1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Frankie Lee Rodriguez, 

Plaintiff, 

v. 

Charles L. Ryan, et al., 

Defendants.

No. CV 15-01766-PHX-DLR (DMF)

AMENDED REPORT AND 

RECOMMENDATION (TO 

CORRECT CASE NUMBER ONLY) 

TO THE HONORABLE DOUGLAS L. RAYES: 

 Before the Court is Plaintiff’s proposed First Amended Complaint (“FAC”) (Doc. 

14) and Motion to Supplement (Doc. 15). This matter is before the undersigned on 

referral from the District Judge. The Court has a continuing obligation to screen 

complaints brought by prisoners seeking relief against an officer or employee of a 

governmental entity. See 28 U.S.C. § 1915A(a). The screening requirement extends to 

proposed amended complaints. Because a magistrate judge cannot decide a “matter 

dispositive of a claim or defense or a prisoner petition challenging the conditions of 

confinement,” Rule 72(b)(1), Federal Rules of Civil Procedure, the undersigned 

recommends as follows. 

I. Background

 Plaintiff Frankie Lee Rodriguez filed a pro se civil rights Complaint pursuant to 

42 U.S.C. § 1983. The Court granted Plaintiff’s Application to Proceed In Forma 

Pauperis and ordered Defendants Ryan, Barrios, and Miser to answer Counts I, II, IV, 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 1 of 11
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

and V. (Doc. 12.) On November 5, 2015, Plaintiff filed his FAC (Doc. 14) as a matter of 

course and also filed his Motion to Supplement First Amended Complaint (Doc. 15), 

adding two counts that he claims occurred after he filed his original complaint. 

II. Statutory Screening of Prisoner Complaints: 

 The Court is required to screen complaints brought by prisoners seeking relief 

against a governmental entity or an officer or an employee of a governmental entity. 28 

U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 

has raised claims that are legally frivolous or malicious, that fail to state a claim upon 

which relief may be granted, or that seek monetary relief from a defendant who is 

immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 

 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, thedefendant-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. 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. 

 The United States Court of Appeals for the Ninth Circuit has instructed that courts 

“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 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 2 of 11
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

(2007) (per curiam)). Although pro se pleadings are liberally construed, Haines v. 

Kerner, 404 U.S. 519, 520–21 (1972), conclusory and vague allegations will not support 

a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th 

Cir. 1982). In such circumstances, even a liberal interpretation of a civil rights complaint 

may not supply essential elements of the claim that were not initially pled. Id. 

III. First Amended Complaint

 Plaintiff’s nine-count FAC names the following Defendants: Charles Ryan, 

Director of ADOC, Chris Moody, Warden at Lewis Complex, Unknown Fizer, Warden at 

Florence Complex, Unknown Barrios, Deputy Warden at Rast Max Unit/Lewis Complex, 

and Unknown Miser, Senior Chaplain at Florence Complex. Plaintiff seeks declaratory, 

compensatory, punitive, and injunctive relief. 

A. Claims From Original Complaint 

 The RLUIPA claim in Count I, the First Amendment claim in Count II, the Eighth 

Amendment claim in Count IV, and the RLUIPA claim in Count V are the same claims 

set forth in Plaintiff’s original complaint. The Court’s Screening Order at Doc. 12 

required Defendant Ryan to respond to Counts I and II, which allege “that Director 

Ryan’s policy substantially burdens [Plaintiff’s] religious exercise by requiring inmates 

to pay for allowable religious items from their inmate accounts, even if they are indigent, 

like Plaintiff. Plaintiff contends that the lack of any alternatives for indigent inmates to 

obtain allowable religious items violates the Religious Land Use and Institutionalized 

Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5 and the First Amendment.” 

(Doc. 12 at 5.) The Court also required Defendants Ryan and Barrios to respond to 

Plaintiff’s Eight Amendment claim in Count IV, where Plaintiff alleges that Ryan and 

Barrios have ordered in-cell lights to remain on 24 hours a day in Plaintiff’s unit. (Doc. 

12 at 5–6.) The Court ordered Defendants Ryan, Fizer and Miser to respond to Count V, 

where Plaintiff alleges violations of his religious exercise rights by refusing to either give 

Plaintiff religious items purchased by his mother or to allow him to use the items for 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 3 of 11
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

religious ceremonies. (Doc. 12 at 6.) The Court recommends that these same Defendants 

be required to respond to these same claims in Plaintiff’s FAC. 

B. Equal Protection Claims 

 The Court previously dismissed Plaintiff’s equal protection claims in Counts III, 

VI, and VII of Plaintiff’s original complaint for failure to state a claim. Plaintiff has 

attempted to cure the deficiencies in these counts in his FAC. 

 In Count III, Plaintiff alleges the following: Plaintiff is a member of a protected 

class, as well as a “class of one,” that is intentionally being treated differently from other 

similarly situated inmates without any rational basis for the difference in treatment. 

Plaintiff alleges that he is a max custody segregation inmate at Rast Max Unit (“RMU”), 

and that Director Ryan, Warden Moody, and D.W. Barrios have intentionally treated him 

differently from other max custody segregation inmates similarly situated at the other 

three max units in the state. Plaintiff alleges that Defendants Ryan, Moody and Barrios, 

met with each other and deliberately enacted restrictions denying RMU inmates rights 

and privileges that max custody segregation inmates are receiving at the other three max 

units, including jobs; meals in the chow hall; in-pod recreation; Step 3 field recreation 

and large recreation enclosure; Step 2 large recreation enclosure, contact visits, and 

removal of cuffs; loaner televisions and walkmans; physical access to the library; access 

to library books; recreation supplies, such as chess, scrabble, cards, and dominos; 

television programming and classes; college courses; psych groups; legal mail pick-up on 

all shifts; access to institution forms; multiple Correction Officer III groups; bladed 

shaving razors and mirrors; cell cleaning supplies; and showers every three days. 

 Plaintiff alleges in Count VI a claim for violation of equal protection in connection 

with religious exercise. Plaintiff alleges the following: he is a member of a protected 

class, as well as a “class of one,” that is intentionally being treated differently from other 

similarly situated inmates without any rational basis for the difference in treatment. 

Plaintiff alleges that Ryan, Moody, and Barrios have colluded to deny Plaintiff, as well as 

the other max custody segregation inmates at RMU, access to religious services. Plaintiff 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 4 of 11
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

alleges that the max custody segregation inmates at the other three max units in the state 

are receiving weekly religious services, including congregational services, for every 

religion. Plaintiff alleges that he and the other max custody segregation inmates at RMU 

are being denied these same services, and the RMU facility, like the other three max 

units, has many multi-purpose areas that could easily accommodate religious services. 

 Plaintiff alleges an equal protection violation in Count VII as follows: Plaintiff 

alleges he is a member of a protected class, as well as a “class of one,” that is 

intentionally being treated differently from other similarly situated inmates without any 

rational basis for the difference in treatment. Plaintiff alleges that Ryan, Moody, and 

Barrios ordered in-cell lights to be kept on twenty-four hours a day in RMU. Plaintiff 

contends that maximum custody segregation inmates at the other three max units only 

have in-cell lights on for 16 hours a day (6 am to 10 pm). 

 The Court previously dismissed Plaintiff’s equal protection claims for failure to 

allege that he is a member of a protected class, failure to allege that he is treated 

differently than similarly situated inmates, and failure to allege the absence of a rational 

basis for treating RMU inmates differently than other maximum custody prisoners. (Doc. 

12 at 4–5). Plaintiff has failed to cure these deficiencies in his FAC. 

A person’s Equal Protection rights are implicated when the government treats him 

differently than it treats similarly situated individuals. City of Cleburne v. Cleburne 

Living Ctr., 473 U.S. 432, 439 (1985). To state a §1983 claim for violation of the Equal 

Protection Clause “‘a plaintiff must show that the defendants acted with an intent or 

purpose to discriminate against the plaintiff based upon membership in a protected 

class.’” Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (citation 

omitted). “‘The first step in equal protection analysis is to identify the [defendants’ 

asserted] classification of groups.’” Id. at 1166–67 (quoting Freeman v. City of Santa 

Ana, 68 F.3d 1180, 1187 (9th Cir. 1995)). The Court noted that Plaintiff failed to allege 

that he was a member of a protected class, and “being classified as protective segregation 

inmate does not alter that conclusion.” (Doc. 12 at 4). In his FAC, Plaintiff merely 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 5 of 11
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

alleges that he is a member of a protected class, without alleging what protected class he 

is a member of. Plaintiff has not demonstrated that he is a member of a protected class. 

Barren v. Harrington, 152 F.3d 1193, 1194–95 (9th Cir. 1998). Although pro se 

pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520–21 (1972), 

conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of 

Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal 

interpretation of a civil rights complaint may not supply essential elements of the claim 

that were not initially pled. Id. 

 Plaintiff has also added an allegation that he is a “class of one.” A class-of-one 

plaintiff must proceed through essentially the same two steps as a plaintiff alleging a 

class-based claim. Plaintiff must show that he (as opposed to a class in which he is a 

member) was “intentionally treated differently from others similarly situated and that 

there is no rational basis for the difference in treatment.” Village of Willowbrook v. 

Olech, 528 U.S. 562, 564 (2000); see also SeaRiver Maritime Financial Holdings, Inc. v. 

Mineta, 309 F.3d 662, 679 (9th Cir. 2002). Once again, Plaintiff’s conclusory allegation 

that he is a “class of one” is insufficient. Plaintiff does not allege that he is treated 

differently than similarly situated inmates. He does not allege that he is treated 

differently from the other protective segregation inmates at RMU. He also fails to allege 

that the inmates in the other three maximum custody units are “similarly situated.” The 

Court recommends that Plaintiff’s equal protection claims in Counts III, VI and VII be 

dismissed for failure to state a claim. 

C. Newly Asserted Claims 

 Plaintiff’s Motion to Supplement (Doc. 15) seeks to add new claims in Counts 

VIII and IX, which Plaintiff alleges arose after the filing of the original complaint. Count 

VIII is a claim alleging violation of Plaintiff’s due process rights. Although Plaintiff 

brings Count IX as an Eighth Amendment claim, the Court will construe it as a First 

Amendment retaliation claim. See Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) 

(finding that notice pleading requires the plaintiff to set forth claims for relief, not causes 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 6 of 11
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

of action, statutes or legal theories, and a complaint need not identify the statutory or 

constitutional source of the claim raised). 

 1. Due Process Claim 

 In Count VIII Plaintiff alleges as follows: On September 3, 2015, the Rast Max 

Step Committee, a group created by Ryan and headed by Barrios, punished Plaintiff by: 

taking away Plaintiff’s contact visits—Plaintiff was placed on non-contact status; 

Plaintiff was removed from his program classes and refused credit for the classes he 

attended; Plaintiff lost his job and work score; Plaintiff’s phone calls were reduced from 

three per week to one per week; Plaintiff was placed on cuff status (cuffed behind his 

back whenever he is out of his cell); Plaintiff’s access to large recreation was taken and 

he was confined to using small recreation pens; and Plaintiff was denied all fundraisers. 

Plaintiff alleges that he received no disciplinary, nor was he found guilty of any, in the 

prior weeks and months. Plaintiff alleges that he was denied due process because he 

received no notice of wrongdoing, no hearing, no explanation, no opportunity to contest 

evidence or to present a defense, was denied any form of appeal, and denied the right to 

utilize the grievance procedure. Plaintiff alleges that he was informally told by noncommittee officers that his punishment would last a minimum of 90 days but could be 

indefinite. 

 The procedural guarantees of due process “apply only to the deprivation of 

interests encompassed by the Fourteenth Amendment’s protection of liberty and 

property.” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (citations omitted). To 

state a plausible due process claim, Plaintiff must allege (1) that he was deprived of a 

protected liberty or property interest; and if so, (2) that the procedures followed by the 

State in depriving him of that interest were constitutionally insufficient. Swarthout v. 

Cooke, 562 U.S. 216, 861 (2011) (per curiam). 

Liberty interests may be either derived directly from the Due Process Clause or 

created by state law. Chappell v. Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013) 

(citation omitted). The Due Process Clause of its own force protects prisoners from 

conditions which depart from the sentence imposed on them in a way that is 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 7 of 11
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

“‘qualitatively different’ from the punishment characteristically suffered by a person 

convicted of crime [and has] ‘stigmatizing consequences.’” Sandin v. Conner, 515 U.S. 

472, 479 n.4 (1995) (citations omitted). The Clause, by itself, confers no liberty interest 

in freedom from state action taken within the sentence imposed. Id. at 480. The 

conditions alleged by Plaintiff do not impinge on a liberty interest created by the Due 

Process Clause of its own force. See Davis v. Small, 595 F. App’x 689, 691 (9th Cir. 

2014) (unpublished) (“the Due Process Clause itself does not give rise to a protected 

liberty interest in a paying prison job, the possibility of favorable transfers, or particular 

phone and yard privileges”). 

State laws which give rise to protected liberty interests are “generally limited to 

freedom from restraint which, while not exceeding the sentence in such an unexpected 

manner as to give rise to protection by the Due Process Clause of its own force . . . 

nonetheless imposes atypical and significant hardship on the inmate in relation to the 

ordinary incidents of prison life.” Sandin, 515 U.S. at 484 (internal citations omitted). 

 Plaintiff has not alleged that he suffered any atypical and significant hardships in 

relation to the ordinary incidents of prison life. See McKune v. Lile, 536 U.S. 24, 26 

(2002) (finding that an essential tool of prison administration is the authority to offer 

inmates various incentives to behave and the Constitution accords prison officials wide 

latitude to bestow or revoke these perquisites as they see fit); Sandlin, 515 U.S. at 487 

(30 days’ disciplinary segregation is not atypical and significant); Serra v. Lappin, 600 

F.3d 1191, 1196 (9th Cir. 2010) (prisoners do not have a liberty interest in compensation 

for their labor); Myron v. Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (finding that a 

prison official’s determination that a prisoner may not engage in the publication and 

distribution of an inmate publication does “not present the type of atypical significant 

deprivation in which a State might conceivably create a liberty interest”); Walker v. 

Gomez, 370 F.3d 969, 973 (9th Cir. 2004) (prisoners do not have a property or liberty 

interest in prison employment); Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 

(5th Cir. 1995) (holding no liberty interest in job assignment). The Court recommends 

that Count VIII be dismissed for failure to state a claim. 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 8 of 11
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 2. Retaliation Claim 

 In Count IX Plaintiff alleges as follows: On September 3, 2015, Plaintiff 

submitted to the librarian for e-filing a civil rights lawsuit against the Warden and Deputy 

Warden of Lewis Complex/Rast Max, where Plaintiff is housed. Librarian Hartzel is a 

subordinate of Deputy Warden Barrios and was assigned to RMU by Warden Moody. A 

couple of hours after Plaintiff submitted his complaint, he was punished as set forth in 

Count VIII, supra. 

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 an inmate to show (1) that the prison official acted in 

retaliation for the exercise of a constitutionally protected right, and (2) that the action 

“advanced no legitimate penological 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). Liberally construed, Plaintiff has alleged a valid retaliation 

claim and the Court recommends that Defendants Moody and Barrios be required to 

respond to Count IX of the FAC. 

IV. Claims for Which an Answer Will be Required

 The Court recommends that Defendant Ryan be required to answer Counts I and II 

of Plaintiff’s FAC; that Defendants Ryan and Barrios be required to answer Plaintiff’s 

Eight Amendment claim in Count IV of Plaintiff’s FAC; that Defendants Ryan, Fizer, 

and Miser be required to answer Count V of Plaintiff’s FAC; and that Defendants Moody 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 9 of 11
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

and Barrios be required to answer Count IX of Plaintiff’s FAC. The Court recommends 

that the remaining claims be dismissed. 

IT IS RECOMMENDED that Plaintiff’s Motion to Supplement (Doc. 15) be 

granted as set forth herein. 

IT IS FURTHER RECOMMENDED that the Court order the Defendants 

named in Section IV herein to answer, or otherwise respond to the claims set forth in that 

section by appropriate motion, within the time provided by the applicable provisions of 

Fed. R. Civ. P. 12(a). 

 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), Federal Rules 

of Appellate Procedure, should not be filed until entry of the District Court’s judgment. 

 Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have 

fourteen (14) days from the date of service of a copy of this recommendation within 

which to file specific written objections with the Court. Thereafter, the parties have 

fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, 

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 seventeen (17) 

pages in length. 

 Failure to timely file objections to any factual or legal determinations of the 

Magistrate Judge will be considered a waiver of a party’s right to de novo appellate 

consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 

Cir. 2003) (en banc). Failure to timely file objections to any factual or legal 

determinations of the Magistrate Judge will constitute a waiver of a party’s right to 

appellate review of the findings of fact and conclusions of law in an order or judgment 

entered pursuant to the recommendations of the Magistrate Judge. 

/// 

/// 

/// 

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 10 of 11
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 Dated this 8th day of February, 2016. 

Honorable Deborah M. Fine

United States Magistrate Judge

Case 2:15-cv-01766-DLR-DMF Document 27 Filed 02/09/16 Page 11 of 11