STEPHEN M. McNAMEE, Senior District Judge.
Plaintiff Dushan Stephan Nickolich, who is currently held in the Arizona Community Protection and Treatment Center (ACPTC), a unit of the Arizona State Hospital (ASH), in Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983
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) (emphasis added). While 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)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] `must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Defendants' motion to dismiss the Complaint for failure to state a claim will be granted, but Plaintiff will be granted leave to file a first amended complaint in which he attempts to cure the deficiencies of his Complaint.
Plaintiff alleges four counts for relief for violation of his First, Fifth, Eighth, and Fourteenth Amendment rights and state law violations. Plaintiff sues ACPTC; ASH; Corey Nelson, acting Deputy Director of the Arizona Department of Human Services; Dr. Gary Perrin, Psychology Administrator at ASH; Bruce McMorran, Director of ACPTC; Dr. Bradley Johnson, an ACPTC psychiatrist; and Erick D. Pearson, an ACPTC therapist. Plaintiff seeks compensatory and punitive relief.
Plaintiff was convicted of sexual assault in Maricopa County Superior Court, case# CR1993-09121, and served a sentence in the custody of the Arizona Department of Corrections (ADC) from January 1996 until September 2009.
ARS § 36-3707(B).
Plaintiff alleges the following facts in his Complaint: "Defendants" attempted to have Plaintiff's probation revoked in emails exchanged with Plaintiff's adult probation officer (APO), Brian Bednar. On July 28, 2011, Plaintiff was arrested on a probation violation warrant. At a hearing on August 4, 2011 in Maricopa County Superior Court, the prosecutor stated that "they will not take Plaintiff [sic] back. They do not want Plaintiff [sic] back." (Doc. 1 at 2.) On September 22, 2011, the violation charges were dismissed and Plaintiff was "returned" to Defendants' custody at ACPTC.
Plaintiff contends that the ACPTC treatment program is the same for all of its residents and is "willfully inadequate, overly generalized," and lacks clear direction in attaining goals. (Id. at 3.) He contends that Defendants have breached their duty under state law by failing to provide him individualized treatment necessary to eventually be released from civil commitment. He contends that Defendants' failure to provide him individualized treatment renders his commitment punitive rather than therapeutic.
Plaintiff has previously filed a case in federal court concerning the alleged failure of entities and persons to provide him an individualized treatment plan and asserted that the failure to do so resulted in indefinite and perpetual civil commitment. See Nickolich v. ACPTC, No. CV12-2312-PHX-SMM, doc. 6. In the complaint in that case, Plaintiff alleged that: on August 4, 2011, the ACPTC, through counsel, stated that "`. . . the State Hospital does not want him back'" and that "`. . . the State Hospital will not take him back.'" (Id., doc. 1 at 3.) The Arizona Attorney General's Office, on behalf of ACPTC, asked to meet with Plaintiff to discuss future treatment. Plaintiff met with ACPTC and the Attorney General's representatives on August 1, 2012, but no treatment plan was presented. On August 8, 2012, ACPTC generated an appointment schedule, which it designated a treatment plan. On September 28, 2012, the ACPTC clinical team ostensibly "granted," or agreed to prepare, an individualized treatment plan, but no treatment plan was actually provided. Plaintiff was designated as "non-status." (Id.) Plaintiff contended that ACPTC had a legal duty under the Constitution and other federal law to provide him individualized treatment. He claimed that rather than provide him an individualized treatment plan, ACPTC was merely civilly incarcerating and warehousing him in violation of due process and equal protection and after he had already served his criminal sentence. He asserted that indefinite civil commitment constituted duplicative punishment in violation of the Fifth Amendment Double Jeopardy Clause. Because Plaintiff filed that action in forma pauperis, the Court screened the complaint under 28 U.S.C. §1915(e)(2) and dismissed the complaint for failure to state a claim with leave to amend. The Court subsequently dismissed Plaintiff's first amended complaint for failure to state a claim and dismissed the action.
In this case, as discussed above, Plaintiff has paid the filing fee and he is not a prisoner within the meaning of the PLRA. Defendants have moved for dismissal of the Complaint for failure to state a claim or for a stay under Younger. The Court will grant Defendants' motion to dismiss the Complaint for failure to state a claim, but will grant Plaintiff leave to file a first amended complaint.
To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, 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, 371-72, 377 (1976).
Plaintiff names ACPTC and ASH as Defendants, but neither is a proper defendant under § 1983. Under the Eleventh Amendment to the Constitution of the United States, neither a state nor a state agency may be sued in federal court without its consent. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Further, claims under § 1983 are directed at "persons." A detention facility is not a "person" amenable to suit under § 1983. See Allison v. California Adult Auth., 419 F.2d 822, 823 (9th Cir.1969) (finding that California Adult Authority and San Quentin Prison not "person[s]" subject to suit under § 1983); Jones v. Lynchburg Adult Detention Ctr., No. 7:10-cv-0009, 2010 WL 227831 at *1 (W.D. Va. Jan. 19, 2010) (detention center is not a person); Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D.N.C. 1989)). Similarly, a state hospital or health agency is not a "person" for purposes of § 1983. See O'Haire v. Napa State Hosp., No. C07-0002-RMW (PR), 2009 WL 2447752 at *1 (N.D. Cal. Aug. 7, 2009). Neither the State of Arizona nor any State agency is a "person" within the meaning of § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989) (holding that the term "person" as used in § 1983 did not include a State or State agency). Accordingly, ACPTC and ASH will be dismissed as Defendants.
Plaintiff also sues Nelson, Perrin, Johnson, McMorran, and Pearson. While these persons may be sued, Plaintiff fails to state a claim against any of them.
To state a claim against a defendant, "[a] plaintiff must allege facts, not simply conclusions [to] show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone who allegedly violated a plaintiff's constitutional rights does not make him liable. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor, 880 F.2d at 1045. A supervisor in his individual capacity, "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045.
Plaintiff fails to allege specific facts to support that any individual Defendant directly violated his constitutional rights. He also fails to allege facts to support that any individual Defendant promulgated, endorsed, or enforced a policy, practice, or custom resulting in a violation of Plaintiff's constitutional rights. Plaintiff thus fails to state a claim against any individual Defendant and they will be dismissed.
Plaintiff asserts that he is and has been denied an individualized treatment plan resulting in indefinite civil commitment in violation of various federal constitutional rights. He in part contends that such confinement violates the Fifth Amendment's Double Jeopardy Clause.
In Kansas v. Hendricks, 521 U.S. 346 (1997), the United States Supreme Court rejected Hendricks' contention that the Kansas SVP Act violated Double Jeopardy. The Court determined that the Kansas SVP Act did not violate double jeopardy because it did not establish criminal proceedings and involuntary confinement under the Act was not punitive; rather, the Act created a civil commitment procedure and permitted release upon a showing that the confined person was no longer a danger to others. 521 U.S. at 361-65. It further noted that commitment under the Kansas Act was only potentially indefinite and that if the State sought to continue detention beyond a year, a court had to once again determine beyond a reasonable doubt that continued detention was appropriate under the same standard as the initial detention. Id. at 364. The Court rejected Hendricks' contention that the Act's alleged failure to offer "legitimate treatment" rendered confinement under the Act little more than disguised punishment. Id. at 365. It determined that under appropriate circumstances, and accompanied by proper procedures, commitment was a legitimate end of the civil law. Id. at 365-66. The Supreme Court further stated that while it had upheld state civil commitment statutes that aimed to both incapacitate and treat, the Supreme Court had
Id. at 366. It noted that even if treatment was ancillary to the purpose of the Kansas SVP Act, the Act required that care and treatment be provided to SVPs, not punishment. Id. at 367. The Supreme Court held that the Kansas SVP Act did not, therefore, violate double jeopardy.
Arizona's SVP Act provides in relevant part as follows:
ARS § 36-3712(B) (emphasis added). Further, Arizona's SVP Act provides for procedural protections analogous to those under the Kansas Act at issue in Hendricks. Indeed, in Martin v. Reinstein, 987 P.2d 779, 786 (Ariz. Ct. App. 1999), the Arizona Court of Appeals stated that Arizona's SVP Act "was patterned after statutes in other jurisdictions, many of which had been reviewed by their respective state appellate courts and found to be constitutional," and found Arizona's SVP Act similar to the Kansas SVP Act found constitutional by the United States Supreme Court. Id. at 787 (citing Hendricks, 521 U.S. 346 (1997)). The Arizona Court of Appeals concluded that Arizona's SVP Act, like that at issue in Hendricks, was civil in nature and that confinement under Arizona's SVP Act "is for treatment and protection of the public, not punishment. Id. at 793. The court observed that while detention under Arizona's SVP Act was of uncertain length, the Act was not retributive and did not contain a scienter element, unlike to find criminal culpability. Id. at 792. Further, the court noted that the Act's purposes were non-punitive by protecting the public from SVPs and treating those persons so that they may return to society. Id. The court concluded that the Act was not excessive in relation to its non-punitive purposes where some treatment is contemplated, as was the case in Hendricks, and where Arizona's Act provided for alternatives less restrictive than full custodial detention. Id. at 792-93.
Arizona's SVP Act is analogous to the act at issue in Hendricks, which the Supreme Court held did not violate double jeopardy. Further, Arizona's SVP Act has been held by the state appellate court as civil, rather than criminal, in nature. Plaintiff has not alleged facts to support that his current civil commitment has been rendered punitive by the alleged failure to provide individualized treatment. Nor does Plaintiff allege that he has been denied care, supervision or treatment. Accordingly, Plaintiff fails to state a claim for violation of double jeopardy under the Fifth Amendment and that claim will be dismissed.
Plaintiff otherwise asserts that his Fourteenth Amendment due process and equal protection rights have been violated by the denial of individualized treatment and that his civil commitment violates the Eighth Amendment.
Persons civilly committed as SVPs have a due process right to some treatment, but what that treatment entails must be decided by mental health professionals. Lane v. Williams, 689 F.3d 879, 882 (7th Cir. 2012) (citing Youngberg v. Romeo, 457 U.S. 307, 319-22 (1982), and Allison v. Snyder, 332 F.3d 1076, 1081 (7th Cir. 2003)); Deavers v. Santiago, 243 Fed. Appx. 719, 722 (3d Cir. 2007); see Turay v. Selling, 108 F.Supp.2d 1148, 1151 (W.D. Wash. 2000) (citing Youngberg, 457 U.S. at 319-22 (1982)); cf. Strutten v. Meade, 668 F.3d 549, 557 (8th Cir. 2012) (SVP did not have a fundamental due process right to sex offender treatment). However, the state "enjoy[s] wide latitude in developing treatment regimens" for sexual offenders. Hendricks, 521 U.S. at 368 n.4. "Liability [on a claim for constitutional deprivation] may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Youngsberg, 457 U.S. at 323; Lane, 689 F.3d at 882; Deavers, 243 Fed. Appx. at 722. But, as stated in Turay, "[t]he Hendricks Court rejected a facial challenge to a Kansas statute modeled on Washington's, noting that by committing sex offenders `to an institution expressly designed to provide psychiatric care and treatment' the state `has doubtless satisfied its obligation to provide available treatment." 108 F.Supp.2d at 1151 (quoting Hendricks, 521 U.S. at 368 n.4).
Plaintiff is currently confined in a mental health facility, ACPTC. While Plaintiff alleges that he has been denied individualized treatment, he does not allege that he has been denied care, supervision, or treatment generally. Plaintiff also does not allege that he is entitled to individualized treatment under state law such that the failure of the state to provide individualized treatment violates his federal due process rights. Finally, as discussed above, Plaintiff fails to connect any failure to provide individualized treatment to any properly named Defendant. For all of these reasons, Plaintiff fails to state a claim for violation of due process and that claim will be dismissed.
Plaintiff also asserts that the failure to provide individualized treatment violates equal protection. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike. U.S. Const., amend. XIV; see City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). A state practice that interferes with a fundamental right or that discriminates against a suspect class of individuals is subject to strict scrutiny. Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976); City of Cleburne, 473 U.S. at 441. Absent allegations that he is a member of a suspect class, or that a fundamental right has been violated, a plaintiff must allege facts to support that he has been intentionally treated differently from others who are similarly situated without a reasonable basis therefor. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Conclusory allegations do not suffice. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
Plaintiff does not allege that he is a member of a protected class or the violation of a fundamental right; convicted sex offenders do not constitute a suspect class. See e.g., United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012). Nor does Plaintiff allege that he has been treated differently than similarly situated persons, absent a reasonable basis therefor. Rather, Plaintiff only makes vague and conclusory allegations. As discussed above, that is not sufficient to state an equal protection claim. Further, as discussed above, Plaintiff fails to allege facts to connect any asserted violation to any properly named Defendant. For these reasons, Plaintiff fails to state an equal protection claim. Accordingly, that claim will be dismissed.
Plaintiff also asserts that his civil commitment absent individualized treatment violates his Eighth Amendment rights. Not every claim by a prisoner relating to inadequate medical (or mental health) treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corr., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference," "negligence," or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105.
Plaintiff fails to allege facts to support that he has a serious medical need, including the symptoms and duration of such medical need. Plaintiff also has not alleged facts to support that any properly-named Defendant, or anyone else, knew or should have known of such need but nevertheless failed to provide or obtain treatment for that need. Rather, Plaintiff appears merely to disagree with the treatment provided. That absent more, does not support that anyone acted with deliberate indifference to a serious medical need. Accordingly, Plaintiff fails to state a claim under the Eighth Amendment.
In Claim IV, Plaintiff asserts that Defendants knowingly or willingly denied him access to the "facilities grievance process" as retaliation for exercising constitutionally protected rights. A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor 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 that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires a showing (1) that an official acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action advanced no legitimate institutional interest). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants' conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).
Plaintiff fails to describe the facility's grievance process or to allege when, where, how, and by whom he was denied access to the facility's grievance process. Plaintiff also fails to allege facts to support that any act by a Defendant was taken in retaliation for the exercise of Plaintiff's constitutional rights. He fails to allege when, where, and how he engaged in constitutionally protected conduct or facts to support when, where, how, and by whom he was subject to retaliation. Accordingly, Plaintiff fails to state a claim and these allegations will be dismissed.
Plaintiff also alleges violations of the Arizona Constitution and other state law. Where a federal court has original jurisdiction over an action, such as a case asserting constitutional violations pursuant to 42 U.S.C. § 1983, the doctrine of pendent jurisdiction allows a federal court to exercise "pendent" or "supplemental" jurisdiction over closely related state law claims. Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (citing 28 U.S.C. § 1367(a)). As discussed herein, Defendants' motion to dismiss will be granted based on Plaintiff's failure to state a federal claim against any Defendant under § 1983. Because Plaintiff fails to state a federal claim in his Complaint, the Court declines to exercise jurisdiction over his state law claims in the Complaint and will dismiss those claims without prejudice. 28 U.S.C. § 1367(c).
For the foregoing reasons, the Court will grant Defendants' motion to dismiss the Complaint for failure to state a claim. However, the Court will grant Plaintiff leave to amend because it is not clear that Plaintiff could not amend to state a claim. See Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir.2012) (en banc) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). Within 30 days, Plaintiff may file a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey, 693 F.3d at 928.
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
(1) Defendants' motion to dismiss the Complaint for failure to state a claim is
(2) Plaintiff has
(3) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice.
(4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
(5) Plaintiff's motions for status are
