Brewer v. Davis Cnty.

• Decision Date: 01 June 2020
• Docket Number: Case No. 1:15-CV-40 TC
• Parties: JORDAN ALAN NEVES BREWER, Plaintiff, v. DAVIS COUNTY ET AL., Defendants.
• Court: U.S. District Court — District of Utah

JORDAN ALAN NEVES BREWER, Plaintiff, v. DAVIS COUNTY ET AL., Defendants.

Case No. 1:15-CV-40 TC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

June 1, 2020

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

District Judge Tena Campbell

Plaintiff, Jordan Alan Neves Brewer, began this suit as a pro se pretrial detainee proceeding in forma pauperis. (ECF Nos. 4; 225-3, at 135.) In his unverified second amended complaint (SAC), under 42 U.S.C.S. § 1983 (2020), he requests injunctive relief and damages. (ECF No 213, at 38.)

I. BACKGROUND

• 4/13/15 - Complaint filed. (ECF No. 5.)

• 6/22/15 - Amended Complaint (AC) filed, alleging civil-rights violations by defendants working at Davis County Correctional Facility (DCCF) and Weber County Correctional Facility (WCCF), where Plaintiff had been held. (ECF No. 9.)

• 6/3/16 - AC ordered served. (ECF No. 13.)

• 10/17/16 - Martinez report (MR)¹ and summary-judgment motion (SJM), filed by Defendants Russell (WC physician assistant) and Wood (DCCF and WCCF physician). (ECF Nos. 61-62.)

• 11/18/16 - MR and SJM, filed by Defendant Perry (DCCF and WCCF licensed clinical social worker). (ECF Nos. 71-72.)

• 1/5/17 - Plaintiff's response to Defendant Russell and Wood's SJM. (ECF No. 82.)

• 1/6/17 - Plaintiff's response to Defendant Perry's SJM. (ECF No. 81.)

• 4/28/17 - SJMs granted for Defendants Perry, Russell, and Wood. (ECF No. 132.)

• 9/25/17 - Order granting Plaintiff's motion for appointed counsel and limiting scope of appointment to "assisting Plaintiff in (1) evaluating whether to file a Motion for Leave to Amend the Complaint, and, if appropriate, drafting and filing the motion and [SAC] if deemed appropriate; and (2) obtaining discovery necessary to determine the necessity for and content of a [SAC]." (ECF No. 194, at 2.)

• 1/9/18 - Notice of appearance of appointed pro bono counsel. (ECF Nos. 197-98.)

• 4/9/18 - Motion to file SAC. (ECF No. 199.)

• 5/29/18 - Notice of Fulfillment of Limited Appointment and Notice of Withdrawal of Counsel. (ECF Nos. 203-04.)

• 7/9/18 - Motion granted to file SAC and for service on named defendants. (ECF No. 210.)

SAC, (ECF No. 213), names these Davis County (DC) defendants: DC; officer Manfull (personal capacity); and Sheriff Richardson (official and personal capacities). (Id. at 2.) SAC names these Weber County (WC) defendants: WC; officer Bonyai (personal capacity); mail clerk Collinsworth (personal capacity); officer Miller (personal capacity); officer Porter (personal capacity); officer Sekulich (personal capacity); and Sheriff Thompson (official and personal capacities). (Id. at 3-4.)

Plaintiff asserts these claims under the Federal Constitution: (a) inadequate medical treatment, (id. at 23-24, 28-29); (b) retaliation, (id. at 24-26); (c) lack of meaningful grievance review, (id. at 26-28); (d) illegal book-donation policy, (id. at 29-31); and (e) illegal mail policies, (id. at 31-35).²

On October 9, 2018, as ordered, Defendants filed MR, including nineteen exhibits, with declarations, jail policies and records, and grievance copies, (ECF No. 221), and SJM (ECF No. 223). On November 13, 2018, Plaintiff responded to MR and SJM, with argument, Plaintiff's declaration,³ jail policy, and medical records. (ECF Nos. 225, 227.) On November 27, 2018, Defendants replied. (ECF Nos. 229.)

Before addressing SJM, though, the Court first screens out two claims on different bases than those discussed by the parties. See 28 U.S.C.S. § 1915A (2020) (stating "court shall dismiss the case at any time if the court determines that . . . fails to state a claim on which relief may be granted").

II. SUA SPONTE DISMISSAL FOR FAILURE TO STATE CLAIM

A. STANDARD OF REVIEW

Evaluating a complaint for failure to state a claim upon which relief may be granted, this Court takes all well-pleaded factual assertions as true and regards them in a light most advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Dismissal is appropriate when, viewing those facts as true, the plaintiff has not posed a "plausible" right to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). When a civil-rights complaint contains "bare assertions," involving "nothing more than a 'formulaic recitation of the elements' of a constitutional . . . claim," the Court considers those assertions "conclusory and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (quoting Twombly, 550 U.S. at 554-55). In other words, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe this plaintiff has a reasonable likelihood of mustering factual support for these claims." Red Hawk, 493 F.3d at 1177 (italics in original).

This Court must construe pro se "'pleadings liberally,' applying a less stringent standard than is applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted). This means that if this Court can reasonably read the pleadings "to state a valid claim on whichthe plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Still, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)).

B. CLAIMS FOR INJUNCTIVE RELIEF

SAC requests injunctive relief. (ECF No. 213, at 38.) However, SAC itself states that Plaintiff was out of DC and WC custody as of December 6, 2012, when he was transferred to Salt Lake County Jail. (ECF No. 213, at 4.) And, Plaintiff's latest change-of-address filing shows that he was most recently in Bonneville Correctional Facility, a "state-operated half-way house," in Salt Lake City. (ECF No. 245.)

"Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction." McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). "This requirement exists at all stages of federal judicial proceedings, and it is therefore not enough that the dispute was alive when the suit was filed; the parties must continue to have a personal stake in the outcome." Id.

"Where a plaintiff seeks an injunction, his susceptibility to continuing injury is of particular importance--past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects." Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (brackets, ellipses and internal quotation marks omitted). "Moreover, a plaintiff's continued susceptibility to injury must be reasonably certain; a court will not entertain a claim for injunctive relief where the allegations take it into the area of speculation and conjecture." Id. (internal quotation marks omitted). In other words, "[a] claim for equitable relief is moot absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediatethreat that the plaintiff will be wronged again." Id. (internal quotation marks omitted).

Burnett v. Fallin, 785 F. App'x 546, 551-52 (10th Cir. 2019) (unpublished).

Based on Plaintiff's admitted transfers away from DC and WC, Plaintiff's requests for injunctive relief are moot. See McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999). Those requests are against Defendants DC and WC and their respective sheriffs, Defendants Richardson and Thompson. All requests for injunctive relief are therefore dismissed.

C. CLAIM OF LACK OF MEANINGFUL GRIEVANCE REVIEW

Plaintiff alleges that Defendants DC, Manfull, and Richardson gave his grievances only perfunctory review before denying them. (ECF No. 213, at 26-28.) However, "there is no independent constitutional right to state administrative grievance procedures. Nor does the state's voluntary provision of administrative grievance process create a liberty interest in that process." Boyd v. Werholtz, 443 F. App'x 331, 332 (10th Cir. 2011) (unpublished). This claim is thus dismissed.

III. SUMMARY JUDGMENT (SJ) ON REMAINING CLAIMS

An important word at this section's start: Defendants are not to be lumped together as a group, but should be treated as individuals, each with the defendant's own claim(s) against the defendant, based on the defendant's own behavior. See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (stating, because § 1983 is "vehicle[] for imposing personal liability on government officials, we have stressed the need for careful attention to particulars, especially in lawsuits involving multiple defendants"); Robbins v. Okla. ex rel. Dept' of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008) (stating complaint must "make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claimsagainst him . . . as distinguished from collective allegations") (emphasis in original) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 565 n.10 (2007)); Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532-33 (10th Cir. 1998) (holding district...