No. CV 19-01390 PHX SMB (CDB)
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN M. BRNOVICH:
In an order entered July 9, 2019, the Court granted Plaintiff's application to proceed in this matter in forma pauperis and dismissed Plaintiff's complaint. (ECF No. 6). In an order entered November 19, 2019, the Court dismissed Counts Two through Eight of Plaintiff's First Amended Complaint at ECF No. 8, and also dismissed Defendants Penzone, Payne, Kirk, A8992, Karas, Smith, A7936, Marty, Spurgin, Dawson, and Lee. (ECF No. 9). The Court ordered Defendant Culda, in his individual capacity, to answer Count One of the First Amended Complaint, asserting Plaintiff's First Amendment rights were violated when Defendant Culda retaliated against Plaintiff for filing a grievance by filing a disciplinary charge against him. (ECF No. 9 at 3-4, 8). Defendant Culda waived service on December 4, 2019, (ECF No. 11, docketed December 26, 2019), and his answer is due February 3, 2020.
Before the Court is Plaintiff's motion for leave to amend his First Amended Complaint. (ECF No. 10). Plaintiff has lodged a proposed Second Amended Complaint, asserting five claims for relief. (ECF No. 10 at 5-20). Plaintiff's proposed Second Amended Complaint names the defendants previously dismissed from this matter and reasserts Counts Two through Five of the First Amended Complaint. (Id.).
II. Governing law
A. Standard for granting or denying a motion to amend
Rule 15(a) of the Federal Rules of Civil Procedure provides that a plaintiff should be given leave to amend his complaint when justice so requires. Granting or denying leave to amend is a matter committed to the Court's discretion. Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013).
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(c)(1), requires the screening of prisoner complaints and the dismissal of allegations that fail to state a claim upon which relief can be granted prior to ordering service of an amended complaint on the defendants. See, e.g., O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Futility of amendment is sufficient to justify denial of a motion for leave to amend. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010). A proposed amended complaint is futile if, accepting all of the facts alleged as true, it would be immediately "subject to dismissal" for failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998); Riverview Health Inst. LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). The Court is obliged to liberally construe an incarcerated pro se plaintiff's complaint. See, e.g., Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id., quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Although pro se pleadings must be liberally construed, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id., quoting Twombly, 550 U.S. at 570. A claim is plausible only "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Therefore, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, the reviewing court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
B. Elements of a § 1983 claim
To prevail in a § 1983 claim, a plaintiff must show: (1) an act by the named defendant; (2) taken under color of state law; (3) which deprived the plaintiff of a federal right; and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005). Additionally, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976); Taylor v. List, 880 F.2d 1040, 1045-46 (9th Cir. 1989).
III. Analysis of Plaintiff's proposed amendments
A. Count One
In dismissing the other defendants named in Count One of the First Amended Complaint, the Court determined:
Liberally construed, Plaintiff has stated a First Amendment retaliation claim against Defendant Culda, and this Defendant will be required to answer Count One of the First Amended Complaint. The remaining allegations in Count One are insufficient to state a claim. There is nothing in the First Amended Complaint to suggest that Defendant Culda continued to engage in retaliatory conduct after Plaintiff filed his grievance or that any other Defendant knew Culda filed the disciplinary charge in retaliation for Plaintiff's grievance. Accordingly, Culda's retaliatory behavior cannot be attributed to any failure by Defendants Payne, Karas, A8992, Kirk, Marty,
Smith, Lee, and Penzone to take remedial action. The claims against these Defendants will therefore be dismissed.(ECF No. 9 at 8 & n.3). The Court also found: "Although Plaintiff has named Defendants in both their individual and official capacities, Plaintiff's allegations fail to plausibly show that an MCSO policy, practice, or custom resulted in the constitutional injuries alleged in Counts One and Two. Accordingly, the Court will dismiss the official capacity claims in these counts." (ECF No. 9 at 7).
In addition, Plaintiff has failed to allege any facts to suggest that Defendant Penzone was personally involved in the denial of Plaintiff's grievance or grievance appeals.
In his proposed Second Amended Complaint Plaintiff adds the following allegations: "A number of decisions have held that an inmate['s] grievance complaints could be sufficient to give notice of constitutional violations," and that prison officials or employees who know or should know that an inmate's constitutional rights are being violated "may be held liable if they fail to do anything about it." (ECF No. 10 at 12). Plaintiff alleges that his filing of a grievance regarding Defendant Culda placed "MCSO staff," i.e., "Sgt. Payne (B2195)," on notice that Defendant Culda had violated his federal constitutional rights. (ECF No. 10 at 12-13). He further asserts that Payne, Karas, Sgt A8992, Kirk, Marty, Smith, Lee, and Penzone, as Defendant Culda's "direct supervisors," were placed on notice "of the false charges brought forth by" Defendant Culda in retaliation for Plaintiff's filing of a grievance, i.e., Plaintiff contends his filing of a grievance placed these supervisors "on notice" that his constitutional rights were violated. (Id.). Plaintiff argues that because the "supervisory officials failed to remedy the violation by dismissing the false charges" and "failed to investigate or reprimand or admit that Ofc Culda's actions were wrong,  it can be inferred that there was a policy or custom that was the moving force on the continuance of discipline that stemmed from the trumped-up charges filed by Ofc Culda." (Id.). In support of this allegation of law Plaintiff cites Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006), Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 1998), and Alexander v. Perrill, 916 F.2d 1392, 1395 (9th Cir. 1990). Plaintiff contends "[w]hen officials or employees who know, or reasonable [sic] should know, that an inmate is being treated unconstitutionally, they may be held liable if they fail to do anything about it," citing Greason v. Kemp, 891 F.2d 829, 839-40 (11th Cir. 1990), Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001). (Id.). The cases cited by Plaintiff are not on point: Jett, involved an Eighth Amendment violation and direct notice to supervisors via a letter from the plaintiff; Reed involved a prisoner from whom food and medication were withheld and the plaintiff sent letters "directly" to the supervisory officials and provided proof the letters were received; and Alexander, a Bivens case, involved the rejection of a qualified immunity defense when the official performed an affirmative act, participated in an affirmative act, and/or failed to perform an act they were legally required to perform, i.e., the recalculation of the plaintiff's sentence. Greason notes that there is no supervisory liability in a § 1983 case and that a supervisor can be held liable only when their own conduct was causally related to the constitutional violation committed by their subordinate. See 891 F.2d at 836-37.
To properly state a § 1983 claim, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.
Liability under section 1983 arises only upon a showing of personal participation by the defendant. . . . A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.Taylor, 880 F.2d at 1045.
In Gomez, an "access to the courts" matter, the Ninth Circuit considered the relief awarded after a trial judge found the plaintiffs' constitutional rights were violated because the Idaho Department of Corrections, two of its penal institutions, and several officials retaliated against inmates who filed lawsuits or availed themselves of grievance procedures, pursuant to a "turn a-blind-eye" policy. See 255 F.3d at 1126-27. The standard noted in that matter was to find a supervisory official liable for a subordinate's constitutional violation when it was shown that "'it was almost impossible'" for the subordinate "'to suffer discipline as a result of a complaint'" lodged by the individual whose rights were clearly violated. Id. at 1127. See also Dillberg v. County of Kitsap, 76 F. App'x 792, 797 (9th Cir. 2003) (noting the "policy or custom" standard requires the plaintiff show "the constitutional violation occurred pursuant to a 'longstanding practice or custom'" or "multiple instances of known constitutional violations that went unredressed"). Plaintiff has not, therefore, stated sufficient non-conclusory allegations to support any supervisory liability with regard to Count One of his proposed Second Amended Complaint. Indeed, in a prior suit the Court dismissed a similar allegation that prison administrators and supervisors were liable for an alleged violation of Plaintiff's federal constitutional rights because they failed to "grant Plaintiff's grievances or grievance appeals." Davis v. Penzone, 2017 WL 8792541, at *5 (D. Ariz. July 25, 2017) (No. CV 17-01912-PHX-DLR (BSB)).
B. Count Two
Count Two of the lodged Second Amended Complaint states a claim for violation of Plaintiff's right to due process of law in disciplinary proceedings. In dismissing this claim as stated in the First Amended Complaint, the Court concluded:
Procedural due process in disciplinary proceedings requires that the inmate receive: (1) written notice of the charges, no less than twenty-four hours prior to the hearing; (2) a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action and (3) a limited right to call witnesses and present documentary evidence when it would not be unduly hazardous to institutional safety or correctional goals to allow the defendant to do so. Wolff v. McDonnell, 418 U.S. 539, 565-66 (1974). If these procedural protections are followed, the only function of a federal court is to review the statement of evidence upon which the committee relied in making its findings to determine if the decision is supported by "some facts." Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (citation omitted). Due process requires simply "that there be some evidence to support the findings made in the disciplinary hearing." Superintendent v. Hill, 472 U.S. 445, 457 (1985).
Plaintiff's allegations regarding Defendant Kirk's hearing are too vague and conclusory to state a claim under the Fourteenth Amendment. Plaintiff claims that Kirk "refused to allow Plaintiff to tell his side of the
incident," but he does not allege what took place at the hearing, indicate whether he was permitted to present other evidence in his behalf, or describe Kirk's alleged refusal to hear Plaintiff's version of events. In the absence of such information, it is not clear that Kirk's conduct violated Plaintiff's procedural due process rights or that Plaintiff's disciplinary convictions were devoid of support. Accordingly, Plaintiff has failed to state a claim in Count Two, and this count will be dismissed.(ECF No. 9 at 9).
In his proposed Second Amended Complaint Plaintiff seeks to cure the cited deficiencies by asserting:
The mere fact that Ofc Culda retaliated against plaintiff by filing false charges — giving false testimony, after Plaintiff had filed a grievance on Ofc Culda — would support a due process violation. As a result of the false charges Plaintiff was seen at his cell by Sgt Kirk (B0326), who stated "I'm here because you received a DAR." When Plaintiff attempted to tell his side of the incident, Sgt. Kirk rudely interrupted Plaintiff stating, "I don't care what you have to say - you're guilty as the DAR is written!" Plaintiff was not allowed to present any evidence or to give his testimony to support his version of events. Essentially, the disciplinary hearing consist[ed] of Sgt Kirk writing "guilty as DAR is written" on the DAR and sanctioning Plaintiff to 30 days disciplinary restrictive housing and 30 days full restriction, which is the maximum sanctions.(ECF No. 10 at 14).
Plaintiff has failed to cure the deficiencies noted in the Order at ECF No. 9. As the Order noted Plaintiff filed a grievance, the grievance was investigated, and at some point he was allowed the opportunity to contradict Defendant Culda's assertion in the disciplinary action report ("DAR"), i.e., Plaintiff averred that "at no point did [he] make or offer any bribes or interfer[e] or harass the officers." (ECF No. 9 at 3). Plaintiff apparently was also given notice and an opportunity to be heard regarding the DAR, as his First Amended Complaint contained an excerpt of the denial of his external grievance appeal: "You claim that the retaliation was in the form of a Disciplinary Action Report you received that you state contained 'ridiculous disciplinary charges.' The Hearing Sergeant disagreed with you and you were found guilty." (ECF No. 9 at 4, quoting the First Amended Complaint (ECF No. 8) at 14-15).
C. Count Three
Count Three of Plaintiff's First Amended Complaint and proposed Second Amended Complaint asserts a violation of Plaintiff's Fourth Amendment right to bodily privacy. Plaintiff contends inmates at the Maricopa Integrated Health System holding cells are recorded and monitored in a "humiliating and degrading" manner. In his First Amended Complaint Plaintiff asserted the system's buildings
. . . have security cameras that are pointed at the cells' toilets and are monitored by both male and female officers. (Doc. 1 at 10.) These cameras have "captured Plaintiff's genitalia and buttock[s] between the hours of 0430-0700 on 33 specific dates between September 24, 2015, and December 5, 2018. (Id.) Inmates are strip-searched before they are taken to the holding cells, and, according to Plaintiff, there is no legitimate reason for the cameras to record inmates using the toilet. (Id. at 11.)(ECF No. 9 at 5). In dismissing this claim, the Court concluded:
Pretrial detainees, like convicted prisoners, do not possess "the full range of freedoms of an unincarcerated individual." Bell, 441 U.S. at 546. "A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order." Hudson v. Palmer, 468 U.S. 517, 525 (1984). Furthermore, any restriction on Plaintiff's privacy interests is justified to the extent that it is "reasonably related to legitimate penological interests." See Turner v. Safley, 482 U.S. 78, 89 (1987). While a policy permitting daily cross-gender observation of prisoners showering and using the bathroom may rise to the level of a constitutional violation, "infrequent and casual observation, or observation at a distance, are not so degrading as to warrant court interference." Byrd v. Maricopa Cty. Sheriff's Dep't, ["Byrd I"] 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc) (citing Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988); see also Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 922 (9th Cir. 2017) ["Byrd II"].
Plaintiff's allegations are too vague and conclusory to state a claim under the Fourth or Fourteenth Amendments for a violation of his right to bodily privacy. Plaintiff has identified thirty-three separate dates on which he was allegedly recorded by MIHS cameras, but the duration and extent of Plaintiff's exposure on those dates is unclear. It is not sufficient to identify a window of time during which some type of cross-gender viewing may have occurred; rather, Plaintiff must allege facts sufficient to show the scope and manner of intrusion that occurred on a specific date. In the absence of such
information, his allegations are simply too speculative to demonstrate that he was injured as the result of a constitutional privacy violation. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001) (court need not accept as true unwarranted deductions of fact or unreasonable inferences). Accordingly, the Court will dismiss the bodily privacy claims in Counts Three and Four.(ECF No. 9 at 9-10).
Plaintiff's proposed Second Amended Complaint adds the specific times and dates that he asserts the "cameras have captured Plaintiff's genitalia and/or buttock[s]," listing the same 33 dates from September 24, 2015 through December 5, 2018 he asserted in his First Amended Complaint when the cameras "captured" images of his genitalia and buttocks, and adding the fact that on these dates the lengths of time the images were "captured" ranged from one minute to two minutes. (ECF No. 10 at 15).
Although it is clear that cross-gender strip-searches violate the right to bodily privacy, the standard for establishing a claim that brief and infrequent glimpses of an inmate's nudity requires frequent cross-gender visualization of more than a "limited" view, which viewing occurs in close proximity to the inmate. Plaintiff fails to allege that any female guard actually watched him "frequently and up close," or that any female guard was provided more than an "indistinct, limited view" of his body. Compare Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988); Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir. 1985); Timm v. Gunter, 917 F.2d 1093, 1101 (8th Cir. 1990).
Plaintiff's allegation that over a period of approximately 38 months a female guard might have had the opportunity to view him using the toilet, via a remote surveillance camera, on 33 occasions, i.e., an average of once every five weeks, for two minutes at most, does not rise to the level of a violation of his right to bodily privacy. See Michenfelder, 860 F.2d at 333-34 (holding the fact that a female officer might be able to observe strip searches did not equate to the violation of a constitutional right where the officers were not "routinely present"). In Byrd II, cited in the screening order, the bodily privacy claim survived a motion to dismiss because the plaintiff alleged female guards "observed daily, from four to five feet away, male pretrial detainees showering and using the bathroom," implying that when the observation was "obscured" and "distant" the claim might be dismissed. 845 F.3d at 924 (emphasis added). The holding regarding bodily privacy in Byrd I, also cited in the screening order, involved the cross-gender strip-search of the plaintiff wherein the female officer "touched Byrd's inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts. She moved his penis and scrotum in the process of conducting the search." 629 F.3d at 1142. Plaintiff does not allege he was touched; or that any female officer even remotely, much less "up close," actually viewed his genitalia or buttocks; or that any such viewing occurred for more than two minutes; or the degree to which any "view" of his buttocks or genitalia was more than indistinct or limited. Therefore, Plaintiff has failed to state an adequate claim that his right to bodily privacy was violated.
D. Counts Four and Five
Counts Four and Five of Plaintiff's lodged Second Amended Complaint are verbatim Counts Four and Five of Plaintiff's First Amended Complaint, which the Court previously concluded failed to state a claim for relief.
IT IS RECOMMENDED that Plaintiff's motion at ECF No. 10, seeking leave to docket and proceed on his proposed Second Amended Complaint, be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 30th day of January, 2020.
Camille D. Bibles
United States Magistrate Judge