Pinson v. Dukett

Jeremy Pinson, Plaintiff, v. J. Dukett, et al., Defendants.

No. CV-19-00422-TUC-RM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

April 24, 2020

ORDER

Pending before the Court is Plaintiff's Motion to Amend/Correct Complaint. (Doc. 16.) For the following reasons, the Court will grant leave to amend and will order service of the First Amended Complaint upon Defendants E. Shaw, J. Coyle, M. Vilareal, T. Schneider, J. Dukett, G. Shields, and the United States. Defendants E. Shaw, J. Coyle, M. Vilareal, T. Schneider, J. Dukett, and G. Shields will be required to answer Count Two and the United States will be required to answer Count Three.

Plaintiff filed a pro se Complaint alleging civil rights violations pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) on August 26, 2019. (Doc. 1.) On January 21, 2020, this Court issued a Screening Order directing Defendant Karlan to answer Count One of Plaintiff's Complaint and dismissing the remaining claims and defendants without prejudice. (Doc. 7.) Plaintiff filed the Motion for Leave to Amend/Correct Complaint and attached a proposed First Amended Complaint (FAC) on March 4, 2020. (Doc. 16.) The FAC adds a cause of action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, and reasserts her constitutional claims pursuant to Bivens, 403 U.S. 388. (Doc. 16-1.) The FAC names as defendants: J. Dukett, T. Schneider, E. Shaw, J. Karlan, J. Coyle, G. Shields, M. Vilareal, and J. Carey, officers at United States Penitentiary-Tucson (USP-Tucson); Ann Ash, S. Waite, and Heidi Haight-Biehler, doctors at USP-Tucson; and the United States. (Id.) Plaintiff seeks monetary relief in an amount to be determined against each individual defendant and in the amount of $299,000 against the United States. (Id. at 6.) Plaintiff also seeks an injunction against the United States prohibiting its staff at USP-Tucson from retaliating against Plaintiff by labeling her a snitch and harassing her. (Id.)

A party may amend its pleading once as a matter of course within 21 days of serving it. Fed. R. Civ. P. 15(a)(1)(a). In all other cases, a party may amend its pleading only with the opposing party's written consent or with leave of court, which should be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). Plaintiff may not amend her Complaint as a matter of right at this stage. Defendant has neither consented to nor opposed amendment, and the time for responding to the Motion for Leave to Amend has expired. LRCiv 7.2(c).

The Court finds that justice requires that Plaintiff be given leave to amend. See Day v. LSI Corp., 174 F. Supp. 3d 1130, 1152 (D. Ariz. 2016), aff'd, 705 F. App'x 539 (9th Cir. 2017) (factors relevant in determining whether leave to amend should be granted include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposition party by virtue of the allowance of the amendment, [and] futility of amendment."); see also DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987) ("The party opposing amendment bears the burden of showing prejudice."). "As a general rule, when a plaintiff files an amended complaint, the amended complaint supersedes the original, the latter being treated thereafter as non-existent." Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (internal quotations omitted).

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I. Count One

In Count One of the FAC, Plaintiff alleges that her Eighth Amendment rights were violated while she was being held in a "secure cell" in the Special Housing Unit (SHU). (Id. at 3.) Plaintiff alleges that on or about April 25 to April 29, 2019, she cut herself (self-mutilated) and subsequently was placed in hand restraints and her cell was searched for razor blades. (Id.) Plaintiff alleges that during the search, Defendants Karlan, Shaw, Coyle, and Vilareal located a journal in which Plaintiff was recording her observations of the Defendants engaging in misconduct. (Id.) Plaintiff alleges that, upon discovering this information, Defendants, from about April 25 to May 22, would scream "Pinson's a snitch" while doing their rounds within earshot of forty other inmates. (Id.) Plaintiff further alleges that Defendants Schneider, Dukett, Shields, and Carey also harassed her by calling her a "snitch." (Id.) Plaintiff states that she experienced depression, anxiety, insomnia, and self-harm as a result of Defendants' actions. (Id.) Plaintiff further alleges that she never pursued administrative remedies because her counselor Daniel Diaz refused to provide or process her forms. (Id.)

As previously discussed in the Court's screening order, the Court construes Count One as an Eighth Amendment threat-to-safety claim. (See Doc. 7 at 5.) To state a claim for failure to protect or threats to safety, an inmate must allege facts to support that she was incarcerated under conditions posing a substantial risk of harm and that prison officials were "deliberately indifferent" to those risks. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837. That is, "the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference." Id. Thus, Plaintiff must allege facts to support when and how any particular defendant knew of a substantial risk of harm to Plaintiff and that the defendant disregarded or failed to take steps to protect Plaintiff.

In the original Complaint, Plaintiff alleged that Defendant Karlan provided her with a new razor blade. (Doc. 1 at 3.) Based on that allegation, the Court ordered Defendant Karlan to answer Count One of Plaintiff's original Complaint. (Doc. 7 at 9.) Plaintiff has not included the allegation that Defendant Karlan provided her with a razor blade in Count One of the proposed FAC. Plaintiff's allegations against all Defendants in Count One are limited to allegations that Defendants verbally harassed her. (Doc. 16-1 at 3.) As previously discussed in the screening order, verbal harassment or abuse alone is not sufficient to state a cause of action under 42 U.S.C. § 1983. (See Doc. 7 at 5-6); see also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).

"As a general rule, when a plaintiff files an amended complaint, the amended complaint supersedes the original, the latter being treated thereafter as non-existent." Robinson, 621 F.3d at 1005. Because Plaintiff has failed to state a claim against any of the Defendants named in Count One, Count One will be dismissed. Defendant Carey, who is not named in any other counts, will be dismissed.

II. Count Two

In Count Two of the FAC, Plaintiff reincorporates the facts stated in Count One and alleges the following additional facts: Defendant Blanckensee¹ had banned razors in SHU from April 20 to May 22 due to inmates' suicide attempts. (Doc. 16-1 at 4.) Defendant Karlan threw a "brand new razor" into Plaintiff's cell and screamed, "Kill yourself you [illegible] bitch." (Id.) Plaintiff showed the razor to Defendants Shaw, Coyle, Vilareal, Schneider, Dukett, and Shields and told them to "get it out" of her cell, which they did not do. (Id.) Plaintiff alleges that Defendants knew she was at risk of suicide and self-harm and had observed her cutting herself and "bleeding heavily from [her] scrotum," yet did nothing to remove the razor blade from Plaintiff's possession and did not notify their supervisors or medical staff. (Id.) Plaintiff further alleges that her injuries were reported to Defendants Waite, Ash, and Haight-Biehler, who did not thereafter examine or treat her injuries (Id.) Plaintiff further alleges that she never pursued administrative remedies because her counselor Daniel Diaz refused to provide orprocess her forms. (Id.) As a result of Defendants' actions, Plaintiff alleges that she suffered a laceration on her arm, scarring, nerve damage, depression, anxiety, and suicidality. (Id.) The Court construes Count Two as to Defendants Karlan, Shaw, Coyle, Vilareal, Schneider, Dukett, and Shields as an Eighth Amendment threat-to-safety claim. The Court construes Count Two as to Defendants Waite, Ash, and Haight-Biehler as an Eighth Amendment medical care claim.

A. Threat to Safety Claim

To state a claim for failure to protect or threats to safety, an inmate must allege facts to support that she was incarcerated under conditions posing a substantial risk of harm and that prison officials were "deliberately indifferent" to those risks. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837. That is, "the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference." Id. Thus, Plaintiff must allege facts to support when and how any particular defendant knew of a substantial risk of harm to Plaintiff and that the defendant disregarded or failed to take steps to protect Plaintiff. Pro se pleadings are liberally construed and may not be dismissed without allowing an opportunity to present evidence unless it appears "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520 (1972) (internal quotations omitted).

Liberally construed, Plaintiff has sufficiently stated an Eighth Amendment threat-to-safety claim against Defendants Karlan, Shaw, Coyle, Vilareal, Schneider, Dukett, and Shields in Count Two to the extent that Plaintiff seeks monetary relief.

B. Medical...