1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Edward Lee Jones, Sr., No. CV 20-01371-PHX-MTL (JZB) 10 Plaintiff, 11 v. ORDER 12 Baldinado, et al., 13 Defendants.
14 15 On July 9, 2020, Plaintiff Edward Lee Jones, Sr., who is confined in the Arizona 16 State Prison Complex-Eyman in Florence, Arizona, filed a pro se civil rights Complaint 17 pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma 18 Pauperis (Doc. 2). The Court will order Defendant Baldinado to answer Counts One and 19 Two of the Complaint, order Defendant Ridnour to answer the excessive force claim in 20 Count Three, order Defendant Leifson to answer Count Seven, and dismiss the remaining 21 claims and Defendants without prejudice. 22 I. Application to Proceed In Forma Pauperis and Filing Fee 23 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 24 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 25 § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing 26 fee will be collected monthly in payments of 20% of the previous month’s income credited 27 to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 28 1 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 2 agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 8 relief may be granted, or that seek monetary relief from a defendant who is immune from 9 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 27 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 28 1 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 2 U.S. 89, 94 (2007) (per curiam)). 3 III. Complaint 4 In his seven-count Complaint, Plaintiff sues the following Defendants: Deputy 5 Warden J. Kimble; Lieutenant Aims; Sergeants Ridnour and Serreto; Correctional Officers 6 II Baldinado, Kyle, and T. Tyler; and Centurion employees John/Jane Doe and Leifson. 7 Plaintiff sues Defendants Baldinado, Ridnour, Serreto, Aims, Doe, and Leifson in their 8 individual and official capacities. In his Request for Relief, Plaintiff seeks monetary 9 damages and payment of his filing fees. 10 In Count One (Doc. 1 at 5-10),1 Plaintiff alleges Defendant Baldinado, in violation 11 of Plaintiff’s Eighth Amendment rights, acted unprofessionally and unjustifiably when he 12 maliciously and sadistically used unreasonable and excessive force against Plaintiff. (Id. 13 at 5.) Specifically, Plaintiff contends that on July 23, 2019,2 Defendant Baldinado was 14 passing out inmate property and gave Plaintiff three “inmate 15 property/contraband/disposition tracking forms” regarding eighteen of Plaintiff’s compact 16 discs. (Id. at 7.) Plaintiff claims he went back to his cell, obtained documentation 17 indicating that he had previously been issued the compact discs, and attempted to show the 18 documentation to Defendant Baldinado and request a supervisor, but Defendant Baldinado 19 ignored him. (Id. at 7-8.) Plaintiff asserts he got the attention of a corrections officer, who 20 gave Plaintiff permission to leave his pod and come talk to her. (Id. at 8.) Plaintiff contends 21 Defendant Baldinado heard him talking to the corrections officer; said, “fuck this shit”; 22 stopped passing out the property; placed the property cart in a room; and returned to where 23 Plaintiff was talking to the corrections officer. (Id.) Plaintiff alleges Defendant Baldinado 24 “attempted to start an argument with [Plaintiff] regarding what [Special Management
25 1 Because Plaintiff has misnumbered some of his claims, the Court will include 26 references to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 27 2 Although Plaintiff alleges the incident took place on July 23, 2018, and on July 28 23, 2019, it is clear from the totality of his allegations that the event took place on July 23, 2019. 1 Unit 1 (SMU-1)] policy allowed and did not allow.” (Id.) Plaintiff claims he explained to 2 Defendant Baldinado that SMU-1 did not have a special policy and that Plaintiff’s compact 3 discs had already been approved. (Id. at 8.) Plaintiff told Defendant Baldinado that “he 4 recognize[d Defendant Baldinado was] attempt[ing] to distract [Plaintiff] from obtaining 5 assistance” and continued to talk with the corrections officer. (Id. at 8-9.) 6 Plaintiff alleges Defendant Baldinado left briefly and then “aggressively came 7 back” to the area, placed his radio on the ground, approached Plaintiff and said, “this is my 8 shit,” and pushed Plaintiff. (Id. at 9.) Plaintiff claims he told Defendant Baldinado to keep 9 his hands to himself, but Defendant Baldinado pushed Plaintiff a second time and, in an 10 attempt to provoke Plaintiff, said, “See[,] you[’]r[e] not gonna do shit; you[’]r[e] all 11 talk.” (Id.) Plaintiff asserts he again told Defendant Baldinado to keep his hands to 12 himself, but Defendant Baldinado pushed Plaintiff a third time. (Id.) Plaintiff contends 13 that, at this point, he “defended himself by pushing [Defendant Baldinado] back.” (Id.) 14 Plaintiff claims the correctional officer activated an Incident Command System (ICS) and 15 reported a staff assault. (Id.) He contends Defendant Baldinado proceeded to wrestle 16 Plaintiff to the ground and kept him there until other officers arrived and pulled Defendant 17 Baldinado off of Plaintiff. (Id.) 18 Plaintiff claims Defendant Baldinado’s actions did not advance a legitimate 19 penological interest and were done to harm Plaintiff and send him back to maximum 20 custody. (Id.) Plaintiff alleges he suffered bruises to his shoulders and pain in his leg and 21 face from being assaulted, wrestled to the ground, and kicked in the face while Defendant 22 Baldinado’s coworkers sat on Plaintiff’s back and head. (Id. at 5.) Plaintiff also claims he 23 suffered mental stress and psychological trauma that caused him to be placed on medication 24 for resultant anxiety and sleep issues. (Id.) 25 In Count Two (id. at 11-12), Plaintiff alleges Defendant Baldinado retaliated 26 against him, in violation of Plaintiff’s First Amendment rights, because Plaintiff sought a 27 corrections officer’s assistance to resolve his property issue and because he ignored 28 Defendant Baldinado’s attempt to prevent him from getting help from the corrections 1 officer. (Id. at 11.) Specifically, Plaintiff asserts Defendant Baldinado pushed him several 2 times, wrestled him to the ground after he defended himself, and accused Plaintiff of 3 assaulting him. (Id.) Plaintiff claims this would not have occurred if he had not sought the 4 corrections officer’s assistance regarding his property. (Id.) Plaintiff also asserts that 5 Defendant Baldinado’s actions did not advance a legitimate penological interest and were 6 done to cause Plaintiff harm and send him back to maximum custody. (Id. at 12.) 7 In Count Three (id. at 13-15), Plaintiff alleges he was subjected to excessive force 8 and retaliation by Defendant Ridnour, in violation of Plaintiff’s Eighth Amendment 9 rights. (Id. at 13.) Plaintiff asserts that after he defended himself from Defendant 10 Baldinado, he was wrestled to the ground and then restrained by Defendant Baldinado’s 11 co-workers, who put their knees on Plaintiff’s head and back. (Id. at 13-14.) Plaintiff 12 contends he was non-resistant, handcuffed, and lying on his stomach on the ground when 13 Defendant Ridnour and others walked into the wing. (Id. at 14.) He claims Defendant 14 Ridnour initially walked past Plaintiff then doubled back, kicked Plaintiff in the face, and 15 walked away. (Id.) Plaintiff asserts Defendant Ridnour’s actions did not advance a 16 legitimate penological objective, were not applied in a good faith effort to maintain or 17 restore discipline, were done maliciously and sadistically to cause harm, and were 18 unnecessary and retaliatory. (Id.) 19 Plaintiff also claims that when other officials arrived, he was accused of assaulting 20 Defendant Baldinado, which was a “falsehood” that Defendant Ridnour used to retaliate 21 against Plaintiff and that SMU-1 administration used to cover up Defendant Baldinado’s 22 conduct and to reclassify Plaintiff to maximum custody. (Id.) In addition, Plaintiff asserts 23 that in June 2020, Defendant Ridnour indirectly threatened Plaintiff, “talk[ed] down” to 24 him, discussed the prior incident, and, when Plaintiff indicated he was going to sue 25 Defendant Ridnour for kicking him, Defendant Ridnour told him, “this won[’]t be my first 26 time being sued.” (Id. at 15.) 27 In Count Four (id. at 16-18), Plaintiff alleges Defendant Serreto subjected him to 28 deliberate indifference and retaliation, in violation of his First, Eighth, and Fourteenth 1 Amendment rights. (Id. at 16.) He asserts that between June 5 and July 19, 2019, he 2 continuously sought Defendant Serreto’s assistance in obtaining his property, but he 3 received “no meaningful assistance” from her, despite her claims that she would resolve 4 the issue. (Id.) Plaintiff also alleges that he subsequently attempted to address the issue 5 with Defendant Serreto, but she told him that she was “staying out of it” and he needed to 6 resolve the issue “with property.” (Id. at 17.) Finally, Plaintiff contends that after the July 7 23, 2019 incident, Defendant Serreto walked into a room in the medical department; asked 8 Plaintiff, “in an aggressive tone[,] ‘Are you happy now?”; and told Plaintiff that she did 9 not help him with his property because he was “a piece of shit.” (Id. at 18.) Plaintiff 10 contends Defendant Serreto’s acts and omissions did not advance a legitimate penological 11 justification and were done to retaliate against Plaintiff for filing grievances and lawsuits 12 and seeking the return of his property. He also contends Defendant Serreto retaliated by 13 denying him equal protection and discriminated against Plaintiff because he wrote 14 grievances regarding her subordinates and co-workers and because Plaintiff was known to 15 file lawsuits against them. (Id.) 16 In Count Five (id. at 19-21), Plaintiff alleges Defendant Aims violated the 17 prohibition against cruel and unusual punishment and denied Plaintiff due process by 18 issuing a “false” disciplinary infraction accusing Plaintiff of punching Defendant 19 Baldinado in the face. (Id. at 19.) He claims Defendant Aims issued the disciplinary 20 infraction to retaliate against Plaintiff for acting in self-defense and causing an ICS to be 21 activated and to cover-up Defendant Baldinado’s excessive force. (Id. at 19-20.) Plaintiff 22 contends Defendant Aims wrote the disciplinary infraction, despite his failure to witness 23 the incident, because he knew that his subordinates would not second-guess the disciplinary 24 infraction and Plaintiff would be immediately placed in segregated confinement and then 25 placed in maximum custody after the infraction was upheld. (Id. at 20.) 26 Plaintiff alleges Defendant Aims subjected him to atypical and significant 27 hardships, without due process, because he was transferred from a close-custody unit, 28 where he was allowed to spend at least six hours per day out of his cell, shower daily, 1 possess almost all of his property, work, and recreate three to four times a week, to 2 segregated confinement, where he was locked down 24-hours per day with little to no 3 human contact. (Id. at 20-21.) Plaintiff contends he was denied due process in the 4 grievance process because all Arizona Department of Corrections officials “work[ed] 5 together in pushing [Defendant Aims’s] version of the facts although [they were] false” 6 and did “not allow[ Plaintiff’s] to go forward” for three months. (Id. at 21.) Plaintiff also 7 claims he was denied due process on the disciplinary infraction because he did not receive 8 written notice until almost a month after the alleged assault occurred. (Id.) Plaintiff 9 contends he is currently in maximum custody, where he is locked down 24 hours a day and 10 has no out-of-cell activity except for showers. (Id.) 11 Plaintiff claims his Eighth Amendment rights were violated because he was “never 12 given segregation time[,] but [was] made to spend approximately 6 or so months in super- 13 max.” (Id.) He also claims Defendant Aims’s acts or omissions did not advance a 14 legitimate penological interest and were done to conceal Defendant Baldinado’s 15 misconduct and to “get [Plaintiff] slammed down in Detention/Maximum Custody under 16 false pretenses.” (Id.) 17 In Count Six (id. at 22-23),3 Plaintiff alleges Defendant Doe subjected him to 18 deliberate indifference regarding his medical care, in violation of the Eighth 19 Amendment. (Id. at 22.) He claims that after the July 23, 2019 incident, he was denied 20 medical care or treatment by Defendant Doe, who “never showed up,” either before or after 21 his transfer to another unit. (Id.) 22 Plaintiff claims he submitted a July 25, 2019 health needs request informing the 23 medical staff that he had been attacked and kicked in the face; he had pain in shoulder, leg, 24 and face; his anxiety was high; he was having trouble sleeping; and he was constantly on 25 alert. (Id.) He contends he was placed on the nurses’ line on July 29, 2019. (Id.) Plaintiff 26 alleges that by August 8, 2019, he had not been called to the medical department, so he 27 submitted another health needs request, informing the medical department that he was still
28 3 Plaintiff mistakenly identifies this claim as “Count 8.” 1 having anxiety. (Id.) He claims he did not receive a response, but he was finally seen by 2 the mental health department on August 21, 2019, and was prescribed hydroxyzine and 3 Effexor. (Id.) Plaintiff asserts he filed an August 23, 2019 informal inmate complaint 4 alleging he had been denied medical care, but he received no response, so he submitted a 5 September 17, 2020 inmate grievance. (Id. at 22-23.) Plaintiff alleges he was finally seen 6 by the medical department on September 18, 2019, by which time his injuries had 7 healed. (Id.) At that appointment, he was taken off hydroxyzine and placed on mirtazapine 8 to help with his sleep and anxiety issues. (Id.) 9 In Count Seven (id. at 24-26),4 Plaintiff alleges Defendant Leifson denied him 10 medical care, in violation of his Eighth Amendment rights, by “wrongful[ly]” taking him 11 off his medications. (Id. at 24.) Plaintiff asserts he had been prescribed clonidine and 12 Celexa in December 2019. (Id.) During a follow-up appointment with Defendant Leifson 13 on January 27, 2020, Plaintiff explained that the Celexa was making him sluggish and he 14 no longer needed the antidepressant because he no longer had depression issues and that 15 he only needed help with mood swings, anxiety, and sleep issues. (Id.) He explained that 16 the clonidine was working and that he was fine with continuing it. (Id.) Plaintiff asserts 17 that “[o]ut of the blue,” Defendant Leifson asked if Plaintiff suffered from erectile 18 disfunction. (Id.) Plaintiff claims he felt this was disrespectful because it had nothing to 19 do with his medical request, and Defendant Leifson, realizing Plaintiff was upset, explained 20 that he had asked the question because the medication caused erectile disfunction. (Id. 21 at 24-25.) Plaintiff alleges he told Defendant Leifson that he would be submitting an 22 informal complaint against him and requested to be seen by another medical provider. (Id. 23 at 25.) 24 Plaintiff asserts that after he filed an informal complaint against Defendant Leifson, 25 Defendant Leifson retaliated against him by discontinuing both medications and 26 documenting in Plaintiff’s mental health file that Plaintiff had requested to be removed 27 from both medications. (Id.) Plaintiff claims that because of Defendant Leifson’s
28 4 Plaintiff mistakenly refers to this count as “Count IV.” 1 retaliatory actions, which did not further any penological interests, he has been denied 2 medical/mental health treatment since January 27, 2020. (Id. at 26.) Plaintiff alleges he is 3 having constant anxiety attacks, he is losing sleep, his mood is unbalanced, and he has 4 mental stress. (Id. at 24, 26.) 5 IV. Discussion of Complaint 6 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 7 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 8 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 9 civil rights complaint may not supply essential elements of the claim that were not initially 10 pled. Id. 11 A. Defendants Kyle, Kimble, and Tyler 12 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 13 specific injury as a result of specific conduct of a defendant and show an affirmative link 14 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 15 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, 16 a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s 17 constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 18 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 19 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and 20 § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 21 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 22 Plaintiff has not alleged that Defendants Kyle, Kimble, and Tyler personally 23 participated in a deprivation of Plaintiff’s constitutional rights, were aware of a deprivation 24 and failed to act, or formed policies that resulted in Plaintiff’s injuries. Plaintiff has made 25 no allegation in his Complaint against these Defendants. Thus, the Court will dismiss 26 without prejudice Defendants Kyle, Kimble, and Tyler. 27 . . . . 28 . . . . 1 B. Official Capacity Claims 2 A suit against a defendant in his or her official capacity represents only another way 3 of pleading an action against the entity that employs the defendant. Kentucky v. Graham, 4 473 U.S. 159, 165 (1985). That is, the real party in interest is not the named defendant, but 5 the entity that employs the defendant. Id. 6 1. Defendants Baldinado, Ridnour, Serreto, and Aims 7 “[A] suit against a state official in his or her official capacity is not a suit against the 8 official but rather is a suit against the official’s office. As such, it is no different from a 9 suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) 10 (internal citation omitted). Plaintiff cannot maintain a lawsuit for damages against 11 Defendants Baldinado, Ridnour, Serreto, and Aims in their official capacities. See Hafer 12 v. Melo, 502 U.S. 21, 27 (1991) (“State officials sued for damages in their official capacity 13 are not ‘persons’ for purposes of the suit because they assume the identity of the 14 government that employs them.”); see also Gilbreath v. Cutter Biological, Inc., 931 F.2d 15 1320, 1327 (9th Cir. 1991) (“[A] state is not a ‘person’ for purposes of section 1983. 16 Likewise[,] ‘arms of the State’ such as the Arizona Department of Corrections are not 17 ‘persons’ under section 1983.”) (citation omitted). Thus, the Court will dismiss Plaintiff’s 18 official capacity claims against Defendants Baldinado, Ridnour, Serreto, and Aims. 19 2. Defendants Doe and Leifson 20 For an individual to be liable in his official capacity, a plaintiff must allege that the 21 entity’s policy or custom was a moving force behind the alleged constitutional violation. 22 Kentucky v. Graham, 473 U.S. at 166. A plaintiff must allege, as a matter of law, that the 23 entity’s policy or custom caused him to suffer constitutional injury. Sadoski v. Mosley, 24 435 F.3d 1076, 1080 (9th Cir. 2006). Plaintiff does not allege that any of his injuries were 25 the result of a specific Centurion policy or custom. Thus, the Court will dismiss Plaintiff’s 26 official capacity claims against Defendants Doe and Leifson. 27 . . . . 28 . . . . 1 C. Counts One and Two – Defendant Baldinado 2 Liberally construed, Plaintiff has stated excessive force (Count One) and 3 retaliation (Count Two) claims against Defendant Baldinado. Thus, the Court will require 4 Defendant Baldinado to answer Counts One and Two. 5 D. Count Three – Defendant Ridnour 6 1. Excessive Force 7 Liberally construed, Plaintiff has stated an excessive force claim against Defendant 8 Ridnour in Count Three, and the Court will require Defendant Ridnour to answer this 9 portion of Count Three. 10 2. Retaliation 11 A viable claim of First Amendment retaliation contains five basic elements: (1) an 12 assertion that a state actor took some adverse action against an inmate (2) because of 13 (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise 14 of his First Amendment rights (or that the inmate suffered more than minimal harm) and 15 (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 16 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 17 1997) (retaliation claims requires an inmate to show (1) that the prison official acted in 18 retaliation for the exercise of a constitutionally protected right, and (2) that the action 19 “advanced no legitimate penological interest”). The plaintiff has the burden of 20 demonstrating that his exercise of his First Amendment rights was a substantial or 21 motivating factor behind the defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. 22 v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 23 (9th Cir. 1989). 24 Plaintiff’s allegations do not support a conclusion that Defendant Ridnour’s 25 conduct—kicking Plaintiff, accusing Plaintiff of assaulting Defendant Baldinado, and 26 making comments in June 2020—was retaliation for Plaintiff’s exercise of his 27 constitutional rights. Thus, the Court will dismiss without prejudice the retaliation claim 28 in Count Three. 1 E. Count Four – Defendant Serreto 2 1. Deliberate Indifference 3 To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must 4 meet a two-part test. “First, the alleged constitutional deprivation must be, objectively, 5 sufficiently serious” such that the “official’s act or omission must result in the denial of the 6 minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 7 (1994) (internal quotations omitted). Second, the prison official must have a “sufficiently 8 culpable state of mind,” i.e., he must act with “deliberate indifference to inmate health or 9 safety.” Id. (internal quotations omitted). Deliberate indifference is a higher standard than 10 negligence or lack of ordinary due care for the prisoner’s safety. Id. at 835. In defining 11 “deliberate indifference” in this context, the Supreme Court has imposed a subjective test: 12 “the official must both be aware of facts from which the inference could be drawn that a 13 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 14 (emphasis added). 15 Defendant Serreto’s failure to help Plaintiff obtain his compact discs does not rise 16 to the level of deliberate indifference to a substantial risk of serious harm. Thus, the Court 17 will dismiss Plaintiff’s deliberate indifference claim against Defendant Serreto. 18 2. Retaliation 19 Although Plaintiff alleges Defendant Serreto retaliated against him for filing 20 grievances and lawsuits and seeking the return of his property, he alleges no facts in support 21 of this conclusion. Thus, the Court will dismiss Plaintiff’s retaliation claim against 22 Defendant Serreto. 23 3. Equal Protection 24 The Equal Protection Clause requires that persons who are similarly situated be 25 treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). An 26 equal protection claim may be established by showing that the defendant intentionally 27 discriminated against the plaintiff based on the plaintiff’s membership in a protected class, 28 Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), or that similarly situated 1 individuals were intentionally treated differently without a rational basis for the difference 2 in treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). 3 Plaintiff does not allege that he is a member of a protected class or that he was 4 treated differently than other similarly situated individuals without a rational basis for 5 treating him differently. Thus, the Court will dismiss without prejudice Plaintiff’s equal 6 protection claim against Defendant Serreto. 7 F. Count Five – Defendant Aims 8 1. Due Process 9 An inmate “has no constitutionally guaranteed immunity from being falsely or 10 wrongly accused of conduct which may result in the deprivation of a protected liberty 11 interest.” Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); see also Sprouse v. 12 Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (finding inmate’s claims based upon falsity of 13 charges brought by a prison counselor did not state a constitutional claim). 14 Although an inmate has “the right not to be deprived a protected liberty interest 15 without due process of law,” Freeman, 808 F.2d at 951, in analyzing a due process claim, 16 the Court must first decide whether Plaintiff was entitled to any process, and if so, whether 17 he was denied any constitutionally required procedural safeguard. Liberty interests that 18 entitle an inmate to due process are “generally limited to freedom from restraint which, 19 while not exceeding the sentence in such an unexpected manner as to give rise to protection 20 by the Due Process Clause of its own force, nonetheless imposes atypical and significant 21 hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. 22 Conner, 515 U.S. 472, 484 (1995) (internal citations omitted). 23 Even if Plaintiff was entitled to the procedural protections afforded by the Due 24 Process Clause, Plaintiff has failed to allege any facts to support a conclusion that 25 Defendant Aims was involved in the deprivation of due process, either in the placement of 26 Plaintiff in segregated confinement after being charged with the disciplinary infraction, the 27 grievance process, or the disciplinary hearing. 28 . . . . 1 Moreover, “[p]rison disciplinary proceedings are not part of a criminal prosecution, 2 and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff 3 v. McDonnell, 418 U.S. 539, 556 (1974). Procedural due process safeguards in a prison 4 disciplinary hearing require that the defendant receive: (1) written notice of the charges, no 5 less than twenty-four hours prior to the hearing; (2) a written statement by the fact-finder 6 as to the evidence relied on and reasons for the disciplinary action; and (3) a limited right 7 to call witnesses and present documentary evidence when it would not be unduly hazardous 8 to institutional safety or correctional goals to allow the defendant to do so. Id. at 565-66. 9 Plaintiff does not allege he was denied any of these procedural protections. 10 Thus, the Court will dismiss without prejudice Plaintiff’s due process claim against 11 Defendant Aims. 12 2. Eighth Amendment 13 Plaintiff’s Eighth Amendment allegations relate to the conditions in supermax, but 14 he does not allege anything to suggest Defendant Aims was responsible for these conditions 15 or disregarded any complaints Plaintiff made about them. Thus, the Court will dismiss 16 without prejudice Plaintiff’s Eighth Amendment claim against Defendant Aims. 17 G. Count Six – Defendant Doe 18 Not every claim by a prisoner relating to inadequate medical treatment states a 19 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 20 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 21 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 22 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 23 Cir. 2006). 24 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 25 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 26 know of and disregard an excessive risk to inmate health; “the official must both be aware 27 of facts from which the inference could be drawn that a substantial risk of serious harm 28 exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate 1 indifference in the medical context may be shown by a purposeful act or failure to respond 2 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 3 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official 4 intentionally denies, delays, or interferes with medical treatment or by the way prison 5 doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 6 (1976); Jett, 439 F.3d at 1096. 7 Deliberate indifference is a higher standard than negligence or lack of ordinary due 8 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 9 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 10 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 11 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 12 do not support a claim under § 1983). “A difference of opinion does not amount to 13 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 14 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 15 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 16 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 17 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 18 Estelle, 429 U.S. at 105. 19 To the extent Plaintiff is alleging Defendant Doe violated his Eighth Amendment 20 rights because he never showed up after Plaintiff was injured, Plaintiff’s allegations are too 21 vague and conclusory to state a claim. Plaintiff does not identify how Defendant Doe even 22 knew Plaintiff needed medical treatment. It appears Plaintiff is making allegations against 23 a group of individuals, without any factual specificity as to what any particular individual 24 did or failed to do. This is insufficient. See Marcilis v. Twp. of Redford, 693 F.3d 589, 25 596 (6th Cir. 2012) (upholding dismissal of Bivens complaint that referred to all defendants 26 “generally and categorically” because the plaintiff had failed to “‘allege, with particularity, 27 facts that demonstrate what each defendant did to violate the asserted constitutional right.’” 28 (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))); Robbins v. Oklahoma, 1 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s use of either the collective 2 term ‘Defendants’ or a list of the defendants named individually but with no distinction as 3 to what acts are attributable to whom, it is impossible for any of these individuals to 4 ascertain what particular unconstitutional acts they are alleged to have committed.”). Thus, 5 the Court will dismiss without prejudice Count Six and Defendant Doe. 6 H. Count Seven 7 Liberally construed, Plaintiff has stated claims against Defendant Leifson regarding 8 retaliation and the denial of medical care. The Court will require Defendant Leifson to 9 answer Count Seven. 10 V. Warnings 11 A. Release 12 If Plaintiff is released while this case remains pending, and the filing fee has not 13 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 14 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 15 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 16 result in dismissal of this action. 17 B. Address Changes 18 Plaintiff must file and serve a notice of a change of address in accordance with Rule 19 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 20 relief with a notice of change of address. Failure to comply may result in dismissal of this 21 action. 22 C. Copies 23 Because Plaintiff is currently confined in an Arizona Department of Corrections unit 24 subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy 25 of every document he files or to submit an additional copy of every filing for use by the 26 Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule 27 of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by 28 including, with every document he files, a certificate of service stating that this case is 1 subject to General Order 14-17 and indicating the date the document was delivered to 2 prison officials for filing with the Court. 3 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he 4 will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a 5 copy of every document that he files, and include a certificate stating that a copy of the 6 filing was served; and (b) submit an additional copy of every filing for use by the Court. 7 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 8 being stricken without further notice to Plaintiff. 9 D. Possible Dismissal 10 If Plaintiff fails to timely comply with every provision of this Order, including these 11 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 12 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 13 to comply with any order of the Court). 14 IT IS ORDERED: 15 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 16 (2) As required by the accompanying Order to the appropriate government 17 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 18 fee. 19 (3) Counts Four, Five, and Six are dismissed without prejudice. 20 (4) Defendants Serreto, Aims, Kyle, Doe, Kimble, and Tyler are dismissed 21 without prejudice. 22 (5) The following Defendants must answer the following claims in their 23 individual capacities only: Defendant Baldinado must answer Counts One and Two; 24 Defendant Ridnour must answer the excessive force claim in Count Three; and Defendant 25 Leifson must answer Count Seven. 26 (6) The Clerk of Court must send Plaintiff this Order, and a copy of the 27 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 28 for Waiver of Service of Summons form for Defendants Baldinado, Ridnour, and Leifson. 1 (7) Plaintiff must complete5 and return the service packet to the Clerk of Court 2 within 21 days of the date of filing of this Order. The United States Marshal will not 3 provide service of process if Plaintiff fails to comply with this Order. 4 (8) If Plaintiff does not either obtain a waiver of service of the summons or 5 complete service of the Summons and Complaint on a Defendant within 90 days of the 6 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 7 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 8 16.2(b)(2)(B)(ii). 9 (9) The United States Marshal must retain the Summons, a copy of the 10 Complaint, and a copy of this Order for future use. 11 (10) The United States Marshal must notify Defendants of the commencement of 12 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 13 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 14 Order. 15 (11) A Defendant who agrees to waive service of the Summons and Complaint 16 must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 17 30 days of the date of the notice and request for waiver of service pursuant to Federal 18 Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. 19 (12) The Marshal must immediately file signed waivers of service of the 20 summons. If a waiver of service of summons is returned as undeliverable or is not returned 21 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 22 the Marshal must: 23 (a) personally serve copies of the Summons, Complaint, and this Order 24 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 25 and 26
27 5 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee 28 works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. 1 (b) within 10 days after personal service is effected, file the return of 2 service for Defendant, along with evidence of the attempt to secure a waiver of 3 service of the summons and of the costs subsequently incurred in effecting service 4 upon Defendant. The costs of service must be enumerated on the return of service 5 form (USM-285) and must include the costs incurred by the Marshal for 6 photocopying additional copies of the Summons, Complaint, or this Order and for 7 preparing new process receipt and return forms (USM-285), if required. Costs of 8 service will be taxed against the personally served Defendant pursuant to Rule 9 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 10 Court. 11 (13) Defendants Baldinado, Ridnour, and Leifson must answer the relevant portions of the Complaint or otherwise respond by appropriate motion within the time 13 | provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 14 (14) Any answer or response must state the specific Defendant by name on whose 15 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 16 | does not identify the specific Defendant by name on whose behalf it is filed. 17 (15) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 18 | 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). 20 Dated this 16th day of September, 2020. 21 Wichad T. gibuade Michael T. Liburdi 24 United States District Judge 25 26 27 28