John Anthony Cole v. F. Ortega, et al.

Summary

This is an order from the United States District Court for the District of Arizona addressing a prisoner’s pro se civil rights action under 42 U.S.C. § 1983. The court grants the application to proceed in forma pauperis, denies several motions without prejudice, allows certain excessive-force and failure-to-intervene claims to proceed, and dismisses other claims and defendants without prejudice. The order also permits limited discovery to identify unnamed defendants.

Holdings

1. Liberally construed, the complaint stated excessive-force claims arising from the February 22 incident against Simmons, Ortega, Sanchez, Meyers, Rheem, Bachman, McCormick, and John Does 1-6, and from the February 28 incident against Diaz, Simmons, Ortega, Meyers, Sanchez, Rheem, McCormick, and John Does 1-5.
2. Plaintiff stated a failure-to-intervene claim against Levine based on the allegation that Levine witnessed the February 28 assault and failed to intervene.
3. The allegation that Diaz gave plaintiff a wedgie, even in the alleged circumstances, did not state an Eighth Amendment sexual-assault claim, and Count Three was dismissed without prejudice.
4. Plaintiff stated deliberate-indifference claims against Benmen and Fulks in Counts Four and Eight, but did not state medical-care claims against the correctional officers who allegedly assaulted him.
5. Plaintiff stated a retaliation claim against Simmons in Count Five and against Simmons and Ortega in Count Nine; the retaliation allegations against the remaining defendants were dismissed at screening.
6. Plaintiff stated an equal-protection claim against Simmons, Ortega, Bachman, and Diaz based on alleged racial slurs and racial animus; the claim against the remaining defendants was dismissed.
7. The court dismissed NaphCare and Thornell without prejudice, dismissed Rogers without prejudice, and construed the remaining claims as individual-capacity claims because the complaint did not plausibly allege a policy, custom, or personal participation sufficient for entity, official-capacity, or supervisory liability.
8. Count Seven failed to state a § 1983 civil-conspiracy claim and was dismissed without prejudice.
9. Count Eleven was dismissed without prejudice because plaintiff could not initiate criminal charges and because the combined state-law allegations were vague, conclusory, and improperly joined in a single count.
10. The motions for injunctive relief, a temporary restraining order, preservation of evidence, and limited early discovery were denied without prejudice.

Questions Presented

1. Whether the complaint stated plausible claims under § 1983 and survived statutory prisoner-complaint screening under § 1915A.
2. Whether the allegations stated claims for excessive force, failure to intervene, deliberate indifference to serious medical needs, First Amendment retaliation, or equal protection.
3. Whether the complaint adequately pleaded municipal or private-entity liability, official-capacity liability, supervisory liability, or civil conspiracy.
4. Whether the alleged wedgie and related conduct stated an Eighth Amendment sexual-assault claim.
5. Whether the state-law and criminal allegations in Count Eleven stated a viable claim.
6. Whether plaintiff was entitled to a temporary restraining order, preliminary injunction, preservation order, or early discovery.

Disposition

other