1 WO MGD 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eric Perez, No. CV 19-05602-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants.
14 15 Plaintiff Eric Perez, who is currently in the custody of the Arizona Department of 16 Corrections, Rehabilitation, and Reentry (ADCRR) and is represented by counsel, brought 17 this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant 18 Ryan’s Motion to Dismiss, which Plaintiff opposes. (Docs. 74, 77.) 19 I. Background 20 Plaintiff alleges in his Complaint that Defendants have failed to protect him “from 21 known harm in the form of other prisoners assaulting him” because he has aided law 22 enforcement and is known as a “snitch.” (Doc. 20 at 1.) Plaintiff alleges that front-line 23 Correctional Officers (COs) have told other prisoners that Plaintiff is a snitch and added a 24 false rumor that Plaintiff had exposed himself to a female officer, knowing these rumors 25 would put Plaintiff in danger of assault. (Id. at 1-2.) As a result, Plaintiff was assaulted 26 and injured by other prisoners on several occasions in November 2017. (Id. ¶¶ 17, 33, 51.) 27 Plaintiff asserts an Eighth Amendment failure-to-protect claim in Count One against 28 Defendants Assistant Deputy Warden (ADW) Chavez, and COs Denault, Palomino, 1 Coscorelli, Wickware, Hill, Reyes, and Soliz (the “Individual Defendants”). Plaintiff 2 alleges that the Individual Defendants were aware that their actions of spreading rumors 3 about Plaintiff being a confidential informant and exposing himself to a woman would put 4 Plaintiff in danger of being assaulted and that their actions caused Plaintiff to be assaulted 5 and injured. (Id. ¶¶ 129-132.) 6 Plaintiff asserts a failure-to-train and supervise claim in Count Two against 7 Defendants former ADCRR Director Ryan, Warden Larson, ADW Chavez, and Sergeants 8 Fink and Parra (the “Supervisory Defendants”). (Id. at 22.) Plaintiff alleges that the 9 Supervisory Defendants “were aware that the Individual Defendants were spreading 10 dangerous rumors about [Plaintiff] and that the rumors would cause other prisoners to 11 assault [Plaintiff]. (Id. ¶ 134.) Plaintiff further alleges that the Supervisory Defendants 12 “have an unwritten custom and practice of allowing front-line COs, including the 13 Individual Defendants, of controlling prisoners by spreading rumors among the other 14 prisoners that they know will prompt assaults” and that this custom and practice caused 15 Plaintiff to be assaulted and injured. (Id. ¶¶ 135-36.) In describing the nature of the action, 16 Plaintiff alleges that the Supervisory Defendants “were aware that the COs were placing 17 [Plaintiff] in harms’ way, but failed to intervene to protect [Plaintiff], and either actively 18 or by inaction, approved of the actions of the COs as a means of controlling prisoner 19 behavior.” (Id. at 2.) Plaintiff further alleges that Defendant Ryan, as Director of ADCRR, 20 was responsible for the overall operations, policies and practices of the Arizona state prison 21 system, including training and supervision, and “[o]n information and belief, Defendant 22 Ryan was responsible for, and aware of the custom and practice of allowing prisoners to 23 threaten and assault each other as a means of controlling their behavior.” (Id. ¶ 1.) 24 On screening of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A(a), the Court 25 determined that Plaintiff stated a failure-to-protect claim in Count One against Defendants 26 Chavez, Denault, Palomino, Coscorelli, Wickware, Hill, Reyes, and Soliz in their 27 individual capacities, and a failure-to-train claim in Count Two against current ADCRR 28 Director Shinn in his official capacity and against Ryan, Larson, Chavez, Aven, and Parra 1 in their individual and official capacities. (Doc. 5.) The Court dismissed the remaining 2 claims. (Id.) 3 Defendant Ryan now moves under Federal Rule of Civil Procedure 12(b)(6) to 4 dismiss the claim against him on the ground that Plaintiff fails to state a claim. (Doc. 74.) 5 Alternatively, Ryan argues that he is entitled to qualified immunity. (Id.) 6 II. Motion to Dismiss 7 A. Legal Standard 8 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the claims alleged 9 in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199–1200 (9th Cir. 2003). Dismissal 10 of the complaint, or any claim within it, may be based on either a “‘lack of a cognizable 11 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 12 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 13 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint must 14 contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic 15 Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 677–78 16 (2009). But “[s]pecific facts are not necessary; the statement need only give the defendant 17 fair notice of what . . . the claim is and the grounds upon which it rests.” Erickson v. 18 Pardus, 551 U.S. 89, 93 (2007) (internal quotation omitted). In determining whether a 19 complaint states a claim under this standard, the allegations in the complaint are taken as 20 true and the pleadings are construed in the light most favorable to the nonmovant. Outdoor 21 Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). 22 B. Discussion 23 A Rule 12(b)(6) motion to dismiss is almost never an appropriate response when the 24 Court has already screened a prisoner complaint pursuant to 28 U.S.C. § 1915A(b) and 25 directed the defendants to respond. The standard for dismissal under Rule 12(b)(6) is 26 identical to the standard under 28 U.S.C. § 1915A(b) (“fail[ure] to state a claim upon which 27 relief may be granted”). After the Court has screened a prisoner complaint pursuant to 28 § 1915A(b), a Rule 12(b)(6) motion to dismiss should be granted only if the defendants 1 can convince the Court that reconsideration is appropriate. Reconsideration is appropriate 2 only if the district court “(1) is presented with newly discovered evidence, (2) committed 3 clear error or the initial decision was manifestly unjust, or (3) if there is an intervening 4 change in controlling law.” School Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 5 1255, 1263 (9th Cir. 1993). 6 As mentioned, the Court screened Plaintiff’s Complaint and determined that his 7 allegations sufficiently stated a plausible claim for relief in Count Two against Defendant 8 Ryan. (Doc.
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1 WO MGD 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eric Perez, No. CV 19-05602-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants.
14 15 Plaintiff Eric Perez, who is currently in the custody of the Arizona Department of 16 Corrections, Rehabilitation, and Reentry (ADCRR) and is represented by counsel, brought 17 this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant 18 Ryan’s Motion to Dismiss, which Plaintiff opposes. (Docs. 74, 77.) 19 I. Background 20 Plaintiff alleges in his Complaint that Defendants have failed to protect him “from 21 known harm in the form of other prisoners assaulting him” because he has aided law 22 enforcement and is known as a “snitch.” (Doc. 20 at 1.) Plaintiff alleges that front-line 23 Correctional Officers (COs) have told other prisoners that Plaintiff is a snitch and added a 24 false rumor that Plaintiff had exposed himself to a female officer, knowing these rumors 25 would put Plaintiff in danger of assault. (Id. at 1-2.) As a result, Plaintiff was assaulted 26 and injured by other prisoners on several occasions in November 2017. (Id. ¶¶ 17, 33, 51.) 27 Plaintiff asserts an Eighth Amendment failure-to-protect claim in Count One against 28 Defendants Assistant Deputy Warden (ADW) Chavez, and COs Denault, Palomino, 1 Coscorelli, Wickware, Hill, Reyes, and Soliz (the “Individual Defendants”). Plaintiff 2 alleges that the Individual Defendants were aware that their actions of spreading rumors 3 about Plaintiff being a confidential informant and exposing himself to a woman would put 4 Plaintiff in danger of being assaulted and that their actions caused Plaintiff to be assaulted 5 and injured. (Id. ¶¶ 129-132.) 6 Plaintiff asserts a failure-to-train and supervise claim in Count Two against 7 Defendants former ADCRR Director Ryan, Warden Larson, ADW Chavez, and Sergeants 8 Fink and Parra (the “Supervisory Defendants”). (Id. at 22.) Plaintiff alleges that the 9 Supervisory Defendants “were aware that the Individual Defendants were spreading 10 dangerous rumors about [Plaintiff] and that the rumors would cause other prisoners to 11 assault [Plaintiff]. (Id. ¶ 134.) Plaintiff further alleges that the Supervisory Defendants 12 “have an unwritten custom and practice of allowing front-line COs, including the 13 Individual Defendants, of controlling prisoners by spreading rumors among the other 14 prisoners that they know will prompt assaults” and that this custom and practice caused 15 Plaintiff to be assaulted and injured. (Id. ¶¶ 135-36.) In describing the nature of the action, 16 Plaintiff alleges that the Supervisory Defendants “were aware that the COs were placing 17 [Plaintiff] in harms’ way, but failed to intervene to protect [Plaintiff], and either actively 18 or by inaction, approved of the actions of the COs as a means of controlling prisoner 19 behavior.” (Id. at 2.) Plaintiff further alleges that Defendant Ryan, as Director of ADCRR, 20 was responsible for the overall operations, policies and practices of the Arizona state prison 21 system, including training and supervision, and “[o]n information and belief, Defendant 22 Ryan was responsible for, and aware of the custom and practice of allowing prisoners to 23 threaten and assault each other as a means of controlling their behavior.” (Id. ¶ 1.) 24 On screening of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A(a), the Court 25 determined that Plaintiff stated a failure-to-protect claim in Count One against Defendants 26 Chavez, Denault, Palomino, Coscorelli, Wickware, Hill, Reyes, and Soliz in their 27 individual capacities, and a failure-to-train claim in Count Two against current ADCRR 28 Director Shinn in his official capacity and against Ryan, Larson, Chavez, Aven, and Parra 1 in their individual and official capacities. (Doc. 5.) The Court dismissed the remaining 2 claims. (Id.) 3 Defendant Ryan now moves under Federal Rule of Civil Procedure 12(b)(6) to 4 dismiss the claim against him on the ground that Plaintiff fails to state a claim. (Doc. 74.) 5 Alternatively, Ryan argues that he is entitled to qualified immunity. (Id.) 6 II. Motion to Dismiss 7 A. Legal Standard 8 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the claims alleged 9 in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199–1200 (9th Cir. 2003). Dismissal 10 of the complaint, or any claim within it, may be based on either a “‘lack of a cognizable 11 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 12 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 13 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint must 14 contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic 15 Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 677–78 16 (2009). But “[s]pecific facts are not necessary; the statement need only give the defendant 17 fair notice of what . . . the claim is and the grounds upon which it rests.” Erickson v. 18 Pardus, 551 U.S. 89, 93 (2007) (internal quotation omitted). In determining whether a 19 complaint states a claim under this standard, the allegations in the complaint are taken as 20 true and the pleadings are construed in the light most favorable to the nonmovant. Outdoor 21 Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). 22 B. Discussion 23 A Rule 12(b)(6) motion to dismiss is almost never an appropriate response when the 24 Court has already screened a prisoner complaint pursuant to 28 U.S.C. § 1915A(b) and 25 directed the defendants to respond. The standard for dismissal under Rule 12(b)(6) is 26 identical to the standard under 28 U.S.C. § 1915A(b) (“fail[ure] to state a claim upon which 27 relief may be granted”). After the Court has screened a prisoner complaint pursuant to 28 § 1915A(b), a Rule 12(b)(6) motion to dismiss should be granted only if the defendants 1 can convince the Court that reconsideration is appropriate. Reconsideration is appropriate 2 only if the district court “(1) is presented with newly discovered evidence, (2) committed 3 clear error or the initial decision was manifestly unjust, or (3) if there is an intervening 4 change in controlling law.” School Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 5 1255, 1263 (9th Cir. 1993). 6 As mentioned, the Court screened Plaintiff’s Complaint and determined that his 7 allegations sufficiently stated a plausible claim for relief in Count Two against Defendant 8 Ryan. (Doc. 5.) To the extent Ryan now seeks reconsideration of the Screening Order, his 9 Motion, which was filed seven months after the Screening Order, is untimely. See LRCiv 10 7.2(g)(2) (motion for reconsideration must be filed no later than 14 days from date of the 11 Order that is subject of the motion). Nor has Ryan shown that the Court committed clear 12 error, that its initial decision was manifestly unjust, or that there has been an intervening 13 change in controlling law. Therefore, the Court will deny Ryan’s Motion to Dismiss to the 14 extent he argues that Plaintiff failed to state a claim. 15 C. Qualified Immunity 16 Government officials enjoy qualified immunity from civil damages unless their 17 conduct violates “clearly established statutory or constitutional rights of which a reasonable 18 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding 19 if qualified immunity applies, a court must determine: (1) whether the facts alleged show 20 the defendant’s conduct violated a constitutional right; and (2) whether that right was 21 clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 230- 22 32, 235–36 (2009). Courts have discretion in deciding which of these two prongs to 23 address first depending on the circumstances. Id. 24 When a defendant asserts qualified immunity in a Rule 12(b)(6) motion to dismiss, 25 the court must accept the allegations in the complaint as true, and “dismissal is not 26 appropriate unless we can determine, based on the complaint itself, that qualified immunity 27 applies.” Morely v. Walker, 175 F.3d 756, 759 (9th Cir. 1999) (quoting Groten, 251 F.3d 28 at 851). In this case, because the Court has screened Plaintiff’s Complaint and determined 1 that he sufficiently stated an Eighth Amendment failure-to-train claim against Ryan, the 2 allegations in the Complaint are taken as true, and the first prong of the qualified immunity 3 analysis is satisfied. The analysis therefore turns on the second prong—whether the right 4 at issue was clearly established at the time of the violation. 5 For a right to be clearly established there does not have to be a case directly on 6 point; however, “‘existing precedent must have placed the statutory or constitutional 7 question beyond debate.’” White v. Pauly, ___ U.S. ____, 137 S. Ct. 548, 551 (2017) 8 (quoting Mullenix v. Luna, 577 U.S. ____, 136 S. Ct. 305, 308 (2017)). A right is clearly 9 established when case law has been “earlier developed in such a concrete and factually 10 defined context to make it obvious to all reasonable government actors, in the defendant’s 11 place, that what he is doing violates federal law.” Shafer v. Cnty. of Santa Barbara, 868 12 F.3d 1110, 1117 (9th Cir. 2017) (citing White, 137 S. Ct. at 551). If there is no Supreme 13 Court or Circuit precedent, courts “‘look to whatever decisional law is available to 14 ascertain whether the law is clearly established’ for qualified immunity purposes, 15 ‘including decisions of state courts, other circuits, and district courts.’” Boyd v. Benton 16 Cnty., 374 F.3d 773, 781 (9th Cir. 2004) (quoting Drummond v. City of Anaheim, 343 F.3d 17 1052, 1060 (9th Cir. 2003)). 18 In his Complaint, Plaintiff alleges that Ryan and the other Supervisory Defendants 19 were aware that the Individual Defendants were spreading dangerous rumors about 20 Plaintiff and that the Supervisory Defendants had an unwritten custom and practice of 21 allowing front-line COs to control prisoners by spreading rumors among the other prisoners 22 that they know will prompt assaults, which caused Plaintiff to be assaulted and injured. 23 (Id. ¶¶ 134-36.) Accepting these allegations as true, as the Court must at this stage, a 24 reasonable officer would have known that it was unlawful to allow front-line officers to 25 spread rumors about prisoners as a way of controlling prisoners because courts have 26 recognized since at least 1989 that being labeled a snitch or sex offender can place a 27 prisoner at a risk of harm. See Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th 28 Cir. 1989) (holding that the question whether prison officials called the plaintiff “a ‘snitch’ in the presence of other inmates is material to a section 1983 claim for denial of the right not to be subjected to physical harm” from other prisoners); Puckett v. Arreguin, No. 1:10- cv-00971-MJS (PC), 2012 WL 1119460, at *3 (E.D. Cal. April 3, 2012) (“being labeled a 4| ‘pedophile,’ ‘rapist,’ or ‘child molester’ is as least as dangerous in prison as being called a snitch”); Morgan v. Brown, No. 1:17-cv-00425-LJO-JLT, 2017 WL 4247970, at *4 (E.D. 6| Cal. Sept. 22, 2017) (“a serious danger may be present when a prisoner has a special 7 | attribute which should put prison officials on alert, such as having been an informer or 8 | being placed in protective custody”) (citing cases). At this point in the proceedings, Defendant Ryan has not shown that he is entitled to qualified immunity. The Court will 10 | therefore deny this portion of the Motion to Dismiss without prejudice with leave to 11 | reassert the qualified immunity argument at summary judgment upon further development of the record. 13 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to 14| Defendant Ryan’s Motion to Dismiss (Doc. 74), and the Motion is denied. 15 Dated this 12th day of January, 2021. 16 WMichad T. dibunde Michael T. Liburdi 19 United States District Judge 20 21 22 23 24 25 26 27 28