1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 DaJuan Williams, No. CV 19-05096-PHX-MTL (CDB) 10 Plaintiff, 11 v. ORDER 12 David Winget, et al., 13 14 Defendants.
15 16 On September 5, 2019, Plaintiff DaJuan Williams, who is confined in the Arizona 17 State Prison Complex-Eyman, filed a pro se “Motion for Leave to File Excess Pages for 18 Complaint,” a Motion for Temporary Restraining Order and Preliminary Injunction, and 19 an Application to Proceed In Forma Pauperis, and lodged a 54-page civil rights Complaint 20 pursuant to 42 U.S.C. § 1983. In a September 17, 2019 Order, the Court granted the 21 Application to Proceed; denied the Motion to File; denied the Motion for Temporary 22 Restraining Order; took no action on the Motion for Preliminary Injunction; and gave 23 Plaintiff 30 days to file a Complaint containing no more than 30 pages. On October 15, 24 2019, Plaintiff filed a Complaint. In a January 15, 2020 Order, the Court dismissed the 25 Complaint with leave to amend. 26 On January 24, 2020, Plaintiff filed a First Amended Complaint (Doc. 16). The 27 Court will order Defendants Winget, Tribolet, Verdugo, Valencia, Villanueva, Cornejo, 28 and Lopez to answer the excessive force claims in Counts One through Seven of the First 1 Amended Complaint and will dismiss the remaining claims and Defendants without 2 prejudice. The Court will also deny without prejudice Plaintiff’s Motion for Preliminary 3 Injunction (Doc. 5). 4 I. Statutory Screening of Prisoner Complaints 5 The Court is required to screen complaints brought by prisoners seeking relief 6 against a governmental entity or an officer or an employee of a governmental entity. 28 7 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 8 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 9 relief may be granted, or that seek monetary relief from a defendant who is immune from 10 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 11 A pleading must contain a “short and plain statement of the claim showing that the 12 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 13 not demand detailed factual allegations, “it demands more than an unadorned, the- 14 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 15 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Id. 17 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 18 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 19 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 20 that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 22 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 24 allegations may be consistent with a constitutional claim, a court must assess whether there 25 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 26 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 27 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 28 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 1 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 2 U.S. 89, 94 (2007) (per curiam)). 3 II. First Amended Complaint 4 Plaintiff names the following Defendants in his 21-count First Amended Complaint: 5 Sergeants Winget and Bernardo Villanueva; Correctional Officers (CO) II Tribolet, 6 Verdugo, Valencia, Ruben Cornejo, and Jose Lopez; COs III Michael A. Kinney, 7 Plancarte, Shy, and Rowley; CO IV Eva K. Sheridan; Deputy Warden Panann Days; 8 Arizona Department of Corrections (ADC) Director David Shinn; Captain J. Silves; 9 Medical Providers Joan Grafton, Natalya Weigel, and Adolfo Oritz; and Maintenance 10 Employees Taylor and Aventniti. Plaintiff seeks money damages and declaratory and 11 injunctive relief. 12 III. Discussion 13 A. Counts One through Four 14 Plaintiff alleges that between May and October 2018, Defendants Winget (Count 15 One), Tribolet (Count Two), Verdugo (Count Three), and Valencia (Count Four) violated 16 his Eighth Amendment rights when, in retaliation for Plaintiff assaulting staff, each 17 Defendant used derogatory and offensive slurs towards Plaintiff and engaged in excessive 18 force by “banging the gurney in which [Plaintiff] was strapped and secured to face down, 19 in shackles and handcuffs, into walls and structures and attempting to br[eak] [Plaintiff’s] 20 arm when [Plaintiff’s] elbow was slammed into and caught on the bars of the wing gate.” 21 (Doc. 16 at 5, 6, 7, 8.) Plaintiff also claims each Defendant “forcefully applied 22 contaminated, unsanitary, and bio-hazardous clippers to [Plaintiff’s] face and ‘force 23 shav[ed Plaintiff] and . . . denied [him] basic human necessities by refusing to provide 24 [Plaintiff with] food[,] . . . a mattress[,] . . . hygiene items[,] . . outdoor recreation[,] . . . 25 showers[,] . . . cleaning supplies[,] . . . hair or nail clippers[,] . . . [and] water during outdoor 26 recreation in temperatures in excess of 100 [degrees].” (Id.) Plaintiff claims each 27 Defendant also manufactured evidence, falsified official reports, and caused a hostile 28 environment by condoning all of the above actions. (Id.) 1 1. Retaliation 2 A viable claim of First Amendment retaliation contains five basic elements: (1) an 3 assertion that a state actor took some adverse action against an inmate (2) because of 4 (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise 5 of his First Amendment rights (or that the inmate suffered more than minimal harm) and 6 (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 7 F.3d 559, 567-68 (9th Cir. 2005). The plaintiff has the burden of demonstrating that his 8 exercise of his First Amendment rights was a substantial or motivating factor behind the 9 defendants’ conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 10 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 11 Plaintiff claims he was retaliated against for assaulting a detention officer. Assault is not 12 protected conduct and Plaintiff therefore fails to state a retaliation claim. 13 2. Verbal Harassment 14 “‘Verbal harassment or abuse . . . is not sufficient to state a constitutional 15 deprivation under 42 U.S.C. ' 1983.’” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th 16 Cir. 1987) (quoting Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979)); see also, McFadden 17 v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (mere threatening language and gestures do 18 not, even if true, amount to constitutional violations); Johnson v. Glick, 481 F.2d 1028, 19 1033 n.7 (2d Cir. 1973) (the use of words, no matter how violent, does not comprise a § 20 1983 violation). Accordingly, to the extent Plaintiff alleges Defendants Winget, Tribolet, 21 Verdugo, and Valencia used derogatory and offensive slurs towards Plaintiff, he fails to 22 state a claim for relief. 23 3. Excessive Force 24 Liberally construed, Plaintiff has adequately stated an Eighth Amendment excessive 25 force claim against Defendants Winget, Tribolet, Verdugo, and Valencia for allegedly 26 banging him into walls and doorways while he was strapped to a gurney, with the intent to 27 injure him, and in force-shaving Plaintiff’s face. The Court will require Defendants 28 Winget, Tribolet, Verdugo, and Valencia to answer these portions of Counts One, Two, 1 Three, and Four, respectively. 2 4. Conditions 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 To the extent Plaintiff claims Defendants denied him “basic human necessities” 16 such as hygiene items and cleaning supplies, outdoor recreation, and water during 17 recreation times, his allegations are insufficient to state a claim for relief. Plaintiff does 18 not allege facts showing the deprivations caused a substantial risk of serious harm to 19 Plaintiff, of which Defendants were aware, and that each Defendant failed to act. With 20 respect to Plaintiff’s claims regarding meals, bedding, outdoor recreation, and showers, 21 Plaintiff does not allege specific facts regarding when or for how long he was denied these 22 items or activities. The Court will dismiss Plaintiff’s conditions of confinement claims in 23 Count One. 24 B. Counts Five through Seven 25 In Counts Five through seven, Plaintiff alleges that on May 8, 2018, Defendants 26 Villanueva (Count Five), Cornejo (Count Six), and Lopez (Count Seven) violated his 27 Eighth Amendment rights when they used excessive force on Plaintiff. Plaintiff claims 28 that while he was handcuffed and held by other officers, Defendants screamed racial slurs 1 at Plaintiff, grabbed the collar of his clothes, choked him, and attempted to shove his 2 clothing into his mouth and down his throat. (Doc. 16 at 9, 10, 11.) Plaintiff states he was 3 unable to resist or defend himself. Plaintiff states he was also denied a “decontamination 4 process” after he was sprayed with chemical agents in his head and face, which caused 5 burning to his skin and eyes and difficulties breathing. Plaintiff asserts Defendants also 6 discarded all of Plaintiff’s personal property and clothing and placed Plaintiff into a bare 7 cell, “barefooted and with no bedding, linen, or basic hygiene necessities or toilet paper 8 while [Plaintiff] was still covered in chemical agents and unable to move, laydown, or 9 attempt to sleep without suffering severe . . . burning and irritation.” (Id.) Plaintiff further 10 contends Defendants falsified reports and fabricated evidence, “and/or watched, condoned, 11 and failed to intervene and/or . . . participated [in] any one or all of these acts and events.” 12 (Id.) 13 1. Excessive Force 14 Liberally construed, Plaintiff has adequately stated an Eighth Amendment excessive 15 force claim against Defendants Villanueva, Cornejo, and Lopez for allegedly choking 16 Plaintiff and attempting to shove Plaintiff’s clothing into his mouth and throat. The Court 17 will require Defendant Villanueva, Cornejo, and Lopez to answer these portions of Counts 18 Five, Six, and Seven, respectively. 19 2. Conditions of Confinement 20 Whether conditions of confinement rise to the level of a constitutional violation may 21 depend, in part, on the duration of an inmate’s exposure to those conditions. Keenan v. 22 Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 23 (1978) (“[T]he length of confinement cannot be ignored in deciding whether the 24 confinement meets constitutional standards. A filthy, overcrowded cell and a diet of ‘grue’ 25 might be tolerable for a few days and intolerably cruel for weeks or months.”)). 26 With respect to Plaintiff’s claims regarding a “decontamination process,” and being 27 placed in a cell without personal property, clothing, bedding, linen, basic hygiene items or 28 toilet paper, Plaintiff’s allegations are too vague to state a claim because Plaintiff does not 1 allege for what length of time he was subjected to the conditions. The Court will dismiss 2 these portions of Counts Five, Six, and Seven. 3 C. Counts Eighth through Eleven 4 In Counts Eight through Eleven, Plaintiff alleges that from May through October 5 2018, Defendants Kinney (Count Eight), Plancarte (Count Nine), Sheridan (Count Ten), 6 and Days (Count Eleven) violated his Eighth Amendment rights by showing confidential 7 grievance documents to unauthorized staff or inmates, wrongfully intercepted grievance 8 documents, refused to process legitimate and properly filed grievances, signed off on 9 grievances without documentation, and otherwise barred access to the grievance process. 10 Plaintiff asserts Defendants Kinney, Plancarte, and Sheridan also failed to correct unlawful 11 conduct thereby allowing Defendant Tribolet and other officers to “retaliate, terrorize, and 12 abuse [Plaintiff] repeatedly.” (Doc. 16 at 12, 13, 14, 15.) 13 Prisoners have a First Amendment right to file prison grievances, Rhodes v. 14 Robinson, 408 F.3d 559, 567 (9th Cir. 2005), but “[t]here is no legitimate claim of 15 entitlement to a grievance procedure,” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), 16 and the failure to follow grievance procedures does not give rise to a due process claim. 17 See Flournoy v. Fairman, 897 F. Supp. 350, 354 (N.D. Ill. 1995) (jail grievance procedures 18 did not create a substantive right enforceable under § 1983); Spencer v. Moore, 638 F. 19 Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance system procedures do not deprive 20 inmates of constitutional rights). “[N]o constitutional right was violated by the defendants’ 21 failure, if any, to process all of the grievances [plaintiff] submitted for consideration.” 22 Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). In addition, “[t]he right to petition 23 the government for redress of grievances . . . does not guarantee a favorable response, or 24 indeed any response, from state officials. Moreover, the First Amendment’s right to 25 redress of grievances is satisfied by the availability of a judicial remedy.” Baltoski v. 26 Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003); see also Ashann-Ra v. Virginia, 112 27 F. Supp. 2d 559, 569 (W.D. Va. 2000) (failure to comply with state’s grievance procedure 28 is not actionable under § 1983 and does not compromise an inmate’s right of access to the 1 courts). 2 Plaintiff’s allegations in Counts Eight through Eleven pertain only to the handling 3 of his grievances. Accordingly, the Court will dismiss Counts Eight through Eleven for 4 failure to state a claim, as well as Defendants Kinney, Plancarte, and Sheridan. 5 D. Counts Twelve through Fifteen 6 In Count Twelve, Plaintiff alleges his Fourteenth Amendment rights have been 7 violated by Defendant Shinn’s policies regarding inmate disciplinary hearings. Plaintiff 8 claims that although the disciplinary regulations allow inmates to present witnesses or 9 witness statements, inmates are not entitled to these procedures and cannot demand them. 10 Plaintiff also claims that appeals based on due process challenges are routinely denied as 11 long as an inmate is provided 48 hours written notice before the disciplinary hearing. (Doc. 12 16 at 16.) Plaintiff asserts disciplinary hearings are presided over by a correctional officer 13 with the rank of “captain,” who cannot be impartial when evaluating the actions of 14 subordinate officers, especially in cases involving staff assaults. Plaintiff further argues 15 disciplinary convictions can be based solely on the accusing officer’s disciplinary report 16 and this “is not evidence by definition.” (Id. at 17.) Plaintiff contends that other than “a 17 very limited witness process, in which [inmates] are solely reliant on the disposition and 18 diligence of staff, policy does not allow for inmates to put on a defense, present evidence, 19 or to otherwise factually dispute or challenge the alleged evidence against them.” (Id.) 20 Plaintiff asserts convictions are upheld “regardless of whether there was any evidence 21 actually presented at the hearing.” (Id.) 22 Plaintiff alleges inmates can be charged and found guilty of felony offenses and 23 “authorization is granted to the DHO to assess penalties for felony violations, to include 24 restitution, with the exception of an event involving actual escape . . . [T]here is no statute 25 explicitly granting authority to the Director of ADC . . . to determine [or] issue . . . lawful 26 and binding restitution orders.” (Id.) Plaintiff claims inmates “have been assessed 27 restitution amounts in excess of $20,000.00 and $30,000. Simply based upon a ‘more 28 probably true than not’ finding by a single individual” whose impartiality is questionable. 1 (Id. at 17-18.) 2 In Counts Thirteen through Fifteen, Plaintiff alleges Defendants Shy (Count 3 Thirteen), Rowley (Count Fourteen) and Silves (Count Fifteen), violated his Fourteenth 4 Amendment rights when they deprived Plaintiff of adequate notice of a disciplinary 5 hearing, a meaningful opportunity to prepare a defense, call witnesses, investigate, access 6 evidence to be used against him, and access exculpatory evidence and video. (Id. at 19, 7 20, 21.) Plaintiff also claims the disciplinary appeals process was inadequate, 8 “constitutionally unsound and serves no legitimate penological interest.” (Id.) Plaintiff 9 contends this caused him to lose all of his good time credits and to be placed in “parole 10 class III, where [he] is not eligible to earn good time . . . credits for a total of 516 days.” 11 (Id.) Plaintiff argues this extends his prison sentence and states he has been placed in 12 “enhanced security” and housed in a “super maximum custody ‘lock down’ unit for an 13 extended and indefinite period of time.” (Id.) Plaintiff argues these are atypical and 14 significant hardships. 15 “[A] state prisoner seeking injunctive relief against the denial or revocation of 16 good-time credits must proceed in habeas corpus, and not under § 1983.” Nonnette v. 17 Small, 316 F.3d 872, 875 (9th Cir. 2002). In addition, if a judgment for Plaintiff regarding 18 the denial of due process in a prison disciplinary proceeding would invalidate or imply the 19 invalidity of the deprivation of good-time credits, the claim is barred under Heck v. 20 Humphrey, 512 U.S. 477 (1994), unless Plaintiff can show that the disciplinary conviction 21 has been previously invalidated. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997); 22 Heck, 512 U.S. at 486-87; Nonnette, 316 F.3d at 875. See also Wilkinson v. Dotson, 544 23 U.S. 74, 81-82 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior 24 invalidation)–no matter the relief sought (damages or equitable relief), no matter the target 25 of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)– 26 if success in that action would necessarily demonstrate the invalidity of confinement or its 27 duration.”). 28 Plaintiff’s disciplinary claims, if decided in his favor, would either invalidate or 1 imply the invalidity of the deprivation of his good-time credits. Because Plaintiff has not 2 demonstrated that his prison disciplinary proceeding has been reversed, expunged, declared 3 invalid, or called into question by a federal court’s issuance of a writ of habeas corpus, his 4 claims are barred by Heck. Therefore, the Court will dismiss Counts Twelve, Thirteen, 5 Fourteen, and Fifteen, as well as Defendants Shinn, Shy, Rowley, and Silves. 6 E. Counts Sixteen through Seventeen 7 Not every claim by a prisoner relating to inadequate medical treatment states a 8 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 9 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 10 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 11 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 12 Cir. 2006). 13 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 14 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 15 know of and disregard an excessive risk to inmate health; “the official must both be aware 16 of facts from which the inference could be drawn that a substantial risk of serious harm 17 exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate 18 indifference in the medical context may be shown by a purposeful act or failure to respond 19 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 20 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official 21 intentionally denies, delays, or interferes with medical treatment or by the way prison 22 doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 23 (1976); Jett, 439 F.3d at 1096. 24 Deliberate indifference is a higher standard than negligence or lack of ordinary due 25 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 26 negligence will constitute deliberate indifference.” Clement v. California Dep’t of Corr., 27 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 28 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical 1 malpractice” do not support a claim under § 1983). “A difference of opinion does not 2 amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 3 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is 4 insufficient to state a claim against prison officials for deliberate indifference. See Shapley 5 v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The 6 indifference must be substantial. The action must rise to a level of “unnecessary and 7 wanton infliction of pain.” Estelle, 429 U.S. at 105. 8 1. Count Sixteen 9 In Count Sixteen, Plaintiff alleges Defendant Grafton violated his Eighth 10 Amendment rights when, for non-medical reasons, she denied him treatment for 11 degenerative joint disorder in his lower spine. Plaintiff claims Defendant Grafton 12 “repeatedly failed and refused to provide previously prescribed treatment and care . . . 13 ordered and provided by another physician for . . . the same conditions, causing [Plaintiff] 14 unnecessary, wanton, and sadistic physical and mental pain and suffering for over 19 15 months.” (Doc. 16 at 22.) Plaintiff claims he suffers excruciating pain in his back and 16 body, as well as anxiety, stress, and frustration. Plaintiff states he has difficulty sitting, 17 standing, moving around, and functioning “at a normal level” without severe pain and this 18 prevents him from accepting “any job or physical programming assignments in the prison.” 19 (Id.) 20 Plaintiff’s allegations in Count Sixteen are too vague to state a claim. Plaintiff does 21 not allege the “non-medical” reasons Defendant Grafton relied on to deny him medical 22 treatment, describe the specific medical treatment he sought, or allege whether he was 23 offered or received alternative medical treatments. The Court will dismiss Count Sixteen 24 for failure to state a claim, as well as Defendant Grafton. 25 2. Counts Seventeen and Eighteen 26 Plaintiff alleges Defendants Weigel (Count Seventeen) and Ortiz (Count Eighteen) 27 violated his Eighth Amendment rights when, for non-medicals reasons, they denied him 28 “medical health care and treatment for . . . bilateral arthritis in both of [Plaintiff’s] knees 1 and a history of pain and suffering in [his] knees and difficulty moving around.” (Id. at 23, 2 24.) Plaintiff asserts Defendants Weigel and Ortiz denied his request for a Special Needs 3 Order that prohibits him from being required to kneel on the floor to be shackled when 4 “being forced to do so up to 10 times a day is causing [Plaintiff] unnecessary and reasonable 5 avoidable pain and suffering and is contributing to the unnecessary and wanton worsening 6 and/or aggravation of [his] medical condition and when there is no legitimate penological 7 interest in requiring [him] to kneel down on both knees on the floor and ground.” (Id.) 8 Plaintiff does not allege when he requested the Special Needs Order from 9 Defendants Weigel or Ortiz, when his request was denied, the reasons Weigel or Ortiz gave 10 for denying his request for a Special Needs Order, or whether he was offered any alternative 11 to the Special Needs Request Order. Plaintiff’s allegations are too vague to state an Eighth 12 Amendment medical care claim and the Court will dismiss Counts Seventeen and Eighteen, 13 as well as Defendants Weigel and Ortiz . 14 F. Counts Nineteen through Twenty-One 15 Plaintiff alleges Defendant Taylor (Count Nineteen), Aventniti (Count Twenty), and 16 Days (Count Twenty-One) violated his Eighth Amendment rights when each “knew and 17 was aware of the mold problem in the drain/pipes of the sink in cell 1 dog #28 and/or should 18 have been aware and, placed [Plaintiff] into this cell anyway.” (Id. at 25, 26, 27.) Plaintiff 19 alleges he notified each Defendant and “made repeated request[s] for assistance and 20 resolution” but Defendants “refused to investigate or asses the problem.” (Id.) Plaintiff 21 also contends Defendants falsified documents, misrepresented the mold problem and its 22 extent, failed to properly investigate the problem or take it seriously, failed to “order 23 correction” of the problem, and willfully endangered Plaintiff’s health and safety. (Id.) 24 As noted earlier, a showing of deliberate indifference requires that “the official must 25 both be aware of facts from which the inference could be drawn that a substantial risk of 26 serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. 27 Plaintiff claims Defendants were aware of the presence of mold, but he does not allege that 28 any of the Defendants were aware of a substantial harm of serious risk. Plaintiff does not 1 allege that he suffered any injury from the alleged presence of mold or that he 2 communicated any such injury Defendants Taylor, Aventniti, or Days. Moreover, Plaintiff 3 does not allege facts showing that Defendants Taylor or Aventniti, whom he describes as 4 maintenance employees, had any authority to authorize Plaintiff’s transfer to a difference 5 cell or to authorize funds for maintenance repairs. 6 The Court will dismiss Counts Nineteen, Twenty, and Twenty-One for failure to 7 state a claim, as well as Defendants Taylor, Aventniti, and Days. 8 IV. Motion for Preliminary Injunction 9 To obtain a preliminary injunction, the moving party must show “that he is likely to 10 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 11 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 12 the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 21 13 (2008). The moving party has the burden of proof on each element of the test. 14 Environmental Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 15 2000). 16 Plaintiff seeks an order requiring Defendants to “remove and expel the mold 17 infestation existing in the drain and/or pipes of the sink located in Plaintiff’s cell.” Because 18 the Court has dismissed Plaintiff’s mold claims from the First Amended Complaint, 19 Plaintiff has failed to show he is likely to succeed on the merits of that claim. The Court 20 will therefore deny the Motion for Preliminary Injunction. 21 V. Warnings 22 A. Release 23 If Plaintiff is released while this case remains pending, and the filing fee has not 24 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 25 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 26 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 27 result in dismissal of this action. 28 B. Address Changes 1 Plaintiff must file and serve a notice of a change of address in accordance with Rule 2 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 3 relief with a notice of change of address. Failure to comply may result in dismissal of this 4 action. 5 C. Copies 6 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 7 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 8 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 9 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 10 to comply may result in the filing being stricken without further notice to Plaintiff. 11 D. Possible Dismissal 12 If Plaintiff fails to timely comply with every provision of this Order, including these 13 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 14 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 15 to comply with any order of the Court). 16 IT IS ORDERED: 17 (1) The following claims and counts in the First Amended Complaint are 18 dismissed without prejudice: 19 (a) the retaliation, verbal abuse, and conditions of confinement claims in 20 Counts One, Two, Three, and Four; 21 (b) the conditions of confinement claims in Counts Five, Six, and Seven; and 22 23 (c) Counts Eight through Twenty-One. 24 (2) Defendants Plancarte, Kinney, Sheridan, Days, Silves, Shy, Rowley, 25 Grafton, Weigel, Ortiz, Taylor, Aventniti, and Shinn are dismissed without prejudice. 26 (3) Defendants Winget, Tribolet, Verdugo, Valencia, Villanueva, Cornejo, and 27 Lopez must answer the excessive force claims Counts One through Seven, in their 28 individual capacities, as described above. 1 (4) Plaintiff’s Motion for Preliminary Injunction (Doc. 5) is denied. 2 (5) The Clerk of Court must send Plaintiff a service packet including the First 3 Amended Complaint (Doc. 16), this Order, and both summons and request for waiver 4 forms for Defendants Winget, Tribolet, Verdugo, Valencia, Villanueva, Cornejo, and 5 Lopez. 6 (6) Plaintiff must complete1 and return the service packet to the Clerk of Court 7 within 21 days of the date of filing of this Order. The United States Marshal will not 8 provide service of process if Plaintiff fails to comply with this Order. 9 (7) If Plaintiff does not either obtain a waiver of service of the summons or 10 complete service of the Summons and First Amended Complaint on a Defendant within 90 11 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 12 is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 13 LRCiv 16.2(b)(2)(B)(ii). 14 (8) The United States Marshal must retain the Summons, a copy of the First 15 Amended Complaint, and a copy of this Order for future use. 16 (9) The United States Marshal must notify Defendants of the commencement of 17 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 18 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 19 Order. 20 (10) A Defendant who agrees to waive service of the Summons and First 21 Amended Complaint must return the signed waiver forms to the United States Marshal, not 22 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 23 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 24 personal service. 25 26
27 1 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 (11) The Marshal must immediately file signed waivers of service of the 2 summons. If a waiver of service of summons is returned as undeliverable or is not returned 3 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 4 the Marshal must: 5 (a) personally serve copies of the Summons, First Amended Complaint, 6 and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil 7 Procedure; and 8 (b) within 10 days after personal service is effected, file the return of 9 service for Defendant, along with evidence of the attempt to secure a waiver of 10 service of the summons and of the costs subsequently incurred in effecting service 11 upon Defendant. The costs of service must be enumerated on the return of service 12 form (USM-285) and must include the costs incurred by the Marshal for 13 photocopying additional copies of the Summons, First Amended Complaint, or this 14 Order and for preparing new process receipt and return forms (USM-285), if 15 required. Costs of service will be taxed against the personally served Defendant 16 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 17 ordered by the Court. 18 (12) Defendants Winget, Tribolet, Verdugo, Valencia, Villanueva, Cornejo, and 19 Lopez must answer the First Amended Complaint or otherwise respond by appropriate 20 motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 21 Rules of Civil Procedure. 22 (13) Any answer or response must state the specific Defendant by name on whose 23 behalf it is filed. The Court may strike any answer, response, or other motion or paper that 24 does not identify the specific Defendant by name on whose behalf it is filed. 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 (14) This matter is referred to Magistrate Judge Camille D. Bibles pursuant to 2| Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 3 | authorized under 28 U.S.C. § 636(b)(1). 4 Dated this 6th day of March, 2020. 5 ° WMichak T. Shure Micha T. giburke Michael T. Liburdi 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28