Slavick v. Frink ( 2021 )

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Chris Slavick, No. CV 21-00208-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 Warden M. Frink, et al., 13 Defendants. 14 15 On February 8, 2021, Plaintiff Chris Slavick, who is confined in the Halawa 16 Correctional Facility in Aiea, Hawaii, filed a pro se civil rights Complaint pursuant to 42 17 U.S.C. § 1983 (Doc. 1) regarding events that allegedly occurred at CoreCivic’s Saguaro 18 Correctional Center in Eloy, Arizona, and an Application to Proceed In Forma Pauperis. 19 In a February 19, 2021 Order, the Court denied the deficient Application to Proceed and 20 gave Plaintiff thirty days to either pay the administrative and filing fees or file a complete 21 Application to Proceed In Forma Pauperis. 22 On March 9, 2021, Plaintiff filed a second Application to Proceed In Forma 23 Pauperis (Doc. 6). The Court will grant the second Application to Proceed, order 24 Defendant Narvaez to answer the excessive force claim in Count Four, and dismiss the 25 remaining claims and Defendants without prejudice. 26 I. Second Application to Proceed In Forma Pauperis and Filing Fee 27 The Court will grant Plaintiff’s Second Application to Proceed In Forma Pauperis. 28 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 1 § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing 2 fee will be collected monthly in payments of 20% of the previous month’s income credited 3 to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 4 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 5 agency to collect and 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 8 against a governmental entity or an officer or an employee of a governmental entity. 28 9 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 10 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 11 relief may be granted, or that seek monetary relief from a defendant who is immune from 12 such relief. 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 15 not demand detailed factual allegations, “it demands more than an unadorned, the- 16 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 17 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 18 conclusory 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 679. 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 681. 28 . . . . 1 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 2 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 3 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 4 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 5 U.S. 89, 94 (2007) (per curiam)). 6 III. Complaint 7 In his four-count Complaint, seeks monetary damages from the following 8 Defendants: Warden M. Frink, the Saguaro Correctional Center, CoreCivic, facility 9 investigator M. Gawlik, case managers C. Narvaez and J. Zollinger, unit manager Guilin, 10 case counselor A. Loza, Disciplinary Hearing Officer E. Aguilar, counselor Abraham, 11 inmate James Baird, staff member Jeanette Baltero, and guards Ramos, Aguirre, and K. 12 Ball. 13 In Count One, Plaintiff raises an Eighth Amendment “failure to protect and cruel 14 and unusual punishment” claim. Plaintiff asserts he was violently assaulted by Defendant 15 Baird while in protective custody at Defendant CoreCivic’s Saguaro Correctional Center. 16 He claims that while he was motionless, Defendant Baird struck him in the side of the neck, 17 directly in front of a prison guard. Plaintiff alleges Defendant Baird was convicted of 18 assault in state court for this conduct. He contends Defendant Baird’s assault caused him 19 to suffer swelling in his neck and damage to his vertebrae. 20 In Count Two, Plaintiff raises an Eighth Amendment claim based on “cruelty and 21 medical neglect.” He claims that even though Defendant Saguaro Correctional Center’s 22 medical staff verified that Defendant Baird’s assault inflicted injury on Plaintiff, “they 23 refused to provide any care [or] any prevention of the worsening of [Plaintiff’s] neck 24 injury” and ignored Plaintiff’s “honest requests for [a] medical device or [a] proper 25 o[r]thopedic specialist to examine [Plaintiff’s] serious neck injury.” Plaintiff contends his 26 “neck/cervical spine injury” is worsening and painful “due to [the] refusal to provide proper 27 medical care and [an] orthopedic specialist, as staff assured was being scheduled.” 28 . . . . 1 In Count Three, Plaintiff contends he was subjected to Eighth Amendment 2 “cruelty” and a violation of his Fourteenth Amendment due process rights. He claims that 3 “[d]ue to the fact that the Eloy Police Department filed a report against Defendant Baird 4 and the State of Arizona prosecuted and convicted Defendant Baird for the assault, a non- 5 party (Rodriguez) and Defendants Loza, Narvaez, Ramos, Guilin, Abraham, Zollinger, 6 Gawlik, and Aguilar “criminally committed ‘Filing false reports’ in retaliation in a 7 nefarious scheme to thwart any civil recourse,” “defame [Plaintiff’s] honorable character,” 8 and “obstruct [his] granted parole.” He also claims these Defendants “utilized other staff[,] 9 such as [Defendant] Aguirre[,] to ha[]rass and falsely mock [Plaintiff’s] injuries to 10 intimidate [Plaintiff] from litigation as a means to protect the stock value of [Defendant] 11 CoreCivic, their employer.” He claims these Defendants “[i]llegally obstructed [his] now- 12 verified valid appeal of the illegal conviction on which [he] was/[is] imprisoned, blocked 13 [his] parole,” prevented him from receiving medical care by having the medical staff ignore 14 and neglect him, and caused him to suffer “emotional duress” and mental anguish.” 15 In Count Four, Plaintiff alleges he was subjected to excessive force in violation of 16 his Eighth Amendment rights. He claims that “[i]n conspired connection with [Defendant] 17 Ramos’[s] criminal ‘Filing a False Report,’” an unidentified guard forcefully handcuffed 18 Plaintiff with his hands behind his back “in a painful position,” despite knowing Plaintiff 19 had serious physical injuries to his left shoulder, left foot and ankle, and right hand. 20 Plaintiff contends that Defendant Narvaez was “present and involved” and that both 21 Defendant Narvaez and the unidentified guard “continuously shoved [Plaintiff] forward 22 onto [his] left foot/ankle while pulling [his] left shoulder back and bending [his] fingers on 23 both hands,” while “mock[ing] [Plaintiff’s] apprisals [sic] to them of the serious pain that 24 they were inflicting.” He asserts that from the “HC module to the medical unit,” Defendant 25 Narvaez and the unidentified guard assaulted him and mocked his severe injuries and the 26 pain they were inflicting. He claims that at the medical unit, the medical staff told 27 Defendant Narvaez and the unidentified guard that Plaintiff’s injuries were 28 “valid/documented” and that Plaintiff needed to be transported in a wheelchair. 1 IV. Discussion of Complaint 2 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 3 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 4 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 5 civil rights complaint may not supply essential elements of the claim that were not initially 6 pled. Id. 7 A. Defendant CoreCivic 8 To state a claim under § 1983 against a private entity performing a traditional public 9 function, such as housing prisoners, a plaintiff must allege facts to support that his 10 constitutional rights were violated as a result of a policy, decision, or custom promulgated 11 or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138- 12 39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (per curiam). A 13 plaintiff must allege the specific policy or custom and how it violated his constitutional 14 rights. A private entity is not liable merely because it employs persons who allegedly 15 violated a plaintiff’s constitutional rights. See Tsao, 698 F.3d at 1139; Buckner, 116 F.3d 16 at 452. 17 Plaintiff does not allege that any of the conduct described in the Complaint was the 18 result of a specific policy or custom of Defendant CoreCivic. Thus, the Court will dismiss 19 without prejudice Defendant CoreCivic. 20 B. Defendant Saguaro Correctional Center 21 Section 1983 imposes liability on any “person” who violates an individual’s federal 22 rights while acting under color of state law. Congress intended municipalities and other 23 local government units to be included among those persons to whom § 1983 applies. 24 Monell v. Dept. of Soc. Servs., 436 U.S. 658, 689-90 (1978). However, the Saguaro 25 Correctional Center is a building or collection of buildings, not a person or legally created 26 entity capable of being sued. Thus, the Court will dismiss Defendant Saguaro Correctional 27 Center. 28 . . . . 1 C. Defendants Frink, Baltero, and Ball 2 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 3 specific injury as a result of specific conduct of a defendant and show an affirmative link 4 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 5 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, 6 a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s 7 constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 8 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 9 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and 10 § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 11 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 12 Plaintiff has not alleged that Defendants Frink, Baltero, and Ball personally 13 participated in a deprivation of Plaintiff’s constitutional rights, were aware of a deprivation 14 and failed to act, or formed policies that resulted in Plaintiff’s injuries. Plaintiff has made 15 no allegations at all against Defendants Frink, Baltero, and Ball. Thus, the Court will 16 dismiss without prejudice Defendants Frink, Baltero, and Ball. 17 D. Count One and Defendant Baird 18 “Like the state-action requirement of the Fourteenth Amendment, the under-color- 19 of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter 20 how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 21 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). Defendant Baird is an 22 inmate in the prison where Plaintiff was confined. He is a private party, not a state actor. 23 Thus, the Court will dismiss Defendant Baird and Count One. 24 E. Count Two 25 Plaintiff has not linked the conduct described in Count Two to any of the named 26 Defendants. Thus, the Court will dismiss without prejudice Count Two. 27 . . . . 28 . . . . 1 F. Count Three 2 In Count Three, Plaintiff has simply made vague and conclusory allegations against 3 groups of Defendants, without any factual specificity as to what any particular Defendant 4 did or failed to do. This is insufficient. See Marcilis v. Twp. of Redford, 693 F.3d 589, 5 596 (6th Cir. 2012) (upholding dismissal of Bivens complaint that referred to all defendants 6 “generally and categorically” because the plaintiff had failed to “‘allege, with particularity, 7 facts that demonstrate what each defendant did to violate the asserted constitutional right.’” 8 (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))); Robbins v. Oklahoma, 9 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s use of either the collective 10 term ‘Defendants’ or a list of the defendants named individually but with no distinction as 11 to what acts are attributable to whom, it is impossible for any of these individuals to 12 ascertain what particular unconstitutional acts they are alleged to have committed.”). Thus, 13 the Court will dismiss without prejudice Count Three. 14 G. Count Four 15 Liberally construed, Plaintiff has stated an excessive force claim against Defendant 16 Narvaez in Count Four. The Court will require Defendant Narvaez to answer the excessive 17 force claim. 18 Plaintiff’s assertion that the use of excessive force was “[i]n conspired connection” 19 with a report filed by Defendant Ramos is simply too vague and conclusory to state a claim. 20 Thus, the Court will dismiss this portion of Count Four. 21 V. Warnings 22 A. Release 23 If Plaintiff is released while this case remains pending, and the filing fee has not 24 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 25 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 26 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 27 result in dismissal of this action. 28 . . . . 1 B. Address Changes 2 Plaintiff must file and serve a notice of a change of address in accordance with Rule 3 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 4 relief with a notice of change of address. Failure to comply may result in dismissal of this 5 action. 6 C. Copies 7 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy 8 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 9 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must 10 submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to 11 comply may result in the filing being stricken without further notice to Plaintiff. 12 D. Possible Dismissal 13 If Plaintiff fails to timely comply with every provision of this Order, including these 14 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 15 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 16 to comply with any order of the Court). 17 IT IS ORDERED: 18 (1) Plaintiff’s second Application to Proceed In Forma Pauperis (Doc. 6) is 19 granted. 20 (2) As required by the accompanying Order to the appropriate government 21 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 22 fee. 23 (3) Counts One through Three are dismissed without prejudice. 24 (4) Defendants Frink, Saguaro Correctional Center, CoreCivic, Gawlik, Guilin, 25 Loza, Zollinger, Ramos, Aguilar, Abraham, Aguirre, Ball, Baird, and Baltero are 26 dismissed without prejudice. 27 (5) Defendant Narvaez must answer the excessive force claim in Count Four. 28 . . . . 1 (6) The Clerk of Court must send Plaintiff a service packet including the 2 Complaint (Doc. 1), this Order, and both summons and request for waiver forms for 3 Defendant Narvaez. 4 (7) Plaintiff must complete 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 (8) If Plaintiff does not either obtain a waiver of service of the summons or 8 complete service of the Summons and Complaint on Defendant Narvaez within 90 days of 9 the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, 10 the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 11 (9) The United States Marshal must retain the Summons, a copy of the 12 Complaint, and a copy of this Order for future use. 13 (10) The United States Marshal must notify Defendant Narvaez of the 14 commencement of this action and request waiver of service of the summons pursuant to 15 Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendant must include 16 a copy of this Order. 17 (11) If Defendant Narvaez agrees to waive service of the Summons and 18 Complaint, Defendant Narvaez must return the signed waiver form to the United States 19 Marshal, not the Plaintiff, within 30 days of the date of the notice and request for waiver 20 of service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged 21 the cost of personal service. 22 (12) The Marshal must immediately file signed waivers of service of the 23 summons. If a waiver of service of summons is returned as undeliverable or is not returned 24 by Defendant Narvaez within 30 days from the date the request for waiver was sent by the 25 Marshal, the Marshal must: 26 (a) personally serve copies of the Summons, Complaint, and this Order 27 upon Defendant Narvaez pursuant to Rule 4(e)(2) of the Federal Rules of Civil 28 Procedure; and 1 (b) — within 10 days after personal service is effected, file the return of 2 service for Defendant, along with evidence of the attempt to secure a waiver of 3 service of the summons and of the costs subsequently incurred in effecting service 4 upon Defendant. The costs of service must be enumerated on the return of service 5 form (USM-285) and must include the costs incurred by the Marshal for 6 photocopying additional copies of the Summons, Complaint, or this Order and for 7 preparing new process receipt and return forms (USM-285), if required. Costs of 8 service will be taxed against the personally served Defendant pursuant to Rule 9 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 10 Court. 11 (13) Defendant Narvaez must answer the excessive force claim in Count Four of 12 | the Complaint or otherwise respond by appropriate motion within the time provided by the 13 | applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 14 (14) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 16) authorized under 28 U.S.C. § 636(b)(1). 17 Dated this 26th day of March, 2021. 18 19 A 7 5 20 1 _ James A. Teil Org Senior United States District Judge 22 23 24 25 26 27 28