1 KM 2 WO 3 4 5 8 9 Jonathan Robert Beede, No. CV 21-02087-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 Wexford Health Services, et al., 13 Defendants.
15 Pending before the Court are Plaintiff’s April 13, 2022 Motion for Appointment of 16 Counsel (Doc. 17) and May 18, 2022 Third Amended Complaint (Doc. 19). The Court 17 will deny the Motion for Appointment of Counsel and order Defendants to answer the 18 Third Amended Complaint. 19 I. Procedural History 20 On December 8, 2021, Plaintiff Jonathan Beede, who is confined in the Red Rock 21 Correctional Center, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and 22 an Application to Proceed In Forma Pauperis. On December 29, 2021, Plaintiff filed a 23 First Amended Complaint. 24 In a January 4, 2022 Order, the Court denied the Application to Proceed with leave 25 to refile. After multiple mail-related delays, Plaintiff filed a February 8, 2022 Application 26 to Proceed In Forma Pauperis and Second Amended Complaint. On March 7, 2022, the 27 Court dismissed the Second Amended Complaint with leave to amend. Plaintiff then filed 28 the April 13, 2022 Motion for Appointment of Counsel and, after receiving an extension 1 of time, the May 18, 2022 Third Amended Complaint. 2 II. Statutory Screening of Prisoner Complaints 3 The Court is required to screen complaints brought by prisoners seeking relief 4 against a governmental entity or an officer or an employee of a governmental entity. 28 5 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 6 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 7 relief may be granted, or that seek monetary relief from a defendant who is immune from 8 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 9 A pleading must contain a “short and plain statement of the claim showing that the 10 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 11 not demand detailed factual allegations, “it demands more than an unadorned, the- 12 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Id. 15 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 16 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 17 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 18 that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 20 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 21 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 22 allegations may be consistent with a constitutional claim, a court must assess whether there 23 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 24 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 25 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 26 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 27 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 28 U.S. 89, 94 (2007) (per curiam)). 1 III. Third Amended Complaint 2 Plaintiff names the following Defendants in his two-count Third Amended 3 Complaint: Wexford Health Services, Nurse Kelly, Pinal County, and Officer Valdez. 4 Plaintiff seeks money damages. 5 In Count One, Plaintiff alleges violations of his Fourteenth Amendment right to 6 medical care. Plaintiff claims that on March 21, 2021, he was booked into the Pinal County 7 Jail. During intake, he informed medical staff that he had a painful puss-filled lump on his 8 penis. Plaintiff alleges medical staff refused to do anything about it and that, “per policy 9 they [didn’t] have to treat [him] because [he was] in intake.” The lump ruptured and 10 Plaintiff began to experience chills, cold sweats, swelling, and difficulty urinating. 11 Plaintiff claims he informed numerous medical staff, but they continued to refuse to do 12 anything. After leaving intake, Plaintiff submitted numerous medical requests, was seen 13 by a doctor, and was then sent to the hospital for emergency surgery. The surgeon told 14 Plaintiff “he couldn’t believe they let it get so bad and that surgery wouldn’t have been 15 necessary if they had treated it when it was just a lump.” After returning to the jail, Plaintiff 16 received wound care for 30 days and was given ibuprofen for two weeks. Plaintiff was 17 denied any further pain relief even though he constantly complained of pain. Plaintiff 18 claims he continues to experience problems, including pain. 19 Plaintiff alleges Defendant Wexford Health Services “has the policy, custom or 20 accepted practice of not treating intake inmates’ medical issues” and of “not prescribing 21 adequate pain medication.” 22 Plaintiff asserts Defendant Kelly was “shown [Plaintiff’s] injury before it ruptured 23 and after it ruptured, but she refused to treat [him].” Plaintiff contends she was aware of 24 his injury and aware of his pain, “but made the conscious decision not to treat the injury or 25 the pain [Plaintiff] was in,” resulting in Plaintiff’s suffering. 26 In Count Two, Plaintiff alleges Defendant Valdez retaliated against him, in violation 27 of the First Amendment. According to Plaintiff, all requests for legal forms or assistance 28 go through Defendant Valdez. Plaintiff submitted numerous requests to Defendant Valdez 1 for § 1983 civil rights complaint forms, but Valdez told him she “would not help [Plaintiff] 2 sue them and accused [Plaintiff] of lying and trying to pull a scam.” When Plaintiff asked 3 for grievance forms, Valdez told him “no one would give [him] one because [he] was trying 4 to sue them and that while she worked there, if [Plaintiff] somehow managed to submit a 5 grievance or had any forms sent in, she would make sure [he] went to confinement for the 6 rest of [his] stay.” If Plaintiff asked other officers for forms, they were told not to give 7 them to him. Plaintiff also claims his incoming legal mail was intercepted and kept from 8 him in retaliation for his efforts to file a lawsuit, and that this continued for more than eight 9 months. Plaintiff alleges Defendant Valdez’s action did not serve a legitimate penological 10 purpose and chilled Plaintiff’s exercise of his First Amendment rights. 11 Finally, Plaintiff contends Defendant Pinal County “has the policy, custom or 12 accepted practice of allowing their officers at the Pinal County Jail to conduct retaliation 13 and take adverse actions that serve no penological interest.” 14 Liberally construed, these allegations adequately state a claim and the Court will 15 require Defendants to answer the Third Amended Complaint. 16 IV.
Free access — add to your briefcase to read the full text and ask questions with AI
1 KM 2 WO 3 4 5 8 9 Jonathan Robert Beede, No. CV 21-02087-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 Wexford Health Services, et al., 13 Defendants.
15 Pending before the Court are Plaintiff’s April 13, 2022 Motion for Appointment of 16 Counsel (Doc. 17) and May 18, 2022 Third Amended Complaint (Doc. 19). The Court 17 will deny the Motion for Appointment of Counsel and order Defendants to answer the 18 Third Amended Complaint. 19 I. Procedural History 20 On December 8, 2021, Plaintiff Jonathan Beede, who is confined in the Red Rock 21 Correctional Center, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and 22 an Application to Proceed In Forma Pauperis. On December 29, 2021, Plaintiff filed a 23 First Amended Complaint. 24 In a January 4, 2022 Order, the Court denied the Application to Proceed with leave 25 to refile. After multiple mail-related delays, Plaintiff filed a February 8, 2022 Application 26 to Proceed In Forma Pauperis and Second Amended Complaint. On March 7, 2022, the 27 Court dismissed the Second Amended Complaint with leave to amend. Plaintiff then filed 28 the April 13, 2022 Motion for Appointment of Counsel and, after receiving an extension 1 of time, the May 18, 2022 Third Amended Complaint. 2 II. Statutory Screening of Prisoner Complaints 3 The Court is required to screen complaints brought by prisoners seeking relief 4 against a governmental entity or an officer or an employee of a governmental entity. 28 5 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 6 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 7 relief may be granted, or that seek monetary relief from a defendant who is immune from 8 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 9 A pleading must contain a “short and plain statement of the claim showing that the 10 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 11 not demand detailed factual allegations, “it demands more than an unadorned, the- 12 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Id. 15 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 16 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 17 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 18 that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 20 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 21 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 22 allegations may be consistent with a constitutional claim, a court must assess whether there 23 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 24 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 25 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 26 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 27 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 28 U.S. 89, 94 (2007) (per curiam)). 1 III. Third Amended Complaint 2 Plaintiff names the following Defendants in his two-count Third Amended 3 Complaint: Wexford Health Services, Nurse Kelly, Pinal County, and Officer Valdez. 4 Plaintiff seeks money damages. 5 In Count One, Plaintiff alleges violations of his Fourteenth Amendment right to 6 medical care. Plaintiff claims that on March 21, 2021, he was booked into the Pinal County 7 Jail. During intake, he informed medical staff that he had a painful puss-filled lump on his 8 penis. Plaintiff alleges medical staff refused to do anything about it and that, “per policy 9 they [didn’t] have to treat [him] because [he was] in intake.” The lump ruptured and 10 Plaintiff began to experience chills, cold sweats, swelling, and difficulty urinating. 11 Plaintiff claims he informed numerous medical staff, but they continued to refuse to do 12 anything. After leaving intake, Plaintiff submitted numerous medical requests, was seen 13 by a doctor, and was then sent to the hospital for emergency surgery. The surgeon told 14 Plaintiff “he couldn’t believe they let it get so bad and that surgery wouldn’t have been 15 necessary if they had treated it when it was just a lump.” After returning to the jail, Plaintiff 16 received wound care for 30 days and was given ibuprofen for two weeks. Plaintiff was 17 denied any further pain relief even though he constantly complained of pain. Plaintiff 18 claims he continues to experience problems, including pain. 19 Plaintiff alleges Defendant Wexford Health Services “has the policy, custom or 20 accepted practice of not treating intake inmates’ medical issues” and of “not prescribing 21 adequate pain medication.” 22 Plaintiff asserts Defendant Kelly was “shown [Plaintiff’s] injury before it ruptured 23 and after it ruptured, but she refused to treat [him].” Plaintiff contends she was aware of 24 his injury and aware of his pain, “but made the conscious decision not to treat the injury or 25 the pain [Plaintiff] was in,” resulting in Plaintiff’s suffering. 26 In Count Two, Plaintiff alleges Defendant Valdez retaliated against him, in violation 27 of the First Amendment. According to Plaintiff, all requests for legal forms or assistance 28 go through Defendant Valdez. Plaintiff submitted numerous requests to Defendant Valdez 1 for § 1983 civil rights complaint forms, but Valdez told him she “would not help [Plaintiff] 2 sue them and accused [Plaintiff] of lying and trying to pull a scam.” When Plaintiff asked 3 for grievance forms, Valdez told him “no one would give [him] one because [he] was trying 4 to sue them and that while she worked there, if [Plaintiff] somehow managed to submit a 5 grievance or had any forms sent in, she would make sure [he] went to confinement for the 6 rest of [his] stay.” If Plaintiff asked other officers for forms, they were told not to give 7 them to him. Plaintiff also claims his incoming legal mail was intercepted and kept from 8 him in retaliation for his efforts to file a lawsuit, and that this continued for more than eight 9 months. Plaintiff alleges Defendant Valdez’s action did not serve a legitimate penological 10 purpose and chilled Plaintiff’s exercise of his First Amendment rights. 11 Finally, Plaintiff contends Defendant Pinal County “has the policy, custom or 12 accepted practice of allowing their officers at the Pinal County Jail to conduct retaliation 13 and take adverse actions that serve no penological interest.” 14 Liberally construed, these allegations adequately state a claim and the Court will 15 require Defendants to answer the Third Amended Complaint. 16 IV. Motion for Appointment of Counsel 17 Plaintiff seeks appointment of counsel in this case because he is unable to afford 18 counsel, the issues are complex, he has limited knowledge of the law, and counsel would 19 more effectively cross examine witnesses and present evidence. 20 There is no constitutional right to the appointment of counsel in a civil case. See 21 Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, 22 the court may request an attorney to represent any person unable to afford one. 28 U.S.C. 23 § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when 24 “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 25 1991). A determination with respect to exceptional circumstances requires an evaluation 26 of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 27 claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these 28 factors is dispositive and both must be viewed together before reaching a decision.” Id. 1 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 2 Having considered both elements, it does not appear at this time that exceptional 3 circumstances are present that would require the appointment of counsel in this case. 4 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will 5 deny without prejudice Plaintiff’s Motion for Appointment of Counsel. 6 V. Warnings 7 A. Release 8 If Plaintiff is released while this case remains pending, and the filing fee has not 9 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 10 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 11 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 12 result in dismissal of this action. 13 B. Address Changes 14 Plaintiff must file and serve a notice of a change of address in accordance with Rule 15 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 16 relief with a notice of change of address. Failure to comply may result in dismissal of this 17 action. 18 C. Copies 19 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 20 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 21 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 22 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 23 to comply may result in the filing being stricken without further notice to Plaintiff. 24 D. Possible Dismissal 25 If Plaintiff fails to timely comply with every provision of this Order, including these 26 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 27 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 28 to comply with any order of the Court). 1 IT IS ORDERED: 2 (1) Plaintiff’s Motion for Appointment of Counsel (Doc. 17) is denied. 3 (2) The Clerk of Court must send Plaintiff a service packet including the Third 4 Amended Complaint (Doc. 19), this Order, and both summons and request for waiver 5 forms for Defendants Wexford, Kelly, Pinal County, and Valdez. 6 (3) Plaintiff must complete and return the service packet to the Clerk of Court 7 within 21 days of the date of filing of this Order. The United States Marshal will not 8 provide service of process if Plaintiff fails to comply with this Order. 9 (4) If Plaintiff does not either obtain a waiver of service of the summons or 10 complete service of the Summons and Third Amended Complaint on a Defendant within 11 90 days of the filing of the Complaint or within 60 days of the filing of this Order, 12 whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. 13 Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 14 (5) The United States Marshal must retain the Summons, a copy of the Third 15 Amended Complaint, and a copy of this Order for future use. 16 (6) The United States Marshal must notify Defendants of the commencement of 17 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 18 Federal Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure 19 and Rule 4.1(c) of the Arizona Rules of Civil Procedure. The notice to Defendants must 20 include a copy of this Order. 21 (7) A Defendant who agrees to waive service of the Summons and Third 22 Amended Complaint must return the signed waiver forms to the United States Marshal, not 23 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 24 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 25 personal service. 26 (8) The Marshal must immediately file signed waivers of service of the 27 summons. If a waiver of service of summons is returned as undeliverable or is not returned 28 bya Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: 3 (a) personally serve copies of the Summons, Third Amended Complaint, 4 and this Order upon Defendant pursuant to Rule 4(e)(2) and/or Rule 4(4)(2) of the 5 Federal Rules of Civil Procedure; and 6 (b) within 10 days after personal service is effected, file the return of 7 service for Defendant, along with evidence of the attempt to secure a waiver of 8 service of the summons and of the costs subsequently incurred in effecting service 9 upon Defendant. The costs of service must be enumerated on the return of service 10 form (USM-285) and must include the costs incurred by the Marshal for 11 photocopying additional copies of the Summons, Third Amended Complaint, or this 12 Order and for preparing new process receipt and return forms (USM-285), if 13 required. Costs of service will be taxed against the personally served Defendant 14 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 15 ordered by the Court. 16 (9) | Defendants must answer the Third Amended Complaint or otherwise respond 17 | by appropriate motion within the time provided by the applicable provisions of Rule 12(a) 18 | of the Federal Rules of Civil Procedure. 19 (10) Any answer or response must state the specific Defendant by name on whose 20 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 21 does not identify the specific Defendant by name on whose behalf it is filed. 22 (11) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 23 | 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 24 | authorized under 28 U.S.C. § 636(b)(1). 25 Dated this 11th day of July, 2022. 26
28 James A. Teilborg Senior United States District Judge