Free Order on Motion to Dismiss Counts/Claims - District Court of Arizona - Arizona

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JDN

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Timothy Lee Ward, ) ) ) ) ) ) ) ) ) ) No. CV 03-2159-PHX-ROS (JRI) ORDER

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Plaintiff,
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vs.
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Sgt. Carr, et al.,
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Defendants.
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Plaintiff Timothy Lee Ward brought this civil rights action under 42 U.S.C. § 1983 against Sgt. Carr, a supervisor at the Arizona State Prison Complex (ASPC)-Eyman Rynning Unit, and Deputy Warden Stewart (Doc. #75). Defendants filed separate motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) (Doc. ##78, 88). Plaintiff responded to both motions, and Stewart filed a reply (Doc. ##91, 93, 89). The Court will grant in part and deny in part each motion. The action will proceed only as to Plaintiff's due process and equal protection claims set forth against Carr and Stewart in Counts I and II of the Second Amended Complaint. I. Procedural History Plaintiff filed his original Complaint in November 2003 (Doc. #1), and then submitted a First Amended Complaint the following month (Doc. #8). Upon screening of the amended pleading, the Court dismissed various counts and Phelps, Stewart, and Carr as Defendants (Doc. #10). The dismissed counts included Count I in which Plaintiff alleged that Carr fired him from his job and placed him in lockdown because of Plaintiff's sexual orientation, and Count II, alleging that Stewart discriminated against him in disciplinary
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treatment for the same reason (Doc. #8). Plaintiff attempted to appeal the Screening Order, but the Ninth Circuit dismissed the interlocutory appeal for lack of jurisdiction (Doc. ##11, 18). The case proceeded on Count IV against Defendant Bennet, a Correctional Officer assigned to the property room at ASPCEyman, for the alleged denial of access to courts (Doc. #10). In March 2005, Bennet moved for summary judgment, which the Court granted, thereby terminating the action (Doc. ##39, 44, 45). Plaintiff appealed the summary judgment Order as well as the Screening Order that dismissed Counts I and II (Doc. #46). After initially dismissing the appeal for failure to prosecute, the Ninth Circuit recalled the mandate and reinstated Plaintiff's appeal (Doc. ##54, 56). In November 2006, the appellate court affirmed summary judgment for Bennet but vacated and remanded as to Plaintiff's claims related to his confinement in administrative segregation and possible allegations of retaliation (Doc. #57). Upon remand, the district court ordered Stewart and Carr to answer or respond to Plaintiff's due process and retaliation claims set forth in Counts I and II (Doc. #61). Plaintiff then moved to amend his First Amended Complaint to include just the claims in Counts I and II against Carr and Stewart and to correct the spelling of Carr's name (Doc. #71).1 The Court granted Plaintiff's motion and docketed the Second Amended Complaint in May 2007 (Doc. #74, 75). II. Second Amended Complaint Plaintiff's claims arose during his confinement in the ASPC-Eyman Rynning Unit (Doc. #75 at 1). In Count I Plaintiff alleged that in October 2002, Carr discovered that Plaintiff was a homosexual and consequently fired Plaintiff from his job and informed him that he was to be moved to another yard so that an "`unauthorized relationship' would not develop" (id. at 3). Plaintiff was concerned about the treatment of homosexuals on the yard to which he was to be moved, but when he attempted to speak to Carr about these concerns, Carr told him he could either "move or go to the hole" (id.). Plaintiff alleged that he moved
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Carr's name had been misspelled as "Karr" (Doc. #71).
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and then Carr put him in lockdown without an explanation. Plaintiff later discovered that there was an allegation that he had threatened staff; however, an investigation by the Criminal Investigation Unit (CIU) determined that there was no evidence of such a threat. Plaintiff alleged that Carr's placement of him in lockdown because of his sexual preference and without any due process violated the Eighth Amendment (id.). The claim in Count II arose in January 2003, when Stewart documented that Plaintiff threatened to use a shank on two prison officials (id. at 4). Plaintiff alleged that he did not receive a hearing or any type of disciplinary action, yet Stewart put Plaintiff in the hole for 6 months. Another inmate was found guilty of the same charge--threats to staff--but because that inmate was not a homosexual, he was returned to the yard (id.). CIU later cleared Plaintiff of any wrongdoing. Plaintiff alleged that Stewart's actions violated Plaintiff's rights to equal protection and due process (id.). After the Court ordered Stewart and Carr to answer the Second Amended Complaint (Doc. #74), they filed their respective motions to dismiss (Doc. ##78, 88). In the first motion to dismiss for failure to state a claim, Stewart argued that because Plaintiff did not make the requisite showing of physical injury under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), the action must be dismissed (Doc. #78 at 3). Stewart further argued that in failing to allege or demonstrate physical injury, Plaintiff did not allege an essential element of him claim under § 1983 (id. at 4). Finally, Stewart contended that Plaintiff failed to demonstrate that he had a protected liberty interest; thus, he failed to sufficiently state a due process claim (id. at 4-5). Carr then filed his motion to dismiss and argued that Plaintiff failed to state a claim under either the Eighth Amendment, § 1983, or § 1997e(e) for the same reasons put forth by Stewart (Doc. #88 at 3-5). Similarly, Carr contended that Plaintiff failed to demonstrate that he had a liberty interest in not being placed in the Complex Detention Unit (id. at 5). Carr also argued that Plaintiff failed to state a claim under § 1983 for retaliation because he did not identify a constitutional right he allegedly exercised that resulted in the alleged retaliation (id. at 6). Carr insisted that Plaintiff's allegations demonstrate that his job termination and
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movement to another yard were for the legitimate penological purpose of preventing an unauthorized relationship from developing (id. at 7). Plaintiff opposed both motions, and cited to various circuit case law that support claims--including due process claims--and damages under §§ 1983 and 1997e(e) without a showing of actual physical injury (Doc. ## 91, 93). Plaintiff noted that neither Stewart nor Carr addressed the allegations giving rise to a claim of retaliation, as specified in Ninth Circuit's mandate remanding the case (Doc. #91 at 2; Doc. #93 at 1). Regarding Defendants' contention that there is no liberty interest to be free from transfer to a maximum prison facility absent a state law or practice limiting such transfer, Plaintiff responded that the ADC Department Order (D.O.) governing transfers only allows moves for disciplinary action or if a inmate's behavior threatens staff or orderly operations (Doc. #91 at 4-5, citing to D.O. 801; Doc. #93 at 3). Plaintiff claimed that there were no disciplinary actions and he exhibited no threatening behavior (Doc. #91 at 5). He further argued that Carr violated both ADC policy and due process when Carr "punished" him for being a homosexual by sending him to detention without any notice or hearing (Doc. #93 at 3-4). As stated, only Stewart filed a reply (Doc. #89). He argued that there was no allegation of retaliation raised in Count II, the only count against him (id. at 1). Stewart also re-iterated his argument Plaintiff failed to demonstrate that he had a protected liberty interest entitling him to due process (id. at 2). III. Federal Rule Civil Procedure 12(b)(6) A motion brought under Rule 12(b)(6) is a challenge to the sufficiency of the pleading. For purposes of ruling on a Rule 12(b)(6) motion, the Court must take as true the material facts alleged in the complaint, Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976), and construe the complaint in the light most favorable to Plaintiff. Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Pro se pleadings must be held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996). The rule of liberal construction of pleadings is "particularly important in civil rights cases."
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Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). To survive dismissal for failure to state a claim under Rule12(b)(6), a complaint does not need detailed factual allegations but it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S. Ct. 1955, 1964-65 (2007). IV. Analysis A. Physical Injury

At the onset, the Court rejects Defendants' contention that "physical injury," as that term is defined in jurisprudence interpreting § 1997e(e), is an element of Plaintiff's civil rights claims. A procedural due process claim requires a showing of either an "atypical and significant hardship" on the inmate compared to normal prison life, or sanctions that exceed the inmate's sentence to such an extent that the Due Process Clause is directly implicated. Sandin v. Conner, 515 U.S. 472, 484 (1995), citing Washington v. Harper, 494 U.S. 210, 221-22 (1990) (liberty interest in avoiding involuntary administration of psychotropic drugs). Actual physical injury is not required. And the injury asserted in retaliation cases is the retaliatory conduct's effect on the plaintiff's constitutionally protected rights. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985) (retaliation for the exercise of a constitutionally protected right is in itself a violation of constitutional rights). In contrast, "physical injury" is a term of art particular to 42 U.S.C. § 1997e(e), which provides that a prisoner may not bring a civil action for mental or emotional injury without a prior showing of "physical injury" that is more than de minimus. As such, Plaintiff's failure to demonstrate a physical injury does not nullify his § 1983 claims. Similarly, the lack of physical injury does not foreclose Plaintiff's claims under the PLRA. The PLRA provides that only claims for mental or emotional injury are barred without a showing of physical injury. 42 U.S.C. § 1997e(e). In Oliver v. Keller, the Ninth Circuit determined that even absent physical injury, a prisoner was entitled to seek compensatory, nominal, and punitive damages premised on violations of his Fourteenth Amendment rights. 289 F.3d 263, 629-30 (9th Cir. 2002). In his Second Amended
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Complaint, Plaintiff alleged violations of his Eighth Amendment rights and specifically sought nominal and punitive damages (Doc. #75 at 3-4, 6). To the extent that Plaintiff has actionable claims for nominal and punitive damages based on violations of his constitutional rights, his claim is not barred by § 1997e(e). Defendants' request for dismissal on this basis will be denied. B. Retaliation

Plaintiff alleged that after Carr discovered that Plaintiff was a homosexual, she fired Plaintiff from his job and told him that he was going to be moved to another yard. Plaintiff talked with Carr about the treatment of gay inmates on the other yard, but she stated that Plaintiff could either move or go to the hole (Doc. #75 at 3). Plaintiff moved and was later placed in CDU (id.). The Ninth Circuit directed the district court to consider whether these allegations sufficiently state a claim for retaliation in light of the decision in Austin, 367 F.3d at 1170-71. The prisoner-plaintiff in Austin alleged that an officer made racist comments and exposed himself to the plaintiff. Id. at 1169-70. When the plaintiff tried to report the incident, the officer said he would cite the plaintiff for misconduct, which he did. As a result, the plaintiff was put in administrative segregation for 6 weeks. He appealed his placement and filed numerous grievances against the officer. Eventually, an investigation concluded that the officer had exposed himself to the plaintiff and he was suspended without pay for 30 days. Id. at 1170. The plaintiff's subsequent § 1983 claim was initially dismissed under Sandin, but the Ninth Circuit reversed and found that the plaintiff presented a claim that he was retaliated against for exercising his First Amendment rights (i.e., attempting to report the officer's behavior), even though he did not refer to the First Amendment in his complaint. Id. at 1172. To claim retaliation, Plaintiff must allege that he engaged in constitutionally protected conduct and that the conduct was a "substantial or motivating factor" inducing the alleged retaliation. Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996)). A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor
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took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct and that such action (4) chilled the inmate's exercise of his First Amendment rights (or the inmate suffered more than minimal harm) and (5) was not narrowly tailored to advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005). Considering the facts in the light most favorable to Plaintiff, he has not satisfied the test for alleging retaliation. He does not allege, nor do his facts imply, that he was engaged in any constitutionally protected conduct, such as filing a grievance or lodging a complaint. There is no indication that Carr's actions were motivated by or infringed on any type of constitutionally protected activity by Plaintiff. Indeed, Plaintiff alleges that Carr reacted to the news that he was a homosexual, nothing more. Even assuming that Carr lodged a false allegation that resulted in Plaintiff's segregation, there is nothing to suggest that the false charge was in response to some protected conduct. Plaintiff has failed to allege facts indicating that he was fired and placed in segregation for the exercise of any constitutionally protected activity; thus, his allegations are not similar to those set forth in Austin, and any retaliation claim fails as a matter of law. Nor does Plaintiff sufficiently state a claim for retaliation in Count II. Again, he fails to allege that he was engaged in any constitutionally protected conduct--First Amendment or otherwise--or that any such conduct played a part in inducing Stewart to retaliate (see Doc. #75 at 4). Accordingly, Defendants' motions to dismiss will be granted as to any retaliation claims in Counts I or II. C. Due Process

In both counts of the Second Amended Complaint, Plaintiff alleges a violation of his right to procedural due process; specifically, that he was not provided with notice and a hearing prior to his placements in segregation (Doc. #75 at 3-4). As a convicted prisoner, Plaintiff is only entitled to a certain level of process prior to segregation if he establishes that he has a constitutionally protected liberty interest in avoiding the restrictive conditions of confinement. See Sandin, 515 U.S. at 484-85. He may also challenge a state action that
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imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. In analyzing whether the hardship is atypical and significant, three circumstances are considered: (1) the conditions of confinement; (2) the duration of the condition(s) and the degree of restraint(s) imposed; and (3) whether the sanction will affect the duration of the prisoner's sentence. Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003); Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996), op. amended, 135 F.3d 1318 (1998). As noted, the duration of a prisoner's confinement is one factor considered when determining whether a hardship was atypical and significant. Plaintiff alleges in Count II that he was placed "in the hole" for 6 months (Doc. #75 at 4). Further, his alleged

injuries--extreme depression and mental anguish due to extensive time in lock down--imply a deprivation that may be significant (id. at 3-4). See Sandin, 515 U.S. at 486. Although Plaintiff's allegations do not set forth with specificity the conditions in lockdown, they are sufficient under the liberal system of "notice pleading" set up by Federal Rule of Civil Procedure 8 to state a claim. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (citation omitted). Under Rule 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," and this statement must simply give the defendant fair notice of the plaintiff's claim. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). A court may dismiss a complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. at 514 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). The Court finds that Plaintiff sufficiently alleged facts that might support a due process claim entitling him to relief. Defendants' motions to dismiss will be denied as to the due process claims. D. Equal Protection

Regardless of whether Plaintiff had a due process liberty interest, he was still entitled to protection from arbitrary state action under the Equal Protection Clause. Austin, 367 F.3d at 1170 (citing Sandin, 515 U.S. at 487-88 n. 11). Plaintiff did not cite to the Equal
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Protection Clause in Count I; however, his facts give rise to a equal protection claim. A plaintiff does not have to plead specific legal theories in the complaint. Electrical Constr. & Maint. Co., Inc. v. Maeda Pacific Corp., 764 F.2d 619, 622 (9th Cir. 1985). "The complaint should not be dismissed merely because plaintiff's allegations do not support the legal theory he intends to proceed on, since the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." Pruitt v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991), quoting 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 336-37 (1990). To be sure, in his response to Carr's motion, Plaintiff specifically argued that the Equal Protection Clause extends to homosexual inmates: Homosexual inmates enjoy the same rights as other prisoners. Plaintiff made it very clear in his complaint that once Defendant Carr found out he was homosexual she fired him from his job and moved him to the other side of the yard where homosexuals are treated badly. Yet the heterosexual cellmate of the plaintiff's was not moved or terminated (Doc. #93 at 4). In Count II of his amended pleading, Plaintiff expressly alleged a violation of his rights under the Equal Protection Clause (Doc. #75 at 4). He alleged that he was treated differently than another inmate charged with the same violation--threats to staff--solely because of his sexual orientation. Although Plaintiff was later cleared of any wrongdoing, he was placed in segregation for 6 months; because the other inmate was not homosexual, he was placed back in the yard even after a finding of guilt (id.). The Equal Protection Clause directs that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). To state a § 1983 claim for a violation of the Equal Protection Clause, a plaintiff must show that the defendants acted with intentional discrimination against the plaintiff or against a class of inmates that included the plaintiff. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (equal protection claims may be brought by a "class of one"); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). To manifest intentional discrimination, a defendant must act at least in part because of a plaintiff's status or membership in a class. Serrano v. Francis, 345 F.3d 1071,
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1082 (9th Cir.2003) (citing Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)). The Ninth Circuit has held that homosexuals are members of an identifiable class for equal protection purposes. Flores v. Morgan Hill Unified School Dist., 324 F.3d 1130, 1134-35 (9th Cir. 2003); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 570-71 (9th Cir. 1990) (homosexuals are not a suspect class, but are a definable group entitled to rational basis scrutiny for equal protection purposes). Thus, "state employees who treat individuals differently on the basis of their sexual orientation violate the constitutional guarantee of equal protection." Flores, 324 F.3d at 1137. This is true even if the individuals are prisoners. See Johnson v. Johnson, 385 F.3d 503, 530-31 (5th Cir. 2004) (prisoner adequately stated a claim for sexual-orientation-based discrimination in violation of the Equal Protection Clause); Kentz v. Smith, No. CV 2004-06066-LJO-NEW (E.D. Cal. August 4, 2005) (order finding that prisoner stated cognizable claim for relief against the defendant for discrimination on the basis of sexual orientation in violation of the Equal Protection Clause). Plaintiff's allegations that he was fired from his job, segregated, and treated differently by Carr because of his sexual orientation are sufficient to state an equal protection claim. See Pruitt, 963 F.2d at 1164 (the plaintiff's allegations that she was discharged because of her status as a homosexual were sufficient to state an equal protection claim). Likewise, the allegations that Stewart violated Plaintiff's equal protection rights when he treated Plaintiff more harshly than a heterosexual inmate adequately state a claim under the Equal Protection Clause. The district court did not address the equal protection claims in its original screening order (Doc. #10), nor did Defendants address these claims in their Rule 12(b)(6) motions. In his response briefing Plaintiff specifically argued his equal protection claim against Carr (Doc. #93 at 4), yet Carr did not file a reply memorandum. And Stewart did not defend against the equal protection violation Plaintiff alleged in Count II in his Second Amended Complaint (Doc. #75 at 4). Also, the appellate court did not mention the equal protection claims in its mandate (Doc. #57). The Ninth Circuit has held that "although the mandate of
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an appellate court forecloses the lower court from reconsidering matters determined in the appellate court, it `leaves to the district court any issue not expressly or impliedly disposed of on appeal.'" U.S. v. Kellington, 217 F.3d 1084, 1094 (9th Cir. 2000) (quoting Nguyen v. U.S., 792 F.2d 1500, 1502 (9th Cir. 1986) (internal quotation omitted)). Because Plaintiff's equal protection claims were not previously addressed or decided, the Court will not consider them "disposed of" on appeal. See Snow-Erline v. U.S., 470 F.3d 804, 807-808 (9th Cir. 2006) (held that the district court could address issue of jurisdiction after remand because that issue was never before the appellate court or decided by the district court). Consequently, Plaintiff's equal protection claims survive Defendants' motions to dismiss. V. Conclusion Pursuant to the Ninth Circuit's mandate and in response to Defendants' motions to dismiss for failure to state claim, the Court has considered whether Plaintiff's allegations sufficiently state a claim for retaliation and find that they do not. Defendants' motions will be granted as to any retaliation claims set forth in Counts I and II of Plaintiff's Second Amended Complaint. The Court has also considered whether Plaintiff's allegations

adequately state a due process violation in either count and find that they do. Further, the allegations in both counts set forth claims under the Equal Protection Clause. Defendants' motions will therefore be denied as to the due process and equal protection claims in Counts I and II. IT IS ORDERED : (1) Defendant Stewart's Motion to Dismiss (Doc. #78) is granted in part and denied in part as follows: (a) the motion is granted as to the claims in Count II against Stewart alleging retaliation. (b) the motion is denied as to the claims in Count II against Stewart alleging due process and equal protection violations. (2) Defendant Carr's Motion to Dismiss (Doc. #88) is granted in part and denied in part as follows:
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(a) the motion is granted as the claims in Count I against Carr alleging retaliation. (b) the motion is denied as to the claims in Count I against Carr alleging due process and equal protection violations. (3) Defendants Stewart and Carr are directed to answer or otherwise respond to by appropriate motion within 20 days, Plaintiff's due process and equal protection claims set forth in Counts I and II of the Second Amended Complaint.

DATED this 2nd day of October, 2007.

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