Opinion
CV 23-00600 PHX SRB (CDB)
11-27-2023
Michael Arlo Pavich, Plaintiff, v. CoreCivic Incorporated, et al., Defendants.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Plaintiff is pro se and proceeds in forma pauperis in this prisoner civil rights matter. Before the Court is Plaintiff's motion to proceed on a proposed second amended complaint. (ECF No. 17).
I. Background
Plaintiff, proceeding pro se in this prisoner civil rights matter, filed a complaint and a motion seeking leave to proceed in forma pauperis on April 10, 2023. Leave to proceed in forma pauperis was granted and the complaint dismissed with leave to amend. (ECF No. 6). Plaintiff filed an amended complaint on June 7, 2023. (ECF No. 10).
In the First Amended Complaint Plaintiff asserts:
... his Fourteenth Amendment rights were violated during disciplinary proceedings. On four separate occasions in January, March, April, and May 2023, Plaintiff received disciplinary reports for refusing to participate in the voluntary Special Housing Incentive Program (SHIP). Plaintiff claims he was cited for “C-9 FTF,” but “C-9 failure to follow verbal or posted rules and/or orders . . . is not a published institutional rule nor does it appear in writing anywhere in the rule book and/or CoreCivic, SCC policy 15-1 offense and penalty code.” Plaintiff alleges Defendants
Booker, Susunkewa, and Hernandez and two unknown officers prepared or authorized the disciplinary reports based on Plaintiff's refusal to participate in SHIP. For each of the four disciplinary reports, Defendant Mendez placed Plaintiff in disciplinary segregation for 30 days. Defendant Wead denied Plaintiff relief on all four appeals and “concurred with [the] findings and penalty.”
Plaintiff further asserts that SCC's administration is not adhering to American Correctional Center (ACA) standards. According to Plaintiff, the standards require inmates who are in administrative status and protective custody status to receive the same programs and privileges as general population inmates if they are held in disciplinary status longer than 60 days. Plaintiff contends Defendants Bradley, Susenkewa, and Fernino were “all appointed to fairly process the complaint and weigh the evidence,” but “refused to acknowledge the ACA standards [at this facility] and implement them moving forward.”(ECF No. 12 at 3). Plaintiff alleges he had a liberty interest in not being placed in a Restricted Housing Unit “for alleged rule violations contrary to CoreCivic, SCC policies and procedures.” (ECF No. 12 at 4). Plaintiff alleges his liberty interest was violated when he “suffered disciplinary segregation punishment for a ‘rule' offense that is not a rule;” received three periods of disciplinary segregation (totaling 41 days) when “no rule offense was alleged nor any penalty imposed;” and he received “punishment for SHIP refusals where no 24 hour prior notice was served, nor any proper paperwork being generated of which a formal hearing requires.” (Id.). Plaintiff further claims Defendant Mendez denied him his right to call witnesses and elect a staff advisor, as outlined “on the [disciplinary report] under ‘Advisement of Rights.'” (Id.).
Court ordered Defendants Bradley and Mendez to answer Plaintiff's claim that these Defendants violated Plaintiff's right to due process by failing to give him notice of disciplinary hearings and failing to allow him to call witnesses or present evidence at the hearings. (ECF No. 12 at 8). The Court concluded Plaintiff failed to adequately state a claim against Defendants Booker, Susunkewa, Hernandez, and two unknown officers who allegedly “prepared and/or authorized” the disciplinary reports against him because Plaintiff did not allege these Defendants themselves failed to provide him with sufficient notice of the charges, or that they were themselves responsible for factfinding or weighing evidence, or that they themselves somehow denied Plaintiff his limited right to call witnesses or present evidence at a disciplinary hearing. (ECF No. 12 at 7). Additionally, the Court noted Plaintiff's only allegation regarding Defendant Wead was that Wead denied his disciplinary appeals, which allegations were too vague to adequately state a claim for relief, noting Plaintiff did not describe the basis for his appeal and did not allege Defendant Wead was responsible for disciplinary findings or for denying Plaintiff sufficient notice and an opportunity to present witnesses or evidence at his disciplinary hearings. (Id.). The Court also noted Plaintiff's allegation that the individual Defendants violated his due process rights by failing to adhere to ACA standards, CoreCivic policies, or the contract between CoreCivic and the Hawaii Department of Public Safety, did not state a cognizable claim for relief because there is no § 1983 liability for violating prison policy or department regulations. (ECF No. 12 at 7-8). The Court further concluded Plaintiff failed to adequately allege a cognizable claim against CoreCivic because he failed to allege that any of the conduct described in the First Amended Complaint was the result of a specific policy or custom of CoreCivic. The Court determined: “To the contrary, Plaintiff alleges his constitutional rights were violated because the individual Defendants failed to follow CoreCivic's policies.” (ECF No. 12 at 6).
Defendants Mendez and Bradley were served on November 2, 2023, and answered the First Amended Complaint on November 21, 2023. (ECF Nos. 19, 20, 21)
II. Law Governing Amendment of § 1983 Complaints
The Prison Litigation Reform Act requires the screening of prisoner complaints and the dismissal of allegations that fail to state a claim upon which relief can be granted prior to ordering service of an amended complaint on a defendant. See 28 U.S.C. § 1915A(a). Rule 15(a) of the Federal Rules of Civil Procedure provides a plaintiff should be given leave to amend their complaint when justice so requires. Granting or denying leave to amend is a matter committed to the Court's discretion. Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). Futility of amendment is sufficient to justify denial of leave to amend. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010). A proposed amended complaint is futile if, accepting all of the facts alleged as true, it would be immediately “subject to dismissal” for failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998); Riverview Health Inst. LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id., quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Court is obliged to liberally construe an incarcerated pro se plaintiff's complaint. See, e.g., Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, although pro se pleadings are liberally construed, conclusory and vague allegations will not support a cause of action. E.g., Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. See also Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014), quoting Pena v. Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992).
To prevail in a § 1983 claim, a plaintiff must show an (1) act by the named defendant; (2) under color of state law; (3) which deprived him of a federal constitutional right; and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005). Additionally, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 37172, 377 (1976). A claim stated in a §1983 complaint may be properly dismissed when the pleading lacks specific factual allegations showing the named defendant's participation in the alleged constitutional violation. See Iqbal, 556 U.S. at 678; Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Richards v. Harper, 864 F.2d 85 (9th Cir. 1988); Carey v. Von Blanckensee, 515 F.Supp.3d 1051, 1055 (D. Ariz. 2021). The Court need not assume the plaintiff “can prove facts different from those alleged in the complaint.” McGrath v. Scott, 250 F.Supp.2d 1218, 1220 (D. Ariz. 2003). Additionally, “legal conclusions couched as factual allegations are not given a presumption of truthfulness and conclusory allegations of law and unwarranted inferences are not sufficient” to state a claim for relief that will survive a motion to dismiss. Id. (internal quotations omitted and emphasis added).
III. Analysis of Proposed Second Amended Complaint
In the proposed Second Amended Complaint (ECF No. 18) Plaintiff seeks to add as defendants the same entities dismissed in the order at ECF No. 12, i.e., CoreCivic, Wead, Carrier, Susunkewa, Hernandez, Fernino, and Booker. As with the First Amended Complaint, in the proposed second amended complaint Plaintiff asserts a single Fourteenth Amendment due process claim, asserting he was deprived “of liberty, without due process, resulting in subjection to conditions of confinement that rise to the level of atypical and significant hardship. Resulting with lost wages, unfavorable classification, physical and emotional injuries.” (ECF No. 18 at 3).
In the proposed second amended complaint Plaintiff alleges Booker was responsible for preparing a disciplinary report based on Plaintiff's refusal to participate in SHIP; Plaintiff contends Booker did not comply with an institutional policy regarding the report. (ECF No. 18 at 11-12). Plaintiff alleges the institution's procedures were not followed, “giving Booker, Susunkewa, and Hernandez no excuse” for having charged Pavich with a “rule violation” that only “allegedly” existed, i.e., a “restricted policy and contrary to procedures for discipline.” (ECF No. 18 at 12).
Plaintiff alleges his
... due process rights in the disciplinary process have been and continue to be violated by private entity CoreCivic Incorporated as a result of Policy 10-101 Special Housing Incentive Program being “restricted” and/or “sensitive” to inmates but containing a institutional “rule” and or offense that warrants the imposing of a penalty. Policy 10-101 is their policy they have endorsed and put into effect at their Saguaro Correctional Center. On five (5) separate occasion(s) Pavich has been penalized for this rule with thirty (3) days of disciplinary segregation (DS) imposed by Disciplinary Hearing Officer (DHO) Tad Mendez. This is a due process violation claim because Pavich is entitled to the due process procedure(s) outlined in Policy 15-1 Offense and Penalty Code (Adult), and Policy 15-2 Disciplinary Procedures (Adult) that are CoreCivic “property,” endorsed and in effect at SEC.(ECF No. 18 at 8).
Plaintiff alleges Susunkewa and Hernandez prepared specific forms (“15-2A DR”), i.e., disciplinary offense reports, for his refusal to participate in SHIP. (ECF No. 18 at 10). Plaintiff alleges that on March 9, 2023, and April 21, 2023, Hernandez approved Susunkewa's “15-2A” reports, and someone approved Hernandez's “15-2A” report alleging a rule violation on May 4, 2023. Plaintiff further alleges that on August 17, 2023, Hernandez approved a 15-2A rule allegation by Susunkewa. (ECF No. 18 at 12).
Plaintiff contends the “'specific rule' that Booker, Susunkewa, Hernandez, and two others relied on for the issuance of disciplinary reports was Plaintiff's “refusal of housing.” (ECF No. 18 at 15). Plaintiff asserts: “Not only is refusing SHIP a nonestablished ‘rule' in a ‘restricted' policy of CoreCivic, but nowhere is there a offense penalty code for ‘refusing housing.'” (Id.). Plaintiff contends these acts violated his “entitled procedural due process procedural safeguards as outlined above in the disclosed content of CoreCivic disciplinary Policies and Procedures as well as the ACA standards referenced in those policies.” (Id.). Plaintiff contends Booker
. had a duty to “verify” that a legitimate established “rule” in writing was available to Pavich, that he had been given the “rule” in advance and violated that rule understanding it existed. Booker was the Restricted Housing Unit (RHU) Manager (UTM) having access to all CoreCivic Policies and Procedures. Booker breached his duty causing Pavich to be
injured by being charged with a unlawful “rule” violation leading to 30 days DS.(ECF No. 18 at 10).
Plaintiff also alleges “Wead ignored the fact” that Plaintiff's “alleged SHIP hearings” on January 23, 2023, March 9, 2023, April 21, 2023, May 4, 2023, and August 17, 2023, “did not allow for a witness or representative and the last four hearings did not occur with 24 hours prior notice nor were specific forms generated which outline criteria and require facts to be documented.” (ECF No. 18 at 16). Plaintiff alleges he “could not be disciplined for refusing SHIP” “unless the proper SHIP hearing procedures” were followed. (Id.). Plaintiff asserts: “Wead was absolutely responsible for factfinding in Pavich's behalf,” based on “the Inmate Handbook” stating the warden's decisions are based on guidelines established by CoreCivic, which guidelines purportedly state the “warden is vitally interested in the overall welfare of the individuals at CoreCivic.” (Id.).
Plaintiff contends his federal constitutional right to due process was violated because he served three periods “on OS” “without an offense alleged which would warrant pre-hearing detention and without a finding of guilt by the DHO imposing a OS penalty.” (Id.). Plaintiff asserts his constitutional rights were violated because “Carrier, Wead, and Bradley denied the grievance” as having “no merit” despite “Meiner acknowledging violations and implementing a corrective action plan.” (Id.). Additionally, Plaintiff alleges Bradley engaged in “psychological intimidation” in “violation of policy.” (ECF No. 18 at 17).
Plaintiff avers “Carrier, Bradley, and Wead have violated Pavich's due process entitled process by having had him held on DS with no cause and refusing to credit this time.” (Id.). Plaintiff asserts “standards have been denied,” and Wead, Bradley, Carrier, and Hernandez violated Plaintiff's “due process entitled process to fair and proportionate punishment.” (ECF No. 18 at 18). Plaintiff contends “Fernino also is at fault and has denied Pavich his property, shoes, sweats, thermals, etc. etc. contrary to 5-AC1-4A-09, 5-AC1-4A-15, and 5-AC1-4A-27.” (ECF No. 18 at 22). Plaintiff alleges “Fernino has failed to act to her duty, breached that duty and violated Pavich's due process rights to said items etc.” (Id.). Plaintiff argues: “All these officials had the duty to factfind and review policy, weighing documentary evidence, but have refused to fairly process the grievance and inmate requests for service to correct their fault moving forward.” (ECF No. 18 at 18).
Additionally, Plaintiff summarily asserts
Wead, Bradley, Carrier, Susunkewa, Booker, Mendez, Fernino, Hernandez and CoreCivic have all been shown specifically to have violated established and entitled process per policy and as factfinders have failed to produce written statement and evidence within the disciplinary process to deprive Pavich his liberty interest to less restrictive housing and his privileges while housed in segregation unjustly.(Id.).
Plaintiff's proposed second amended complaint fails to state cognizable procedural due process claims against Wead, Carrier, Susunkewa, Booker, Fernino, Hernandez, and CoreCivic. The gravamen of all of Plaintiff's claims against these individuals and CoreCivic is that they allegedly failed to follow specific administrative procedures regarding disciplinary reports and procedures which resulted in Plaintiff being housed in disciplinary housing because he would not participate in SHIP.
Allowing that Plaintiff had a liberty interest in not being placed in restricted housing, to proceed on a due process claim the Plaintiff must then specify what cognizable due process safeguard(s) he was denied, and by whom. “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The only due process procedures a prisoner is entitled to with regard to prison disciplinary proceedings are written notice of the charges, no less than twenty-four hours prior to the hearing, a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action, and a limited right to call witnesses and present documentary evidence when it would not be unduly hazardous to institutional safety or correctional goals to allow the defendant to do so. E.g., id. at 565-66. Plaintiff fails to show that any of the named Defendants, other than Bradley and Mendez, did anything other than allegedly violate internal prison rules or ACA standards. Plaintiff does not plausibly allege that Wead, Carrier, Susunkewa, Booker, Fernino, or Hernandez themselves were responsible for giving him written notice of the charges and failed to do so, or that these individuals themselves were factfinders and failed to supply a written statement as to the evidence supporting, and the reasons for, the disciplinary action. Plaintiff allows the disciplinary reports were written because he refused to participate in SHIP, that he was placed in segregated housing for not participating in SHIP, and that he did indeed choose not to participate in SHIP. Furthermore, the fact that any of these individuals did not, allegedly, comply with any ACA standard, CoreCivic policy, or the contract between CoreCivic and the Hawaii Department of Public Safety with regard to the imprisonment of Hawaii inmates in an Arizona CoreCivic facility, does not state a claim for violation of the inmate's federal constitutional due process rights. See Case v. Kitsap Cnty. Sheriff's Dep't, 249 F.3d 921, 930 (9th Cir. 2001), quoting Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (“[T]here is no § 1983 liability for violating prison policy”). See also Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (“[violations of institution] departmental regulations do not establish a federal constitutional violation”). Therefore, Plaintiff fails to state a procedural due process claim against Wead, Carrier, Susunkewa, Booker, Fernino, and Hernandez.
A prison inmate does not have a per se federal constitutional liberty interest in their housing assignment, i.e., to be free of disciplinary segregation. See Austin v. Terhune, 367 F.3d 1167, 1170 (9th Cir. 2004); Casey v. Lewis, 837 F.Supp. 1009, 1019-21 (D. Ariz. 1993). However, the issue in this matter is whether the process afforded Plaintiff adequately protected any procedural due process rights pursuant to Wolff. Taking Plaintiff's allegations as true, Plaintiff has adequately pled that the conditions of his disciplinary confinement constituted a major disruption in his environment when compared to general population housing.
Accordingly, IT IS RECOMMENDED that Plaintiff's motion at ECF No. 17 be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 7(b)(2). Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.