1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Johnson, No. CV 21-00559-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER David Shinn, et al., 12 Defendants. 13
14 15 Plaintiff Richard Johnson is confined in the Arizona State Prison Complex-Eyman 16 and has been granted leave to proceed in forma pauperis. In an October 5, 2021 Order, the 17 Court ordered Defendants Higginson, Thielman, and O’Connor to answer Counts Two and 18 Three of the First Amended Complaint but dismissed Count One, including Plaintiff’s 19 untimely retaliation claim against Defendant Brass based on events that took place in 2014. 20 On October 19, 2021, Plaintiff filed a Request for Judicial Review (Doc. 11), seeking 21 reconsideration of the dismissal of Defendant Brass because Plaintiff believes the 22 limitations period did not begin in 2014 and was tolled pursuant to Arizona Revised 23 Statutes section 12-821.01(C). Even if the limitations period began at a later time and was 24 tolled, it is not enough to make the retaliation claim against Defendant Brass timely. Thus, 25 the Court will deny the Request for Judicial Review. 26 I. Relevant Background 27 In his First Amended Complaint, Plaintiff alleged that prior to May 1, 2014, he was 28 confined in a maximum-security solitary confinement unit and submitted grievances 1 regarding cell conditions and officers sexually harassing him. On May 1, 2014, he was 2 transferred to a less restrictive unit, where he continued to pursue his previously filed 3 grievances, despite a corrections officer telling him to “let [his] grievances go.” 4 Plaintiff claimed that on June 5, 2014, he was involuntarily transferred to a more 5 restrictive, maximum-security unit, “‘pending validation’” as a Security Threat 6 Group (STG) member. Plaintiff asserted this was “mere pretext” because, at that point, 7 Special Security Unit (SSU) officers had not initiated his STG validation packet and had 8 not “collected the necessary STG-specific evidence to consider Plaintiff as an STG 9 suspect.” Plaintiff was validated as an STG member after an October 2014 hearing. 10 Plaintiff alleged that Defendant Brass, who was the SSU officer who initiated 11 Plaintiff’s validation packet “before he was even a suspect and after Plaintiff submitted 12 several grievances,” engaged in retaliatory conduct and that a reasonable person could 13 conclude Defendant Brass’s actions were “highly questionable” regarding “the timing of 14 the evidence gathering,” the validity of the evidence, and the “nonexistence of documented 15 gang activity prior to Plaintiff’s ‘pending validation’ transfer.” Specifically, Plaintiff 16 claimed Defendant Brass: “purportedly found paperwork in Plaintiff’s property that he 17 deemed [to be] STG documents”; “used a list of names that he portrayed as [being in] 18 Plaintiff’s handwriting as evidence of gang activity”; and transferred Plaintiff to the 19 maximum-security unit “before the requisite documented assignment of the minimum 20 points.” 21 After Plaintiff was validated, he filed a civil rights lawsuit, Johnson v. McWilliams, 22 CV 15-00670-PHX-MTL (D. Ariz.), against several prison officials, but not Defendant 23 Brass. According to Plaintiff, on January 23, 2020, the parties agreed to a “Settlement 24 Agreement and Release of Claims” providing, among other things, that Plaintiff would 25 receive a new validation hearing. Plaintiff received his new validation hearing in 26 September 2020. 27 In dismissing as untimely the retaliation claim against Defendant Brass, the Court 28 noted that the applicable statute of limitations in an action under 42 U.S.C. § 1983 is the 1 forum state’s statute of limitations for personal injury actions, see Wilson v. Garcia, 471 2 U.S. 261, 276 (1985), and that the Arizona statute of limitations for personal injury actions 3 is two years, see Ariz. Rev. Stat. § 12-542(1). The Court explained that accrual of § 1983 4 claims is governed by federal law, Wallace v. Kato, 549 U.S. 384, 388 (2007), and that 5 under federal law, a claim accrues when the plaintiff “knows or has reason to know of the 6 injury that is the basis of the action.” Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012); 7 Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 1998). Because Defendant 8 Brass’s allegedly retaliatory conduct took place in 2014, the Court concluded that 9 Plaintiff’s claim against Defendant Brass had accrued more than two years before Plaintiff 10 filed his Complaint on March 31, 2021. 11 II. Plaintiff’s Request for Judicial Review 12 Plaintiff claims that while Defendant Brass’s actions took place in 2014, Plaintiff 13 could not have known of his injury “absent [CV 15-00670]” because “[p]rior to [CV 15- 14 00670], [Defendant] Brass’s unconstitutional actions remained ‘confidential’ and “on a 15 need-to-know basis only’ in accordance with departmental policies in effect at the time.” 16 Plaintiff also contends the limitations period was tolled under Arizona Revised 17 Statutes section 12-821.01(C), which tolls the time for filing a notice of claim against a 18 public entity or public employee for “any claim that must be submitted to a binding or 19 nonbinding dispute resolution process or an administrative claims process or review 20 process pursuant to a statute, ordinance, resolution, administrative or governmental rule or 21 regulation, or contractual term” until “all such procedures, processes or remedies have been 22 exhausted.” According to Plaintiff, the settlement agreement in CV 15-00670 released his 23 claims and causes of action against three individuals but did not release his claims against 24 the State of Arizona, its departments or agencies, or its agents or employees, “including 25 claims or causes of action that may arise out of the new Validation Hearing.” Plaintiff 26 alleges that because he accepted another validation hearing, Defendant Brass’s 27 “unconstitutional actions contributed, enabled, and perpetuated Plaintiff’s cause of action.” 28 He also asserts that his claim against Defendant Brass “was subjected ‘to a binding’ 1 ‘contractual term’—the settlement agreement in CV 15-00670—that “involved a ‘review 2 process pursuant to a . . . administrative or government rule or regulation’ (STG Validation 3 Appeal Process) that had to be exhausted,” and, therefore, his cause of action did not accrue 4 until “an underlying judgment bec[a]me filing or non-appealable.” 5 Finally, Plaintiff alleges Defendant Brass could have “cured his unconstitutional 6 actions” at the new validation hearing, but “consciously chose to perpetuate his 7 unconstitutional actions” when he provided “misleading and/or factually inaccurate” 8 answers to Plaintiff’s questions at a 2020 validation hearing. 9 III. Standard When Considering a Motion for Reconsideration 10 Motions for reconsideration should be granted only in rare circumstances. 11 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 12 reconsideration is appropriate where the district court “(1) is presented with newly 13 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 14 or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah 15 County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions should not be 16 used for the purpose of asking a court “‘to rethink what the court had already thought 17 through – rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above 18 the Belt, Inc. v.
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1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Johnson, No. CV 21-00559-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER David Shinn, et al., 12 Defendants. 13
14 15 Plaintiff Richard Johnson is confined in the Arizona State Prison Complex-Eyman 16 and has been granted leave to proceed in forma pauperis. In an October 5, 2021 Order, the 17 Court ordered Defendants Higginson, Thielman, and O’Connor to answer Counts Two and 18 Three of the First Amended Complaint but dismissed Count One, including Plaintiff’s 19 untimely retaliation claim against Defendant Brass based on events that took place in 2014. 20 On October 19, 2021, Plaintiff filed a Request for Judicial Review (Doc. 11), seeking 21 reconsideration of the dismissal of Defendant Brass because Plaintiff believes the 22 limitations period did not begin in 2014 and was tolled pursuant to Arizona Revised 23 Statutes section 12-821.01(C). Even if the limitations period began at a later time and was 24 tolled, it is not enough to make the retaliation claim against Defendant Brass timely. Thus, 25 the Court will deny the Request for Judicial Review. 26 I. Relevant Background 27 In his First Amended Complaint, Plaintiff alleged that prior to May 1, 2014, he was 28 confined in a maximum-security solitary confinement unit and submitted grievances 1 regarding cell conditions and officers sexually harassing him. On May 1, 2014, he was 2 transferred to a less restrictive unit, where he continued to pursue his previously filed 3 grievances, despite a corrections officer telling him to “let [his] grievances go.” 4 Plaintiff claimed that on June 5, 2014, he was involuntarily transferred to a more 5 restrictive, maximum-security unit, “‘pending validation’” as a Security Threat 6 Group (STG) member. Plaintiff asserted this was “mere pretext” because, at that point, 7 Special Security Unit (SSU) officers had not initiated his STG validation packet and had 8 not “collected the necessary STG-specific evidence to consider Plaintiff as an STG 9 suspect.” Plaintiff was validated as an STG member after an October 2014 hearing. 10 Plaintiff alleged that Defendant Brass, who was the SSU officer who initiated 11 Plaintiff’s validation packet “before he was even a suspect and after Plaintiff submitted 12 several grievances,” engaged in retaliatory conduct and that a reasonable person could 13 conclude Defendant Brass’s actions were “highly questionable” regarding “the timing of 14 the evidence gathering,” the validity of the evidence, and the “nonexistence of documented 15 gang activity prior to Plaintiff’s ‘pending validation’ transfer.” Specifically, Plaintiff 16 claimed Defendant Brass: “purportedly found paperwork in Plaintiff’s property that he 17 deemed [to be] STG documents”; “used a list of names that he portrayed as [being in] 18 Plaintiff’s handwriting as evidence of gang activity”; and transferred Plaintiff to the 19 maximum-security unit “before the requisite documented assignment of the minimum 20 points.” 21 After Plaintiff was validated, he filed a civil rights lawsuit, Johnson v. McWilliams, 22 CV 15-00670-PHX-MTL (D. Ariz.), against several prison officials, but not Defendant 23 Brass. According to Plaintiff, on January 23, 2020, the parties agreed to a “Settlement 24 Agreement and Release of Claims” providing, among other things, that Plaintiff would 25 receive a new validation hearing. Plaintiff received his new validation hearing in 26 September 2020. 27 In dismissing as untimely the retaliation claim against Defendant Brass, the Court 28 noted that the applicable statute of limitations in an action under 42 U.S.C. § 1983 is the 1 forum state’s statute of limitations for personal injury actions, see Wilson v. Garcia, 471 2 U.S. 261, 276 (1985), and that the Arizona statute of limitations for personal injury actions 3 is two years, see Ariz. Rev. Stat. § 12-542(1). The Court explained that accrual of § 1983 4 claims is governed by federal law, Wallace v. Kato, 549 U.S. 384, 388 (2007), and that 5 under federal law, a claim accrues when the plaintiff “knows or has reason to know of the 6 injury that is the basis of the action.” Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012); 7 Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 1998). Because Defendant 8 Brass’s allegedly retaliatory conduct took place in 2014, the Court concluded that 9 Plaintiff’s claim against Defendant Brass had accrued more than two years before Plaintiff 10 filed his Complaint on March 31, 2021. 11 II. Plaintiff’s Request for Judicial Review 12 Plaintiff claims that while Defendant Brass’s actions took place in 2014, Plaintiff 13 could not have known of his injury “absent [CV 15-00670]” because “[p]rior to [CV 15- 14 00670], [Defendant] Brass’s unconstitutional actions remained ‘confidential’ and “on a 15 need-to-know basis only’ in accordance with departmental policies in effect at the time.” 16 Plaintiff also contends the limitations period was tolled under Arizona Revised 17 Statutes section 12-821.01(C), which tolls the time for filing a notice of claim against a 18 public entity or public employee for “any claim that must be submitted to a binding or 19 nonbinding dispute resolution process or an administrative claims process or review 20 process pursuant to a statute, ordinance, resolution, administrative or governmental rule or 21 regulation, or contractual term” until “all such procedures, processes or remedies have been 22 exhausted.” According to Plaintiff, the settlement agreement in CV 15-00670 released his 23 claims and causes of action against three individuals but did not release his claims against 24 the State of Arizona, its departments or agencies, or its agents or employees, “including 25 claims or causes of action that may arise out of the new Validation Hearing.” Plaintiff 26 alleges that because he accepted another validation hearing, Defendant Brass’s 27 “unconstitutional actions contributed, enabled, and perpetuated Plaintiff’s cause of action.” 28 He also asserts that his claim against Defendant Brass “was subjected ‘to a binding’ 1 ‘contractual term’—the settlement agreement in CV 15-00670—that “involved a ‘review 2 process pursuant to a . . . administrative or government rule or regulation’ (STG Validation 3 Appeal Process) that had to be exhausted,” and, therefore, his cause of action did not accrue 4 until “an underlying judgment bec[a]me filing or non-appealable.” 5 Finally, Plaintiff alleges Defendant Brass could have “cured his unconstitutional 6 actions” at the new validation hearing, but “consciously chose to perpetuate his 7 unconstitutional actions” when he provided “misleading and/or factually inaccurate” 8 answers to Plaintiff’s questions at a 2020 validation hearing. 9 III. Standard When Considering a Motion for Reconsideration 10 Motions for reconsideration should be granted only in rare circumstances. 11 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 12 reconsideration is appropriate where the district court “(1) is presented with newly 13 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 14 or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah 15 County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions should not be 16 used for the purpose of asking a court “‘to rethink what the court had already thought 17 through – rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above 18 the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). A motion 19 for reconsideration “may not be used to raise arguments or present evidence for the first 20 time when they could reasonably have been raised earlier in the litigation.” Kona Enters., 21 Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Nor may a motion for 22 reconsideration repeat any argument previously made in support of or in opposition to a 23 motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. 24 Ariz. 2003). Mere disagreement with a previous order is an insufficient basis for 25 reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 26 1988). 27 . . . . 28 . . . . 1 IV. Analysis 2 Plaintiff’s alleged injury was being validated as an STG member. Even if Plaintiff 3 did not specifically know of Defendant Brass’s alleged involvement in 2014, he was, at a 4 minimum, aware of his injury by April 14, 2015, when he specifically raised a retaliation 5 claim based on the STG validation in his original complaint in CV 15-00670.1 6 See Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir. 1984) (“Discovery of the cause 7 of one’s injury, however, does not mean knowing who is responsible for it.”); Clavette v. 8 Sweeney, 132 F. Supp. 2d 864, 875 (D. Or. 2001) (“a cause of action accrues when the 9 plaintiff knows of the injury and its physical cause even if the plaintiff does not know who 10 inflicted the harm”). And Plaintiff certainly knew of Defendant Brass’s alleged 11 involvement by March 3, 2017, when defendants in CV 15-00670 filed a statement of facts 12 in support of their motion for summary judgment with excerpts of Plaintiff’s Validation 13 Packet, including portions of Defendant Brass’s SSU Memorandum. See CV 15-00670, 14 Doc. 129-1 at 40-75. Even that date is more than two years before Plaintiff filed this 15 lawsuit. 16 Moreover, although Plaintiff’s argument regarding Arizona Revised Statutes 17 section 12-821.01(C) is difficult to follow, that statute only tolls the limitations period 18 during the mandatory exhaustion of administrative remedies. See Brown v. Valoff, 422 19 F.3d 926, 943 (9th Cir. 2005). It did not toll the limitations period for his claim against 20 Defendant Brass while Plaintiff litigated and settled CV 15-00670 or while he received and 21 then challenged his new validation hearing. 22 Finally, Defendant Brass’s alleged decision to “perpetuate his unconstitutional 23 actions” at a new validation hearing in 2020 does not somehow revive Plaintiff’s claim 24 regarding actions Defendant Brass allegedly took in 2014. 25
26 1 See CV 15-00670, Doc. 1 at 17 (“I believe that ADOC’s decision to validate me as a member of a Security Threat Group (STG) was done as another action of retaliation. 27 The contradicting statements made to me by prison officials, the dates given during the validation process, the evidence used to validate me (alleged evidence), the lack of an 28 impartial committee, the lack of due process, and the chronological order of being validated I believe are retaliatory.”). ] | The Court has reviewed the First Amended Complaint, the October 5, 2021 Order, 2 | and Plaintiff's Request for Judicial Review. The Court finds no basis to reconsider its 3 | decision. Thus, the Court will deny Plaintiff's Request for Judicial Review. 4 | IT IS ORDERED: 5 | (1) The reference to Magistrate Judge Eileen S. Willett is withdrawn only with 6 | respect to Plaintiff's Request for Judicial Review (Doc. 11). All other matters in this action 7 | remain with Magistrate Judge Willett for disposition as appropriate. 8 | (2) Plaintiff’'s Request for Judicial Review (Doc. 11) is denied. 9 | Dated this 27th day of October, 2021. 10 | | Mk Lop. ‘chal T. Gibuake Michael T. Liburdi 13 | United States District Judge 14 | 15 | 16 | 17| 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 |