Kleinfelt v. Gilbert

1 WO SC [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Daniel Alan Kleinfelt, No. CV 20-00793-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER [12] Correctional Officer III Gilbert, et al., [13] Defendants. [14] 15 Plaintiff Daniel Alan Kleinfelt, who is confined in the Arizona State Prison 16 Complex-Tucson, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 , a 17 deficient Application to Proceed In Forma Pauperis (Doc. 2), a motion to appoint counsel 18 (Doc. 8), and a motion for leave to amend his Complaint (Doc. 11). Plaintiff subsequently 19 filed a First Amended Complaint (Doc. 12). The Court denied the deficient Application to 20 Proceed and Plaintiff’s motions and gave him leave to pay the filing and administrative 21 fees or file a new complete Application to Proceed In Forma Pauperis (Doc. 13). 22 Plaintiff has filed a new Application to Proceed In Forma Pauperis (Doc. 14) and a 23 motion to reconsider the denial of appointment of counsel (Doc. 16). The Court will grant 24 the Application, deny the motion, order Defendants Morrison and Vicario to answer Count 25 II of the First Amended Complaint, and dismiss the remaining claims and Defendants 26 without prejudice. 27 I. Application to Proceed In Forma Pauperis and Filing Fee 28 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 1 U.S.C. § 1915 (a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 2 § 1915(b)(1). The Court will assess an initial partial filing fee of $17.94. The remainder 3 of the fee will be collected monthly in payments of 20% of the previous month’s income 4 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. [5] 28 U.S.C. § 1915 (b)(2). The Court will enter a separate Order requiring the appropriate 6 government agency to collect and forward the fees according to the statutory formula. 7 II. Statutory Screening of Prisoner Complaints 8 The Court is required to screen complaints brought by prisoners seeking relief 9 against a governmental entity or an officer or an employee of a governmental entity. 28 10 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 11 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 12 relief may be granted, or that seek monetary relief from a defendant who is immune from 13 such relief. 28 U.S.C. § 1915A(b)(1)-(2). 14 A pleading must contain a “short and plain statement of the claim showing that the 15 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 16 not demand detailed factual allegations, “it demands more than an unadorned, the17 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 18 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 19 conclusory statements, do not suffice.” Id. 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 21 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, [22] 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 23 that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 25 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 26 experience and common sense.” Id. at 679 . Thus, although a plaintiff’s specific factual 27 allegations may be consistent with a constitutional claim, a court must assess whether there 28 are other “more likely explanations” for a defendant’s conduct. Id. at 681 . 1 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 2 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338 , 342 3 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 4 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 5 U.S. 89 , 94 (2007) (per curiam)). 6 III. First Amended Complaint 7 In his six-count First Amended Complaint, Plaintiff alleges claims for excessive 8 force, threat to safety, and violations of due process and equal protection. Plaintiff sues 35 9 current or former employees of the Arizona Department of Corrections (ADC), including 10 Director David Shinn and the following Lewis Complex employees: Warden Thompson; 11 Lewis Complex Deputy Wardens (DWs) D. Fajardo and D. Golder; Assistant DWs S. Repp 12 and Holland; Captain Hileman; Lieutenants Wright, Chetty, and Oschieta; Sergeants J. 13 Davis, McFadden, Aguilar, Taylor, and Schultz; Correctional Officer (CO) IV Diane 14 Trepanier; CO IIIs Gilbert, Willis, T. Wade, and Shumerbck; CO IIs J. Morrison, Vicario, 15 M. Morgan, Gonzalez, Ganzalez, Files, Rheinschmidt, Patino, Villegros, Shldance, Floriz, 16 Martenez, and Badge 3185 (hereafter “Doe 3185”). Plaintiff also sues an unknown ADC 17 Divisional Director (hereafter “Doe Divisional Director”). Plaintiff seeks injunctive relief 18 in the form of restoration of early release credits, among other injunctive relief; and 19 compensatory and punitive relief. 20 Plaintiff designates Count I as a claim for denial of due process in connection with 21 disciplinary proceedings. Plaintiff alleges the following facts: 22 On March 30, 2020, Defendant Captain Hileman denied Plaintiff’s written request 23 for witnesses to appear at Plaintiff’s disciplinary hearing. Hileman also denied Plaintiff’s 24 request for staff assistance. Plaintiff asserts that he was thereby denied access to the courts. 25 Plaintiff was held in segregation “the whole time during Disciplinary.” (Doc. 12 at 16.) 26 Plaintiff contends that prison staff falsified the disciplinary report, and his disciplinary 27 appeal was subsequently denied. 28 On April 28, 2020, Captain Hileman presided over another disciplinary hearing for 1 three disciplinary violations. Plaintiff claims that the disciplinary reports were fabricated 2 and retaliatory. Plaintiff asked Hileman if he had to convince Hileman that he was not 3 guilty. Hileman responded yes. Plaintiff contends that Hileman was biased against him. 4 Hileman refused to interview a witness. Defendants CO III Wade and CO II Gilbert were 5 not authorized to sit in on the hearing but did so anyway. Plaintiff’s request for staff 6 witnesses was denied and he was denied staff assistance to which he was entitled as a 7 prisoner placed in segregation before a disciplinary hearing under prison rules. Without 8 staff assistance, Plaintiff was unable to demonstrate his innocence. Plaintiff claims that by 9 being denied a “proper disciplinary proceeding,” his due process rights were violated. 10 Plaintiff designates Count II as a claim for excessive force. In Count II, Plaintiff 11 alleges the following facts: 12 On March 29, 2020 in the Bachman Detention Unit, Plaintiff asked Defendants 13 Morrison and Vicario to sign off on an emergency grievance. Both refused, and thereby, 14 according to Plaintiff, denied him access to the grievance process. Plaintiff told both 15 Defendants that he was having chest pains and asked them to activate an ICS. They 16 disregarded his request and walked away. When they subsequently returned, Vicario told 17 Plaintiff to pack up his property because he was “leaving.” Plaintiff told both officers that 18 he was having trouble breathing but started packing up his property. Morrison told Plaintiff 19 to hurry up. Plaintiff again told them that he was having trouble breathing and that he was 20 going as fast as he could. Vicario then said, “spray him.” Plaintiff asked Defendants 21 Morrison and Vicario not to spray him because he was having trouble breathing. 22 Nevertheless, Morrison deployed a chemical agent into Plaintiff’s cell as other unidentified 23 “Defendants” watched. Plaintiff alleges the whole incident occurred in 45 seconds. 24 Plaintiff designates Count III as a claim for threat to safety. In Count III, Plaintiff 25 alleges that Morrison’s deployment of the chemical agent into an enclosed space, i.e., his 26 cell, as alleged in Count II, posed a threat to his safety. Plaintiff contends the officers failed 27 to take steps to defuse the situation short of deploying the chemical agent. Plaintiff also 28 contends that his conditions of confinement posed a threat to his safety that put his health 1 in jeopardy. Plaintiff alleges the he notified “Defendants” of the conditions. He also 2 alleges a threat to his mental health from prolonged detention in segregation during which 3 he was provided no programming or recreation time. He also alleges that he was denied 4 the proper forms to communicate outside the confines of the Bachman Detention Unit, 5 which he claims threatened his safety. 6 Plaintiff designates Count IV as a claim for denial of access to the courts. Plaintiff 7 alleges the following: 8 During Plaintiff’s detention in segregation in the Bachman Detention Unit, 9 Defendants Gilbert and Trepanier denied Plaintiff access to his “PCR advocate” on 10 numerous occasions. Plaintiff’s attorney has correspondence from Plaintiff voicing those 11 concerns. Plaintiff’s PCR case has twice been “extended” due to denial of access to the 12 court. 13 “Defendants” refused Plaintiff unspecified documents necessary to communicate 14 with the Administration about his conditions of confinement and institutional life. 15 “Defendants” also denied Plaintiff access to the grievance process, “a ‘species’ of court 16 access.” Plaintiff further contends that “Defendants” denied him access to a law library 17 and legal assistance as “core requirements” of access to the courts, which delayed his 18 possible release from prison. Plaintiff claims that “Defendants inabled [sic] Plaintiff to do 19 a good job on Plaintiff’s legal work.” 20 Plaintiff designates Count V as a claim for retaliation. He alleges that “Defendants” 21 prolonged his detention in segregation and brought frivolous and false disciplinary charges 22 against him in retaliation for Plaintiff filing grievances, making complaints, and pursuing 23 lawsuits. 24 Plaintiff identifies Count VI as a claim for unjustified prolonged detention in 25 segregation. Plaintiff alleges the following facts: 26 On December 17, 2019, Plaintiff was placed in segregation on a 2A investigation. 27 Department Orders give prison officials 30 days to conclude 2A investigations. Plaintiff 28 continued to be detained in segregation for longer than 30 days, and he advised 1 “Defendants” via inmate letters, informal complaint resolutions, formal grievances, and 2 grievance appeals that his detention for more than 30 days was unjustified. Plaintiff was 3 informed on several occasions that the 2A investigation was completed on February 13, 4 2020. “Defendants” refused to remove Plaintiff from segregation, put his safety and well5 being in danger, denied him access to the court, retaliated against him by using excessive 6 force, and prolonged his segregation. After Plaintiff was issued a disciplinary charge on 7 April 28, 2020, Plaintiff’s correctional score or classification dramatically increased, “due 8 to sudden findings of guilt.” On May 4, 2020, Plaintiff was transported to the Tucson 9 Complex with a closed custody status. Thus, Plaintiff went from a 2/2 risk score to a 4/3 10 risk score. Plaintiff spent 138 days in segregation. 11 IV. Failure to State a Claim 12 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 13 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 14 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 15 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278 , 16 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 17 as a result of the conduct of a particular defendant and he must allege an affirmative link 18 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362 , 37119 72, 377 (1976). 20 A. Count I 21 In Count I, Plaintiff asserts that he was denied due process in connection with 22 disciplinary proceedings. In analyzing a due process claim, the Court must first decide 23 whether Plaintiff was entitled to any process, and if so, whether he was denied any 24 constitutionally required procedural safeguard. Liberty interests that entitle an inmate to 25 due process are “generally limited to freedom from restraint which, while not exceeding 26 the sentence in such an unexpected manner as to give rise to protection by the Due Process 27 Clause of its own force, nonetheless imposes atypical and significant hardship on the 28 inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472 , 1 484 (1995) (internal citations omitted).1 2 To determine whether an inmate is entitled to the procedural protections afforded 3 by the Due Process Clause, the Court must look to the particular restrictions imposed and 4 ask whether they “‘present the type of atypical, significant deprivation in which a state 5 might conceivably create a liberty interest.’” Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 6 1995) (quoting Sandin, 515 U.S. at 486 ). “Atypicality” requires not merely an empirical 7 comparison but turns on the importance of the right taken away from the prisoner. See 8 Carlo v. City of Chino, 105 F.3d 493, 499 (9th Cir. 1997). To determine whether the 9 sanctions are atypical and a significant hardship, courts look to prisoner’s conditions of 10 confinement, the duration of the sanction, and whether the sanction will affect the duration 11 of the prisoner’s sentence. See Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996). 12 Plaintiff indicates that he was held in segregation for 138 days, where he was subject 13 to unconstitutional conditions of confinement, and implies that he lost earned release 14 credits. Plaintiff fails to specifically allege what sanctions were imposed for each of the 15 disciplinary offenses of which he was found guilty. Plaintiff also fails to allege facts to 16 support that his conditions of confinement while in disciplinary segregation rose to a level 17 of unconstitutionality. For these reasons, Plaintiff fails to sufficiently allege facts to [18] 19 1 In addition to alleging an atypical and significant hardship in relationship to the ordinary incidents of incarceration, a plaintiff must also specify the due process safeguard [20] he was denied and by whom. “Prison disciplinary proceedings are not part of a criminal 21 prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Procedural due process safeguards [22] in a prison disciplinary hearing require that the defendant receive: (1) written notice of the 23 charges, no less than 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 24 limited right to call witnesses and present documentary evidence when it would not be 25 unduly hazardous to institutional safety or correctional goals to allow the defendant to do so. Id. at 565-66 . In addition, due process requires that there be “some evidence” to 26 support the official’s decision. Superintendent v. Hill, 472 U.S. 445, 455 (1985). However, 27 this “does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is 28 whether there is any evidence in the record that could support the conclusion.” Id. at 45556 (emphasis added). 1 support that he was subject to atypical and significant hardships that implicated due 2 process. See Sandin, 515 U.S. at 475-76, 487 (30 days’ disciplinary segregation is not 3 atypical and significant); Smith v. Mensinger, 293 F.3d 641, 654 (3rd Cir. 2002) (seven 4 months of disciplinary confinement “does not, on its own, violate a protected liberty 5 interest”); Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (two and one-half years’ 6 administrative segregation is not atypical and significant); Rizzo v. Dawson, 778 F.2d 527 , 7 530 (9th Cir. 1985) (prison authorities may change a prisoner’s “place of confinement even 8 though the degree of confinement may be different and prison life may be more 9 disagreeable in one institution than in another” without violating a prisoner’s due process 10 rights); Lucero v. Russell, 741 F.2d 1129 (9th Cir. 1984) (administrative transfer to 11 maximum security without a hearing does not infringe on any protected liberty interest). 12 Accordingly, Count I will be dismissed for failure to state a claim. 13 B. Count II 14 In Count II, Plaintiff alleges that Defendants Morrison and Vicario used excessive 15 force against him by deploying a chemical agent without attempting to defuse the situation 16 and after Plaintiff told them that he was suffering chest pain and difficulty breathing. 17 Liberally construed, Plaintiff sufficiently alleges facts to state a claim for excessive force 18 against Morrison and Vicario. Because Plaintiff fails to allege facts to support that any 19 other Defendants were involved, including how, Plaintiff’s remaining allegations against 20 unspecified Defendants will be dismissed. 21 C. Count III 22 Plaintiff designates Count III as a claim for threat to safety. A convicted prisoner’s 23 claim for a threat to safety arises under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 24 520, 535 and n. 16 (1979). To state a claim for threat to safety or failure to protect, a 25 prisoner must allege facts to support that he was incarcerated under conditions posing a 26 substantial risk of harm and that prison officials were “deliberately indifferent” to those 27 risks. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). Deliberate indifference is a higher 28 standard than negligence or lack of ordinary due care for the prisoner’ s safety. Id. at 835 . 1 To adequately allege deliberate indifference, a plaintiff must allege facts to support that a 2 defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837 . That is, 3 “the official must both [have been] aware of facts from which the inference could be drawn 4 that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the 5 inference.” Id. Thus, a plaintiff must allege facts to support when and how any particular 6 defendant knew of a substantial risk of harm to him and that the defendant disregarded or 7 failed to take steps to ensure the plaintiff’s safety. 8 Plaintiff alleges that Defendant Morrison’s deployment of the chemical agent into 9 an enclosed space, i.e., Plaintiff’s cell, as alleged in Count II, posed a threat to his safety. 10 Plaintiff does not allege facts to support that exposure to the chemical agent posed an 11 excessive risk to him or that he suffered any injury as a result. Plaintiff also fails to allege 12 facts to support that Morrison knew, or should have known, that deploying the chemical 13 agent against Plaintiff posed a substantial threat of serious harm to Plaintiff but 14 nevertheless deployed the agent. Accordingly, Plaintiff fails to state a claim for threat to 15 safety against Morrison and Count III will be dismissed. 16 D. Count IV 17 Plaintiff designates Count IV as a claim for denial of access to the courts. The right 18 of meaningful access to the courts prohibits officials from actively interfering with 19 inmates’ attempts to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343 , 350 20 (1996). The right of access to the courts is only a right to bring petitions or complaints to 21 federal court and not a right to discover such claims or even to ligate them effectively once 22 filed with a court. Id. at 354 . The right “guarantees no particular methodology but rather 23 the conferral of a capability–the capability of bringing contemplated challenges to 24 sentences or conditions of confinement before the courts.” Id. at 356 . 25 As a matter of standing, for an access-to-courts claim, a plaintiff must show that he 26 suffered an “actual injury” with respect to contemplated litigation. Id. at 349 . To show 27 actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the 28 defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous claim 1 that he wished to present. Id. at 352-53 . In addition to identifying “a nonfrivolous, 2 arguable underlying claim,” the underlying claim “must be described in the complaint.” 3 Christopher v. Harbury, 536 U.S. 403, 414-15 (2002). 4 “[T]he injury requirement is not satisfied by just any type of frustrated legal claim.” 5 Id. at 354. The right of access to the courts “does not guarantee inmates the wherewithal 6 to transform themselves into litigating engines capable of filing everything from 7 shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous claim 8 must be a direct or collateral attack on the inmate’s sentence or a challenge to the conditions 9 of his confinement. Id. “Impairment of any other litigating capacity is simply one of the 10 incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. 11 (emphasis in original). 12 Plaintiff alleges that his PCR proceeding, in which he is represented by counsel, has 13 been twice delayed. Plaintiff also alleges that Defendants Gilbert and Trepanier denied 14 him access to his attorney, but he fails to allege when or how. Moreover, Plaintiff 15 acknowledges that he was able to communicate with counsel in correspondence. These 16 allegations do not support that Plaintiff has been denied access to the court or suffered an 17 actual injury. 18 Plaintiff also generally alleges that unspecified “Defendants” refused to provide 19 Plaintiff unidentified documents necessary to complain about his conditions of 20 confinement and institutional life. That is, Plaintiff asserts that unspecified “Defendants” 21 denied him access to the grievance process. 22 Prisoners have a First Amendment right to file prison grievances, Rhodes v. 23 Robinson, 408 F.3d 559, 567 (9th Cir. 2005), but “[t]here is no legitimate claim of 24 entitlement to a grievance procedure,” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), 25 and the failure to follow grievance procedures does not give rise to a due process claim. 26 See Flournoy v. Fairman, 897 F. Supp. 350, 354 (N.D. Ill. 1995) (jail grievance procedures 27 did not create a substantive right enforceable under § 1983); Spencer v. Moore, 638 F. 28 Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance system procedures do not deprive 1 inmates of constitutional rights). “[N]o constitutional right was violated by the defendants’ 2 failure, if any, to process all of the grievances [plaintiff] submitted for consideration.” 3 Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). In addition, “[t]he right to petition 4 the government for redress of grievances . . . does not guarantee a favorable response, or 5 indeed any response, from state officials. Moreover, the First Amendment’s right to 6 redress of grievances is satisfied by the availability of a judicial remedy.” Baltoski v. 7 Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003); see also Ashann-Ra v. Virginia, 112 8 F. Supp. 2d 559, 569 (W.D. Va. 2000) (failure to comply with state’s grievance procedure 9 is not actionable under § 1983 and does not compromise an inmate’s right of access to the 10 courts). 11 Plaintiff fails to sufficiently allege facts to support that any specific Defendant 12 denied him access to the prison grievance system, including when and how. Therefore, to 13 the extent that Plaintiff asserts a violation of the right to petition for redress of grievances, 14 Plaintiff also fails to state a claim. Count IV will be dismissed accordingly. 15 E. Count V 16 Plaintiff designates Count V as a claim for retaliation. A viable claim of First 17 Amendment retaliation contains five basic elements: (1) an assertion that a state actor took 18 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, 19 and that such action (4) chilled the inmate’s exercise of his First Amendment rights (or that 20 the inmate suffered more than minimal harm) and (5) did not reasonably advance a 21 legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); 22 see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an 23 inmate to show (1) that the prison official acted in retaliation for the exercise of a 24 constitutionally protected right, and (2) that the action “advanced no legitimate penological 25 interest”). The plaintiff has the burden of demonstrating that his exercise of his First 26 Amendment rights was a substantial or motivating factor behind the defendants’ conduct. 27 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s 28 Gasco, Inc. v. Morgan, 874 F.2d 1310 , 1314 (9th Cir. 1989). 1 Plaintiff merely alleges that unspecified “Defendants” prolonged his detention in 2 segregation and issued frivolous and false disciplinary charges in retaliation for grievances, 3 complaints, and lawsuits he had filed. These allegations are vague and conclusory. 4 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 , 520-21 5 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of 6 Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights 7 complaint may not supply essential elements of the claim that were not initially pleaded. [8] Id. Plaintiff fails to specifically allege when any particular Defendant issued him 9 disciplinary charges as retaliation and facts to support that such alleged retaliation was 10 prompted by Plaintiff’s exercise of constitutional rights. Accordingly, Plaintiff fails to 11 state a claim in Count V and it will be dismissed. 12 F. Count VI 13 Plaintiff identifies Count VI as a claim for unjustified prolonged detention in 14 segregation, alleging that he was placed in segregation pending an investigation and that 15 he continued to be detained in segregation beyond the 30-day time limit contained in a 16 Department Order. The mere failure to comply with prison regulations, absent more, does 17 not rise to the level of a constitutional violation. Plaintiff’s allegedly prolonged detention 18 in segregation, absent more, does not rise to the level of a constitutional violation.2 See 19 Sandin, 515 U.S. at 475-76 . Accordingly, Count VI will be dismissed for failure to state a 20 claim. 21 IV. Claim for Which an Answer Will be Required 22 As discussed above, liberally construed, Plaintiff states a claim for excessive force 23 against Defendants Morrison and Vicario in Count II and they will be required to respond 24 to this Count. [25] 26 2 Furthermore, a prisoner does not have a liberty interest in remaining in a particular institution or unit; he may be transferred for any constitutionally permissible reason or for [27] no reason at all. Meacham v. Fano, 427 U.S. 215, 225 (1976); Ward v. Dyke, 58 F.3d 271, 274 (6th Cir. 1995); Shang v. Zurich, 681 F.2d 1091 , 1100 (7th Cir. 1982); Rizzo v. [28] Dawson, 778 F.2d 527, 530-31 (9th Cir. 1985). Similarly, an inmate does not have a constitutional right to a particular classification. 1 V. Motion for Reconsideration 2 Plaintiff has filed a motion to re-evaluate the denial of his motion to appoint counsel. 3 The Court construes the motion as one for reconsideration. 4 Motions for reconsideration should be granted only in rare circumstances. 5 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 6 reconsideration is appropriate where the district court “(1) is presented with newly 7 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 8 or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah 9 County v. ACandS, Inc., 5 F.3d 1255 , 1263 (9th Cir. 1993). Such motions should not be 10 used for the purpose of asking a court “‘to rethink what the court had already thought 11 through – rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above 12 the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). A motion 13 for reconsideration “may not be used to raise arguments or present evidence for the first 14 time when they could reasonably have been raised earlier in the litigation.” Kona Enters., 15 Inc. v. Estate of Bishop, 229 F.3d 877 , 890 (9th Cir. 2000). Nor may a motion for 16 reconsideration repeat any argument previously made in support of or in opposition to a 17 motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. 18 Ariz. 2003 ). Mere disagreement with a previous order is an insufficient basis for 19 reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 20 1988). 21 The Court has reviewed Plaintiff’s motion to appoint counsel and his motion to re22 evaluate the denial of the appointment of counsel. The Court finds no basis to reconsider 23 its decision. Thus, the Court will deny Plaintiff’s motion for reconsideration. 24 VI. Warnings 25 A. Release 26 If Plaintiff is released while this case remains pending, and the filing fee has not 27 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 28 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 1 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 2 result in dismissal of this action. 3 B. Address Changes 4 Plaintiff must file and serve a notice of a change of address in accordance with Rule 5 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 6 relief with a notice of change of address. Failure to comply may result in dismissal of this 7 action. 8 C. Copies 9 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 10 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 11 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 12 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 13 to comply may result in the filing being stricken without further notice to Plaintiff. 14 D. Possible Dismissal 15 If Plaintiff fails to timely comply with every provision of this Order, including these 16 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, [17] 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 18 to comply with any order of the Court). 19 IT IS ORDERED: 20 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 14) is granted. 21 (2) As required by the accompanying Order to the appropriate government 22 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 23 of $17.94. 24 (3) Counts I, III, IV, V, and VI are dismissed without prejudice. 25 (4) All Defendants except Morrison and Vicario are dismissed without 26 prejudice. 27 (5) Defendants Morrison and Vicario must answer Count II. 28 (6) The Clerk of Court must send Plaintiff a service packet including the First 1 Amended Complaint (Doc. 12), this Order, and both summons and request for waiver 2 forms for Defendants Morrison and Vicario. 3 (7) Plaintiff must complete3 and return the service packet to the Clerk of Court 4 within 21 days of the date of filing of this Order. The United States Marshal will not 5 provide service of process if Plaintiff fails to comply with this Order. 6 (8) If Plaintiff does not either obtain a waiver of service of the summons or 7 complete service of the Summons and First Amended Complaint on a Defendant within 90 8 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 9 is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 10 LRCiv 16.2(b)(2)(B)(ii). 11 (9) The United States Marshal must retain the Summons, a copy of the First 12 Amended Complaint, and a copy of this Order for future use. 13 (10) The United States Marshal must notify Defendants of the commencement of 14 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 15 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 16 Order. 17 (11) A Defendant who agrees to waive service of the Summons and First 18 Amended Complaint must return the signed waiver forms to the United States Marshal, not 19 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 20 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 21 personal service. 22 (12) The Marshal must immediately file signed waivers of service of the 23 summons. If a waiver of service of summons is returned as undeliverable or is not returned 24 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 25 the Marshal must: [26] 27 3 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee [28] works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. 1 (a) personally serve copies of the Summons, the First Amended 2 Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal 3 Rules of Civil Procedure; and 4 (b) within 10 days after personal service is effected, file the return of 5 service for Defendant, along with evidence of the attempt to secure a waiver of 6 service of the summons and of the costs subsequently incurred in effecting service 7 upon Defendant. The costs of service must be enumerated on the return of service 8 form (USM-285) and must include the costs incurred by the Marshal for 9 photocopying additional copies of the Summons, First Amended Complaint, or this 10 Order and for preparing new process receipt and return forms (USM-285), if 11 required. Costs of service will be taxed against the personally served Defendant 12 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 13 ordered by the Court. 14 (13) Defendants must answer the First Amended Complaint or otherwise respond 15 | by appropriate motion within the time provided by the applicable provisions of Rule 12(a) 16 | of the Federal Rules of Civil Procedure. 17 (14) Any answer or response must state the specific Defendant by name on whose 18 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 19 | does not identify the specific Defendant by name on whose behalf it is filed. 20 (15) Plaintiff's motion to reconsider the denial of his motion to appoint counsel 21 (Doc.16) is denied. 22 (16) This matter is referred to Magistrate Judge James F. Metcalf pursuant to 23 | Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 24 | authorized under 28 U.S.C. § 636 (b)(1). 25 Dated this 8th day of September, 2020. [26] 28 James A. Teilborg Senior United States District Judge