Atwood v. Shinn

• Court: District Court, D. Arizona
• Decided: April 15, 2022
• Docket: 2:22-cv-00625
• Status: Unknown

Opinion

1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Frank Jarvis Atwood, No. CV 22-00625-PHX-JAT (JZB) 10 Plaintiff, ORDER 11 v. 12 David Shinn, et al., 13 Defendants. 14 15 Plaintiff Frank Jarvis Atwood, who is confined in the Arizona State Prison 16 Complex-Eyman, has filed through counsel a civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and paid the filing and administrative fees. Atwood v. Shinn, 4:22cv00184- 18 TUC-JAS. Plaintiff’s counsel filed the case in the Tucson Division, but because Plaintiff 19 is held in the Eyman Complex, located in Pinal County, Judge Soto, to whom the case was 20 assigned in Tucson, ordered the case transferred to the Phoenix Division to be assigned a 21 Phoenix Division case number and assigned to a Phoenix Division judge. The case was 22 redesignated with the above case number and assigned to the undersigned. 23 I. Statutory Screening of Prisoner Complaints 24 The Court is required to screen complaints brought by prisoners seeking relief 25 against a governmental entity or an officer or an employee of a governmental entity. 28 26 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 27 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 28 relief may be granted, or that seek monetary relief from a defendant who is immune from 1 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 2 A pleading must contain a “short and plain statement of the claim showing that the 3 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 4 not demand detailed factual allegations, “it demands more than an unadorned, the- 5 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 6 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Id. 8 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 9 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 10 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 11 that allows the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 13 relief [is] . . . a context-specific task thatrequires the reviewing court to draw on itsjudicial 14 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 15 allegations may be consistent with a constitutional claim, a court must assess whether there 16 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 17 II. Complaint 18 Plaintiff was sentenced to death in Arizona state court and his challenges to his 19 conviction and sentence in state and federal court were unsuccessful. In his Complaint, 20 Plaintiff alleges that the Arizona Supreme Court will decide whether to issue an execution 21 warrant on May 3, 2022. He further alleges that he is Greek Orthodox. In light of the 22 imminent issuance of an execution warrant, Plaintiff asked officials with the Arizona 23 Department of Corrections, Rehabilitation, and Reentry (ADC) to allow Plaintiff’s Greek 24 Orthodox priest, Father Paisios, tobe present at Plaintiff’s side during his execution to pray 25 and administer last rites, including placing his hands on Plaintiff and speaking to him 26 directly, so as to accommodate Plaintiff’s exercise of his religion. ADC officials denied 27 the request. 28 . . . . 1 Plaintiff alleges the following claims: ADC’s execution protocol is not neutral 2 towards religion and evinces hostility towards religion in violation of Plaintiff’s First 3 Amendment rights (Count I); ADC’s policy unjustifiably interferes with Plaintiff’s First 4 Amendment free-exercise rights (Count 2); and ADC’s blanket policy excluding spiritual 5 advisors in its current execution protocol substantially burdens Plaintiff’s religious rights 6 and is not the least restrictive means of furthering a compelling government interest, in 7 violation of the Religious Land Use and Effective Death Penalty Act (RLUIPA). Plaintiff 8 names as Defendants the following ADC officials: Director David Shinn, Eyman Complex 9 Warden James Kimble, Florence Complex Warden Jeff Van Winkle, and Assistant 10 Director for Prison Operations Lance Hetmer. Plaintiff sues the Defendants solely in their 11 official capacities. Plaintiff seeks declaratory and injunctive relief. 12 The Court will order Plaintiff to serve or obtain waivers of service from Defendants 13 on an expedited basis and will require Defendants to respond on an expedited basis. 14 IT IS ORDERED: 15 (1) Within 10 days of the filing date ofthis Order, Plaintiff must either serve the 16 Complaint and Summons on each Defendant with a copy of this Order or obtain a waiver 17 of such service. 18 (2) A Defendant who agrees to waive service of the Summons and Complaint 19 must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 20 5 days of service of the Summons and Complaint or service of a waiver of the 21 Summons and Complaint pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid 22 being charged the cost of personal service. 23 (3) Defendants must answer the Complaint or otherwise respond by appropriate 24 motion no later than 10 days after being served with the Summons and Complaint or 25 waiving service of the Summons and Complaint. 26 . . . . 27 . . . . 28 . . . . 1 (4) Any answer or response must state the specific Defendant by name on whose 2| behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed. 4 Dated this 15th day of April, 2022. 5 6 '

g James A. C rg Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28