Henry v. Penzone

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kevin Dean Henry, No. CV 21-00386 PHX SPL (CDB)

10 Plaintiff, REPORT AND RECOMMENDATION 11 v.

12 Paul Penzone, et al.,

13 Defendants. 14 15 TO THE HONORABLE STEVEN P. LOGAN: 16 Plaintiff, who is in custody, filed a § 1983 complaint on March 5, 2021, and 17 moved the Court to proceed in forma pauperis. In an order entered May 14, 2021, the 18 Court dismissed Counts Two and Three of the Complaint and Defendants Penzone, 19 Collins, Weirs, Onterveros, Kirk, and Devine, without prejudice. (ECF No. 5). The Court 20 ordered Defendants Beckwith, Cooper, Dodd, Bernardo, Howard, Martinez, Navarette, 21 and Flecher to answer Count One of the Complaint, asserting Defendants retaliated 22 against Plaintiff for his filing of grievances (in the grievances Plaintiff alleged the use of 23 excessive force). (Id.). 24 On June 14, 2021, Plaintiff sought leave of the Court to proceed on an amended 25 complaint. (ECF No. 9). In his proposed amended complaint Plaintiff named as 26 defendants those previously ordered to answer the Complaint, i.e., Beckwith, Bernardo, 27 Howard, Martinez, Navarrete, Dodd, Flecher, and Cooper, and Plaintiff sought to add 28 Penzone and Collins as defendants. Plaintiff sought to amend Count One to cure the 1 defects noted in the screening order with regard to his claims against Penzone. Plaintiff 2 further sought to assert a claim against Collins for deliberate indifference to Plaintiff’s 3 serious medical needs, and to add as defendants the others previously dismissed per the 4 screening order, i.e., Collins, Weirs, Onterveros, Kirk, and Devine. 5 A Report and Recommendation (ECF No. 16) filed July 13, 2021 and adopted 6 (ECF No. 32) August 18, 2021, concluded Plaintiff’s proposed amended complaint did 7 not adequately state cognizable claims for relief against Penzone, but that the proposed 8 amended complaint did adequately state a claim for relief against Collins for violation of 9 Plaintiff’s Fourteenth Amendment right to adequate mental health care.1 10 On August 23, 2021 Plaintiff filed a motion to further amend his complaint, and 11 lodged a proposed second amended complaint. (ECF No. 33). Plaintiff seeks to add a 12 claim against Penzone and seeks to add a claim against the “Maricopa County Sheriff and 13 Correctional Health Service[s].” (ECF No. 33-1 at 3-6). Plaintiff asserts he is seeking to 14 amend his complaint to add “New Claims and Defendants,” and to increase the amount of 15 damages he is seeking. (ECF No. 33 at 1). In Count One of the proposed Second 16 Amended Complaint Plaintiff asserts a claim for excessive force, rather than the 17 retaliation claim on which he has been given leave to proceed, checking the “excessive 18 force by an officer” box on the complaint form; it is not entirely clear what facts and 19 claims and defendant(s) Plaintiff seeks to add in this count of the proposed second 20 amended complaint. (ECF No. 33-1 at 7-10). In Count Two of the proposed second 21 amended complaint Plaintiff asserts an “8th amendment deliberate indifference” claim, 22 alleging he was denied “proper mental health care.” (ECF No. 33-1 at 11-13). In his 23 proposed Count Two Plaintiff contends Collins denied him adequate mental health care, 24 he alleges Penzone is responsible for Collins’ actions, and he asserts that “Correctional

25 1 Plaintiff was a pretrial detainee at all times relevant to the Complaint. Prior to adoption 26 of the Report and Recommendation, Defendants Beckwith, Cooper, Dodd, Bernardo, Howard, Martinez, Navarette, and Flecher were served and answered the Complaint. (ECF No. 22). On 27 August 3, 2021, the Court required any proposed amended complaint be filed no later than October 1, 2021, and ordered dispositive motions be filed by January 31, 2022. (ECF No. 24) 28 1 Health Services also aided [] Collins in his acts before stated by also refusing me 2 treatment and upholding prohibited ban on mental health services …” (ECF No. 33-1 at 3 12). In the proposed second amended complaint Plaintiff amends his request for relief, 4 stating he is seeking “A TOTAL OF 1.4 million dollars.” (ECF No. 33-1 at 18). 5 II. Governing Law 6 Rule 15(a) of the Federal Rules of Civil Procedure provides a plaintiff should be 7 given leave to amend their complaint when justice so requires. Granting or denying leave 8 to amend is a matter committed to the Court’s discretion. Hartmann v. California Dep’t 9 of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). Futility of amendment is 10 sufficient to justify denial of a motion for leave to amend. See Gordon v. City of Oakland, 11 627 F.3d 1092, 1094 (9th Cir. 2010). A motion to amend is futile if, accepting all of the 12 facts alleged as true, the amended claim would be immediately “subject to dismissal” for 13 failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) of the 14 Federal Rules of Civil Procedure. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 15 1298 (9th Cir. 1998); Riverview Health Inst. LLC v. Medical Mutual of Ohio, 601 F.3d 16 505, 512 (6th Cir. 2010). 17 The Prison Litigation Reform Act, 42 U.S.C. § 1997e(c)(1), requires the screening 18 of prisoner complaints and the dismissal of allegations that fail to state a claim upon 19 which relief can be granted prior to ordering service of a complaint on the defendants. 20 See, e.g., O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Futility of amendment is 21 sufficient to justify denial of a motion for leave to amend. See Gordon v. City of Oakland, 22 627 F.3d 1092, 1094 (9th Cir. 2010). A proposed amended complaint is futile if, 23 accepting all of the facts alleged as true, it would be immediately “subject to dismissal” 24 for failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) of 25 the Federal Rules of Civil Procedure. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 26 1298 (9th Cir. 1998); Riverview Health Inst. LLC v. Medical Mutual of Ohio, 601 F.3d 27 505, 512 (6th Cir. 2010). 28 1 A pleading must contain a “short and plain statement of the claim showing that the 2 pleader is entitled to relief,” Federal Rule of Civil Procedure 8(a)(2), and the Court is 3 obliged to liberally construe an incarcerated pro se plaintiff’s complaint. See, e.g., Hebbe 4 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, although Rule 8 does not demand 5 detailed factual allegations, “it demands more than an unadorned, the defendant- 6 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] 7 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 8 relief that is plausible on its face.’” Id., quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 9 570 (2007). A claim is plausible only “when the plaintiff pleads factual content that 10 allows the court to draw the reasonable inference that the defendant is liable for the 11 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 12 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 13 judicial experience and common sense.” Id. at 679. Therefore, although a plaintiff’s 14 specific factual allegations may be consistent with a constitutional claim, the reviewing 15 court must assess whether there are other “more likely explanations” for a defendant’s 16 conduct. Id. at 681. 17 The federal courts have the discretion to deny leave to amend in cases of undue 18 prejudice to the opposing party, repeated failure to cure deficiencies by previously 19 allowed opportunities to amend the complaint, and futility. Foman v. Davis, 371 U.S. 20 178, 182 (1962); Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th 21 Cir. 2011). Courts have “particularly broad” discretion to deny leave to amend where a 22 plaintiff “has previously amended the complaint.” Cafasso, 637 F.3d at 1058 (citation 23 and quotation marks omitted). See also Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 879 24 (9th Cir. 1999). 25 To prevail in a § 1983 claim, a plaintiff must establish: (1) an act by the named 26 defendant; (2) taken under color of state law; (3) which deprived the plaintiff of a federal 27 right; and (4) caused him damage. E.g., Thornton v. City of St. Helens, 425 F.3d 1158, 28 1163-64 (9th Cir. 2005). Additionally, a plaintiff must allege he suffered a specific injury 1 as a result of the conduct of a particular defendant, and he must allege an affirmative link 2 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 3 72, 377 (1976). 4 There is no vicarious liability in § 1983 lawsuits. Iqbal, 556 U.S. at 676, citing 5 Monell v. Department of Soc. Serv., 436 U.S. 658, 691 (1978). Hence, a supervisory 6 government official may be held liable under § 1983 only when his own actions have 7 caused a constitutional deprivation. E.g., OSU Student All. v. Ray, 699 F.3d 1053, 1069 8 (9th Cir. 2012). In other words, a supervisor is only liable under § 1983 if the plaintiff 9 establishes the supervisor’s “personal involvement in the constitutional deprivation,” or a 10 “sufficient causal connection between the supervisor’s wrongful conduct and the 11 constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018) 12 (emphasis added and internal quotations omitted). “At the most basic level of 13 formulation, our law requires an ‘affirmative link’ between the constitutional violation 14 and either the supervisor’s personal participation, his exercise of control or direction, or 15 his failure to supervise.” Dodds v. Richardson, 614 F.3d 1185, 1211 (10th Cir. 2010) 16 (collecting cases and analyzing various bases for supervisory liability), cited in Starr v. 17 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). In the absence of a supervisor’s “overt 18 personal participation in the act” which violated the plaintiff’s constitutional rights, they 19 may be liable only if they personally implemented a policy “so deficient that the policy 20 itself is a repudiation of constitutional rights and is the moving force of a constitutional 21 violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal quotations 22 omitted). See also Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003). 23 III. Analysis 24 A. Count One of the proposed second amended complaint 25 In his original Complaint Plaintiff alleged Penzone was responsible for the other 26 named Defendants’ actions because they were “under his command,” and because he 27 “‘fail[ed] to hire, train, and supervise his staff.’” (ECF No. 5 at 12-13). The Court 28 concluded that Plaintiff had failed to state a claim against Penzone: 1 Plaintiff has not alleged that Defendant Penzone personally participated in a deprivation of Plaintiff’s constitutional rights, was aware 2 of a deprivation and failed to act, or formed policies that resulted in 3 Plaintiff’s injuries. To the extent Plaintiff may be attempting to allege a failure to train 4 claim against Penzone, he has also failed to state a claim. … Plaintiff has 5 not alleged what training Defendant Penzone provided, or any facts to support that such training is “deliberately indifferent” to Plaintiff’s rights. 6 7 (ECF No. 5 at 7). 8 In Count One of his proposed first amended complaint Plaintiff asserted: “Paul 9 Penzone is liable for the actions of these officer[s] therefore he can also be held 10 responsible for officers [sic] action he recklessly caused harm by failing to hire, train and 11 supervise all above listed officers he is also responsible for excessive force used due to 12 his gross negligence.” (ECF No. 9-1 at 10). In Count One of his proposed second 13 amended complaint Plaintiff asserts: “Penzone is liable for the actions of these officer[s] 14 therefore he can also be held responsible for officers[’] action he recklessly caused harm 15 by failing to hire, train and supervise. All above listed officers he is also responsible for 16 excessive force used due to his gross negligence.” (ECF No. 33-1 at 10). 17 Plaintiff fails to cure the deficiency noted by the screening order and in the Report 18 and Recommendation on his proposed amended complaint with regard to his claim 19 against Penzone in Count One of the proposed second amended complaint. Plaintiff has 20 not alleged that Penzone personally participated in a deprivation of Plaintiff’s 21 constitutional rights, was aware of a deprivation and failed to act, or formed policies that 22 resulted in Plaintiff’s injuries. 23 B. Count Two of the proposed amended complaint 24 In Count Two of his proposed amended complaint Plaintiff asserted a claim for 25 violation of his Eighth Amendment rights, citing “deliberate indifference” to his medical 26 needs. (ECF No. 9-1 at 11). 27 In his first proposed amended complaint, Plaintiff asserted Penzone and “his 28 officers aided [] Collins” in forcefully removing Plaintiff from the jail’s mental health 1 unit when Collins “knew” he was “a serious mentally ill inmate.” (ECF No. 9-1 at 11). 2 Plaintiff summarily alleged Penzone directly supervised his removal from the mental 3 health unit and asserted that Correctional Health Services “also aided [] Collins in his acts 4 by refusing” Plaintiff treatment. (Id.). Plaintiff argued Collins, Penzone, and Correctional 5 Health Services (which is and was not named as a defendant) “therefore denied, delayed 6 and intentionally interfer[ed]” with Plaintiff’s medical and mental health treatment, 7 causing “mental distress, cuts from self harm and wors[ening] mental health state.” (Id.). 8 Plaintiff alleged that, since he was booked into the Fourth Avenue Jail in early 2020, he 9 has been “denied proper mental health care and medical care by (CHS), Troy Collins and 10 M.C.S.O. controlled nurses who are also employe[d] by Paul Penzone which therefore 11 makes him also responsible for [their] actions.” (ECF No. 9-1 at 12). In the Report and 12 Recommendation adopted by the Court, the undersigned determined Plaintiff had 13 adequately stated a claim only against Defendant Collins for violation of Plaintiff’s 14 Fourteenth Amendment right to adequate mental health treatment. The Report and 15 Recommendation concluded Plaintiff failed to sufficiently allege a claim against 16 Penzone, Centurion, or the Maricopa County Sheriff’s Office for violation of Plaintiff’s 17 Fourteenth Amendment right to adequate mental health treatment, determining Plaintiff 18 had not “pled adequate facts to make plausible his claim that Penzone personally 19 participated in the denial of adequate mental health treatment, nor has he pled facts 20 supporting a plausible, sufficient causal connection between Penzone’s general 21 supervision of the jail and the asserted constitutional violation.” (ECF No. 16 at 8). 22 In Count Two of his proposed second amended complaint Plaintiff alleges: 23 Collins’ actions were “reported to Paul Penzone who is boss of [] Collins. Paul Penzone 24 and his officers aided [] Collins in forcefully removing me from mental health unit.” 25 (ECF No. 33-1 at 12). He also contends:

26 Paul Penzone fail[ed] in his duty to protect [Plaintiff] by properly hiring, training and controlling and supervising his staff by his actions he 27 committed the act of gross negligent he also encouraged his officers and [] 28 Collins by his inability to meet his dutys (or complete) there actions were directly supervised by Paul Penzone therefore he knew of the incidents and 1 chose not to act to fix issues. Correctional Health Services also aided [] Collins in his acts before stated by also refusing me treatment and 2 upholding prohibited ban on mental health services to the fourth ave jail 3 mental health staff. … According [] Collins, Paul Penzone and Correction Health Services therefore denied, delayed and intentionally interfere with 4 my medical and mental health treatment they all knew of the risk due to 5 prior at tempts to self harm. [sic] 6 (ECF No. 33-1 at 19). Plaintiff also asserts: “Maricopa County Sheriff Officers, 7 Correctional Health Service and CHS providers aided [] Collins in depriving [Plaintiff] of 8 medical and mental health treatment [] Collins entered a speed letter stating to all staff 9 that i wasn’t welcome back to P3 and it’s services. [sic]” (ECF No. 33-1 at 13). 10 Plaintiff had not pled adequate facts to make plausible his claim that Penzone 11 personally participated in the denial of adequate mental health treatment, nor has he pled 12 facts supporting a plausible, sufficient causal connection between Penzone’s general 13 supervision of the jail and the asserted constitutional violation stated against Collins in 14 Count Two. Nor has Plaintiff identified an actual policy or practice of either the 15 Maricopa County Sheriff’s Office or Correctional Health Services of denying pretrial 16 detainees of adequate mental health services. 17 C. Damages 18 In his Complaint Plaintiff’s request for relief seeks, with regard to Count One, 19 $50,000 to compensate him for his loss of hearing and $15,000 “for all other injur[ies].” 20 (ECF No. 1 at 20). Plaintiff sought “$5800 dollars” for the damages sustained as a result 21 of the acts stated in Count Two and “$4600” for the damages sustained as a result of the 22 acts stated in Count Three. (Id.). In his proposed amended complaint Plaintiff sought a 23 “total of 69,600 in funds.” (ECF No. 9-1 at 17). In the proposed second amended 24 complaint Plaintiff seeks “A TOTAL OF 1.4 million dollars.” Plaintiff does not explain 25 whether he is seeking compensatory or punitive damages, or the damages sought against 26 each individual Defendant, or the amount of damages sought pursuant to which count of 27 his complaint. 28 1 IV. Conclusion 2 Plaintiff has failed to cure the deficiencies identified in the screening order and 3 noted in the Report and Recommendation with regard to his allegations against Penzone, 4 the Maricopa County Sheriff’s Office, or Correctional Health Services. The increase in 5 the amount of damages sought, from $69,600 to $1.4 million, is not explained or 6 quantified with regard to the amount of damages sought from each individual Defendant 7 or pursuant to which of Plaintiff’s claims he seeks damages. 8 Accordingly, 9 IT IS RECOMMENDED that Plaintiff’s motion to amend (ECF No. 33) be 10 denied. 11 This recommendation is not an order that is immediately appealable to the Ninth 12 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 13 Rules of Appellate Procedure should not be filed until entry of the District Court’s 14 judgment. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have 15 fourteen (14) days from the date of service of a copy of this recommendation within 16 which to file specific written objections with the Court. Thereafter, the parties have 17 fourteen (14) days within which to file a response to the objections. Pursuant to 18 Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the 19 District of Arizona, objections to the Report and Recommendation may not exceed ten 20 (10) pages in length. 21 22 /// 23 24 /// 25 26 /// 27 28 /// 1 Failure to file timely objections to the Magistrate Judge’s Report and || Recommendation may result in the acceptance of the Report and Recommendation by the □□ District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the 5 || Magistrate Judge may be considered a waiver of a party’s right to appellate review of the 6|| findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s || recommendation. See Fed. R. Civ. P. 72. 8 Dated this 28th day of September, 2021. 9 10 / ) 4 □□ 77 3 2 ( tbe Le = ao Camille D. Bibles 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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