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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jorge Herberto Moreno, 

Plaintiff, 

v. 

Charles Ryan, et al., 

Defendants. 

No. CV-15-08312-PCT-SRB (JZB)

ORDER 

 On December 31, 2015, Plaintiff, who is confined in the Special Management Unit 

I (SMU I), in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 

U.S.C. § 1983. (Doc. 1.) On February 17, 2016, the Court screened the Complaint and 

ordered Defendant Marshall to answer Count One. (Doc. 5.) The Court dismissed the 

remaining Defendants and claims without prejudice. 

 Pending before the Court is Plaintiff’s Motion for Leave to File his First Amended 

Complaint, and Plaintiff’s lodged proposed First Amended Complaint. (Docs. 37, 38.) 

For the reasons below, the Court will grant Plaintiff’s Motion to Amend and, after 

screening, will order Defendant Marshall to answer Count One of the First Amended 

Complaint and dismiss the remaining Defendants and claims. 

I. Plaintiff’s Motion to Amend 

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “[t]he court 

should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P 15(a)(2). In 

accordance with the Local Rules of Civil Procedure, Plaintiff lodged a proposed First 
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Amended Complaint. (Doc. 38.) The Court finds that Plaintiff’s Motion to Amend is 

timely as it was filed prior to the Court’s deadline for amending pleadings. (Docs. 31, 37, 

38.) Therefore, the Court will grant Plaintiff’s Motion to Amend and order the Clerk of 

Court to file Plaintiff’s First Amended Complaint, lodged at Doc. 38. 

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, 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, 
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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)). 

III. Plaintiff’s First Amended Complaint 

 In his Three-Count First Amended Complaint, Plaintiff sues the Arizona 

Department of Corrections (ADC), as well as the following current or former employees 

of the ADC: Director Charles Ryan; Sergeant Marshall; Lieutenant Greene; Deputy 

Warden (DW) Pruett; Corrections Officer (CO) IV Branch; Assistant DW Rode; DW 

Hemsley; and Sergeant Trotti. 

 In Count One, Plaintiff asserts excessive use of force and Fourth Amendment 

claims. More specifically, Plaintiff asserts that on July 2, 2013, Marshall sexually 

assaulted him by repeatedly strip searching him. Plaintiff claims that during one of the 

strip searches, Marshall, with a flashlight in hand, focused on Plaintiff’s buttocks. After 

Plaintiff refused to comply five times, Marshall told Plaintiff “I want to see your 

asshole,” “show me you’re asshole.” Plaintiff claims that Marshall told Plaintiff he was 

“on disciplinary” for refusing to comply. Plaintiff also appears to assert Marshall then 

gave Plaintiff his clothes, but moved the flashlight closer to Plaintiff’s buttocks. 

 Plaintiff alleges that he was taken to Greene for disobeying orders. At that time, 

Plaintiff asserts, he complained to Greene about Marshall’s “sexual assault,” to which 

Greene responded by ordering Plaintiff to strip again “or go to defecation watch.” 

Plaintiff claims Greene’s conduct violates the Prison Rape Elimination Act (PREA).1

 

Plaintiff asserts that Sergeant Trotti subsequently witnessed Marshall “sexually assault” 

Plaintiff two more times. Plaintiff claims that the exposure to the flashlight caused 

Plaintiff’s hemorrhoids to flare up for up to two weeks. 

 Also in Count One, Plaintiff asserts that the ADC is liable for its employees’ 

 

1

 PREA, 42 U.S.C. §§ 15601-609, provides for the reporting of incidents of rape in prison and the allocation of grants and creation of a study commission, but it does not give rise to a private cause of action. Bell v. County of Los Angeles, No. CV07-8187, 

2008 WL 4375768, at *6 (C.D. Cal. Aug 25, 2008); Chinnici v. Edwards, No. 1:07-cv229, 2008 WL 3851294, at *3 (D. Vt. Aug 12, 2008). 
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conduct, including Marshall’s conduct. Plaintiff further claims that the ADC employs 

witnesses to be deposed and houses inmate witnesses that “need to be made available.” 

Finally, Plaintiff asserts that the ADC was “deliberately indifferen[t]” towards Plaintiff 

by providing “poor training” and failing to protect Plaintiff from Marshall’s conduct. 

 In Count Two, Plaintiff asserts Eighth Amendment and retaliation claims against 

Ryan, Greene, Trotti, and Pruett. Plaintiff claims that Ryan was aware of “the crimes 

committed against” Plaintiff, but failed to protect Plaintiff. Plaintiff further asserts that 

Ryan “created an environment of impunity from prosecution and retaliatory behavior, 

which [has] resulted in the ongoing retaliation 4 years after being sexually assaulted in 

July 2, 2013.” Finally, Plaintiff claims that Ryan was “deliberately indifferent” to 

Plaintiff’s well-being by not properly training staff according to the PREA. 

 With regard to Greene, Plaintiff asserts that he was deliberately indifferent to 

Plaintiff in that as a supervisor of Marshall, “he failed in his duties to protect Plaintiff 

who was in the care and custody and a vulnerable adult were reckless in exposing 

Plaintiff to further sexual assaults by his permission.” Plaintiff claims that the PREA 

“guidelines prohibit any further contact between Marshall and Plaintiff” once Plaintiff 

made a complaint to Greene of sexual assault. 

 With regard to Trotti, Plaintiff claims that he witnessed two subsequent strip 

searches by Marshall of Plaintiff “for no obvious reason,” and had an obligation to report 

the conduct to Greene or other supervisors under the PREA, but did not do so. 

 Finally, with regard to Pruett, Plaintiff asserts that he retaliated against Plaintiff 

“by her response” to Plaintiff’s grievance regarding Plaintiff’s sexual assault. Plaintiff 

also asserts that he lost his visits for nine months and he was put in the “Hole (CDU)” 

two months after the incident with Marshall. 

 In Count Three, Plaintiff asserts Eighth Amendment and retaliation claims against 

Branch, Rode, and Hemsley. Plaintiff asserts that Branch “had full knowledge of the 

sexual assault,” but ignored the PREA, hindered the prosecution of Marshall and Greene, 

and failed to protect Plaintiff. Plaintiff alleges her “callous indifference” resulted from a 
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“lack of training.” Plaintiff asserts Rode “violated Plaintiff’s equal protection and due 

process rights, and retaliated against . . . Plaintiff, by issuing Plaintiff disciplinary 

sanctions for assaulting six inmates, even though ADW Rode knew that Plaintiff was the 

victim of the assault by the six inmates.” Plaintiff claims Rode’s “actions were preplanned to protect those 6 inmates and raise my custody level without cause and justify 

the assault.” Finally, with regard to Hemsley, Plaintiff asserts that he retaliated against 

Plaintiff by denying him a kitchen job, making Plaintiff “max custody,” and approving 

Plaintiff’s move to a restricted program. Plaintiff claims that “[t]his shows the ongoing 

retaliatory behavior 4 years after the sexual assault at another complex another city 

hundreds of miles away.”2

IV. Failure to State a Claim 

 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 

(2) under color of state law (3) deprived him of federal rights, privileges or immunities 

and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 

Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 

1278, 1284 (9th Cir. 1994)). 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). 

 In addition, 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). 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, 

absent more, does not make him liable. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 

 

2

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his First Amended Complaint. However, he does not assert any additional factual allegations specific to those claims, other than the complained of conduct by Defendants is “not part of their job description[s].” (Doc. 38 at 7.) 
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(1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his personal 

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. 

 Further, where a defendant’s only involvement in allegedly unconstitutional 

conduct is the denial of administrative grievances, the failure to intervene on a prisoner’s 

behalf to remedy the alleged unconstitutional behavior does not amount to active 

unconstitutional behavior for purposes of § 1983. See Shehee v. Luttrell, 199 F.3d 295, 

300 (6th Cir. 1999); accord Proctor v. Applegate, 661 F. Supp. 2d 743, 765 (W.D. Mich. 

2009); Stocker v. Warden, No. 1:07-CV-00589, 2009 WL 981323, at *10 (E.D. Cal. Apr. 

13, 2009); Mintun v. Blades, No. CV-06-139, 2008 WL 711636, at *7 (D. Idaho Mar. 14, 

2008); see also Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (a 

plaintiff must allege that a supervisor defendant did more than play a passive role in an 

alleged violation or mere tacit approval thereof; a plaintiff must allege that the supervisor 

defendant somehow encouraged or condoned the actions of the subordinates).

a. ADC 

 The ADC is not a proper Defendant. Under the Eleventh Amendment to the 

Constitution of the United States, a state or state agency may not be sued in federal court 

without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 

(1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, “a state is not a 

‘person’ for purposes of section 1983. Likewise ‘arms of the State’ such as the Arizona 

Department of Corrections are not ‘persons’ under section 1983.” Gilbreath v. Cutter 

Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted). Therefore, the 

Court will dismiss Defendant ADC. 

b. Official Capacity Claims 

 “[A] suit against a state official in his or her official capacity is not a suit against 

the official but rather is a suit against the official’s office. As such, it is no different from 

a suit against the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 
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(1989) (internal citation omitted). Plaintiff cannot maintain a lawsuit for damages against 

ADOC employees in their official capacities. See Hafer v. Melo, 502 U.S. 21, 27 (1991) 

(“State officials sued for damages in their official capacity are not ‘persons’ for purposes 

of the suit because they assume the identity of the government that employs them.”); see 

also Gilbreath, 931 F.2d at 1327 (“[A] state is not a ‘person’ for purposes of section 

1983. Likewise ‘arms of the State’ such as the Arizona Department of Corrections are not 

‘persons’ under section 1983.”) (citation omitted). 

 Plaintiff may, however, maintain a lawsuit against ADOC employees in their 

official capacity for prospective injunctive relief. See Will, 491 U.S. at 71, n.10 (“[A] 

state official in his or her official capacity, when sued for injunctive relief, would be a 

person under § 1983 because ‘official-capacity actions for prospective relief are not 

treated as actions against the State.’”) (quoting Kentucky v. Graham, 473 U.S. 159, 167, 

n.14 (1985)); see also Flint v. Dennison, 488 F.3d. 816, 825 (9th Cir. 2007) (“[A] suit for 

prospective injunctive relief provides a narrow, but well-established, exception to 

Eleventh Amendment immunity.”). However, “in an official-capacity suit the entity’s 

‘policy or custom’ must have played a part in the violation of federal law.” Graham, 473 

U.S. at 166; see also Los Angeles County v. Humphries, 562 U.S. 29, 131 S. Ct. 447, 453- 

54 (2010) (the “‘policy or custom’ requirement [in Monell] applies in § 1983 cases 

irrespective of whether the relief sought is monetary or prospective.”). A plaintiff must 

allege, as a matter of law, that the policy or custom caused him to suffer constitutional 

injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006). 

 Here, Plaintiff asserts that he is suing Defendants “in their official capacity for 

damages.” (Doc. 38 at 8.) However, as detailed above, Plaintiff cannot maintain claims 

for damages against ADC employees in their official capacities. Further, even assuming 

Plaintiff is requesting prospective injunctive relief in his First Amended Complaint, and 

although Plaintiff generally asserts that there was a “lack of training,” he does not assert 

that any of the Defendants were acting pursuant to a specific policy or custom that caused 

him to suffer a constitutional injury. Therefore, the Court will dismiss Plaintiff’s official 
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capacity claims. 

c. Excessive Use of Force/Fourth Amendment Claims 

 Plaintiff designates Count One as asserting excessive use of force and Fourth 

Amendment claims. When an inmate claims that prison officials violated his Eighth 

Amendment rights by using excessive physical force, the relevant inquiry is “whether 

force was applied in a good-faith effort to maintain or restore discipline, or maliciously 

and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). However, 

the Supreme Court has made it clear that not every use of physical force violates the 

Eighth Amendment: 

That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. 

Glick, 481 F.2d [1028, 1033 (2nd Cir. 1973)] (“Not every push or shove, even if it may later seem unnecessary in the 

peace of a judge’s chambers, violates a prisoner’s 

constitutional rights”). 

Id. at 9. 

 Plaintiff does not allege facts in Count One to support that any physical “force” 

was used against him by a Defendant, but he does allege that Marshall repeatedly strip 

searched him. The Fourth Amendment guarantees the right of the people to be secure 

against unreasonable searches and those protections are not extinguished upon 

incarceration. Michenfelder v. Sumner, 860 F.2d 328, 322-33 (9th Cir. 1988). But, the 

Fourth Amendment’s “proscription against unreasonable searches does not apply within 

the confines of the prison cell. The recognition of privacy rights for prisoners in their 

individual cells simply cannot be reconciled with the concept of incarceration and needs 

and objectives of penal institutions.” Hudson v. Palmer, 468 U.S. 517, 525-26 (l984). 

 Nevertheless, the Fourth Amendment has been held to apply to the invasion of 

bodily privacy. Michenfelder, 860 F.2d at 332. Thus, strip searches that are excessive, 

vindictive, harassing, or unrelated to any legitimate penological interest may violate the 

Fourth Amendment. Id. But a policy of routinely strip searching arrestees for contraband 

has been held not to be unreasonable where there is no physical contact and the searches 
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are professionally conducted in relative privacy. Bull v. City and County of San

Francisco, 595 F.3d 964, 973 (9th Cir. 2010). 

 Plaintiff alleges that Marshall repeatedly strip searched him and made statements 

that suggest that he may have done so for an improper reason, particularly in light of the 

repeated strip searches. Plaintiff sufficiently alleges that the strip searches were 

excessive, vindictive, harassing, or unrelated to legitimate penological interests. The 

Court concludes that Plaintiff sufficiently states a claim for violation of Plaintiff’s Fourth 

Amendment rights against Marshall in Count One. 

 It is unclear whether Plaintiff is attempting to assert a Fourth Amendment claim 

against Greene in Count One. However, to the extent that Plaintiff seeks to assert such a 

claim, the Court finds that Plaintiff has failed to state a claim for relief. Plaintiff asserts 

only that Greene told Plaintiff he would either have to strip search or “go to defecation 

watch” after Plaintiff told Greene about Marshall’s “sexual assault.” Plaintiff does not 

allege that he informed Greene, or that Greene otherwise knew, of the number of times 

that Marshall had already strip searched Plaintiff or of Marshall’s statements to Plaintiff. 

Nor does Plaintiff allege that Greene was present for or participated in the repeated strip 

searches. Therefore, to the extent that Plaintiff asserts a Fourth Amendment claim against 

Greene, the Court will dismiss that claim. 

d. Eighth Amendment Claims 

 In Counts Two and Three, Plaintiff asserts Eighth Amendment threat to safety 

claims. To state a claim under § 1983 for threat to safety, an inmate must allege facts to 

support that he 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. 
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 Further, to state a claim for failure to train, a plaintiff must allege facts to support 

that the alleged failure amounted to deliberate indifference. Canell v. Lightner, 143 F.3d 

1210, 1213 (9th Cir. 1998). A plaintiff must allege facts to support that not only was 

particular training inadequate, but also that such inadequacy was the result of “a 

‘deliberate’ or ‘conscious’ choice” on the part of the defendant. Id. at 1213-

14; see Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (a plaintiff must allege facts 

to support that “in light of the duties assigned to specific officers or employees, the need 

for more or different training is [so] obvious, and the inadequacy so likely to result in 

violations of constitutional rights, that the policy[]makers . . . can reasonably be said to 

have been deliberately indifferent to the need.” (quoting City of Canton v. Harris, 489 

U.S. 378, 390 (1989))) 

 Here, Plaintiff claims that Ryan failed to protect Plaintiff from Marshall’s conduct, 

and failed to train staff regarding the PREA. Plaintiff asserts that Greene also failed to 

protect Plaintiff after Plaintiff told Greene “about the sexual assault,” and failed to ensure 

that Plaintiff and Marshall did not have further contact after Plaintiff complained. 

Plaintiff claims that Trotti failed to report the two subsequent strip searches of Plaintiff he 

witnessed by Marshall. Plaintiff asserts Branch generally had full knowledge of the 

“sexual assault,” but “hinder[ed] prosecution” of Marshall and Greene, and failed to 

protect Plaintiff. However, Plaintiff fails to allege any specific facts to show that these 

Defendants knew of, and disregarded, an excessive risk to Plaintiff’s safety. Plaintiff 

fails to allege that he told any of these Defendants, or they were otherwise aware, of the 

number of times Marshall strip searched Plaintiff or the comments Marshall made while 

initially strip searching Plaintiff. Plaintiff also fails to allege facts demonstrating 

that Ryan was deliberately indifferent to the need for more or different training. 

Plaintiff’s vague reference to inadequate training is insufficient. 

 Finally, Plaintiff generally alleges that “inactions” by ADC “Administrators and 

supervisors,” including Pruett and Rode, exposed Plaintiff to an assault by two inmates, 

and Hemsley approved Plaintiff’s move “to a more dangerous restricted area.” However, 
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Plaintiff fails to assert sufficient specific factual allegations regarding how Defendants 

Pruett, Rode, or Hemsley were deliberately indifferent to Plaintiff’s safety. Plaintiff’s 

general and vague allegations are insufficient. Therefore, the Court will dismiss 

Plaintiff’s Eighth Amendment claims against Defendants. 

e. Retaliation Claims 

 Plaintiff also asserts claims for retaliation in Counts Two and Three of his First 

Amended Complaint. 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 require 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). 

 Here, to the extent Plaintiff is asserting retaliation claims against Ryan, Greene, 

Trotti, and/or Branch, Plaintiff fails to assert any specific facts regarding how any of 

these Defendants retaliated against Plaintiff. Plaintiff does not allege that any of these 

Defendants took an adverse action against Plaintiff because Plaintiff engaged in protected 

activity. Therefore, the Court will dismiss Plaintiff’s retaliation claims against these 

Defendants. 

 With regard to Hemsley, Plaintiff asserts that he retaliated against Plaintiff by 

denying Plaintiff a kitchen job, making Plaintiff “max custody,” and approving Plaintiff’s 

move to a restricted program. However, Plaintiff fails to assert any specific facts to 
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support that Hemsley took any of those actions against Plaintiff because Plaintiff engaged 

in any protected activity. Therefore, the Court will dismiss Plaintiff’s retaliation claim 

against Hemsley. 

 Plaintiff claims Rode retaliated against him by issuing Plaintiff disciplinary 

sanctions for assaulting six inmates, even though Rode knew that Plaintiff was the victim 

of an assault by the six inmates. Plaintiff claims that Rode’s “actions were pre-planned to 

protect those [six] inmates and raise [Plaintiff’s] custody level without cause.” Plaintiff 

fails to assert any specific facts to show a connection between the discipline Rode issued 

Plaintiff and any protected activity by Plaintiff. Therefore, the Court will dismiss 

Plaintiff’s retaliation claim against Rode. 

 Plaintiff alleges that Pruett’s grievance response regarding Marshall’s strip 

searches was an act of retaliation against Plaintiff. Plaintiff also asserts he “suffered 

taking my visits for 9 months and putting ‘me in the Hole (CDU)’ on my birthday 2 

months after the incident contrary to the PREA’s guidelines against retaliation.” Plaintiff 

has failed to set forth sufficient specific factual allegations regarding Pruett’s grievance 

response. Indeed, Plaintiff alleges that the response itself was retaliation, but does not 

provide any description of the response. Likewise, Plaintiff fails to allege when he filed 

his grievance and when Pruett responded. Further, although Plaintiff asserts that he lost 

visitations privileges and was put in the ‘Hole’ two months after Marshall strip searched 

him, even presuming Pruett was responsible for those actions, Plaintiff fails to allege a 

sufficient connection between Plaintiff’s grievance and those actions. Therefore, the 

Court will dismiss Plaintiff’s retaliation claim against Pruett. 

f. Equal Protection and Due Process Claims 

 Plaintiff also asserts that Rode “violated Plaintiff’s equal protection and due 

process rights . . . by issuing Plaintiff disciplinary sanctions for assaulting six inmates, 

even though ADW Rode knew that Plaintiff was the victim of the assault by the six 

inmates.” 

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treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); 

Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be 

established by showing that prison officials intentionally discriminated against a plaintiff 

based on his membership in a protected class, Comm. Concerning Cmty. Improvement v. 

City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009), Serrano v. Francis, 345 F.3d 

1071, 1082 (9th Cir. 2003), Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001), or that 

similarly situated individuals were intentionally treated differently without a rational 

relationship to a legitimate state purpose, Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 

601-02, (2008), Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch 

Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). 

 “Under the Fourteenth Amendment’s Due Process Clause, a prisoner is entitled to 

certain due process protections when he is charged with a disciplinary violation.” 

Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003) (citing Wolff v. McDonnell, 

418 U.S. 539, 564-71 (1974)). “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.” Wolf, 418 U.S. at 555-56. But there are certain procedural safeguards to which a 

prisoner facing a disciplinary hearing is entitled: (1) written notice of the charges at least 

twenty-four hours prior to the hearing; (2) a written statement by the fact-finder as to the 

evidence relied on and reasons for the disciplinary action; and (3) 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 inmate to do so. Id. at 564-66. 

 Here, Plaintiff alleges that he was wrongfully disciplined for an assault because 

Rode wanted “to protect” the inmates who assaulted Plaintiff and raise Plaintiff’s custody 

level “without cause.” However, Plaintiff does not allege that he is a member of a 

protected class or that similarly situated inmates were treated differently. Likewise, 

Plaintiff fails to allege any facts regarding what due process he was denied with regard to 

his discipline. Therefore, the Court will dismiss Plaintiff’s equal protection and due 

process claims. 
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g. FTCA Claims 

 Finally, Plaintiff references the FTCA throughout his First Amended Complaint. 

However, claims under the FTCA may only be brought against the United States. 28 

U.S.C. §§ 1346(b), 2679(a), (b); Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 

1984) (individual agencies of the United States may not be sued). Further, under the 

statutory procedure set forth in 28 U.S.C. § 2675(a), a “tort claimant may not commence 

proceedings in court against the United States without first filing [the] claim with an 

appropriate federal agency and either receiving a conclusive denial of the claim from the 

agency or waiting for six months to elapse without a final disposition of the claim being 

made.” Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992). The Ninth Circuit 

Court of Appeals has “repeatedly held that this ‘claim requirement of section 2675 is 

jurisdictional in nature and may not be waived.’” Jerves, 966 F.2d at 519 (quoting Burns 

v. United States, 764 F.2d 722, 724 (9th Cir. 1985)). 

 Here, Plaintiff fails to name a proper defendant, i.e., the United States of America. 

Further, Plaintiff has not alleged that he has met the notice requirement. Plaintiff also 

fails to allege facts to support that any federal employee acting within the scope of his 

office or employment acted negligently such that, if a private person, the federal 

employee would be liable to Plaintiff in accordance with Arizona law. Therefore, the 

Court will dismiss Plaintiff’s FTCA claims. 

V. Claims for Which an Answer Will Be Required 

 In Count One, Plaintiff sufficiently alleges facts to support that Marshall’s 

repeated strip searches were excessive, vindictive, harassing, or unrelated to legitimate 

penological interests. The Court concludes that Plaintiff sufficiently states a claim for 

violation of his Fourth Amendment rights. Accordingly, the Court will require Marshall 

to respond to Count One, which is construed as a claim for violation of Plaintiff’s Fourth 

Amendment rights. 

VI. Warnings 

a. Release 
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 If Plaintiff is released while this case remains pending, and the filing fee has not 

been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 

that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 

(2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 

result in dismissal of this action. 

b. Address Changes 

 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. 

c. Copies 

 Because Plaintiff is currently confined in an Arizona Department of Corrections 

unit subject to General Order 14-17, Plaintiff is not required to serve Defendants with a 

copy of every document he files or to submit an additional copy of every filing for use by 

the Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and 

Local Rule of Civil Procedure 5.4. 

 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, 

he will be required to: (a) serve Defendants, or counsel if an appearance has been entered, 

a copy of every document that he files, and include a certificate stating that a copy of the 

filing was served; and (b) submit an additional copy of every filing for use by the Court. 

See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 

being stricken without further notice to Plaintiff. 

d. Possible Dismissal

 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 v.

Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 

for failure to comply with any order of the Court). 

 Accordingly, 
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IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to 

Plaintiff’s Motion to Amend and the screening of Plaintiff’s First Amended Complaint. 

All other matters remain referred to the Magistrate Judge for disposition as appropriate. 

 IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend (Doc. 37) is 

granted. The Clerk shall file Plaintiff’s First Amended Complaint, lodged at Doc. 38. 

IT IS FURTHER ORDERED that Defendants ADC, Ryan, Greene, Trotti, 

Pruett, Branch, Rode, and Hemsley are dismissed. 

 IT IS FURTHER ORDERED that any claims pursuant to the Prison Rape 

Elimination Act or Federal Tort Claims Act are dismissed. 

 IT IS FURTHER ORDERED that Defendant Marshall shall answer or otherwise 

respond to Count One of the First Amended Complaint within the time period prescribed 

by the Federal Rules of Civil Procedure. 

 Dated this 19th day of May, 2017.