Johnson v. Jeusen ( 2021 )

1 WO MH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Timothy Ray Johnson, No. CV 20-01824-PHX-JAT (MHB) 10 Plaintiff, 11 v. ORDER 12 B. Jeusen, et al., 13 14 Defendants. 15 16 On September 17, 2020, Plaintiff Timothy Ray Johnson, who is confined in the 17 Arizona State Prison Complex-Florence, filed a pro se civil rights Complaint pursuant to 18 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In an October 13, 19 2020 Order, the Court dismissed the Complaint for failure to state a claim and gave Plaintiff 20 30 days to file an amended complaint that cured the deficiencies identified in the Order. 21 On November 16, 2020, Plaintiff filed a First Amended Complaint. In a January 22 12, 2021 Order, the Court dismissed Defendants Senseng, Unknown Captain, and King 23 without prejudice and gave Plaintiff 120 days to identify the individual described in the 24 First Amended Complaint as “the person in charge of moving people” and file a notice 25 substituting that individual for Defendant John/Jane Doe 1. The Court also directed the 26 Clerk of Court to issue and send to Plaintiff two blank subpoenas for use in identifying the 27 Doe Defendant. 28 . . . . 1 On January 27, 2021, Plaintiff submitted a Letter concerning his attempts to identify 2 John/Jane Doe 1 and two incomplete sets of service documents. In a February 5, 2021 3 Order, the Court construed the Letter as a Motion to Amend the First Amended Complaint, 4 granted the Motion, and gave Plaintiff 30 days to file a second amended complaint. 5 On February 22, 2021, Plaintiff filed a Second Amended Complaint (Doc. 13). The 6 Court will order Defendants Pozonio, Reges, and King to answer Count One of the Second 7 Amended Complaint. 8 I. Statutory Screening of Prisoner Complaints 9 The Court is required to screen complaints brought by prisoners seeking relief 10 against a governmental entity or an officer or an employee of a governmental entity. 28 11 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 12 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 13 relief may be granted, or that seek monetary relief from a defendant who is immune from 14 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 15 A pleading must contain a “short and plain statement of the claim showing that the 16 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 17 not demand detailed factual allegations, “it demands more than an unadorned, the- 18 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 19 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 20 conclusory statements, do not suffice.” Id. 21 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 22 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 23 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 24 that allows the court to draw the reasonable inference that the defendant is liable for the 25 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 26 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 27 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 28 1 allegations may be consistent with a constitutional claim, a court must assess whether there 2 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 3 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 4 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 5 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 6 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 7 U.S. 89, 94 (2007) (per curiam)). 8 II. Second Amended Complaint 9 In his Second Amended Complaint, Plaintiff asserts a single claim, alleging that his 10 safety was threatened at ASPC-Florence. Plaintiff names as Defendants Captain Pozonio, 11 Sergeant Reges, and Lieutenant King. He is seeking money damages and injunctive relief. 12 Plaintiff alleges that he had boiling grease thrown on him by another prisoner 13 because “the officers” refused to transfer him. (Doc. 13 at 3.) According to Plaintiff, he 14 had written inmate letters requesting a transfer, but “they” told him no. (Id.) He then filed 15 a grievance regarding this issue but received no response. (Id.) The other prisoner told 16 Plaintiff, “go to watch or [you]’ll get it right now,” and when Plaintiff refused, the inmate 17 threw grease on him. This happened “mainly d[ue] to the fact[ that] the officers just refused 18 to move [him] out of the pod, after being told on sev[e]ral occasions [he] was not safe.” 19 (Id.) 20 Following this incident, Plaintiff was housed with a prisoner who was friends with 21 Plaintiff’s attacker. (Id.) That prisoner told Plaintiff he was “going to do the same thing if 22 [Plaintiff] did not leave.” (Id.) When Plaintiff told an officer that he was not safe, the 23 officer told Plaintiff, “I know, just cover your door. The person in charge of moving people 24 said you are not going to be moved.” (Id.) Plaintiff responded that he would “just kill 25 [him]self then,” to which the officer replied, “[Y]ou are not about that.” (Id.) After the 26 officer left, Plaintiff swallowed metal, spork handles, and 32 pencils. (Id.) 27 Plaintiff had to have surgery to remove the items he had swallowed. (Id.) After he 28 returned from the hospital, he was placed on a mental health watch. (Id.) When the mental 1 health watch expired, Plaintiff was returned to the pod where the prisoner who had 2 assaulted him was housed. (Id. at 4.) Plaintiff told “the officers” that he could not be 3 housed with this prisoner because he had attacked Plaintiff with boiling grease. (Id.) A 4 non-party, Officer Petterson, responded that he “[k]new,” but he could not move Plaintiff 5 because “he ha[d] to listen to the people who do[] the moves, and they said [Plaintiff] had 6 to stay right [t]here.” (Id.) Plaintiff told Officer Petterson that he wanted to go to “watch” 7 and that he was going to kill himself if forced to remain in a place where he was not safe. 8 (Id.) Petterson told Plaintiff that to go to watch, he “had to show blood [o]r be bleeding,” 9 so when Petterson left, Plaintiff swallowed metal and pencils and inserted the same into 10 his penis. (Id.) Plaintiff’s pants “were soaked with blood,” and “they” sent him to the 11 hospital, where he received two surgeries. (Id.) 12 Plaintiff alleges that another prisoner, Inmate Fowler, asked to be transferred to 13 avoid being attacked by one of the inmates who had assaulted Plaintiff and was told the 14 “same thing”—i.e., that he would not be transferred. (Id. at 5.) Fowler also had boiling 15 water thrown on him and, like Plaintiff, he was returned to the same pod following his 16 release from the medical department, forcing him to harm himself in an effort to “get 17 somew[h]ere safe.” (Id.) 18 According to Plaintiff, he cannot “get [any] answers to who is really in charge of 19 the moves.” (Id.) First, he was told it was Defendants Pozonio, King, and Reges. (Id. at 20 6.) “[T]hen [he] was told it was not them, then [he] was told it was, now it’s back to they 21 were not the ones.” When he asks why this information is being kept from him, the officers 22 tell Plaintiff, 23 You are the inmate, we are the officers, nothing is your bus[i]ness and everything is ours. We do not have to tell you 24 anything. Anything you say will be counted as a lie for you are 25 a prisoner and we are officers, and as you can see there are no cam[e]ras, so you lose we win. 26 27 . . . . 28 . . . . 1 Liberally construed, Plaintiff has stated an Eighth Amendment threat-to-safety 2 claim against Defendants Pozonio, Reges, and King, and these Defendants will be required 3 to respond to the Second Amended Complaint. 4 III. Warnings 5 A. Release 6 If Plaintiff is released while this case remains pending, and the filing fee has not 7 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 8 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 9 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 10 result in dismissal of this action. 11 B. Address Changes 12 Plaintiff must file and serve a notice of a change of address in accordance with Rule 13 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 14 relief with a notice of change of address. Failure to comply may result in dismissal of this 15 action. 16 C. Copies 17 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 18 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 19 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 20 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 21 to comply may result in the filing being stricken without further notice to Plaintiff. 22 D. Possible Dismissal 23 If Plaintiff fails to timely comply with every provision of this Order, including these 24 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 25 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 26 to comply with any order of the Court). 27 IT IS ORDERED: 28 (1) Defendants Pozonio, Reges, and King must answer Count One. 1 (2) The Clerk of Court must send Plaintiff a service packet including the Second 2 Amended Complaint (Doc. 13), this Order, and both summons and request for waiver 3 forms for Defendants Pozonio, Reges, and King. 4 (3) Plaintiff must complete1 and return the service packet to the Clerk of Court 5 within 21 days of the date of filing of this Order. The United States Marshal will not 6 provide service of process if Plaintiff fails to comply with this Order. 7 (4) If Plaintiff does not either obtain a waiver of service of the summons or 8 complete service of the Summons and Second Amended Complaint on a Defendant within 9 90 days of the filing of the Complaint or within 60 days of the filing of this Order, 10 whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. 11 Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 12 (5) The United States Marshal must retain the Summons, a copy of the Second 13 Amended Complaint, and a copy of this Order for future use. 14 (6) The United States Marshal must notify Defendants of the commencement of 15 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 16 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 17 Order. 18 (7) A Defendant who agrees to waive service of the Summons and Second 19 Amended Complaint must return the signed waiver forms to the United States Marshal, not 20 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 21 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 22 personal service. 23 (8) The Marshal must immediately file signed waivers of service of the 24 summons. If a waiver of service of summons is returned as undeliverable or is not returned 25 26 1If a Defendant is an officer or employee of the Arizona Department of Corrections, 27 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 28 Arizona Department of Corrections unless the officer or employee works there. bya Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: 3 (a) personally serve copies of the Summons, Second Amended 4 Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal 5 Rules of Civil Procedure; and 6 (b) within 10 days after personal service is effected, file the return of 7 service for Defendant, along with evidence of the attempt to secure a waiver of 8 service of the summons and of the costs subsequently incurred in effecting service 9 upon Defendant. The costs of service must be enumerated on the return of service 10 form (USM-285) and must include the costs incurred by the Marshal for 11 photocopying additional copies of the Summons, Second Amended Complaint, or 12 this Order and for preparing new process receipt and return forms (USM-285), if 13 required. Costs of service will be taxed against the personally served Defendant 14 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 15 ordered by the Court. 16 (9) Defendant must answer the Second Amended Complaint or otherwise 17 | respond by appropriate motion within the time provided by the applicable provisions of 18 | Rule 12(a) of the Federal Rules of Civil Procedure. 19 (10) Any answer or response must state the specific Defendant by name on whose 20 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 21 does not identify the specific Defendant by name on whose behalf it is filed. 22 (11) This matter is referred to Magistrate Judge Michelle H. Burns pursuant to 23 | Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 24 | authorized under 28 U.S.C. § 636(b)(1). 25 Dated this 19th day of March, 2021. 26 28 James A. Teilborg Senior United States District Judge