Ramirez 166378 v. Mustafa

• Court: District Court, D. Arizona
• Decided: August 7, 2025
• Docket: 4:25-cv-00189
• Status: Unknown

Opinion

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Julian Fernando Ramirez, No. CV-25-00189-TUC-SHR 10 Plaintiff, 11 v. ORDER 12 Corrections Officer II Mustafa, et al., 13 Defendants.

15 Self-represented Plaintiff Julian Fernando Ramirez, who is confined in the Arizona 16 State Prison Complex (ASPC)-Lewis, filed a civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will 18 grant the Application to Proceed, order Defendant Mustafa to answer Count One of the 19 Complaint, and dismiss the remaining claims and Defendants without prejudice. 20 I. Application to Proceed In Forma Pauperis and Filing Fee 21 The Court will grant Plaintiff's Application to Proceed In Forma Pauperis. 28 22 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 23 § 1915(b)(1). The Court will assess an initial partial filing fee of $40.81. The remainder 24 of the fee will be collected monthly in payments of 20% of the previous month's income 25 credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 26 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 27 government agency to collect and forward the fees according to the statutory formula. 28 . . . . 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised legally frivolous or malicious claims, failed to state a claim upon which relief 6 may be granted, or sought monetary relief from a defendant who is immune from such 7 relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a "short and plain statement of the claim showing that the 9 pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, "it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice." Id. 14 "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a 15 claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged." Id. "Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other "more likely explanations" for a defendant's conduct. Id. at 681. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must "continue to construe [self-represented litigant's] filings liberally." Hebbe v. Pliler, 25 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a self-represented prisoner] 26 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. 27 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 1 III. Complaint 2 In his two-count Complaint,1 Plaintiff names as Defendants Arizona Department of 3 Corrections, Rehabilitation & Reentry (ADC) Director Ryan Thornell and Corrections 4 Officers II Mustafa and Portillo. Plaintiff's claims are based on events that occurred while 5 he was confined in ASPC-Tucson. He seeks injunctive relief and monetary damages. 6 In Count One, Plaintiff alleges he was subjected to retaliation and a violation of his 7 Eighth Amendment rights by Defendant Mustafa. He claims Defendant Mustafa retaliated 8 against him because he "[wrote] her up for lying and for false allegations that he was 9 walking naked in his cell . . . to expose himself." 10 Specifically, Plaintiff asserts on January 16, 2025, Defendant Mustafa lied and 11 falsely accused him of walking around naked in his cell. On January 17, Defendant 12 Mustafa stood in front of Plaintiff's cell door and shouted to the entire pod Plaintiff was 13 walking around naked in his cell, although this was not true. Plaintiff claims other inmates 14 "began to yell death threats against Plaintiff" and "shouted for [Defendant] Mustafa to open 15 up Plaintiff's cell door and . . . open their cell doors also, so that they could follow through 16 on their threats to severely beat . . . or kill Plaintiff." 17 Plaintiff asserts on January 18, 2025, Defendant Mustafa instructed Defendant 18 Portillo to open Plaintiff's cell door and "all the other cell doors." He contends several 19 inmates ran into his cell and began to stomp on his head and severely beat, , kicked, and 20 choked him. Plaintiff alleges he was screaming for help, but Defendant Mustafa "stood 21 there watching . . . and did nothing to stop the beating." 22 In Count Two, Plaintiff alleges Defendant Thornell violated his Eighth Amendment 23 rights because Defendant Thornell had a policy, custom, or practice of housing dangerous 24 inmates with lower-level inmates, such as Plaintiff. He claims prison officials told him 25 they were following policy when they housed Plaintiff, who was a level three inmate, with 26

27 1 Plaintiff’s Complaint contains a count labeled as “Count I” and two identical 28 counts labeled as “Count III.” The Court will refer to “Count I” as “Count One” and “Count III” as “Count Two.” 1 dangerous level five inmates. Plaintiff asserts he was "severely injured and almost killed" 2 because of Defendant Thornell's policy, 3 IV. Discussion 4 Although self-represented pleadings are liberally construed, Haines v. Kerner, 404 5 U.S. 519, 520–21 (1972), conclusory and vague allegations will not support a cause of 6 action, Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal 7 interpretation of a civil rights complaint may not supply essential elements of the claim not 8 initially pled. Id. 9 To state a valid claim under § 1983, plaintiffs must allege they suffered a specific 10 injury as a result of specific conduct of a defendant and show an affirmative link between 11 the injury and the conduct of each defendant. See Rizzo v. Goode, 423 U.S. 362, 371–72, 12 377 (1976). "[A] plaintiff must plead that each Government-official defendant, through 13 the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. 14 "A plaintiff must allege facts, not simply conclusions, that show that an individual was 15 personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 16 1193, 1194 (9th Cir. 1998). 17 A. Count One 18 To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must 19 meet a two-part test. "First, the deprivation alleged must be, objectively, sufficiently 20 serious," meaning the "official's act or omission must result in the denial of the minimal 21 civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994) 22 (internal quotation marks and citations omitted). Second, the prison official must have a 23 "sufficiently culpable state of mind," i.e., he must act with "deliberate indifference to 24 inmate health or safety." Id. (internal quotations omitted). Deliberate indifference is a 25 higher standard than negligence or lack of ordinary due care for the prisoner's safety. Id. 26 at 835. In defining "deliberate indifference" in this context, the Supreme Court has 27 imposed a subjective test: "the official must both be aware of facts from which the inference 28 1 could be drawn that a substantial risk of serious harm exists, and he must also draw the 2 inference." Id. at 837 (emphasis added). 3 A viable claim of First Amendment retaliation contains five basic elements: (1) a 4 state actor took some adverse action against an inmate (2) because of (3) the prisoner's 5 protected conduct, and such action (4) chilled the inmate's exercise of his First Amendment 6 rights (or the inmate suffered more than minimal harm) and (5) did not reasonably advance 7 a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005); 8 see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (noting a retaliation claim 9 requires an inmate to show (1) the prison official acted in retaliation for the exercise of a 10 constitutionally protected right, and (2) the action "advanced no legitimate penological 11 interest"). The plaintiff has the burden of demonstrating his exercise of his First 12 Amendment rights was a substantial or motivating factor behind the defendants' conduct. 13 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's 14 Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 15 1. Defendant Mustafa 16 Liberally construed, Plaintiff has stated an Eighth Amendment claim and a First 17 Amendment retaliation claim against Defendant Mustafa. The Court will require 18 Defendant Mustafa to answer Count One. 19 2. Defendant Portillo 20 Plaintiff's allegations do not suggest Defendant Portillo was retaliating against 21 Plaintiff for engaging in protected conduct. Nor do his allegations suggest Defendant 22 Portillo acted with deliberate indifference when opening the cell doors. Absent more, 23 Plaintiff's allegations are too vague and conclusory to state a claim against Defendant 24 Portillo. Thus, the Court will dismiss without prejudice Defendant Portillo. 25 B. Count Two 26 To state a claim based on a policy, custom, or policy, a plaintiff must show: (1) the 27 plaintiff was deprived of a constitutional right; (2) the entity had a policy or custom; (3) the 28 policy or custom amounted to deliberate indifference to the plaintiff's constitutional right; 1 and (4) the policy or custom was the moving force behind the constitutional violation. 2 Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110–11 (9th 3 Cir. 2001). Liability attaches only where "a deliberate choice to follow a course of action 4 is made from among various alternatives by the official or officials responsible for 5 establishing final policy with respect to the subject matter in questions." Pembaur v. City 6 of Cincinnati, 475 U.S. 469, 483 (1986). "It is not sufficient for a plaintiff to identify a 7 custom or policy, attributable to the [entity], that caused his injury. A plaintiff must also 8 demonstrate that the custom or policy was adhered to with 'deliberate indifference to the 9 constitutional rights of [entity's] inhabitants.'" Castro v. County of L.A., 833 F.3d 1060, 10 1076 (9th Cir. 2016) (en banc) (quoting City of Canton v. Harris, 489 U.S. 378, 392 11 (1989)). 12 Although Plaintiff alleges Defendant Thornell has a policy of housing level five and 13 level three inmates together, he does not identify what is allegedly unconstitutional about 14 the policy or how or why the policy amounted to deliberate indifference to his 15 constitutional rights. And it appears the alleged constitutional deprivations—retaliation 16 and violence against him—resulted from Defendant Mustafa's actions, not Defendant 17 Thornell's policy. Absent more, Plaintiff's allegations regarding Defendant Thornell's 18 policy are too vague and conclusory to state a claim. Thus, the Court will dismiss without 19 prejudice Defendant Thornell and Count Two. 20 V. Warnings 21 A. Release 22 If Plaintiff is released while this case remains pending, and the filing fee has not 23 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 24 he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) 25 file a non-prisoner application to proceed in forma pauperis. Failure to comply may result 26 in dismissal of this action. 27 . . . . 28 . . . . 1 B. Address Changes 2 Plaintiff must file and serve a notice of a change of address in accordance with Rule 3 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 4 relief with a notice of change of address. Failure to comply may result in dismissal of this 5 action. 6 C. Copies 7 Because Plaintiff is currently confined in an ADC Complex or Private Facility 8 subject to General Order 23-19, Plaintiff can comply with Federal Rule of Civil Procedure 9 5(d) by including, with every document Plaintiff files, a certificate of service stating this 10 case is subject to General Order 23-19 and indicating the date the document was delivered 11 to prison officials for filing with the Court. Plaintiff is not required serve Defendant with 12 copies of every document or provide an additional copy of every document for the Court's 13 use. 14 If Plaintiff is transferred to a facility other than one subject to General Order 23-19, 15 Plaintiff will be required to: (a) serve Defendant, or counsel if an appearance has been 16 entered, a copy of every document Plaintiff files, and include a certificate stating a copy of 17 the filing was served; and (b) submit an additional copy of every filing for use by the Court. 18 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 19 being stricken without further notice to Plaintiff. 20 D. Possible Dismissal 21 If Plaintiff fails to timely comply with every provision of this Order, including these 22 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 23 963 F.2d 1258, 1260–61 (9th Cir. 1992) (noting a district court may dismiss an action for 24 failure to comply with any order of the Court). 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS ORDERED: 2 (1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is granted. 3 (2) As required by the accompanying Order to the appropriate government 4 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 5 of $40.81. 6 (3) Count Two (which is labeled, twice, as Count III) is dismissed without 7 prejudice. 8 (4) Defendants Portillo and Thornell are dismissed without prejudice. 9 (5) If Plaintiff attempts to amend to address the shortcomings identified in this 10 Order, the amended complaint must be filed on the court-approved form and retyped or 11 rewritten in its entirety (including those claims and Defendants that were not dismissed), 12 and Plaintiff must comply with Rule 15 of the Federal Rules of Civil Procedure and Rule 13 15.1 of the Local Rules of Civil Procedure. 14 (6) Defendant Mustafa must answer Count One. 15 (7) The Clerk of Court must send Plaintiff this Order, and a copy of the Marshal's 16 Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver 17 of Service of Summons form for Defendant Mustafa. 18 (8) Plaintiff must complete2 and return the service packet to the Clerk of Court 19 within 21 days of the date of filing of this Order. The United States Marshal will not 20 provide service of process if Plaintiff fails to comply with this Order. 21 (9) If Plaintiff does not either obtain a waiver of service of the summons or 22 complete service of the Summons and Complaint on Defendant Mustafa within 90 days of 23 the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, 24 the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 25 . . . . 26 . . . .

27 2 If a Defendant is an ADC officer or employee, Plaintiff must list the address of the 28 specific institution where the officer or employee works. Service cannot be effected on an officer or employee at ADC’s Central Office unless the officer or employee works there. 1 (10) The United States Marshal must retain the Summons, a copy of the 2 Complaint, and a copy of this Order for future use. 3 (11) The United States Marshal must notify Defendant of the commencement of 4 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 5 Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this 6 Order. 7 (12) If Defendant Mustafa agrees to waive service of the Summons and 8 Complaint, she must return the signed waiver forms to the United States Marshal, not the 9 Plaintiff, within 30 days of the date of the notice and request for waiver of service 10 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 11 personal service. 12 (13) The Marshal must immediately file signed waivers of service of the 13 summons. If the waiver of service of summons is returned as undeliverable or is not 14 returned by Defendant Mustafa within 30 days from the date the request for waiver was 15 sent by the Marshal, the Marshal must: 16 (a) personally serve copies of the Summons, Complaint, and this Order 17 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil 18 Procedure; and 19 (b) within 10 days after personal service is effected, file the return of 20 service for Defendant, along with evidence of the attempt to secure a 21 waiver of service of the summons and of the costs subsequently 22 incurred in effecting service upon Defendant. The costs of service 23 must be enumerated on the return of service form (USM-285) and 24 must include the costs incurred by the Marshal for photocopying 25 additional copies of the Summons, Complaint, or this Order and for 26 preparing new process receipt and return forms (USM-285), if 27 required. Costs of service will be taxed against the personally served 28 1 Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 2 Procedure, unless otherwise ordered by the Court. 3 (14) Defendant Mustafa must answer the relevant portion of the Complaint or otherwise respond by appropriate motion within the time provided by the applicable 5 | provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 6 Dated this 5th day of August, 2025. 7 8 Fath el 10 Honorable Scott H. Rash _/ United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28