-ECV Stewart v. Korsen et al, No. 2:2010cv01144 - Document 8 (D. Ariz. 2010)

Court Description: ORDER granting 7 Plaintiff's Motion/Application to Proceed In Forma Pauperis. Plaintiff must pay the $350.00 filing fee. Counts Two, Three, and Four, and Defendants Unknown Nietto, Charles Ryan, Unknown Credio and Unknown Muller are dismi ssed without prejudice. Defendants Korsen, Jackson, and Lopez must answer Count One. The Clerk must send Plaintiff a service packet including 1 Complaint, this Order, and both summons and request for waiver forms for Defendants Korsen, Jackson, and Lopez. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Edward C. Voss pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings. Signed by Judge Mary H Murguia on 7/1/10. (LSP)
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-ECV Stewart v. Korsen et al 1 Doc. 8 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jenghiz K. Stewart, 10 Plaintiff, 11 vs. 12 Officer Korsen, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 10-1144-PHX-MHM (ECV) ORDER 14 15 On May 27, 2010, Plaintiff Jenghiz K. Stewart, who is confined in the Arizona State 16 Prison Complex-Eyman in Florence, Arizona, filed a pro se civil rights Complaint pursuant 17 to 42 U.S.C. § 1983, 42 U.S.C. § 12102, and § 504 of the Rehabilitation Act (Doc. #1) and 18 an Application to Proceed In Forma Pauperis. In a June 9, 2010 Order, the Court denied the 19 deficient Application to Proceed and gave Plaintiff 30 days to file a complete Application to 20 Proceed In Forma Pauperis. 21 On June 16, 2010, Plaintiff filed a second Application to Proceed In Forma Pauperis 22 (Doc. #7). The Court will grant the second Application to Proceed, will order Defendants 23 Korsen, Jackson, and Lopez to answer Count One of the Complaint, and will dismiss the 24 remaining claims and Defendants without prejudice. 25 I. Second Application to Proceed In Forma Pauperis and Filing Fee 26 Plaintiff’s second Application to Proceed In Forma Pauperis will be granted. 28 27 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. TERMPSREF 28 Dockets.Justia.com TERMPSREF 1 § 1915(b)(1). The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). 2 The statutory fee will be collected monthly in payments of 20% of the previous month’s 3 income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The 4 Court will enter a separate Order requiring the appropriate government agency to collect and 5 forward the fees according to the statutory formula. 6 II. Statutory Screening of Prisoner Complaints 7 The Court is required to screen complaints brought by prisoners seeking relief against 8 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 9 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 10 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 11 be granted, or that seek monetary relief from a defendant who is immune from such relief. 12 28 U.S.C. § 1915A(b)(1), (2). 13 A pleading must contain a “short and plain statement of the claim showing that the 14 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 15 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 16 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 17 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements, do not suffice.” Id. 19 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 20 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 21 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 22 that allows the court to draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 24 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 25 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 26 allegations may be consistent with a constitutional claim, a court must assess whether there 27 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 28 .... -2- 1 TERMPSREF III. Complaint 2 In his four-count Complaint, Plaintiff sues the following Defendants: Count 3 Movement Officer II Korsen, Second Shift Kitchen Officers II Muller and Nietto, 4 Corrections Officers II Lopez and C. Jackson, Deputy Warden Credio, and Arizona 5 Department of Corrections Director Charles Ryan. In his Request for Relief, Plaintiff seeks 6 injunctive relief and monetary damages. 7 IV. Discussion of Complaint 8 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 9 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. 10 Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, 11 a liberal interpretation of a civil rights complaint may not supply essential elements of the 12 claim that were not initially pled. Id. 13 A. Count One 14 In Count One, Plaintiff alleges that Defendants have subjected him to cruel and 15 unusual punishment in violation of the Eighth Amendment. Specifically, Plaintiff claims 16 Defendant Korsen placed him in a room where Plaintiff would be exposed to stimuli that 17 would cause “seizing” and that Defendant Korsen did so knowing that the room “was adverse 18 to [Plaintiff’s] health and welfare.” Plaintiff alleges that Defendant Jackson purposely 19 approaches Plaintiff with her radio turned up “full blast” and yells in an extremely high 20 pitched voice, which “jolt[s Plaintiff’s] nervous system.” Plaintiff contends that Defendant 21 Lopez, knowing of Plaintiff’s need to eat, would not let Plaintiff out of his cell and would 22 not allow Plaintiff’s cellmate to escort him, despite knowing of a special needs order. 23 Plaintiff asserts that Defendants Muller and Nietto served Plaintiff’s “lay in trays” extremely 24 late, which forced Plaintiff to go hungry and caused side effects from Plaintiff’s medications. 25 Plaintiff claims that Defendants Credio and Ryan “allowed these for lack of proper training, 26 communications or memorandum to their subordinates.” 27 An Eighth Amendment claim requires a sufficiently culpable state of mind by the 28 Defendants, known as “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 -3- 1 (1994). Deliberate indifference is a higher standard than negligence or lack of ordinary due 2 care for the prisoner’s safety. Id. at 835. To state a claim of deliberate indifference, 3 plaintiffs must meet a two-part test. First, the alleged constitutional deprivation must be, 4 objectively, “sufficiently serious”; the official’s act or omission must result in the denial of 5 “the minimal civilized measure of life’s necessities.” Id. at 834. Second, the prison official 6 must have a “sufficiently culpable state of mind,” i.e., he must act with deliberate 7 indifference to inmate health or safety. Id. In defining “deliberate indifference” in this 8 context, the Supreme Court has imposed a subjective test: “the official must both be aware 9 of facts from which the inference could be drawn that a substantial risk of serious harm 10 TERMPSREF exists, and he must also draw the inference.” Id. at 837 (emphasis added). 11 To state an Eighth Amendment claim based on a failure to train, a plaintiff must allege 12 facts to support that the alleged failure amounted to deliberate indifference. Canell v. 13 Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998). A plaintiff must allege facts to support that 14 not only was particular training inadequate, but also that such inadequacy was the result of 15 “a ‘deliberate’ or ‘conscious’ choice” on the part of the defendant. Id. at 1213-14; see 16 Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (a plaintiff must allege facts to support 17 that “in light of the duties assigned to specific officers or employees, the need for more or 18 different training is [so] obvious, and the inadequacy so likely to result in violations of 19 constitutional rights, that the policy[]makers . . . can reasonably be said to have been 20 deliberately indifferent to the need.” (quoting City of Canton v. Harris, 489 U.S. 378, 390 21 (1989)). 22 Plaintiff has failed to state a claim against Defendants Muller and Nietto because he 23 has failed to allege that Defendants Muller and Nietto were deliberately indifferent to 24 Plaintiff’s health or safety. Plaintiff has failed to state a claim against Defendants Credio and 25 Ryan because Plaintiff has failed to allege that these Defendants were deliberately indifferent 26 to Plaintiff’s safety or that any allegedly inadequate training was the result of a deliberate or 27 conscious choice. Thus, the Court will dismiss without prejudice Count One against 28 Defendants Muller, Nietto, Credio, and Ryan. -4- 1 Liberally construed, Plaintiff has stated Eighth Amendment deliberate indifference 2 claims against Defendants Korsen, Jackson, and Lopez. The Court will require Defendants 3 Korsen, Jackson, and Lopez to answer Count One. 4 B. Count Two 5 In Count Two, Plaintiff alleges that Defendants Korsen, Muller, Jackson, Nietto, 6 Lopez, and “quite possibly Credio,” have retaliated against him, in violation of the First 7 Amendment, because he has filed grievances and voiced complaints about their conduct. 8 Plaintiff claims that Defendant Korsen retaliated by placing Plaintiff in a cell “adverse to 9 medical conditions” and that Defendant Lopez retaliated against Plaintiff by not letting 10 Plaintiff out of his cell and not allowing Plaintiff’s cellmate escort him. Plaintiff alleges that 11 Defendant Jackson retaliated against him because a lieutenant and a correctional officer 12 permitted Plaintiff to eat a meal in front of the dining hall. Plaintiff asserts that Defendants 13 Muller and Nietto retaliated by not serving Plaintiff’s food early because “they do not feel 14 he should be allowed lay in trays despite doctors’ orders” and they will not allow inmate 15 helpers to pick up Plaintiff’s tray because they “do not like being told by supervisors how to 16 run ‘their kitchen.’” Plaintiff also claims Defendant Credio “more likely” retaliated because 17 of issues prior to Plaintiff’s removal from the Rynning Unit. 18 A viable claim of First Amendment retaliation contains five basic elements: (1) an 19 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 20 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 21 Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not 22 reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567- 23 68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation 24 claims requires an inmate to show (1) that the prison official acted in retaliation for the 25 exercise of a constitutionally protected right, and (2) that the action “advanced no legitimate 26 penological interest”). The plaintiff has the burden of demonstrating that his exercise of his 27 First Amendment rights was a substantial or motivating factor behind the defendants’ 28 TERMPSREF -5- TERMPSREF 1 conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); 2 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 3 Plaintiff has failed to state a First Amendment retaliation claim because he has failed 4 to allege that Defendants’ conduct did not reasonably advance a legitimate correctional goal. 5 Moreover, Plaintiff has stated an alternative basis for Defendants Jackson, Muller, and 6 Niettos’s conduct. Thus, it is not clear that Plaintiff’s exercise of his First Amendment rights 7 was a substantial or motivating factor behind Defendants Jackson, Muller, or Nietto’s 8 conduct. Finally, Plaintiff’s claim against Defendant Credio is vague, conclusory, and 9 speculative. Thus, the Court will dismiss without prejudice Count Two. 10 C. Count Three 11 In Count Three, Plaintiff alleges that all of the Defendants except Defendant Ryan 12 have discriminated against him in violation of § 504 of the Rehabilitation Act “by reason of 13 their actions toward him [described in Counts One and Two].” 14 Under Title II of the Americans with Disabilities Act (ADA), “no qualified individual 15 with a disability shall, by reason of such disability, be excluded in participation in or be 16 denied the benefits of the services, programs, or activities of a public entity, or be subjected 17 to discrimination by any such entity.” 42 U.S.C. § 12132. As used in this provision, a 18 “public entity” is defined, in part, as “(A) any State or local government; [or] (B) any 19 department, agency, special purpose district, or other instrumentality of a State or States or 20 local government.” 42 U.S.C. § 12131. 21 The Rehabilitation Act (RA) “is materially identical to and the model for the ADA, 22 except that it is limited to programs that receive federal financial assistance.” Armstrong v. 23 Davis, 275 F.3d 849, 862 n.17 (9th Cir. 2001) (internal quotation omitted). Title II of the 24 ADA was expressly modeled after § 504 of the RA. Zuckle v. Regents of the University of 25 California, 166 F.3d 1041, 1045 (9th Cir. 1999). Because the ADA has a broader scope, the 26 Ninth Circuit analyzes both Acts under an ADA standard. See Armstrong, 275 F.3d at 862; 27 Zuckle, 166 F.3d at 1045 n.11 (“There is no significant difference in analysis of the rights 28 and obligations created by the ADA and the Rehabilitation Act.”). -6- 1 To state an ADA or RA claim, a plaintiff must demonstrate that he: 2 (1) is a handicapped person; (2) that he is otherwise qualified; and that [prison officials’] actions either (3) excluded his participation in or denied him the benefits of a service, program, or activity; or (4) otherwise subjected him to discrimination on the basis of his physical handicap. 3 4 5 6 Plaintiff has failed to state a claim because he has failed to allege that he is a 7 handicapped person. He alleges that he is an “American with Disabilities” and made 8 reference to his “disorders,” “tics,” and “seizing,” but these vague and conclusory allegations 9 are insufficient to demonstrate that he is a handicapped person. Thus, the Court will dismiss 10 TERMPSREF Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996). without prejudice Count Three. 11 D. Count Four 12 In Count Four, Plaintiff claims a violation of the Eighth Amendment prohibition 13 against cruel and unusual punishment because “[a]ll Defendants have collectively and/or in 14 part acted with wanton malice against the Plaintiff, and their actions were purposeful, 15 subjecting him to suffer cruelty Ct I, II, III.” This claim is duplicative of his allegations in 16 Counts One, Two, and Three and is too vague and conclusory to state a claim. Thus, the 17 Court will dismiss Count Four without prejudice. 18 V. Warnings 19 A. Release 20 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 21 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 22 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 23 in dismissal of this action. 24 B. Address Changes 25 Plaintiff must file and serve a notice of a change of address in accordance with Rule 26 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 27 relief with a notice of change of address. Failure to comply may result in dismissal of this 28 action. -7- 1 C. 2 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy 3 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 4 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit 5 an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply 6 may result in the filing being stricken without further notice to Plaintiff. 7 D. 8 If Plaintiff fails to timely comply with every provision of this Order, including these 9 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 10 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 11 comply with any order of the Court). 12 IT IS ORDERED: 13 14 15 16 17 18 (1) Possible Dismissal Plaintiff’s second Application to Proceed In Forma Pauperis (Doc. #7) is granted. (2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee. (3) Counts Two, Three, and Four, and Defendants Muller, Nietto, Credio, and Ryan, are dismissed without prejudice. 19 (4) Defendants Korsen, Jackson, and Lopez must answer Count One. 20 (5) The Clerk of Court must send Plaintiff a service packet including the 21 Complaint (Doc. #1), this Order, and both summons and request for waiver forms for 22 Defendants Korsen, Jackson, and Lopez. 23 (6) Plaintiff must complete and return the service packet to the Clerk of Court 24 within 21 days of the date of filing of this Order. The United States Marshal will not provide 25 service of process if Plaintiff fails to comply with this Order. 26 TERMPSREF Copies (7) If Plaintiff does not either obtain a waiver of service of the summons or 27 complete service of the Summons and Complaint on a Defendant within 120 days of the 28 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the -8- 1 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 2 16.2(b)(2)(B)(i). 3 (8) 4 5 The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. (9) The United States Marshal must notify Defendants of the commencement of 6 this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal 7 Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. The 8 Marshal must immediately file requests for waivers that were returned as undeliverable and 9 waivers of service of the summons. If a waiver of service of summons is not returned by a 10 Defendant within 30 days from the date the request for waiver was sent by the Marshal, the 11 Marshal must: 12 13 (a) personally serve copies of the Summons, Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and 14 (b) within 10 days after personal service is effected, file the return of service 15 for Defendant, along with evidence of the attempt to secure a waiver of service of the 16 summons and of the costs subsequently incurred in effecting service upon Defendant. 17 The costs of service must be enumerated on the return of service form (USM-285) and 18 must include the costs incurred by the Marshal for photocopying additional copies of 19 the Summons, Complaint, or this Order and for preparing new process receipt and 20 return forms (USM-285), if required. Costs of service will be taxed against the 21 personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 22 Procedure, unless otherwise ordered by the Court. 23 (10) 24 25 A Defendant who agrees to waive service of the Summons and Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff. (11) Defendants Korsen, Jackson, and Lopez must answer Count One the Complaint 26 or otherwise respond by appropriate motion within the time provided by the applicable 27 provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 28 TERMPSREF -9- 1 (12) Any answer or response must state the specific Defendant by name on whose 2 behalf it is filed. The Court may strike any answer, response, or other motion or paper that 3 does not identify the specific Defendant by name on whose behalf it is filed. 4 (13) This matter is referred to Magistrate Judge Edward C. Voss pursuant to Rules 5 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized 6 under 28 U.S.C. § 636(b)(1). 7 DATED this 1st day of July, 2010. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF - 10 -