Free Order (Service Packet) - District Court of Arizona - Arizona

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WO

JDN

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Nathaniel Hearn, Plaintiff, vs. Sgt. Riddle,

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Defendant.
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No. CV 03-1924-PHX-MHM (MEA) ORDER

Plaintiff, currently confined in the Meadows Unit - Eyman, at the Arizona State Prison Complex in Florence, Arizona, has filed a First Amended Complaint pursuant to 42 U.S.C. § 1983. The Court will require an answer to the First Amended Complaint. Presently pending are two requests filed by Plaintiff: (1) a Request for Production of Documents; and (2) a Request for Admissions. The Court will deny both requests. A. Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

§ 1915A(a). The Court must dismiss a complaint or portion thereof if the Plaintiff has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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B.

First Amended Complaint Plaintiff's First Amended Complaint concerns his previous confinement in the

Madison Street Jail in Phoenix, Arizona. In his First Amended Complaint, Plaintiff alleges that a detention officer solicited a fellow inmate to assault Plaintiff and assured that inmate he would not be punished for the assault. This inmate informed Plaintiff of what the detention officer had told him and signed an affidavit memorializing the communication with the detention officer. Plaintiff claims that he submitted a grievance, with the attached affidavit, to Sgt. Riddle who stated that he would take care of the grievance. Plaintiff contends that Sgt. Riddle did not take care of the grievance but instead retaliated against Plaintiff by moving him into administrative segregation. Plaintiff further alleges that his requests for a copy of the affidavit were ignored, and that Sgt. Riddle continued to retaliate against him through write-ups. Prisoners have a constitutionally-protected right to file grievances and to pursue civil rights litigation without retaliation. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). See also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (prisoner may not be retaliated against for use of grievance system). At this early juncture, Plaintiff adequately states a claim and Defendant Riddle will be required to answer. C. Failure to State a Claim 1. Count I - Deliberate Indifference/Failure to Train To allege an Eighth Amendment conditions of confinement claim, a plaintiff, whether a convicted inmate or pretrial detainee, must show that defendants were "deliberately indifferent" to the alleged constitutional violations. Wilson v. Seiter, 501 U.S. 294, 302-03 (1991); Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991). To state a claim of deliberate indifference, a plaintiff must allege that a defendant, despite his knowledge of a substantial risk of serious harm to the plaintiff, failed to take reasonable measures to abate the harm. Farmer v. Brennan, 511 U.S. 825, 847 (1994). The Supreme Court has set out a two part test for deliberate indifference. "First, the alleged constitutional deprivation must be, objectively, `sufficiently serious'" i.e., the official's "act
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or omission must result in the denial of `the minimal civilized measure of life's necessities.'" Id. at 834 (quoting Wilson, 501 U.S. at 298; Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Second, the prison official must have a "sufficiently culpable state of mind," i.e., he must act with deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834. The Supreme Court has further defined this subjective test: "the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. Further, when a prisoner attempts to hold a prison employee responsible for deliberate indifference, the prisoner must establish individual fault. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (citing Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986)). "The prisoner must set forth specific facts as to each individual defendant's deliberate indifference." Leer, 844 F.2d at 634 (citing Berg, 794 F.2d at 460-461). Plaintiff has failed to allege any constitutional deprivation; he simple states that Defendant Arpaio refused to train officers "of the constitutional limits and to make sure they follow the policy set in place" (Compl. at 4). Moreover, a defendant cannot be liable simply based upon his position. There is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of a person who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. Dep't of Soc. Services, 436 U.S. 658 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). In light of the foregoing, Plaintiff fails to state a claim and Count I will be dismissed without prejudice. 2. Count II - Access to the Courts The right of meaningful access to the courts prohibits state officials from actively interfering with inmates' attempts to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring petitions or complaints to federal court and not a right to discover such claims or even to litigate them effectively once filed with a court. Id. at 354. The right "guarantees no particular methodology but rather, the conferral of a capability ­ the capability of bringing
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contemplated challenges to sentences or conditions of confinement before the courts." Id. at 356. As a matter of standing, for an access to courts claim, a plaintiff must show that he suffered an "actual injury" with respect to contemplated litigation; the plaintiff must demonstrate that the conduct of the defendants prevented him from bringing to court a nonfrivolous claim that he wished to present. Id. at 351-53. An "actual injury" is "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a claim." Id. at 348. Here, Plaintiff alleges a literal denial of access to the courts in that Defendant Roberson refused to transport Plaintiff to the courthouse for a scheduled hearing. Plaintiff claims that as a result, he was unable to get a probation violation dismissed. His alleged injury is that he remained incarcerated, lost six months of wages, and lost his Cadillac Seville. A judgment in favor of Plaintiff on this claim would imply that his continued incarceration was invalid. When a prisoner challenges the validity of his confinement, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). For civil rights claims brought in § 1983 actions that also challenge the validity of confinement, the Supreme Court announced a "favorable termination rule" as follows: In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by action whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Without such a showing of a "favorable termination," the person's cause of action under § 1983 has not yet accrued. Id. at 489. Thus, if a judgment in favor of the plaintiff would necessarily imply the invalidity of his

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conviction or sentence, the complaint must be dismissed. Id. at 487. Accordingly, Count II is Heck-barred and will be dismissed. 3. Count III - Access to the Courts Plaintiff allegations in Count III are identical to those set forth in Count II, except that Plaintiff names Defendants Wade and Deputy Sheriff John Doe as failing to provide clean clothes and transportation to the courthouse. For the reasons discussed supra, Count III is Heck-barred and will be dismissed from this action. 4. Count IV - Access to the Courts Count IV also reiterates the same claims at alleged in Count II. Count IV is thereby dismissed on the same grounds established for Counts II and III. 5. Count V - Deliberate Indifference In Count V, Plaintiff alleges that because Defendant Rodgers refused to provide clean clothes, he was forced to appear in court with "smelly unclean clothes" (Compl. at 6B). These allegations fail to demonstrate a constitutional deprivation that would give rise to a claim of deliberate indifference, as described under the analysis of Count I. Accordingly, Count V is dismissed for failure to state a claim. 6. Count VI - Access to the Courts Plaintiff contends that after being placed in disciplinary segregation in June 2004, he was denied his legal documents and writing materials, and Inmate Legal Services refused to mail his motions to the court. As a result, Plaintiff, who was representing himself, was unable to prepare his defense in his criminal case. The record does not support Plaintiff's allegations. During the time period from June 2004 to the beginning of Plaintiff's trial in September 2004, the Court received and ruled on over ten motions and requests from Plaintiff. See State v. Hearns CR 2004-006251, Minute Entry (ME) filed 5/4/04, 6/23/04, 7/8/04, 8/27/03, 9/14/04, and 9/27/04. Although Plaintiff proceeded pro se in his criminal case, the court appointed both Advisory Counsel and a paralegal to assist Plaintiff. See CR 2004-006251, ME filed 6/23/2004. The superior court

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specifically advised that Advisory Counsel may supply legal supplies to Plaintiff as needed. See CR 2004-006251, ME filed 7/08/2004. Nevertheless, Plaintiff's contention that Defendant's interference with his legal defense resulted in his conviction implies that his sentence is invalid. Accordingly, Plaintiff must comply with the "favorable termination rule" set forth in Heck before he can bring a § 1983 claim. Heck, 512 U.S. at 486-87. Count VI will therefore be dismissed. 7. Count VII, VIII, and IX In Counts VII, VIII and IX Plaintiff alleges that Defendant Glee refused to take Plaintiff to his legal visits, Defendant Hill removed legal documents - including important witness information - from Plaintiff's cell, and Sgt. Browning destroyed Plaintiff's legal documents and put Plaintiff in disciplinary lock-up. Plaintiff's alleged injury in each of these claims is that he was unable to have witnesses testify in his behalf at trial and he was consequently found guilty. As discussed supra in the analysis of Count II, these claims are Heck-barred. Count VII, VIII, and IX will all be dismissed. D. Request for Production of Documents Plaintiff's request for Production of Documents prior to Defendant's filing of an answer is premature. Accordingly, the request is denied without prejudice. Plaintiff should take notice that a Request for Production of Documents under Rule 34, Fed. R. Civ. P., is served on the other party, without the requirement of a court order. E. Request for Admissions Plaintiff's Request for Admissions is, likewise, premature. The request is denied without prejudice. Rule 36, Fed. R. Civ. P., provides for Requests for Admissions to be served directly on the opposing party. Further, the proper form for such request is set forth in the Local Rules of Civil Procedure. See LRCiv 36.1. F. Rule 41 Cautionary Notice Plaintiff should take notice that if he fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-6Document 15 Filed 03/21/2006 Page 6 of 9

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61 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the Court). IT IS THEREFORE ORDERED that: (1) Plaintiff's Request for Production of Documents (Dkt. # 12) is denied. (2) Plaintiff's Request for Admissions (Dkt. # 13) is denied. (3) The following Counts are dismissed without prejudice: I, II, III, IV, V, VI, VII, VIII, and IX. (4) The following Defendants are dismissed without prejudice: Joseph Arpaio; Roberson; Wade; Rodgers; Jane Doe, Supervisor of Inmate Legal Services; Glee; John Doe, Deputy Sheriff; Hill; and Browning. (5) The Clerk of Court shall send Plaintiff a service packet including the First Amended Complaint, this Order, and both summons and request for waiver forms for Defendant Sgt. Riddle. (6) Plaintiff shall complete and return the service packet to the Clerk of Court within 20 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (7) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and First Amended Complaint on each Defendant within 120 days of the filing of the complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Rule 16.2(b)(2)(B)(i) of the Local Rules of Civil Procedure. (8) The United States Marshal shall retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (9) The United States Marshal shall notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants shall include a copy of this Order. The Marshal shall file waivers of service of the summons or requests for waivers that were
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returned as undeliverable as soon as they are received. If a waiver of service of summons is not returned by a Defendant within thirty days from the date the request for waiver was sent by the Marshal, the Marshal shall: (a) Personally serve copies of the Summons, First Amended Complaint, and this Order upon the Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; (b) Within 10 days after personal service is effected, file the return of service for the Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon the Defendant. The costs of service shall be enumerated on the return of service form (USM-285) and shall include the costs incurred by the Marshal for photocopying additional copies of the Summons, First Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (10) A Defendant who agrees to waive service of the Summons and First Amended Complaint shall return the signed waiver forms to the United States Marshal, not the Plaintiff. (11) Defendants shall answer the First Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (12) Any answer or responsive pleading shall state the specific Defendant(s) by name on whose behalf it is filed. The Court may strike any answer, responsive pleading, or other motion or paper that does not identify the specific Defendant(s) by name on whose behalf it is filed. (13) Plaintiff shall serve upon Defendants, or if appearance has been entered by counsel, upon counsel, a copy of every further pleading or other document submitted for
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consideration by the Court. Plaintiff shall include with the original document and copy, to be filed with the Clerk of the Court, a certificate stating the date a true and correct copy of the pleading or document was mailed to Defendants or counsel. Any paper received by a District Court Judge or Magistrate Judge which has not been filed with the Clerk of Court may be disregarded by the Court. (14) At all times during the pendency of this action, Plaintiff shall immediately advise the Court and the United States Marshal of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date. Plaintiff shall serve a copy of the notice on all opposing parties. The notice shall not include any motions for any other relief. Failure to file a Notice of Change of Address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (15) A clear, legible copy of every pleading or other document filed shall accompany each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. Failure to comply with this requirement may result in the pleading or document being stricken without further notice to Plaintiff. (16) This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rule 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings. DATED this 16th day of March, 2006.

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