Pinson v. Carvajal

Opinion

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

9 Jeremy Pinson, No. CV-22-00298-TUC-RM

10 Plaintiff, ORDER

11 v.

12 Federal Bureau of Prisons,

13 Defendant. 14 15 Pending before the Court are Plaintiff’s Motion for Leave to Amend/Join Parties 16 (Doc. 117), Motion to Declare Response a Rule 12(e) Motion (Doc. 161), and Motion for 17 Leave to File Motion to Compel (Doc. 191).1 18 I. Proposed Third Amended Complaint 19 Plaintiff seeks leave to file a proposed Third Amended Complaint (“TAC”) that 20 reasserts her Eighth and Fifth Amendment claims in Counts One through Three and adds 21 in Count Four a claim for violations of 42 U.S.C. §§ 1985 and 1986. (Doc. 117; see also 22 Doc. 117-1). In the proposed Count Four, Plaintiff seeks $5,000,000.00 in damages and 23 names as defendants Mark Gutierrez, Muhammad Zantout, Linda Geter, Ashley Noble, 24 Alison Leukefeld, Karl Leukefeld, Timethea Pullen, Brandi Reynolds, Jeffrey Burkett, 25 Donald Lewis, Shannon Robbins, and J. Felix. (Doc. 117-1 at 2-5, 23.)2 Plaintiff alleges 26 that on or about October 5, 2022, Gutierrez and non-party SIS Lieutenant Christensen 27 1 Other pending motions will be resolved separately. 28 2 All record citations refer to the page numbers generated by the Court’s electronic filing system. 1 threatened Plaintiff with transfer and prolonged housing in segregation if she did not 2 withdraw her lawsuits against prison staff. (Id. at 16-17.) Gutierrez and Christensen also 3 threatened “several witnesses who testified, via Declaration, in several of [Plaintiff’s] 4 cases before this Court.” (Id. at 17.) Plaintiff declined to drop any of her lawsuits. (Id.) 5 Gutierrez, Zantout, and Felix then conspired to author—and submit to Geter, Noble, 6 Alison Leukefeld, Karl Leukefeld, Pullen, Reynolds, Burkett, Lewis, and Robbins—a 7 transfer request that resulted in Plaintiff’s placement in the Secure Administrative Unit 8 (“SAU”) at USP-Allenwood, where she has been subjected to daily death threats and 9 sexual harassment. (Doc. 117-1 at 9, 17-19.) The transfer request falsely stated that 10 Plaintiff was involved with illicit activities, was conspiring to deal drugs and pimp 11 transgender inmates, was “attempting to recruit other inmates to make false allegations 12 against BOP staff regarding the treatment of transgender inmates,” and was “using her 13 status as a transgender inmate to her benefit by filing false PREA allegations to remove 14 any inmate she has issues with.” (Id. at 17-18.) Gutierrez submitted the false statements 15 to Geter, despite knowing that it was a serious offense to create BOP documents 16 containing false statements, “particularly for a malicious purpose such as retaliation.” 17 (Id. at 18.) 18 In mid-2023, Noble visited Plaintiff at USP-Tucson, and Plaintiff told Noble that 19 Gutierrez, Zantout, Felix, and non-defendant Christensen had threatened her with 20 retaliation if she didn’t agree to drop pending civil claims. (Id. at 22.) Plaintiff also 21 utilized electronic requests to staff to alert Noble, Pullen, Robbins, Reynolds, Burkett, 22 Lewis, and both Leukefelds “to Gutierrez, Zantout, and other misconduct at USP Tucson 23 in great detail as well as the threatened retaliation.” (Id.) 24 II. Legal Standard 25 With the exception of amendments made as a matter of course, a party “may 26 amend its pleading only with the opposing party’s written consent or the court’s leave.” 27 Fed. R. Civ. P. 15(a)(2). Leave should freely be given “when justice so requires.” Id. In 28 determining whether to grant leave to amend, courts consider the following factors: 1 “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 2 cure deficiencies by amendments previously allowed, undue prejudice to the opposing 3 party by virtue of allowance of the amendment, [and] futility of amendment.” Eminence 4 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Futility alone may 5 justify refusing to grant leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 6 1995). The test for determining futility is the same as the test for determining whether a 7 pleading survives a motion to dismiss under Rule 12(b)(6). White v. Relay Res., No. 8 C19-0284-JCC, 2019 WL 5677541, at *1 (W.D. Wash. Oct. 31, 2019). Under that test, 9 “a complaint must contain sufficient factual matter, accepted as true, to state a claim to 10 relief that is plausible on its face,” meaning the complaint’s factual allegations must 11 “allow[] the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 13 marks omitted). 14 The Court is required to screen complaints brought by prisoners seeking relief 15 against a governmental entity or an officer or an employee of a governmental entity. 28 16 U.S.C. § 1915A(a). The Court must dismiss a complaint or any portion thereof if a 17 plaintiff has raised claims that are frivolous or malicious, that fail to state a claim upon 18 which relief may be granted, or that seek monetary relief from a defendant who is 19 immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 20 III. Discussion 21 In opposition to Plaintiff’s Motion to Amend, Defendant argues that Plaintiff’s 22 proposed TAC does not comply with Federal Rules of Civil Procedure 18(a) and 20(a)(2) 23 because Plaintiff’s proposed claims under 42 U.S.C. §§ 1985 and 1986 do not arise from 24 the same nucleus of facts as Plaintiff’s existing claims. (Doc. 135 at 7-8.) Defendant 25 also argues that Plaintiff’s proposed amendment would be futile because Plaintiff fails to 26 state a claim on which relief can be granted under 42 U.S.C. §§ 1985 and 1986. (Id. at 3- 27 7.) Defendant does not argue that any other factor, such as prejudice or undue delay, 28 supports denying leave to amend. 1 A. Joinder 2 Federal Rule of Civil Procedure 20(a)(2)(B) provides that defendants may be 3 joined in one action if “any question of law or fact common to all defendants will arise in 4 the action.” Questions of fact regarding the Transgender Executive Council’s (“TEC”) 5 decision to transfer Plaintiff to USP-Allenwood instead of transitioning her to a female 6 facility are at issue with respect to the existing claims in this case and with respect to 7 Count Four of the proposed TAC. Accordingly, the Court finds that Plaintiff’s proposed 8 TAC complies with Rule 20(a)(2)(B). 9 B. Section 1985(3) Conspiracy 10 Section 1985 of Title 42 of the United States Code prohibits several types of 11 conspiracies. In relevant part, Section 1985(2) prohibits conspiracies to intimidate parties 12 or witnesses from attending or testifying in federal court, and Section 1985(3) prohibits 13 conspiracies to deprive any person or class of persons “of the equal protection of the 14 laws, or of equal privileges and immunities under the laws.” A party injured by an act 15 taken in furtherance of a conspiracy prohibited by 42 U.S.C. § 1985 may recover 16 damages against any one or more of the conspirators. 42 U.S.C. § 1985(3). To establish 17 a conspiracy, a plaintiff must show “an agreement or meeting of the minds[.]” 18 Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1301 (9th Cir. 1999). 19 Conclusory allegations of a conspiracy “without factual specificity” are insufficient to 20 state a § 1985 claim. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th 21 Cir. 1988). 22 The factual allegations of Plaintiff’s proposed TAC are insufficient to show the 23 existence of a § 1985(3) conspiracy. Plaintiff alleges that Gutierrez, Felix, and Zantout 24 authored and submitted a transfer request that resulted in Plaintiff’s placement in the 25 SAU at USP-Allenwood, and that they wrote in the transfer request that Plaintiff “was 26 ‘using her status as a transgender inmate’ in false and malicious contexts to secure her 27 transfer.” (Doc. 117-1 at 9.) Plaintiff further alleges that Gutierrez knew the transfer 28 request contained false statements and nevertheless submitted the request to Geter. (Id. at 1 17-18.) However, Plaintiff does not allege that Felix, Zantout, Geter, or any individual 2 other than Gutierrez knew that the transfer request contained false statements. 3 Accordingly, Plaintiff has failed to allege sufficient facts to show the existence of a 4 conspiracy to submit a transfer request containing false statements. 5 Furthermore, to state a § 1985(3) conspiracy, a plaintiff must not only allege a 6 conspiracy to deprive her of the equal protection of the laws and injury as a result of an 7 action taken in furtherance of the conspiracy; the plaintiff must also allege “invidiously 8 discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 9 U.S. 88, 102 (1971). Such discriminatory animus must be based on race, id., or some 10 other suspect or quasi-suspect class, Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 11 (9th Cir. 1992). “[A] group of individuals who share a desire to engage in conduct that 12 the § 1985(3) defendant disfavors” does not constitute a protected class for purposes of 13 the statute. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993). 14 Assuming, without deciding, that § 1985(3) extends to discriminatory animus 15 against transgender individuals, Plaintiff’s proposed TAC nevertheless does not 16 sufficiently allege discriminatory animus. Plaintiff alleges that Gutierrez stated Plaintiff 17 was attempting to recruit other inmates to make false allegations against BOP staff 18 “regarding the treatment of transgender inmates,” and was “using her status as a 19 transgender inmate to her benefit by filing false PREA allegations to remove any inmate 20 she has issues with.” (Doc. 117-1 at 17-18.) But the factual allegations of the TAC make 21 clear that Gutierrez’s purpose was not discriminatory animus against Plaintiff for being 22 transgender, but, rather, retaliation against Plaintiff for her litigation and her allegations 23 against prison staff. Because § 1985(3) claims cannot be grounded “on classes defined 24 by the conduct the defendants oppose,” these factual allegations fail to state a claim under 25 § 1985(3). Dean v. Warren, 12 F.4th 1248, 1263 (11th Cir. 2021) (citing Bray, 506 U.S. 26 at 269). 27 . . . . 28 . . . . 1 C. Section 1985(2) Conspiracy 2 To state a claim based on retaliation under § 1985(2), “a plaintiff must prove four 3 elements: (1) a conspiracy by the defendants; (2) to injure a party or witness in his or her 4 person or property; (3) because he or she attended federal court or testified in any matter 5 pending in federal court; (4) resulting in injury or damages to the plaintiff. Portman v. 6 Cnty. of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993). Plaintiff alleges that Gutierrez 7 and non-party SIS Lieutenant Christensen threatened her with prolonged housing in 8 segregation and transfer if she did not withdraw her lawsuits before this Court, and that 9 they made similar threats to several inmates who submitted witness declarations in her 10 cases. (Doc. 117-1 at 16-17.) Liberally construed, Plaintiff alleges that Gutierrez 11 engaged in a § 1985(2) conspiracy. 12 Defendant argues that Plaintiff fails to allege injury for purposes of a § 1985 claim 13 because she alleges only that she was transferred from one high-security male prison to 14 another, and inmates do not have a liberty interest in being housed at a particular prison. 15 However, a plaintiff need not allege an injury to a constitutionally protected interest to 16 state a claim for damages under § 1985(2). Haddle v. Garrison, 525 U.S. 121, 125-26 17 (1998). Furthermore, liberally construed, the proposed TAC alleges that Gutierrez, in 18 furtherance of the § 1985(2) conspiracy, secured Plaintiff’s prolonged confinement in 19 restrictive, segregated housing where she experiences death threats and pervasive sexual 20 harassment. Such allegations may implicate a due process injury. Sandin v. Conner, 515 21 U.S. 472, 483-84 (1995) (government may, under certain circumstances, create due- 22 process protected liberty interest in freedom from restraint which “imposes atypical and 23 significant hardship . . . in relation to the ordinary incidents of prison life”). 24 D. Section 19863 25 Section 1986 provides for the liability of individuals who neglect or refuse to 26 prevent a § 1985 conspiracy despite having knowledge of the conspiracy and the power 27 3 In her Reply in support of her Motion to Amend, Plaintiff clarifies that her proposed 28 TAC asserts only § 1986 claims against Defendants Noble, Pullen, Robbins, Reynolds, Burkett, Lewis, Alison Leukefeld, and Karl Keukefeld. (Doc. 155 at 6.) 1 to prevent it. 42 U.S.C. § 1986. “A claim can be stated under section 1986 only if the 2 complaint contains a valid claim under section 1985.” Karim-Panahi v. Los Angeles 3 Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988); see also Trerice v. Pedersen, 769 F.2d 4 1398, 1403 (9th Cir. 1985) (“a cause of action is not provided under 42 U.S.C. § 1986 5 absent a valid claim for relief under section 1985”). Because Plaintiff’s proposed TAC 6 fails to plead facts supporting the elements of a § 1985(3) conspiracy, it also necessarily 7 fails to state a claim under § 1986 for failing to prevent a § 1985(3) conspiracy. See 8 Karim-Panahi, 839 F.2d at 626. 9 With respect to a failure to prevent a § 1985(2) conspiracy, Plaintiff alleges that 10 she told Defendant Noble that Gutierrez, Zantout, Felix, and non-party Christensen had 11 “threatened her with retaliation if she didn’t agree to drop her pending civil claims” in 12 cases that went to trial in Fall 2023. (Doc. 117-1 at 22.) Plaintiff also alleges that she 13 utilized electronic requests to staff to notify Noble, Pullen, Robbins, Reynolds, Burkett, 14 Lewis, and both Leukefelds “to alert them to Gutierrez, Zantout and other misconduct at 15 USP Tucson in great detail as well as the threatened retaliation.” (Id.) Plaintiff 16 sufficiently alleges that she notified Noble of a § 1985(2) conspiracy to retaliate against 17 her because of her litigation before this Court, and that Noble failed to prevent the 18 conspiracy despite having the power to do so. However, Plaintiff’s allegations that she 19 notified Pullen, Robbins, Reynolds, Burkett, Lewis, and both Leukefelds of misconduct 20 and retaliation by Gutierrez and Zantout are too general to state a claim under 42 U.S.C. 21 § 1986. Plaintiff does not allege that she notified these defendants that Gutierrez and 22 Zantout were retaliating against her because of her litigation, nor does she provide any 23 specific information about what she reported to these defendants. 24 E. Conclusion 25 Plaintiff’s proposed Third Amended Complaint sufficiently states a claim under 42 26 U.S.C. § 1985(2) against Defendant Gutierrez and a claim under 42 U.S.C. § 1986 27 against Defendant Noble. The Court therefore does not find that Plaintiff’s Motion to 28 Amend should be denied on grounds of futility. However, the proposed Third Amended 1 Complaint fails to state claims under 42 U.S.C. §§ 1985 and 1986 against any of the other 2 proposed new defendants. Accordingly, on screening under 28 U.S.C. § 1915A(a), the 3 Court will dismiss Defendants Zantout, Geter, Alison Leukefeld, Karl Leukfeld, Pullen, 4 Reynolds, Burkett, Lewis, Robbins, and Felix. 5 IV. Motion to Declare Response a Rule 12(e) Motion 6 Plaintiff asks the Court to construe Defendant’s Response to her Motion to Amend 7 as a motion for more definite statement under Federal Rule of Civil Procedure 12(e). 8 (Doc. 161.) Plaintiff argues that, because Defendant’s Response argues that Plaintiff’s 9 Motion to Amend should be denied on grounds of futility, the Response is actually a 10 disguised motion to dismiss under Rule 12(b)(6) or motion for more definite statement 11 under Rule 12(e). (Id.) 12 The Court finds nothing improper in Defendant’s argument that leave to amend 13 should be denied on the grounds that Plaintiff’s proposed amendment would be futile, nor 14 does the Court find any reason to construe Defendant’s Response as a motion under Rule 15 12(b)(6) or Rule 12(e). Accordingly, Plaintiff’s Motion will be denied. 16 V. Motion for Leave to File Motion to Compel 17 Plaintiff seeks leave to file a motion to compel regarding Defendants’ failure to 18 produce certain discovery requested by Plaintiff. (Doc. 191.) After Plaintiff filed the 19 Motion for Leave to File Motion to Compel, this Court appointed counsel for Plaintiff; 20 directed counsel for Plaintiff and Defendant to meet and confer in an attempt to resolve 21 or narrow any discovery disputes; and withdrew the provision in its Scheduling Order 22 requiring leave of Court to file discovery dispute motions. (Doc. 202.) 23 Because the Court has withdrawn its requirement that leave of Court be obtained 24 prior to the filing of a discovery dispute motion, and because the Court’s resolution of 25 Plaintiff’s Motion for Leave to Amend/Join Parties may affect the relevance of certain 26 discovery requests, Plaintiff’s Motion for Leave to File Motion to Compel will be denied 27 as moot. Defendant is directed to review its discovery responses to determine whether 28 any amendments are necessary, and the parties are directed to continue to meet and 1 confer to eliminate or narrow any remaining discovery disputes. Either party may file a 2 discovery dispute motion if any discovery disputes remain after good-faith personal 3 consultation. 4 IT IS ORDERED: 5 1. Plaintiff’s Motion for Leave to Amend/Join Parties (Doc. 117) is granted. 6 The Clerk of Court is directed to re-file Document 117-1 as Plaintiff’s 7 Third Amended Complaint. 8 2. Defendant Gutierrez must answer the 42 U.S.C. § 1985(2) claim asserted in 9 Count Four of Plaintiff’s Third Amended Complaint. Defendant Noble 10 must answer the 42 U.S.C. § 1986 claim asserted in Count Four. Defendant 11 Federal Bureau of Prisons must answer the re-asserted Counts One through 12 Three of the Third Amended Complaint. Any answer or response must 13 state the specific defendant by name on whose behalf it is filed. The Court 14 may strike any answer, response, or other motion or paper that does not 15 identify the specific defendant by name on whose behalf it is filed. 16 3. The claim under 42 U.S.C. § 1985(3) asserted in Count Four of the Third 17 Amended Complaint, as well as Defendants Zantout, Geter, Alison 18 Leukefeld, Karl Leukfeld, Pullen, Reynolds, Burkett, Lewis, Robbins, and 19 Felix, are hereby dismissed without prejudice. 20 4. Within ten (10) days of the date this Order is filed, Plaintiff shall file a 21 notice indicating whether she intends to utilize the United States Marshal’s 22 Service for completion of service of process with respect to Defendants 23 Gutierrez and Noble. 24 5. Plaintiff’s Motion to Declare Response a Rule 12(e) Motion (Doc. 161) is 25 denied. 26 . . . . 27 . . . . 28 . . . . 1 6. Plaintiff's Motion for Leave to File Motion to Compel (Doc. 191) is denied 2 as moot, as discussed above. Either party may file a discovery dispute 3 motion if any discovery disputes remain after good-faith personal 4 consultation. 5 Dated this 27th day of August, 2024. 6 7 8 a th by) 9 ANGE Honorable Rostsiary □□□□□□□ 10 United States District □□□□□ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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