Campbell v. Wexford Health Source Incorporated

District Court, D. Arizona·Decided November 9, 2023·No. 3:23-cv-08063·Unknown

Opinion

1 SC 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jason Allen Campbell, No. CV 23-08063-PCT-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Wexford Health Source Inc., et al., 13 Defendants.

15 Plaintiff Jason Allen Campbell, who is confined in the Mohave County Jail, filed a 16 pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to 17 Proceed In Forma Pauperis (Doc. 2). On May 25, 2023, the Court granted the Application 18 and dismissed the Complaint with leave to amend because it failed to state a claim. 19 Thereafter, Plaintiff filed a motion to appoint counsel (Doc. 7), a notice (Doc. 8), a motion 20 to release information under the Freedom of Information Act (Doc. 10), and a First 21 Amended Complaint (Doc. 9). On July 19, 2023, the Court denied the motions and 22 dismissed the First Amended Complaint with leave to amend within 30 days (Doc. 11). 23 Plaintiff has filed a Second Amended Complaint (Doc. 14), a motion for status (Doc. 24 15), another motion to appoint counsel (Doc. 16), a request for production of documents 25 (Doc. 17), and a declaration (Doc. 18). The Court will grant the motion for status to the 26 extent the status of this case is described herein. The Court will dismiss the Second 27 Amended Complaint and this action and will deny as moot the remaining motion and the 28 request. 1 I. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 1 II. Second Amended Complaint 2 In his three-count Second Amended Complaint, Plaintiff alleges claims for denial 3 of constitutionally adequate medical care, excessive force, and unconstitutional conditions 4 of confinement. Plaintiff sues Wexford Health Sources (“Wexford”) employee Jane 5 Leankinjia, who works at the Mohave County Jail. Plaintiff also sues the following 6 Mohave County Jail Officers: Leads, Engraph, and Nickolette. Plaintiff seeks injunctive, 7 compensatory, and punitive relief. 8 Plaintiff designates Count I as a claim for denial of constitutionally adequate 9 medical care. Plaintiff alleges the following: 10 Defendant Leankinjia failed to diagnose Plaintiff’s ongoing medical concerns by 11 failing to perform the “right” testing and treatment and by failing to obtain Plaintiff’s 12 medical records. Plaintiff claims that Leankinjia has thus acted recklessly and with the 13 intent to harm Plaintiff by failing to conduct appropriate testing to assess the cause of his 14 symptoms, such as pain in his “internal organs.” As his injury, Plaintiff alleges “severe 15 pain in internal organs,” stress from “malnourished weight loss,” and misdiagnosis of his 16 legitimate medical concerns. 17 Plaintiff designates Count II as a claim of excessive use of force. He alleges the 18 following: 19 In March 2021, Defendant Leads and Plaintiff “exchanged words” that resulted in 20 Leads ordering Plaintiff to “go lock down” in his lower-tier cell even though Plaintiff was, 21 at the time, on the upper tier and was apparently unable to descend the stairs as the result 22 of a disability. While Plaintiff’s back was turned, Leads ran towards Plaintiff, and Plaintiff 23 felt the need to protect himself from Leads’ “attempt on [Plaintiff’s] life.” Leads sprayed 24 Plaintiff with pepper spray, which Plaintiff contends was excessive and uncalled for. 25 Thereafter, an unidentified official punished Plaintiff by locking him up in the Special 26 Housing Unit (SHU) for more than ten months, where Plaintiff suffered from “many acts 27 of retaliation” that caused him stress and physical harm. As his injury, Plaintiff suffered 28 emotional distress, physical harm, and more than 29 months of harassment by many 1 officers. 2 Plaintiff designates Count III as a claim for denial of visitation, which the Court 3 construes as a claim for unconstitutional conditions of detention. Plaintiff alleges the 4 following: 5 One day in August 2021,1 Defendant Engraph was working in the Housing Unit’s 6 Central Command, and Defendant Nickolette was working in court transport. Plaintiff was 7 “pulled” for an 11:30 a.m. court appearance at 8:30 a.m., even though he had a visit 8 scheduled for 9:15 a.m. Plaintiff was placed in a holding cell for almost two hours before 9 he was transported for his hearing and missed his scheduled visitation. Plaintiff knew that 10 the scheduled visit would have “brought out a lot” for his defense, but Engraph told 11 Plaintiff that it was not the jail’s fault that the court ordered Plaintiff’s transport. Plaintiff 12 contends that the jail violated his right to freedom of association and imposed cruel and 13 unusual punishment. Plaintiff contends that he received a 21-year sentence that could have 14 been shorter if he had received the visitation. 15 III. Failure to State a Claim 16 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 17 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 18 (4) caused him damage. Thornton v. City of St. Helens,

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28 1 In his motion for status, Plaintiff states the events in Count III occurred on August 5, 2021. (Doc. 15 at 3.) 1 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and 2 § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 3 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 4 A. Medical Care 5 In Count I Plaintiff alleges a claim for denial of constitutionally adequate medical 6 care. The Ninth Circuit Court of Appeals has held that “claims for violations of the right 7 to adequate medical care ‘brought by pretrial detainees against individual defendants under 8 the Fourteenth Amendment’ must be evaluated under an objective deliberate indifference 9 standard.” Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (quoting 10 Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016)). To state a medical 11 care claim, a pretrial detainee must show: 12 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff 13 at substantial risk of suffering serious harm; (iii) the defendant did not take 14 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 15 involved—making the consequences of the defendant’s conduct obvious; 16 and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 17 18 Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively 19 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each 20 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 21 389, 397 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)). 22 The “‘mere lack of due care by a state official’ does not deprive an individual of 23 life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 24 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more 25 than negligence but less than subjective intent—something akin to reckless disregard.” Id. 26 A mere delay in medical care, without more, is insufficient to state a claim against prison 27 officials for deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 28 F.2d 404, 407 (9th Cir. 1985). 1 Plaintiff claims that Defendant Leankinjia failed to have medically appropriate 2 testing performed to diagnose and treat a medical condition affecting his internal organs. 3 He also claims that she failed to obtain his prison medical records. Plaintiff alleges that he 4 suffered severe pain, but he does not identify the source of this pain or state when it 5 occurred. Plaintiff also fails to describe any other symptoms and their severity, any 6 medical condition(s) that he had before he entered jail, or when and how he notified any 7 Defendant of his symptoms and any extant medical condition(s). Indeed, he fails to allege 8 from whom he sought medical evaluation of his symptoms, whether and when he was seen 9 by any medical provider, or whether any tests were performed, or a diagnosis rendered. In 10 short, Plaintiff fails to allege facts to support that Leankinjia acted with reckless disregard 11 to a substantial risk of serious harm. Accordingly, Plaintiff fails to state a claim for denial 12 of constitutionally adequate medical care. Count I will be dismissed. 13 B. Excessive Use of Force 14 In Count II, Plaintiff alleges that Defendant Leads used excessive force against 15 Plaintiff. The Fourteenth Amendment’s Due Process Clause, and not the Eighth 16 Amendment, applies to the use of excessive force against pretrial detainees that amounts 17 to punishment. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); Gibson v. County of 18 Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002). Force is excessive if the officers’ use of 19 force was “objectively unreasonable” in light of the facts and circumstances confronting 20 them, without regard to their mental state. Kingsley, 576 U.S. at 396; see also Graham v. 21 Connor, 490 U.S. 386, 397 (1989) (applying an objectively unreasonable standard to a 22 Fourth Amendment excessive force claim arising during an investigatory stop). In 23 determining whether the use of force was reasonable, the Court should consider factors 24 including, but not limited to 25 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 26 temper or to limit the amount of force; the severity of the security problem 27 at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. 28 1 Kingsley, 576 U.S. at 397. 2 Because officers are often forced to make split-second decisions in rapidly evolving 3 situations, the reasonableness of a particular use of force must be made “from the 4 perspective of a reasonable officer on the scene, including what the officer knew at the 5 time, not with the 20/20 vision of hindsight.” Id. at 2473-74 (citing Graham, 490 U.S. at 6 396). Further, “[n]ot every push or shove, even if it may later seem unnecessary in the 7 peace of a judge’s chambers,” violates the Constitution. Graham, 490 U.S. at 396 (citation 8 omitted). 9 Plaintiff alleges that he and Leads exchanged words and Leads ordered Plaintiff to 10 lock down. He alleges that while his back was turned, he heard Leads run towards him 11 causing Plaintiff to feel the need to protect himself. Plaintiff does not allege that Leads 12 applied physical force against Plaintiff before Plaintiff felt the need to protect himself, nor 13 does Plaintiff describe what he did to protect himself; that is, he does not identify the action 14 that immediately preceded Leads’s use of pepper spray. Essentially, Plaintiff’s allegations 15 are too vague to support that Leads’ use of pepper spray was unreasonable under the 16 circumstances. Accordingly, Plaintiff fails to state a claim for excessive force. 17 Plaintiff also alludes to retaliation by unidentified non-defendants. A viable claim 18 of First Amendment retaliation contains five basic elements: (1) an assertion that a state 19 actor took some adverse action against an inmate (2) because of (3) that prisoner’s 20 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 21 Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not 22 reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567- 23 68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation 24 claim requires an inmate to show (1) that the prison official acted in retaliation for the 25 exercise of a constitutionally protected right, and (2) that the action “advanced no 26 legitimate penological interest”). The plaintiff has the burden of demonstrating that his 27 exercise of his First Amendment rights was a substantial or motivating factor behind the 28 defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 1 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 2 Plaintiff fails to allege facts to support that any particular Defendant retaliated 3 against him for exercising his constitutionally protected rights. Although pro se pleadings 4 are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and 5 vague allegations will not support a cause of action. Ivey v. Bd. of Regents, 673 F.2d 266, 6 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not 7 supply essential elements of the claim that were not initially pleaded. Id. Plaintiff’s 8 allegations concerning purportedly retaliatory acts are vague and conclusory. Accordingly, 9 Plaintiff fails to state a claim in Count II for retaliation, and it will be dismissed. 10 C. Conditions of Confinement 11 In Count III, Plaintiff alleges that Defendants Engraph pulled him from his cell and 12 placed him in a holding cell awaiting transportation to court. As a result, Plaintiff alleges, 13 he missed a previously scheduled visit with a “witness’s wife,” which he believes might 14 have altered his subsequent conviction or sentence. 15 A pretrial detainee has a right under the Due Process Clause of the Fourteenth 16 Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, 17 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, 18 shelter, sanitation, medical care, and personal safety.’” Alvarez-Machain v. United States, 19 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 20 1982)). To state a claim of unconstitutional conditions of confinement against an 21 individual defendant, a pretrial detainee must allege facts that show: 22 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff 23 at substantial risk of suffering serious harm; (iii) the defendant did not take 24 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 25 involved—making the consequences of the defendant’s conduct obvious; 26 and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 27 28 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 1 Whether the conditions and conduct rise to the level of a constitutional violation is 2 an objective assessment that turns on the facts and circumstances of each particular case. 3 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 4 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack 5 of due care by a state official’ does not deprive an individual of life, liberty, or property 6 under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 7 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a 8 plaintiff must “prove more than negligence but less than subjective intent—something akin 9 to reckless disregard.” Id. 10 A pretrial detainee has a substantive due process right against restrictions that 11 amount to punishment for a criminal offense. Valdez v. Rosenbaum, 302 F.3d 1039, 1045 12 (9th Cir. 2002) (citing United States v. Salerno, 481 U.S. 739, 746 (1987); Bell v. Wolfish, 13 441 U.S. 520, 535 (1979); Redman v. County of San Diego, 942 F.2d 1435, 1440-41 (9th 14 Cir. 1991) (en banc)). In determining whether restrictions of pretrial detention implicate 15 the protection against deprivation of liberty without due process of law, the court must 16 determine whether those restrictions amount to punishment of the detainee. Bell, 441 U.S. 17 at 535. If such restrictions amount to punishment implicating the detainee’s liberty, the 18 detainee is entitled to the procedural protections set forth in Wolff v. McDonnell. See id.; 19 Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir. 1996). But there is a distinction between 20 punitive measures that may not be constitutionally imposed prior to a determination of guilt 21 and regulatory restraints that may; the fact that detention interferes with a detainee’s desire 22 to live as comfortably as possible with as little restraint as possible does not convert 23 restrictions of detention into punishment. Bell, 441 U.S. at 537. 24 If a restriction of pretrial detention “is reasonably related to a legitimate 25 governmental objective, it does not, without more, amount to ‘punishment.’” Id. at 538. 26 Conversely, if a restriction is arbitrary or purposeless, the Court may infer that the purpose 27 of the governmental action is to punish. Id. at 539. But “[r]estraints that are reasonably 28 related to the institution’s interest in maintaining jail security do not, without more, 1 constitute unconstitutional punishment,” even if they are uncomfortable and would not 2 have been imposed on the detainee if he had been released while awaiting trial. Id. at 540. 3 Even when an institutional restriction infringes upon a specific constitutional guarantee, 4 the “practice must be evaluated in the light of the central objective of prison administration, 5 safeguarding institutional security.” Id. at 547. “[Jail] administrators therefore should be 6 accorded wide-ranging deference in the adoption and execution of policies and practices 7 that in their judgment are needed to preserve internal order and discipline and to maintain 8 institutional security.” Id. The duration of the restriction is relevant in determining 9 whether the restriction amounted to punishment. See, e.g., id. at 562. 10 Plaintiff alleges a single instance when he missed visitation because he was pulled 11 early from his cell for transport to court. Plaintiff fails to allege any facts to support that 12 he was unable to reschedule such visitation or facts to support that he was denied visitation 13 on any other occasion, or was denied it in this instance as punishment for the crime(s) with 14 which he was charged, or that his attorney could not have interviewed the witness. 15 Accordingly, Plaintiff fails to state a claim for an unconstitutional denial of visitation and 16 Count III will be dismissed. 17 III. Dismissal without Leave to Amend 18 Because Plaintiff has failed to state a claim in his Second Amended Complaint, the 19 Court will dismiss his Second Amended Complaint. “Leave to amend need not be given 20 if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 21 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 22 particularly broad where Plaintiff has previously been permitted to amend his complaint. 23 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 24 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 25 whether justice requires granting leave to amend. Moore, 885 F.2d at 538. 26 Plaintiff has made multiple efforts at crafting a viable complaint and appears unable 27 to do so despite specific instructions from the Court. The Court finds that further 28 opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss Plaintiff?’s Second Amended Complaint without leave to amend. 2| ITIS ORDERED: 3 (1) Plaintiffs motion for status (Doc. 15) is granted to the extent the status of this case is discussed herein and is otherwise denied. 5 (2) | The Second Amended Complaint (Doc. 14) is dismissed for failure to state aclaim pursuant to 28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment 7 | accordingly. 8 (3) The Clerk of Court must make an entry on the docket stating that the 9 | dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 10 (4) —— Plaintiff's motion for appointment of counsel (Doc. 16) and request for 11 | production of documents (Doc. 17) are denied as moot. 12 (5) Plaintiffs declaration (Doc. 18) concerning relief that he seeks is 13 | disregarded as moot. 14 (6) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) 15 | and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal of this decision would be taken in good faith and certifies that an appeal would not be taken 17 | in good faith for the reasons stated in the Order and because there is no arguable factual or 18 | legal basis for an appeal. 19 Dated this 9th day of November, 2023. 20 21 a 3 22 James A. Teilborg 23 Senior United States District Judge 24 25 26 27 28

Campbell v. Wexford Health Source Incorporated, (D. Ariz. 2023).

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