Stone v. DeRosa et al, No. 2:2007cv00680 - Document 44 (D. Ariz. 2009)

Court Description: ORDER granting 25 Defendants' Motion for Summary Judgment; Rejecting 42 Report and Recommendations. Signed by Judge Paul G Rosenblatt on 3/25/09.(DMT, )
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Stone v. DeRosa et al 1 Doc. 44 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Sydney Stone, ) ) Plaintiff, ) ) v. ) ) CJ Derosa, et al., ) ) Defendants. ) ____________________________) CV 07-0680-PHX-PGR (CRP) ORDER NON-DEATH PENALTY 15 16 Currently before the Court is the Report and Recommendation of Magistrate Judge 17 Pyle (Doc. 15) based on movants Lappin and Watts’ motion for summary judgment. (Doc. 18 25.) Movants request that this Court reject the Magistrate Judge’s recommended denial of 19 their motion for summary judgment and, upon de novo review, grant movants’ motion. 20 Having reviewed de novo the motion, the Report and Recommendation of Magistrate Judge 21 Pyle, and the movants’ objections thereto, the Court finds the following. 22 Movants first objection pertains to the fact that Magistrate Judge Pyle did not rule on 23 any of movants’ objections to plaintiff’s proffer of facts, did not state which of movant’s 24 proffered facts were established for Rule 56 purposes and did not make a complete 25 recommendation of proposed factual findings for this Court’s de novo review. Based upon 26 the pleadings before him, the Magistrate should have determined what the undisputed facts 27 were. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990) (“If the 28 defendant asserts in a Rule 56 motion that undisputed facts show the absence of jurisdiction, Dockets.Justia.com 1 the court proceeds, as with any summary judgment motion, to determine if undisputed facts 2 exist that warrant the relief sought.”) 3 4 Next, Magistrate Pyle found that Director Lappin had by virtue of his position as Director of the Bureau fo Prisons. Specifically, he explained, 6 Given that a BOP policy is a critical issue in this case, Defendant Lappin’s position as Director of the BOP is sufficient conduct and connection with Arizona that he should reasonably anticipate being hauled into court here ... 7 R&R, p. 7. This Court disagrees. Instead, it agrees with movants’ conclusion that doing so 8 violates the “traditional notions of fair play and substantial justice” which is the foundation 9 of a federal court’s exercise of personal jurisdiction. See Miller v. Meyer, 311 U.S. 475, 463 10 (1940). If this Court accepted Magistrate Pyle’s recommendation, the result would inevitably 11 open the floodgates to universal jurisdiction by federal courts. Stroman Realty, Inc. v. Antt, 12 528 F.3d 382, 386 (5th Cir. 2008). 5 13 Magistrate Judge Pyle proposed that the head of a federal agency in Washington, D.C. 14 is subject to suit based upon specific jurisdiction in any judicial district in the country where 15 an agency regulation purportedly caused a constitutionally tortious effect upon plaintiff even 16 though there may be no evidence the federal official had any specific knowledge of or 17 involvement with the plaintiff in any manner. This principle has been rejected by courts all 18 over the country. Stine v. Lappin, 2009 WL 103659 *6 (D. Colo. 2009); Oksner v. Blakey, 19 2007 WL 3238659 *8-9 (N.D. Cal. 2007); Moss v. United States Secret Service, 2007 WL 20 2915608 *18-19 (D. Ore. 2007); Mahmud v. Oberman, 508 F. Supp. 2d 1294, 1302 (N.D. 21 Ga. 2007); Kronisch v. United States, 1997 WL 907994 *18 (S.D. N.Y. 1997); McCabe v. 22 Basham, 450 F. Supp.2d 916, 926-27 (N.D. Iowa 2006). 23 Magistrate Judge Pyle further opines that Lappin “enforced” the BOP policy based 24 upon his official capacity and his “overall control of BOP policies”. However, such is a 25 determination based upon Director Lappin’s official capacity. A Bivens action is 26 maintainable only due to individual acts, not official capacity acts. Daly-Murphy v. Winston, 27 837 F.2d 348, 355 (9th Cir. 1987); see Vaccaro v. Dobre, 81 F.3d 854, 856 (9th Cir. 1996) 28 2 1 (“[A] Bivens action is, by definition, against defendants in their individual and not their 2 official capacity”.) 3 As to Watts, Magistrate Judge concluded that “as Administrator of National Inmate 4 Appeals, (he) has ultimate authority to grant or deny inmate appeals” and “[b]ecause Watts’ 5 denial was the result of the policy, it is a significant contact and sufficient to be the basis of 6 personal jurisdiction”. R&R, p. 3 and 8. However, this Court finds significant that the 7 “denial” was a single event, occurring outside the State of Arizona, nine months after the 8 package at issue in this case was rejected by an FCI Phoenix employee and in response to an 9 unsolicited grievance made by an inmate to Watts at his out-of-state business location. The 10 record contains no evidence of any contact between plaintiff Stone and movant Watts. “[A] 11 high degree of relationship is needed where there is only one contact with the forum state. 12 In order to support jurisdiction with only one forum state contact, the cause of acting must 13 arise out of that particular purposeful contact of the defendant with the forum state”. Lake 14 v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). However, no such relationship exists. Watts 15 merely responded by an out-of-state act to an unsolicited grievance appeal submitted to him 16 by an inmate who happened to be in Arizona. It is the opinion of this Court that the single 17 out-of-state act by Watts does not amount to a purposeful availment of Watts into the State 18 of Arizona. Terracom v. Valley National Bank, 49 F.3d 555, 560 (9th Cir. 1995); Swisher 19 v. Collins, 2008 WL 687305 *17 (D. Idaho 2008); Technical Witts, Inc. v. Skynet Electronic 20 Co.,LTD., 2007 WL 809856 *4-5 (D. Ariz. 2007); see Hannon v. Beard, 524 F.3d 275, 21 281-82 (1st Cir. 2008) (Limited interactions between Pennsylvania prison librarian and 22 Massachusetts prisoner who requested legal materials from her held insufficient contacts to 23 justify personal jurisdiction over her in prisoner’s First Amendment action). 24 Significantly, Magistrate Pyle’s Recommendation does not address how this single 25 contact not with Plaintiff -who doesn’t even live in Arizona- gave rise to Plaintiff’s Bivens 26 cause of action. Terracom, 49 F.3d at 561 (“The second prong of the specific jurisdiction test 27 is met if “but for” the contacts between the defendant and the forum state, the cause of action 28 3 1 would not have arisen”); see Arensdorf v. Everson, 2008 WL 2229745 *3 (S.D. Tex. 2008) 2 (Vague assertions that defendants maintained contacts with Texas through internet mail, 3 telephone and property leases do not explain how these purported contacts gave rise to 4 plaintiff’s Bivens causes of action). 5 Again, Watts’ “contact” was nine months after the rejection of the book for which 6 plaintiff seeks compensatory and punitive damages. Such “post-incident” contacts are 7 accorded “little weight”. Farmers Ins. Exchange v. Portage La Prairie Mutual Ins. Co., 907 8 F.2d 911, 913 (9th Cir. 1990) (“Only contacts occurring prior to the event causing the 9 litigation may be considered.”); see Smith v. Bull Mountain Coal Properties, 2008 WL 10 1733359 (D. Mont. 2008) (relying on Farmers Ins. Exchange to dismiss on personal 11 jurisdiction grounds where defendant executed agreement seven months after the event which 12 served as the basis of the litigation). For this Court to hold that an after-the-fact decision by 13 the National Inmate Appeals Administrator on an inmate grievance was a sufficient basis for 14 personal jurisdiction, it would be providing a forum-choice tool by which any FCI inmate 15 anywhere in the country could bring suit in his/her local district court, regardless of any other 16 basis for the exercise of personal jurisdiction over the Washington D.C. official. Under the 17 concepts of fair play and substantial justice that are the tests for specific jurisdiction, such 18 an exercise of personal jurisdiction is untenable. The lack of significant contact does not 19 justify this Court’s exercise of personal jurisdiction. 20 With regard to Count II of Plaintiff’s Complaint, “the Ninth Circuit has not adopted 21 a conspiracy theory of personal jurisdiction, and district courts within the Ninth Circuit have 22 rejected it.” Hilsenrath v. Equity Trust (Jersey) Ltd., 2008 WL 728902 *4 n.5 (N.D. Cal. 23 2008). Furthermore, this Court has rejected it. Karsten Manufacturing Corp. v. United States 24 Golf Ass'n, 728 F. Supp. 1429, 1434 (D. Ariz. 1990). Thus Plaintiff’s allegation that 25 movants, together with co-defendant DeRosa, “conspired to violate” her First Amendment 26 right to mail books to a prisoner is DENIED. 27 28 Finally, as to respondeat superior, Magistrate Judge Pyle relies on Hydrick v. 4 1 Hunter, 500 F.3d 978 (9th Cir. 2007) to recommend that movants’ motion be denied insofar 2 as it alleges that plaintiff’s claim was an impermissible assertion of respondeat superior 3 liability. In Hydrick, the court was faced with determining whether plaintiffs had properly 4 plead a claim, in their motion to dismiss. In the case at hand, movants have proceeded by 5 way of a motion for summary judgment, and, because the burden of persuasion at trial would 6 be on the plaintiff, movants have satisfied their burden under Rule 56(c) by introducing 7 evidence negating an essential element of the nonmoving party’s case. Sciranko v. Fidelity 8 & Guar. Life Ins. Co., 503 F. Supp. 2d 1293, 1306 (D. Ariz. 2007). In other words, Plaintiff’s 9 conclusory and speculative assertions are insufficient to raise a genuine issue of material fact 10 necessary to defeat summary judgment. Id. Director’s Lappin’s status as Director of the 11 Bureau of Prisons, without evidence that he personally approved or participated in the acts 12 complained of by the plaintiff does not render him liable under a Bivens theory for the 13 alleged unconstitutional acts of officials at the FCI Phoenix. Tucker v. Clinton, 1996 WL 14 761941 (D.C. Cir. 1996) (citing Cameron v. Thornburg, 983 F.2d 253, 258 (D.C. Cir. 1993)); 15 Pinson v. Norwood, 2008 WL 2323895 *5 (C.D. Cal. 2008). Likewise, Watts denied an 16 inmate’s grievance nine months after an FCI Phoenix employee rejected delivery of the 17 package allegedly containing a book. The grievance was not submitted by Plaintiff and there 18 is no evidence that Watts knew who sent the package to the inmate or that Watts had any 19 contact with Plaintiff. 20 Consequently, the Court finds that Plaintiff has wholly failed to establish that movants 21 had sufficient contacts with Arizona such that exercising personal jurisdiction would not 22 offend traditional notions of fair play and substantial justice. 23 Accordingly, 24 IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation 25 is REJECTED. 26 27 28 5 1 2 3 IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is GRANTED. (Doc. 25.) DATED this 25th day of March, 2009. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6