Tillman 264591 v. Shinn ( 2020 )

1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sir Howard Blake Tillman, No. CV 20-01378-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants. 14 15 Plaintiff Sir Howard Blake Tillman, who is confined in the Arizona State Prison 16 Complex-Eyman in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 17 U.S.C. § 1983 (Doc. 1), and an Application to Proceed In Forma Pauperis (Doc. 2). The 18 Court granted the Application and dismissed the Complaint with leave to amend (Doc. 9). 19 Plaintiff has filed a First Amended Complaint (Doc. 11). The Court will order Defendant 20 Davis to answer Count I of the First Amended Complaint and will dismiss the remaining 21 claim and Defendants without prejudice. 22 I. Statutory Screening of Prisoner Complaints 23 The Court is required to screen complaints brought by prisoners seeking relief 24 against a governmental entity or an officer or an employee of a governmental entity. 28 25 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 26 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 27 relief may be granted, or that seek monetary relief from a defendant who is immune from 28 such relief. 28 U.S.C. § 1915A(b)(1)-(2). 1 A pleading must contain a “short and plain statement of the claim showing that the 2 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 3 not demand detailed factual allegations, “it demands more than an unadorned, the- 4 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 5 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Id. 7 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 8 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 9 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 10 that allows the court to draw the reasonable inference that the defendant is liable for the 11 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 12 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 13 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 14 allegations may be consistent with a constitutional claim, a court must assess whether there 15 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 16 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 17 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 18 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 19 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 20 U.S. 89, 94 (2007) (per curiam)). 21 II. First Amended Complaint 22 In his two-count First Amended Complaint, Plaintiff alleges claims for violations of 23 his Eighth Amendment rights and equal protection. Plaintiff sues the following employees 24 of the Arizona Department of Corrections (ADC): Director David Shinn; Eyman Complex 25 Deputy Warden R. Carr; Complex Warden Morris; and Correctional Officers (COs) II John 26 or Jane Davis and John or Jane Tedesco. Plaintiff seeks compensatory relief. 27 Plaintiff designates Count I as a claim violation of his Eighth Amendment rights 28 and alleges the following: 1 Defendant Shinn put policies and procedures into effect at the Eyman Complex, 2 Special Management Unit I (SMU), but failed to ensure they were enforced. Defendant 3 Morris failed to enforce Shinn’s policies and procedures by failing to train Eyman Complex 4 officers. Defendant Carr failed to carry out instructions from Shinn and Morris for properly 5 training staff at the Eyman Complex. 6 On December 24, 2019, Plaintiff entered the shower to take a shower for ten to 7 fifteen minutes. Defendant Davis locked Plaintiff in the hot and steaming shower. After 8 Plaintiff completed showering but apparently while still locked in the shower, Plaintiff 9 asked Davis to go back to his cell. Plaintiff yelled to get Davis’ attention, or that of another 10 officer, without success. After a prolonged period, other prisoners also tried to get the 11 attention of an officer by yelling and banging on their cell doors without getting a response. 12 Plaintiff remained in the hot and steaming shower for more than 40 minutes, which began 13 to effect Plaintiff. Plaintiff started getting numb, feeling anxious, having difficulty 14 breathing, feeling confused, and feeling light-headed. Plaintiff began to lose 15 consciousness, slid down, and hit his head hard on the floor. After hearing Plaintiff’s head 16 hit the floor, other prisoners began yelling and banging on their cell doors, but again 17 received no response. Plaintiff awoke to an officer not assigned to the unit standing over 18 him, and a minute later, Defendant Tedesco arrived. Plaintiff does not know how long he 19 was unconscious but when he came to, he was lying flat naked and in pain. Plaintiff felt 20 embarrassed about losing consciousness and being found not knowing what happened. 21 The two officers told Plaintiff that he had passed out after being locked in the hot 22 and steaming shower. Plaintiff went in and out of consciousness while the officers 23 discussed who should activate an Incident Command System (ICS). Ultimately, Tedesco 24 activated an ICS. Plaintiff was taken to medical where he was evaluated by Nurse Ashburn. 25 Ashburn told Plaintiff that he had fainted after being left in the hot shower for an extended 26 period. Ashburn treated Plaintiff’s injuries and he was returned to his housing unit. 27 Plaintiff alleges Defendants Shinn, Carr, and Morris are liable for failing to properly 28 train Defendants Davis and Tedesco. 1 Plaintiff designates Count II as an equal protection claim. Plaintiff alleges that on 2 September 26, 2019, he was housed in SMU, maximum security Level 5, although he was 3 classified as a Level 4 close custody prisoner. Plaintiff alleges Defendant Shinn 4 implemented policies and procedures at the Eyman Complex, SMU, but failed to ensure 5 that his subordinates complied with those policies and procedures. Plaintiff further claims 6 Defendant Morris is liable for failing to enforce Shinn’s policies and procedures and that 7 Defendant Carr failed to properly train his subordinates at SMU. Plaintiff claims that as a 8 result, he was not treated the same as those similarly situated. 9 III. Failure to State a Claim 10 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 11 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 12 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 13 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 14 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 15 as a result of the conduct of a particular defendant and he must allege an affirmative link 16 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 17 72, 377 (1976). 18 A. Defendants Shinn, Morris, and Carr 19 Plaintiff fails to allege sufficient facts to state a claim for failure to train. Although 20 a government official can be held liable for his failure to supervise or train subordinates, 21 Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991), a plaintiff must allege facts to 22 support that the alleged failure amounted to deliberate indifference. Cannell v. Lightner, 23 143 F.3d 1210, 1213 (9th Cir. 1998). A plaintiff must allege facts to support that not only 24 was the particular supervision inadequate, but also that such inadequacy was the result of 25 “a ‘deliberate’ or ‘conscious’ choice” on the part of the defendant. Id. at 1213-14; see 26 Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (a plaintiff must allege facts to 27 support that “in light of the duties assigned to specific officers or employees, the need for 28 more or different training is [so] obvious, and the inadequacy so likely to result in violations 1 of constitutional rights, that the policy[]makers . . . can reasonably be said to have been 2 deliberately indifferent to the need.” (quoting City of Canton v. Harris, 489 U.S. 378, 390 3 (1989))). 4 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 5 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 6 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 7 civil rights complaint may not supply essential elements of the claim that were not initially 8 pleaded. Id. 9 Plaintiff only makes vague and conclusory assertions that Defendants Shinn, 10 Morris, and Carr are liable for failure to train. Plaintiff fails to allege facts to support that 11 any of these Defendants acted with deliberate indifference or facts to support that 12 supervision was even inadequate. Instead, Plaintiff contends Shinn, Morris, and Carr are 13 liable based only on their positions as supervisors of Defendants Tedesco and Davis. There 14 is no respondeat superior liability under § 1983, and therefore, a defendant’s position as 15 the supervisor of persons who allegedly violated a plaintiff’s constitutional rights does not 16 impose liability. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978); 17 Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 18 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983 19 suits, a plaintiff must plead that each Government-official defendant, through the official’s 20 own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 21 Accordingly, Plaintiff has failed to state a claim against Defendant Shinn, Morris, or Carr 22 and the Court will dismiss without prejudice these Defendants. 23 B. Tedesco 24 The only facts Plaintiff alleges regarding Defendant Tedesco are that he arrived 25 shortly after Plaintiff came to in the shower and activated an ICS. Absent other allegations, 26 these facts are not sufficient to support that Tedesco in any way violated Plaintiff’s 27 constitutional rights. Accordingly, Tedesco will be dismissed. 28 . . . . 1 C. Count II 2 Generally, “[t]o state a claim . . . for a violation of the Equal Protection Clause . . . 3 [,] a plaintiff must show that the defendants acted with an intent or purpose to discriminate 4 against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 5 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged he is a member of a protected 6 class. 7 The United States Supreme Court has also recognized “successful equal protection 8 claims brought by a ‘class of one,’ where the plaintiff alleges that [he] has been 9 intentionally treated differently from others similarly situated and that there is no rational 10 basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 11 (2000); see also SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th 12 Cir. 2002). 13 Plaintiff also fails to state a claim under this standard. He fails to allege facts to 14 support that similarly situated prisoners, i.e., Level 4 close custody prisoners held in Level 15 5 maximum security, were treated differently than him or that there was no rational basis 16 for the difference in treatment. For the reasons discussed, Plaintiff fails to state a claim in 17 Count II and it will be dismissed. 18 IV. Claim for Which an Answer Will be Required 19 Liberally construed, Plaintiff sufficiently alleges facts to state a claim for threat to 20 safety against Defendant Davis based upon Davis allegedly deliberately leaving Plaintiff 21 locked in the hot shower for a prolonged period. Accordingly, Davis will be required to 22 respond to Count I. 23 V. Warnings 24 A. Release 25 If Plaintiff is released while this case remains pending, and the filing fee has not 26 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 27 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 28 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 1 result in dismissal of this action. 2 B. Address Changes 3 Plaintiff must file and serve a notice of a change of address in accordance with Rule 4 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 5 relief with a notice of change of address. Failure to comply may result in dismissal of this 6 action. 7 C. Copies 8 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 9 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 10 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 11 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 12 to comply may result in the filing being stricken without further notice to Plaintiff. 13 D. Possible Dismissal 14 If Plaintiff fails to timely comply with every provision of this Order, including these 15 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 16 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 17 to comply with any order of the Court). 18 IT IS ORDERED: 19 (1) Count II is dismissed without prejudice. 20 (2) Defendants Shinn, Morris, Carr, and Tedesco are dismissed without 21 prejudice. 22 (3) Defendant Davis must answer Count I. 23 (4) The Clerk of Court must send Plaintiff this Order, and a copy of the 24 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 25 for Waiver of Service of Summons form for Defendant Davis. 26 (5) Plaintiff must complete1 and return the service packet to the Clerk of Court 27 1 If a Defendant is an officer or employee of the Arizona Department of Corrections, 28 Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the 1 within 21 days of the date of filing of this Order. The United States Marshal will not 2 provide service of process if Plaintiff fails to comply with this Order. 3 (6) If Plaintiff does not either obtain a waiver of service of the summons or 4 complete service of the Summons and First Amended Complaint on Defendant within 90 5 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 6 is later, the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 7 (7) The United States Marshal must retain the Summons, a copy of the First 8 Amended Complaint, and a copy of this Order for future use. 9 (8) The United States Marshal must notify Defendant of the commencement of 10 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 11 Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this 12 Order. 13 (9) If Defendant agrees to waive service of the Summons and First Amended 14 Complaint, Defendant must return the signed waiver forms to the United States Marshal, 15 not the Plaintiff, within 30 days of the date of the notice and request for waiver of 16 service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the 17 cost of personal service. 18 (10) The Marshal must immediately file signed waivers of service of the 19 summons. If a waiver of service of summons is returned as undeliverable or is not returned 20 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 21 the Marshal must: 22 (a) personally serve copies of the Summons, First Amended Complaint, 23 and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil 24 Procedure; and 25 (b) within 10 days after personal service is effected, file the return of 26 service for Defendant, along with evidence of the attempt to secure a waiver of 27 service of the summons and of the costs subsequently incurred in effecting service 28 Arizona Department of Corrections unless the officer or employee works there. 1 upon Defendant. The costs of service must be enumerated on the return of service 2 form (USM-285) and must include the costs incurred by the Marshal for 3 photocopying additional copies of the Summons, First Amended Complaint, or this 4 Order and for preparing new process receipt and return forms (USM-285), if 5 required. Costs of service will be taxed against the personally served Defendant 6 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 7 ordered by the Court. 8 (11) Defendant Davis must 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. 11 (12) This matter is referred to Magistrate Judge Deborah M. Fine pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 13 | authorized under 28 U.S.C. § 636(b)(1). 14 Dated this 4th day of December, 2020. 15 16 □ 3 17 18 _ James A. Teil Org Senior United States District Judge 19 20 21 22 23 24 25 26 27 28