 2 of excessive force as to Defendants Collins, Price, Lango, Dodd, Gardea and Fontaine, and on state law defamation as to Defendant Collins. The undersigned recommended that all other claims in Count 2, Counts 1, 3, and 4, and all other defendants be dismissed without prejudice. 3. Second Amended Complaint
Before a ruling on the screening of the FAC, Plaintiff filed a Motion to Inform, Clarify & Request (Doc. 12), seeking inter alia leave to file a second amended complaint. That portion of Plaintiff's motion was granted, and the R&R on the FAC was withdrawn. (Order 7/15/19, Doc. 16.) Consequently, Plaintiff's current Second Amended Complaint (Doc. 15) was filed.
Plaintiff again seeks monetary damages and injunctive relief from the following Defendants:
(1) Maricopa County Sheriff Paul Penzone;Plaintiff adds as defendants:
(2) Detention Captain Jesse Spurgin, MCSO 4th Ave County Jail;
(3) Ancillary Supervisor Brent Williams (MCSO Central Mailroom);
(5) Officer J. Fontaine, #B5198, MCSO 4th Ave. County Jail;
(6) Officer N. Price, #B3925, MCSO 4th Ave. County Jail;
(7) Officer C. Longo aka C. Andersen, #B4200, MCSO 4th Ave. County Jail;
(8) Officer Dodd, #B3164, MCSO 4th Ave. County Jail;
(9) Officer Gardea, #B4257, 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, MCSO 4th Ave. County Jail.
(13) Officer Payne, #B2195, MCSO 4th Ave. County Jail;Plaintiff now asserts three claims, including: (1) Count 1 (mail); (2) Count 2 (surveilled strip searches); and (3) Count 3 (excessive force). C. SCREENING OF AMENDED COMPLAINT 1. Screening Required
(14) Officer J. Bella, #B1642, MSCO 4th Ave. County Jail; and
(15) Officer Brandon Smith, PREA Coordinator, MCSO 4th Ave. County Jail.
Plaintiff no longer names as defendant: (4) Deputy Chief Lee, MCSO 4th Ave. County Jail.
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: (1) 1st Amendment right of free speech; (2) 6th Amendment rights of access and self-representation; and 14th Amendment rights to (3) due process and (4) equal protection.
He alleges that although mail from the Court is deemed legal mail, prison officials are opening his mail from the courts outside his presence. As a result, he has been chilled from discussing medical, juvenile adjudications, and other sensitive issues. It causes him concern he will have to relinquish his right to self-representation. He alleges he has grieved these issues, but Defendant Williams has violated his rights to due process by not completely investigating the law after Plaintiff requested his mail from the Court not be opened. Because he is representing himself, these actions are interfering with his right to be his own attorney. He alleges this violates his equal protection rights because other pro per inmates at other jails do not have their mail opened, and when is mail is sent to the Central Mailroom, it is only opened in his presence.
Plaintiff alleges Defendants Penzone and Spurgin have adopted policies directing the opening of such legal mail outside of Plaintiff's presence. He alleges they have failed to adequately train Defendant Williams because other facilities do not open court mail outside the prisoner's presence, resulting in disparate treatment among jail facilities, and Williams has not adequately researched the law, the allegations of mail being opened, or the allegations of the disparate treatment. He alleges he is involved in three civil cases and a criminal case and he is concerned that his mail is being screened and censored to obtain "some type of leverage."
(1) 1st Amendment and (2) 6th Amendment Violations - 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.
Plaintiff asserts that his correspondence with the courts contains sensitive information, and thus its opening chills his litigation in other proceedings. But, Plaintiff does not allege that these proceedings or filings have been sealed by those courts. Accordingly, such matters would be public records. If Plaintiff is undaunted by making matters a public record, it is implausible that having jail officials open his mail has any chilling effect.
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.
(3) 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 any process. (The mere violation of a written policy to the contrary would 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").)
Moreover, Plaintiff fails to show that any process due has been denied. To the extent that Plaintiff intends to assert that a legally erroneous decision in those proceedings has denied him due process, he fails to adequately state a claim. "The denial of a fair hearing is not established by proving merely that the decision was wrong." U.S. ex rel. Tisi v. Tod, 264 U.S. 131, 133 (1924). In the context of state parole hearings, the Supreme Court observed "we have long recognized that 'a 'mere error of state law' is not a denial of due process.' Because the only federal right at issue is procedural, the relevant inquiry is what process Cooke and Clay received, not whether the state court decided the case correctly." Swarthout v. Cooke, 562 U.S. 216, 222 (2011).
(4) Equal Protection - With regard to equal protection, Plaintiff draws the comparison between himself and pro per inmates at other jail units, with the latter being functionally permitted protected delivery of court documents. "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 Plaintiff proffers no basis to conclude that his situation is indistinguishable from inmates at other jail units. And, Plaintiff suggests nothing that requires that inmates must be treated the same at all jail units.
Summary - Accordingly, Count 1 fails to adequately state a claim, and must be dismissed. Because this is the only count in which allegations are made against Defendant Williams, Williams must also be dismissed.
b. Count 2 (Strip Search Surveillance)
In Count 2, Plaintiff alleges: (1) 4th Amendment search violations, 14th Amendment (2) due process and (3) equal protection violations, and violations of his religious liberties under the (4) 1st Amendment and (5) RLUIPA § 2000cc.
Plaintiff alleges that when he goes to a court he is subjected to strip searches which are done in a room with a surveillance video camera, which another officer monitors, who are often female officers. Plaintiff contends this is a violation of his religious beliefs, forcing him between complying with his beliefs or refusing to go to court and suffering disciplinary actions. He alleges that other inmates on the same floor, but in different units, are not subjected to the same strip search procedure.
Plaintiff alleges Defendants Penzone and Spurgin have adopted policies permitting such strip searches viewed by officers of the opposite gender, and there is legitimate purpose because he could be strip-searched in the privacy of his cell, while he is in restraints.
Plaintiff alleges Defendant Smith, as the P.R.E.A. Coordinator, knows about this procedure and that it is a violation of P.R.E.A. standards, and is responsible for insuring compliance with P.R.E.A. at MSCSO by making and enforcing policies. Plaintiff alleges that in another of his cases CV-18-2753-PHX-JAT(JFM), he has challenged a similar policy related to showers, but has been told it is permissible because he is in close custody.
(1) Unreasonable Search - In evaluating strip searches in a jail, the Supreme Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate's constitutional rights must be upheld if it is reasonably related to legitimate penological interests. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326 (2012). Whether a search is reasonable under the Fourth Amendment requires a case-by-case balancing of the need for the particular search against the invasion of personal rights that the search entails, and courts are required to consider such factors as (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted. Byrd v. Maricopa Cty. Sheriff's Dep't, 629 F.3d 1135, 1141 (9th Cir. 2011). In Byrd, the court recognized the special concerns associated with cross-gender searches, but nonetheless applied the traditional balancing test, considering such things as intimate contact (touching of genitals, etc.), the absence of an emergency, lack of identification of the officer as such, search viewed by 10-15 non-participating officers, videotaping, the lack of justification for the cross-gender search (as opposed to the justification for any search), and the conduct of the search in a dayroom with other inmates able to view the search. Id. at 1142-1143.
Here, Plaintiff adequately states claims against Penzone and Spurgin based on their having adopted policies approving of such searches, where (based on Plaintiff's allegations) other less intrusive means were readily available and cross-gender viewing of the searches regularly occurred.
(2) Due Process - Plaintiff fails to adequately state a due process claim. He references no process which he has been denied. At most, he argues that his grievances have been unsuccessful. 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). As noted in the screening of the FAC, " '[t]he right to petition the government for redress of grievances . . . does not guarantee a favorable response, or indeed any response, from state officials.'" (Order 4/17/19, Doc. 6 at 13 (quoting Baltoski v. Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003)).)
To the extent that those grievances provide evidence of notice and subjective intent, they may support a substantive claim. See e.g. Henderson v. Muniz, 196 F. Supp. 3d 1092, 1105 (N.D. Cal. 2016) (denial of grievance not actionable, but did put defendants on notice of ongoing constitutional violations). But those substantive claims are addressed elsewhere herein.
(3) Equal Protection - Plaintiff alleges that because he is detained in an SMU unit, he is subjected to these strip searches, while other inmates on the same floor who are in "closed custody" are not. "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 Plaintiff proffers no basis to conclude that his situation, as an SMU inmate, is indistinguishable from these other close-custody inmates. That Plaintiff may share some similarities with those inmates (e.g. he and they are subject to close-custody), is not sufficient. For example, Plaintiff does not allege that he and the other inmates all pose the same characteristics that would call for a strip search, such as risks of violence, smuggling of contraband, etc. It is just as plausible that their close custody status is base on other criteria. Plaintiff fails to adequately state an equal protection claim.
(4) Religious Liberties - "'Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' " O'Lone, 482 U.S. at 348 (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). Thus, an inmate's Free Exercise may be burdened by a prison regulation that is reasonably related to penological interests. See Shakur, 514 F.3d at 884 (applying Turner to Free Exercise claim).
"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).
The prisoner need not affirmatively allege the absence of a legitimate penological interest. "In general, a plaintiff will have stated a free exercise claim if: (1) 'the claimant's proffered belief [is] sincerely held'; and (2) "the claim [is] rooted in religious belief, not in purely secular philosophical concerns.'" Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir.), cert. denied, 136 S. Ct. 570 (2015). The state actor bears the burden of showing that the action was reasonably related to a legitimate penological interest. Cf. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (in connection with First Amendment retaliation claims, "the court made clear that the prisoner plaintiff 'bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains'").
Here, Plaintiff alleges that he has a religious belief, i.e. a prohibition against exposure to females during strip searches, that he is being coerced by the policies of Penzone and Spurgin into violating to participate in court proceedings and avoid discipline, and thus adequately states a free exercise claim.
(5) 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." The 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); see also Cutter v. Wilkinson, 544 U.S. 709, 715 (2005).
As opposed to traditional First Amendment jurisprudence, where prisoners' free exercise claims are analyzed under the deferential rational basis to a legitimate penological interest standard of Turner, "RLUIPA requires the government to meet the much stricter burden of showing that the burden it imposes on religious exercise is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest." Greene v. Solano County Jail, 513 F.3d 982, 986 (9th Cir. 2008) (citation and internal quotations omitted).
"To state a claim under RLUIPA, a prisoner must show that: (1) he takes part in a 'religious exercise,' and (2) the State's actions have substantially burdened that exercise. If the prisoner satisfies those elements, then the State must prove its actions were the least restrictive means of furthering a compelling governmental interest." Walker v. Beard, 789 F.3d 1125, 1134 (9th Cir. 2015) (citations omitted).
Here, Plaintiff adequately alleges that Defendant Penzone and Spurgin's policies substantially burden his exercise his religious exercise of avoiding nudity in view of females.
PREA Coordinator Smith - Although Plaintiff alleges that Defendant Smith, as the P.R.E.A. Coordinator, knows about this procedure and that it is a violation of P.R.E.A. standards, he makes no allegation that Smith has any ability to establish procedures related to religious liberties or security searches. Moreover, the Prison Rape Elimination Act, 34 U.S.C. § 30301, et seq. does not establish religious liberty or search standards, but rather only provides various programs related to monitoring and preventing prison rape, sexual abuse, etc.
Although Plaintiff does not purport to assert a claim under PREA, the undersigned observes that "the Prison Rape Elimination Act was enacted to study the problem of prison rape. Nothing in the Act suggests that it created a private right of action, enforceable under section 1983." Law v. Whitson, 2009 WL 5029564, at *4 (E.D. Cal. Dec. 15, 2009) (citations omitted).
It is true that the applicable regulations define sexual abuse to include "voyeurism," which is defined as "an invasion of privacy...for reasons unrelated to official duties." 45 C.F.R. § 411.6. However, Plaintiff makes no allegation that the viewing of his searches is not for official reasons, only that it violates his religious liberties, or is unreasonable under the Fourth Amendment.
Accordingly, Plaintiff fails to adequately state a claim against Defendant Smith.
Summary - Based on the foregoing, the undersigned concludes that Count Two adequately states claims against Defendants Penzone and Spurgin of unreasonable searches under the Fourth Amendment, denial of religious liberties under the First Amendment, and RLUIPA violations, arising from the viewing of his strip searches by female officers. Because this is the only count in which allegations are made against Defendant Smith, and it fails to adequately state a claim against him, Smith must also be dismissed.
c. Count 3 (Excessive Force/Defamation)
In Count 3, Plaintiff asserts claims of: (1) excessive force under the 14thAmendment; and (2) defamation/libel.
Plaintiff alleges that on January 20, 2019 he and his cellmate were subjected to discipline in the form of lockdown in the cell. To gain an audience to dispute the matter, Plaintiff put a magazine in the door to prevent MCSO from entering, and withheld a razor which he placed on his bunk in clear view, until a sergeant came to the cell.
He alleges the sergeant, Defendant Gonzalez refused to address Plaintiff's complaints. At that point, Defendant Collins threw a can of "Clear Out" in the cell. Because his cellmate had asthma, Plaintiff threw the "Clear Out" can into the toilet, 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 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." Plaintiff yelled "You broke it." He was also placed in leg irons. After Plaintiff was in handcuffs, with three officers subduing him, 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 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 to seize, resulting in pain. Defendant Lango again twisted Plaintiff's ankle, resulting in throbbing pain. Defendant Payne 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 knowingly writing a false report claiming Plaintiff tried to fight and resist. He alleges Defendant Gonzalez also knowingly wrote a false report on the attack on the cellmate and the razor. He alleges Defendant Ngo, Defendant Collins, Defendant Bella, Defendant Price, Defendant Payne, Defendant Longa, who were present during the altercation, similarly wrote a false and defamatory report of resisting arrest. (Plaintiff asserts other officers also may have written reports, but he does not know their contents.) He alleges the reports were to cover up the use of excessive force, and resulted in the complained of discipline. He alleges Defendant Bella was also the supervisor who approved the other false reports. He alleges because of these reports, he has been denied blankets, while he is medically approved to have two blankets.
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. Plaintiff alleges that inmates are almost always injured when the SRT team is used, and they regularly use unnecessary force. He alleges grievances and claims fail to rectify the problem because false reports are made which avoid any disciplinary action against the officers.
(1) 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 arguably 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.
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.
Plaintiff fails to show any excessive force by Defendant Payne. Rather, Plaintiff's allegations show that Defendant Payne intervened to reduce the force being used.
(2) 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 the facts underlying his allegations of his excessive force violations, they were not inflicted in the course of such violations, but only in the aftermath. Cf. Nash-Holmes, 169 F.3d at 645 (constitutional violation made out where "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 based in large part on 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 a 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 Defendants Gonzalez, Ngo, Collins, Bella, Price, Payne, and Longa, Plaintiff alleges facts to show that the reports were made knowing their falsehood, for the purpose of concealing the excessive use of force and/or to wrongly impose discipline. Accordingly, Count 3 adequately states a state law claim for defamation against these defendants.
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 of and acquiescence in a subordinate's violations. Iqbal, 556 U.S. at 677. Rather, 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 a conclusion 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. That force is used or injuries to inmates occur with frequency for a team utilized for dealing with recalcitrant inmates does not justify an inference of failure to train.
Nor is any such inference justified on the basis that discipline of such employees is evaded by their false reports. Moreover, Plaintiff offers nothing to show that Defendants Penzone and Spurgin have any knowledge that such reports are false.
Plaintiff's allegations are too vague and conclusory to state a failure to train or supervise claim against Defendant Penzone or Defendant Spurgin regarding excessive force.
Conclusions - Based on the foregoing, the undersigned concludes that Plaintiff has adequately stated claims in Count 3 on excessive force as to Defendants Collins, Price, Lango, Dodd, Gardea, and Fontaine, and on state law defamation as to Defendants Gonzalez, Ngo, Collins, Bella, Price, Payne, and Longa.
Plaintiff fails to adequately state claims against Defendants Penzone and Spurgin.
d. Summary re Claims
Based on the foregoing, the undersigned concludes that: (1) Count 1 fails to adequately state a claim; (2) Count 2 adequately states claims against Defendants Penzone and Spurgin of unreasonable searches under the Fourth Amendment, denial of religious liberties under the First Amendment, and RLUIPA violations, arising from the viewing of his strip searches by female officers; and (3) Count 3 adequately states claims of excessive force as to Defendants Collins, Price, Lango, Dodd, Gardea and Fontaine, and on state law defamation as to Defendants Gonzalez, Ngo, Collins, Bella, Price, Payne, and Longa.
Accordingly, Count 1, and all other claims in Counts 2 and 3, and Defendants Williams and Smith, 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 Penzone and Spurgin be required to respond to the claims in Count 1 of the Second Amended Complaint (Doc. 15) asserting (a) unreasonable searches under the Fourth Amendment, (b) denial of religious liberties under the First Amendment, and (c) RLUIPA violations, arising from the viewing of his strip searches by female officers.
IT IS FURTHER RECOMMENDED Defendants Collins, Price, Longo, Dodd, Gardea and Fontaine be required to respond to the excessive force claims in Count 2 of the Second Amended Complaint (Doc. 15).
IT IS FURTHER RECOMMENDED Defendants Gonzalez, Ngo, Collins, Bella, Price, Payne, and Longa be required to respond to the state law defamation claims in Count 2 of the Second Amended Complaint (Doc. 15).
IT IS FURTHER RECOMMENDED that Count 1, and all other claims in Counts 2 and 3 be DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER RECOMMENDED Defendants Williams and Smith be DISMISSED WITHOUT PREJUDICE. Dated: July 31, 2019
19-0724o Order 19 07 23 re RR Screen SAC.docx
/s/_________
James F. Metcalf
United States Magistrate Judge