Gemza v. Duarte et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Christopher Michael Gemza,
Plaintiff,
v.
Ana Duarte, et al.,
Defendants.
No. CV-25-03461-PHX-SMM (ASB)
REPORT AND RECOMMENDATION
TO HON. STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT
JUDGE:
Before the Court is pro se Plaintiff Christopher Michael Gemza’s Second Amended
Civil Rights Complaint by a Prisoner. (Doc. 10.) Previously, the Court screened and
dismissed without prejudice some of the claims in Plaintiff’s First Amended Complaint.
(Doc. 8.) Plaintiff filed his Second Amended Complaint (“SAC”) on December 11, 2025,
against the following Defendants: Leon N. Wilmont, Unknown Cortez, Unknown Durazo,
Galvan Grimaldi, Caiden Kellner, Unknown Mange, Unknown Meza, Unknown Russom,
Unknown Sanchez, Unknown Tizcareno, and Unknown Zimmerman. (Id.) Plaintiff alleges
two Counts against Defendants, arguing Defendants violated his First, Fifth, Eighth, and
Fourteenth Amendment rights. (Id.) Pursuant to this Court’s statutory requirements under
28 U.S.C. § 1915A, undersigned will screen Plaintiff’s Second Amended Complaint.
I. Statutory Screening of Prisoner Complaints
Pursuant to 28 U.S.C. § 1915A, a court is required to screen complaints brought by
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prisoners seeking relief against a governmental entity, officer, or employee of the
governmental entity. The court must dismiss the complaint, or any portion of the complaint,
if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted;
or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b).
Under Federal Rule of Civil Procedure 8(a)(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). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
A plaintiff’s complaint must contain “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. The plausibility standard “is not akin to
a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). In the
case of a pro se litigant, a court is to construe pleadings liberally. Jones v. Cmty.
Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (“The
allegations of a pro se complaint, ‘however inartfully pleaded,’ should be held ‘to less
stringent standards than formal pleadings drafted by lawyers.’”) (quoting Hughes v. Rowe,
449 U.S. 5, 9 (1980)).
II. Procedural History and Background
1. Original and First Amended Complaint
Plaintiff filed his original Complaint on September 19, 2025, alleging four counts
against nineteen defendants. (See Doc. 1.) On September 26, 2025, Plaintiff filed his First
Amended Complaint (“FAC”), superseding the original Complaint in its entirety. (See Doc.
7.) Plaintiff’s FAC alleged four counts of violating Plaintiff’s First, Fifth, and Fourteenth
Amendment rights against twenty defendants raising the following issues: access to the
courts, conditions of confinement, disciplinary proceedings, retaliation, medical care, and
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denial of equal protection. (See id.) Pursuant to 28 U.S.C. § 1915A(b), this Court screened
Plaintiff’s FAC. (Doc. 8.)
Undersigned will incorporate by reference this Court’s prior Screening Order
summarizing Plaintiff’s FAC. (See Doc. 8 at 3-6.) In the Screening Order, this Court
dismissed Plaintiff’s Count One, alleging interference with Plaintiff’s access to the courts.
(Id. at 14.) The Court found that Plaintiff had not alleged sufficient facts to support that
any named Defendant failed to provide him the constitutionally required affirmative
assistance to file a legal pleading or actively interfered with his access to the courts. (Id. at
14-15.)
In Count Two, Plaintiff alleged that his conditions of confinement violated his First,
Fifth, and Fourteeenth Amendment rights. (Doc. 7 at 10-11.) He also alleged that he was
retaliated against for reporting issues and denied due process because of disciplinary
sanctions imposed. (Id.) The Court construed this as an Eighth Amendment conditions-of-
confinement claim and found that “Plaintiff’s allegations in Count Two do not support that
any named Defendant was aware of and disregarded a substantial risk of serious harm to
Plaintiff because of the conditions in segregation.” (Doc. 8 at 15.) Additionally, the Court
found that Plaintiff failed to state a due process claim, because the only sanction Plaintiff
cited in his FAC did not implicate a liberty interest, and thus Plaintiff was not entitled to
due process protections. (Id. at 17.) The Court also found that Plaintiff’s retaliation claim
failed because Plaintiff did not allege any facts to support that any named Defendant took
an adverse action in retaliation of a protected right (e.g. filing this case, submitting
grievances, or otherwise not reasonably advancing a legitimate correctional goal). (Id. at
17-18.)
In Count Three of his FAC, Plaintiff alleged that his medical care was delayed and
inadequate, in violation of his First, Fifth, and Fourteenth Amendment rights. (See Doc. 7
at 12-13.) The Court interpreted these claims as Eighth Amendment inadequate medical
care claims. (Doc. 8 at 18-19.) The Court found that the allegations were “too vague and
conclusory” to state a medical care claim sufficient to reach the “high legal standard” of
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deliberate indifference. (Id.) Accordingly, the allegations in Count Three of Plaintiff’s FAC
were dismissed. (Id.)
In Plaintiff’s FAC Count Four, Plaintiff raised an equal protection claim pursuant
to the First, Fifth, and Fourteenth Amendments. (Doc. 7 at 14-16.) Plaintiff alleged that he
was intentionally treated differently from another inmate due to his disability. (Id.) In its
Screening Order, this Court required Defendants Durazo and Zimmerman to answer the
portion of Count Four of Plaintiff’s FAC that asserted an equal protection claim. (Doc. 8
at 20.)
Plaintiff’s FAC also asserted various claims on the handling of his grievances and
accommodations he was not given. (See Doc. 7.) The Screening Order considered
Plaintiff’s scattered challenges to the grievance procedures he received while in custody
and found that “Plaintiff cannot state a claim based on Defendants’ handling of his
grievances.” (Doc. 8 at 21.) Concerning the requests for accommodations, this Court
construed Plaintiff’s pleadings as stating an ADA deliberate indifference claim. (Id. at 21-
22.) The Court dismissed Plaintiff’s ADA claims, finding that Plaintiff had not
“sufficiently described his disability, his attempts to alert the Yuma County Sheriff’s Office
about his disability, his requests for ‘reasonable accommodation’ within the meaning of
the ADA, or the reasons given for denial of any request for ‘reasonable accommodation.’”
(Id.) Accordingly, the Court dismissed any ADA claims. (Id.)
The Court in its Screening Order dismissed the Yuma County Sheriff’s Office as an
improper Defendant. (Doc. 8 at 10.) The Screening Order also dismissed Defendant Duarte,
finding that Plaintiff did not plead sufficient facts to support a theory of respondeat superior
liability pursuant to Section 1983. (Id. at 12-13.) Finally, Plaintiff alleged claims against
the individual Defendants in his or her official and individual capacities. (Id. at 10-11.) The
Screening Order found that to the extent Plaintiff alleged claims against the individual
Defendants in their official capacity, Plaintiff was really bringing suit against their
employer, Yuma County. (Id.) Accordingly, the Court examined the pleading requirements
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for bringing suit against an employer pursuant to a Monell1 claim and found that Plaintiff
had failed to meet his burden. (Id. at 12.)
The Court thus ordered the following, inter alia, in its Screening Order: (1) Counts
One, Two, Three, the ADA claim in Count Four, and the official-capacity claims were
dismissed without prejudice; (2) Defendants Yuma County Sheriff’s Office, Duarte,
Tizcareno, Silva, Kellner, Grimaldi, Mange, Menza, Gomez, Lopez, Mahan, Miranda,
Mendez, Osuna, McLaughlin, Baez, and Sevwa were dismissed without prejudice; (3) if
Plaintiff attempted to amend to address the shortcomings identified in the Court’s Order,
the amended complaint must comply with Rule 15 of the Federal Rules of Civil Procedure
(“FRCP”) and Rule 15.1 of the Local Rules of Civil Procedure (“LRCiv”); and (4) ordered
Defendants Durazo and Zimmerman to answer the equal protection claim in Count Four.
(Doc. 8 at 25.)
2. Second Amended Complaint
Plaintiff filed his Second Amended Complaint on December 11, 2025, along with a
Notice of Filing of Second Amended Pleading/Complaint. (Docs. 10, 11.) In his Notice of
Filing, Plaintiff asserted that “the Plaintiff files as a matter of course and within 21 days of
service upon any defendant.” (Doc. 11 at 1.) It appears that Plaintiff argues he filed his
Second Amended Complaint pursuant to FRCP Rule 15(a)(1). (See id.) However, FRCP
15(a)(1) allows a party to amend a pleading once as a matter of course. (Emphasis added).
Here, Plaintiff already filed an amended Complaint (see Doc. 7) and accordingly Plaintiff
is no longer afforded the opportunity to amend as a matter of course pursuant to FRCP
Rule 15.
FRCP Rule 15(a)(2) dictates that “[i]n all other cases, a party may amend its
pleading only with the opposing party’s written consent or the court’s leave.” While the
Court did not expressly grant leave, the Court did provide in its prior Screening Order that
“[i]f Plaintiff attempts to amend to address the shortcomings . . . the amended complaint
must . . . .” (Doc. 8 at 25 ¶ 6.) Additionally, Defendants filed a Notice Regarding Their
1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
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Response to Plaintiff’s Amended and Second Amended Complaints, in which they
acknowledged receipt and notified the Court that they will await the Court’s screening of
the Second Amended Complaint. (Doc. 12.) Defendants did not file a motion to strike or
otherwise dispute Plaintiff’s Second Amended Complaint as improperly filed. (See id.)
Because “the court should freely give leave” and no opposition appears, this Court will
construe its prior Order (Doc. 8) as affording Plaintiff leave to amend his First Amended
Complaint pursuant to FRCP 15(a)(2).
In Plaintiff’s SAC, he raises Two Counts against the following Defendants:
Corporal Zimmerman; Detention Officers Cortez, Durazo, Galvan Grimaldi, Caiden
Kellner, Meza, Mange, and Russom; Sergeants Sanchez and Tizcareno; and Sheriff Leon
N. Wilmont. (Doc. 10 at 1-5.) Plaintiff sues each Defendant “in his/her individual and
official capacity at all times mentioned in this Complaint” and alleges “each Defendant
acted under color of state law.” (Id. at 1.)
In his First Count, Plaintiff alleges that his First, Fifth, Eighth, and Fourteenth
Amendment rights were violated due to the conditions of confinement. (Doc. 10 at 6.)
Specifically, Plaintiff alleges that Sergeant Tizcareno was informed of the infestations of
spiders, ants, gnats, and other bugs in the living and eating areas, but no pest control was
performed for six months in two different units. (Id.) According to Plaintiff, he filed many
grievances on the presence of bugs in his unit (on 8/14/25, 9/16/25, 9/22/25, and 10/14/25),
the filthy or unsanitary conditions (on 7/4/25, 8/3/25, 8/4/25, 8/7/25, and 8/10/25), and
concerns about time out of his cell (on 4/10/25). (Id. at 6-9.) Each of these grievances
received responses from the following correctional staff: Sergeant Tizcareno, Officer
Grimaldi, Officer Cortez, Officer Meza, Sargeant Sanchez, and Officer Kellner. (Id.)
Plaintiff argues that he has been denied “the minimal civilized measure of life’s
necessities” and that “Defendants showed deliberate indifference in that they were made
aware of the facts in great detail from which it was made clear that the situation left
[Plaintiff] at substantial risk of serious harm.” (Id. at 10.) Finally, Plaintiff alleges that the
conditions caused Plaintiff to be “made physically ill and/or increase[ed] already existing
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illness severity” such that he lost nineteen pounds. (Id. at 10-11.)
In Plaintiff’s Second Count, he alleges again that his First, Fifth, Eighth, and
Fourteenth Amendment rights were violated. (Doc. 10 at 12.) Plaintiff avers that he was
denied equal protection of the law and discriminated against pursuant to his seizure
disability. (Id.) Plaintiff alleges that he was not given “reasonable modifications” for jail
policies that put his health or safety at risk due to his disabilities. (Id.) Plaintiff argues that
having to put his mattress on the floor due to his seizure disability subjected him “to bug
infestations and raw sewage flooding on more than one occasion.” (Id.) Plaintiff further
alleges that he is not able to “fishhook2” based on his disability and was put in lockdown
for that rule infraction, a longer lockdown time compared to two other inmates. (Id.)
Plaintiff argues that “Sheriff Leon N. Wilmont is directly responsible as per Ariz. Rev.
Stat. §§ 11-441(A)(5), 31-101 he is responsible for caring for prisoners[.]” (Id. at 13.) He
argues that by being forced to lay his mattress and bedding directly on the floor, he was
exposed to unsanitary conditions “thus denying [him his] right to be free from cruel and
unusual punishment.” (Id.) Plaintiff lists the several grievances he filed where he requests
from “officers and supervisory staff” reasonable accommodations from the protocol
requiring his mattress on the floor. (See id. at 14-15) (filing three grievances in July 2025
with the Detention Center, resolved by Defendants Cortez, Sanchez, and Kellner). Plaintiff
also alleges that he filed three grievances regarding disciplinary sanctions related to
Plaintiff’s inability to “fishhook” due to his disability. (See id. at 15-16) (filing three
grievances in late August 2025 which were resolved by Defendants Sanchez and Rossum).
Finally, Plaintiff alleges that he submitted two grievances in September 2025 to get
reasonable accommodations to perform his legal work due to the pain in his left hand,
resolved by Defendants Meza and Rossum.3 (Id. at 16.)
Plaintiff alleges in Count Two that “the jail was aware of both of my conditions.”
2 According to Plaintiff, “[t]here is a jail policy that inmates must use both hands to ‘fishhook’ and
manipulate their mouth to show they aren’t hiding medication,” which Plaintiff is unable to do with his left
hand “due to [his] physical disability.” (Doc. 10 at 12.)
3 Undersigned notes that Plaintiff does not otherwise expand upon these allegations, and thus does
not plead a claim regarding accommodations for his legal work. (See Doc. 10 at 16.)
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(Doc. 10 at 16.) Plaintiff further alleges:
These ADA claims also connect with the Official Capacity claims in that not
only do they show a very standard custom or practice as seen by the almost
identical wording in response to requests and grievances from multiple
officers and supervisors in different departments of the jail. In addition to
this in grievances #15651645, #1565581, #15752693 all refer to mattress on
the floor being medical and/or facility protocol and disciplinary report #25-
581 proves a policy/“standard operating procedure so permanent and well
settled as to constitute a custom or usage with the force of law.” St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1998). As does grievance #16440636 . . .
[where Defendants] refer to their own actions and/or inactions as
“facility/medical protocol[.]”
(Id. at 17) (cleaned up).
Plaintiff requests the following relief: (1) a declaration that the acts and omissions
violated Plaintiff’s constitutional rights; (2) compensatory damages in the amount of
$550,000 against each Defendant, jointly and severally; (3) punitive damages in the amount
of $100,000 against Defendants Kellner, Grimaldi, Cortez, Durazo, Mange, Tizcareno,
Meza, Sanchez, Zimmerman, and Russom each and the amount of $350,000 against
Defendant Wilmont, severally; (4) a jury trial; (5) Plaintiff’s costs; and (6) any additional
relief this Court deems just, proper, and equitable. (Doc. 10 at 19-20.)
III. Discussion of Second Amended Complaint
A. Eighth Amendment Claim
In Count One, Plaintiff alleges various complaints about the cleanliness and
sanitation of Yuma County Detention Center. (See Doc. 10 at 6-11.) Undersigned will
construe these claims as Eighth Amendment conditions-of-confinement claims. (See Doc.
8 at 15) (this Court’s Screening Order of the FAC where the Court found that although
Plaintiff is awaiting trial on new charges, he is serving a prison sentence and his claims
regarding conditions of confinement are thus analyzed under the Eighth Amendment).
Plaintiffs alleging an Eighth Amendment conditions-of-confinement claim must
meet a two-part test. Farmer v. Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation
alleged must be, objectively, ‘sufficiently serious’” where the prison official’s act or
omission results in “the denial of ‘the minimal civilized measure of life’s necessities’” Id.
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(first quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991); and then quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)). The second part of the test requires examining the
prison official’s state of mind. Id. “A prison official must have a ‘sufficiently culpable state
of mind’” such that he is deliberately indifferent to the inmate’s health or safety. Id.
(quoting Wilson, 501 U.S. at 302-303). Deliberate indifference requires that “the official
knows of and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. at 837.
For the same reasons Plaintiff’s Eighth Amendment conditions-of-confinement
claim failed in his FAC, Plaintiff’s claim fails in his SAC. Even if the Court assumes that
the alleged deprivations are objectively “sufficiently serious,” Plaintiff does not allege any
facts regarding any of the officials’ deliberate indifference to the conditions. Plaintiff
alleges that he filed four grievances over the course of two months about “infestations of
spiders, ants, gnats, and other bugs in our living and eating areas.” (See Doc. 10 at 6-7.)
Plaintiff also pleads that he filed at least three grievances about the poor sanitary conditions
and being forced to sleep on the floor in the filthy and unsanitary conditions. (See id. at 6-
9.) Plaintiff pleads that various officials responded to the grievances about the bug
problems and unsanitary conditions. (See id.) (alleging Defendants Tizcareno, Cortez,
Grimaldi, Sanchez, Meza, and Kellner all responded to these grievances). Each responded,
addressing the concerns and offering a variety of solutions. (See id.) (For example,
Defendant Cortez advised Plaintiff to “please advise a unit manager when you see any bugs
in your room,” Defendant Grimaldi provided Plaintiff cleaning supplies, Defendant
Sanchez notified supervisory staff, etc.) Accordingly, similar to the FAC, Plaintiff has not
alleged sufficient facts to show that any Defendants were deliberately indifferent to the
conditions or disregarded a substantial risk of serious harm to Plaintiff. (See Doc. 10.)
B. Equal Protection Claim
In Count Two, Plaintiff alleges that he is being discriminated against on the basis of
his disabilities. (See Doc. 10 at 12-17.) Specifically, Plaintiff alleges that the Detention
Center refuses to give him reasonable accommodations and treats him differently than
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other prisoners. (Id.)
“To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection
Clause of the Fourteenth Amendment 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.” Barren v. Harrington, 152 F.3d 1193, 1195 (9th Cir. 1998) (citations
omitted). A plaintiff may bring a “class of one” equal protection claim, where a plaintiff
does not allege membership in a class or group. See Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000). Successful “class of one” equal protection claims require the plaintiff
to allege that he “has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” Id.
With regard to the first type of equal protection claim, Plaintiff fails to allege facts
to support his allegations. While Plaintiff alleges that he was given harsher discipline, did
not receive equal treatment, and was directly discriminated against for his disability, he
fails to allege facts to support this speculation. (See Doc. 10 at 13, 17.) There remains “no
allegations linking the treatment Plaintiff received to his race or disability status.” (See
Doc. 8 at 20.) Accordingly, for the same reasons this Court dismissed Plaintiff’s equal
protection claim based on membership in a protected class in the FAC Screening Order,
undersigned finds Plaintiff has failed to allege such a claim in his SAC.
Regarding the second type of equal protection claim, Plaintiff alleges that he was
treated differently from other inmates both by being required to put his mattress on the
floor for his seizure protocol and with disciplinary sanctions from being unable to
“fishhook.” (See Doc. 10 at 13, 16-17.) Plaintiff argues with respect to both the seizure
protocol and the “fishhook” that he is treated differently from others similarly situated.
(See id.) (“The discrimination . . . was by reason of by disability in that inmates who do
not have a seizure condition are allowed to use beds that are not on the floor exempting
them from the worst of these conditions.”) (citing that two other inmates did not fishhook
and received one third of the time in disciplinary lockdown compared to Plaintiff).
Accordingly, Plaintiff has pled for both the seizure protocol and disciplinary sanctions that
he was intentionally treated differently from others similarly situated. (See id.)
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Plaintiff must also plead, however, that there is no rational basis for the difference
in treatment. For the seizure protocol, while Plaintiff argues that he has repeatedly
requested reasonable accommodations or better solutions instead of placing his mattress
on the floor, he does not allege that there is no rational basis for the difference in treatment.
(See Doc. 10 at 14-15.) In fact, Plaintiff pleads that the protocol is in place “to prevent
injury due to being found on the floor with a ‘bump’ on my forehead.” (See id.)
Accordingly, Plaintiff does not allege that there is no rational basis for the difference in
treatment regarding the seizure protocol, rather he argues that a different protocol should
be implemented.
For the disciplinary sanctions, Plaintiff does seem to allege that there is no rational
basis for the difference in treatment. (See Doc. 10 at 12-13) (arguing that two inmates
without disabilities, one of which with more serious disciplinary history than Plaintiff,
received 24-hour lockdowns for the exact same infraction whereas Plaintiff received 72-
hour lockdown). Plaintiff alleges that Defendants Durazo and Zimmerman gave him the
72-hour lockdown as a disciplinary sanction, Defendant Cortez ordered Plaintiff to
“fishhook,” and Defendants Russom and Meza dismissed Plaintiff’s grievances about the
discipline. (See id. at 12, 16.) Construing Plaintiff’s pleadings liberally, see Jones 733 F.2d
at 649, Plaintiff pleads that he has been treated differently from others based on his
disability by being disciplined more harshly for being unable to fishhook, and that there is
no rational basis for the difference in treatment. Accordingly, undersigned recommends
that in addition to Defendants Durazo and Zimmerman, the Court require Defendants
Russom, Meza, and Cortez to answer the equal protection class-of-one portion of Count
Two. (See Doc. 8) (ordering Defendants Durazo and Zimmerman to answer the portion of
Plaintiff’s FAC that asserts an equal protection claim).
C. ADA Claim
In Count Two, Plaintiff also alleges that his rights under and “section 504 [of the
Rehabilitation Act] and Title II of the Americans with Disabilities Act [(“ADA”)]” rights
were infringed on because he “requested and grieved on multiple occasions [his] need for
‘reasonable accommodation’. . . [and] NO effort was made to investigate and determine
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what constitutes a ‘reasonable accommodation.’” (Doc. 10 at 17.) Plaintiff avers that his
seizure condition is a “qualified disability” under the ADA and that Defendant Wilmont is
“directly responsible” for caring for prisoners and implementing policies and procedures.
(Id. at 13.) Plaintiff also pleads that Defendants Mange, Cortez, Sanchez, and Kellner either
required Plaintiff to place his mattress on the floor or dismissed his grievances about his
mattress on the floor. (Id. at 13-15.)
“To prove a public program or service violates Title II of the ADA, a plaintiff must
show: (1) he is a ‘qualified individual with a disability’; (2) he was either excluded from
participation in or denied the benefits of a public entity’s services, programs or activities,
or was otherwise discriminated against by the public entity; and (3) such exclusion, denial
of benefits, or discrimination was by reason of his disability.” Weinreich v. Los Angeles
Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (quoting 42 U.S.C. § 12132).
Title II of the ADA abrogates sovereign immunity “insofar as Title II creates a private
cause of action for damages against the States for conduct that actually violates the
Fourteenth Amendment[.]” United States v. Georgia, 546 U.S. 151, 159 (2006). However,
“A plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her
individual capacity to vindicate rights created by Title II of the ADA or section 504 of the
Rehabilitation Act.” Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). “When a
plaintiff brings a direct suit under either the Rehabilitation Act or Title II of the ADA
against a municipality (including a county), the public entity is liable for the vicarious acts
of its employees.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001), as
amended on denial of reh’g (Oct. 11, 2001). Additionally, courts often consider § 504 of
the Rehabilitation Act and Title II of the ADA together. See id. at 1152 n.7 (“We examine
cases construing claims under the ADA, as well as section 504 of the Rehabilitation Act,
because there is no significant difference in the analysis of rights and obligations created
by the two Acts.”)
To recover monetary damages under either the ADA or the Rehabilitation Act, a
plaintiff must show intentional discrimination by the defendant. Duvall, 260 F.3d at 1138.
The Ninth Circuit applies a deliberate indifference standard to assess intentional
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discrimination by a defendant. Id. “Deliberate indifference requires both knowledge that a
harm to a federally protected right is substantially likely, and a failure to act upon that . . .
likelihood.” Id. at 1139 (citations omitted).
A plaintiff can satisfy the first element of the deliberate indifference test when the
plaintiff has alerted the public entity to his need for an accommodation, or when the need
is obvious, such that the public entity is on notice that an accommodation is required. See
Duvall, 260 F.3d at 1139. In considering the second element of the test, the Ninth Circuit
has held that “failure to act must be a result of conduct that is more than negligent, and
involves an element of deliberateness.” Id. (citation omitted). This means that a public
entity must “act” by “consider[ing] the particular individual’s need when conducting its
investigation into what accommodations are reasonable.” Id.
Here, Plaintiff alleges that Defendants Mange, Cortez, Sanchez, and Kellner all
failed to provide reasonable accommodations for the management of his seizure disorder
and thus violated Title II of the ADA and Section 504 of the Rehabilitation Act. (See Doc.
10 at 13.) Because Plaintiff brings suit against the Defendants in their official capacity,
respondeat superior would apply such that the Sheriff would be vicariously liable for the
actions of his employees. See Duvall, 260 F.3d at 1141; Ariz. Rev. Stat. §§ 11-441(A)(5),
31-101. (Arizona statute imposes a duty of care upon the office of Sheriff to “take charge
of and keep the county jail . . . and the prisoners in the county jail.”)
Plaintiff has likely pled sufficient facts to show that the first element of the test,
knowledge that a harm to a federally protected right is substantially likely, is met. Plaintiff
alleges that he filed at least three grievances regarding the seizure protocol, including one
where Plaintiff stated “[w]hat I’m grieving is that the seizure protocol requires me to lay
on an unsanitary floor next to a toilet and exposed to an ongoing problem with roaches.
That’s . . . a violation of the Americans with Disabilities Act. I’m asking that the jail find
appropriate measures.” (Doc. 10 at 14.) Accordingly, Plaintiff put the Sheriff, Leon N.
Wilmont, on notice of his request for an accommodation. See Duvall, 260 F.3d at 1139.
The second element of the deliberate indifference test requires “an element of
deliberateness” more than negligence or “where a duty to act may simply have been
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overlooked.” See Duvall, 260 F.3d at 1139. Here, Plaintiff alleges that employees at the
Yuma County Detention Center consistently responded to his grievances. (See Doc. 10 at
14) (“Officer Cortez replied ‘This matter has to be addressed by medical. Medical are the
ones who have you on this protocol’”) (“Sgt Sanchez responded ‘Medical staff have
determined that . . . placing you on a mattress on the floor . . . is appropriate to help prevent
. . . injuries’”) (“Officer Keller replied ‘. . .your concerns were addressed with supervisory
and medical staff. Understand that per facility protocol, anytime a prisoner has a seizure
they are placed on [a] mattress on the floor to reduce the risk of head injury’”).
Accordingly, Plaintiff pleads that employees of the Yuma County Detention Center
consistently responded to and addressed his grievances regarding the mattress on the floor.
While Plaintiff may argue that the employees should have done more to address his request
for an accommodation and thus failed to act, Plaintiff has failed to allege any degree of
deliberateness or “more than negligent” failure to act. See Duvall, 260 F.3d at 1139.
Plaintiff has failed to meet the second part of the test in pleading that Defendant Wilmont
deliberately failed to act.
Consequently, undersigned recommends that the Court dismiss Plaintiff’s claims in
Count Two concerning reasonable accommodations pursuant to Title II of the ADA and
Section 504 of the Rehabilitation Act.
D. Official Capacity Claims
Plaintiff names each of the individual Defendants “sued in his/her individual and
official capacity at all times mentioned in this Complaint.” (Doc. 10 at 1.) Plaintiff alleges
that “each Defendant acted under color of state law.” (Id.)
“Official-capacity suits generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Monell, 436 U.S. at 690 n. 55. In other
words, when a plaintiff brings suit against officials in their official capacity, the suit is
really against the entity that employs that defendant. See id. An agency or local government
can only be sued under § 1983 actions when it is the “execution of a government’s policy
or custom” that “inflicts the injury that the government as an entity is responsible under §
1983.” As stated in the FAC Screening Order, the real party in interest here is Yuma
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County, and thus to state an official-capacity claim against the Defendants, Plaintiff must
“allege facts to support the existence of a Yuma County policy that resulted in injury to
Plaintiff.” (Doc. 8 at 11.)
“To impose liability on a local governmental entity for failing to act to preserve
constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a
constitutional right of which he was deprived; (2) that the municipality had a policy; (3)
that this policy ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right;
and (4) that the policy is the ‘moving force behind the constitutional violation.’” Oviatt By
& Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton
v. Harris, 489 U.S. 378, 389 (1989)). “[T]here must be ‘a direct causal link between a
municipal policy or custom and the alleged constitutional deprivation.’” Villegas v. Gilroy
Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (quoting City of Canton, 489 U.S.
at 385).
A policy is a deliberate choice to follow a certain course of action made by the
officials or entity “responsible for establishing final policy with respect to the subject
matter in question.” Pearce, 954 F.2d at 1477 (internal citations omitted). A custom is that
which “although not authorized by written law or express municipal policy, is so permanent
and well settled as to constitute a ‘custom or usage’ with the force of law.” City of St. Louis
v. Praprotnik, 485 U.S. 112, 127 (1988) (internal quotations and citations omitted).
“Liability for improper custom may not be predicated on isolated or sporadic incidents; it
must be founded upon practices of sufficient duration, frequency and consistency that the
conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d
911, 918 (9th Cir. 1996) (citations omitted).
Here, construing Plaintiff’s pleadings liberally, Plaintiff has alleged that the policies
at Yuma County Detention Center were unlawful. (See Doc. 10.) Specifically, Plaintiff
alleges that the seizure protocol of putting his mattress on the floor “proves a policy[.]”
(See id. at 17.) Plaintiff seems to argue that because he was consistently denied a
“reasonable accommodation” pursuant to the Detention Center’s seizure protocol, the
official policy violates the ADA. (See id.) Additionally, Plaintiff appears to argue that the
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official policy of the seizure protocol also violates Plaintiff’s Eighth Amendment right
against cruel and unusual punishment. (See id. at 12, 17.)
These pleadings, however, are insufficient to allege a Monell violation. Regarding
Plaintiff’s allegations about the seizure protocol violating his ADA rights, these pleadings
do not support any alleged deprivation of Plaintiff’s constitutional rights. See Pearce, 954
F.2d at 1474. Rather, Plaintiff appears to conclude that because there is a policy, and
because Defendants did not deviate from that policy, his ADA rights were infringed upon
and thus demonstrate an “Official Capacity claim[.]” (See Doc. 10 at 17.) Such a conclusion
does not provide sufficient facts to indicate the policy violates a constitutional right.4
Plaintiff’s allegations regarding the seizure protocol demonstrating an “Official
Capacity Claim” due to inhumane conditions of confinement also fails. (See Doc. 10 at 17-
18.) As described above, Plaintiff’s conditions-of-confinement claim fails to meet the
standard to allege Defendants violated Plaintiff’s Eighth Amendment rights. Because a
plaintiff pleading an official capacity claim must allege the violation of a constitutional
right, and undersigned has concluded above that Plaintiff failed to allege an Eighth
Amendment conditions-of-confinement claim, Plaintiff’s official capacity claim regarding
the same alleged violation of his constitutional rights also fails. See Pearce, 954 F.2d at
1474.
IV. Warning
A. Release
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.
//
4 While “failure-to-train” ADA claims are cognizable under the Monell framework, Plaintiff does
not allege such facts in the present SAC. See Giambalvo v. City of Tempe, No. CV-22-01856-PHX-SMB
(JFM), 2024 WL 6084914, at *7 n.4 (D. Ariz. Aug. 1, 2024) (collecting cases), aff’d in part, rev’d in part
and remanded on other grounds, No. 24-4860, 2025 WL 2048999 (9th Cir. July 22, 2025).
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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. Possible Dismissal
If Plaintiff fails to timely comply with court orders, 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), as amended (May 22, 1992) (a district court may dismiss an action
for failure to comply with any order of the Court).
V. CONCLUSION
Petitioner has been afforded the opportunity to amend his First Amended
Complaint, and he has failed to remedy many of the defects identified in the prior Order.
(See Doc. 8.) Consequently, undersigned will recommend the Second Amended
Complaint, aside from the equal protection class-of-one claim in Count Two as to
Defendants Durazo, Zimmerman, Russom, Meza, and Cortez, be dismissed. Undersigned
defers to the District Judge as to whether to dismiss with prejudice, or to dismiss without
prejudice and with leave to amend.5
//
//
5 Leave to amend may be afforded under Rule 15 if justice so requires. See Fed. R. Civ. P. 15(a); see
also Cook, Perkiss & Liehe, Inc. v. N. California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)
(“[A] district court should grant leave to amend even if no request to amend the pleading was made, unless
it determines that the pleading could not possibly be cured by the allegation of other facts.” (applying in a
12(b)(6) context)) (citations omitted). The Court has already permitted Plaintiff to amend twice, and the
District Judge may determine further amendment would be futile. Undersigned defers to the District Judge
as to whether Plaintiff will be afforded another opportunity to amend.
If the Court dismisses, undersigned would recommend the Court include in its Order a warning that
dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-
strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under
28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
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IT IS THEREFORE RECOMMENDED that the District Judge order the
following:
1) Count One, the ADA claim in Count Two, and the official capacity claims be
dismissed.
2) Defendants Wilmont, Tizcareno, Grimaldi, Sanchez, Kellner, and Mange be
dismissed.
3) Defendants Durazo, Zimmerman, Russom, Meza, and Cortez to answer the equal
protection class-of-one claim in Count Two of the Second Amended Complaint.
4) The Clerk of Court must send Plaintiff a service packet including the Second
Amended Complaint (Doc. 10), the Court’s Order, and both summons and request
for waiver forms for Defendants Durazo, Zimmerman, Russom, Meza, and Cortez.
5) Plaintiff must complete and return the service packet to the Clerk of Court within
21 days of the date of filing of the Court’s Order. The United States Marshal will
not provide service of process if Plaintiff fails to comply with the Order.
6) If Plaintiff does not either obtain a waiver of service of the summons or complete
service of the Summons and Second Amended Complaint on a Defendant within 90
days of the filing of the Second Amended Complaint or within 60 days of the filing
of the Court’s Order, whichever is later, the action may be dismissed as to each
Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii).
7) The United States Marshal must retain the Summons, a copy of the Second
Amended Complaint, and a copy of the Court’s Order for future use.
8) The United States Marshal must notify Defendants of the commencement of this
action and request waiver of service of the summons pursuant to Rule 4(d) of the
Federal Rules of Civil Procedure. The notice to Defendants must include a copy of
the Court’s Order.
9) A Defendant who agrees to waive service of the Summons and Second Amended
Complaint must return the signed waiver forms to the United States Marshal, not
the Plaintiff, within 30 days of the date of the notice and request for waiver of
service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being
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charged the cost of personal service.
10) The Marshal must immediately file signed waivers of service of the summons. If a
waiver of service of summons is returned as undeliverable or is not returned by a
Defendant within 30 days from the date the request for waiver was sent by the
Marshal, the Marshal must:
a) personally serve copies of the Summons, Second Amended Complaint, and
the Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of
Civil Procedure; and
b) within 10 days after personal service is effected, file the return of service for
Defendant, along with evidence of the attempt to secure a waiver of service
of the summons and of the costs subsequently incurred in effecting service
upon Defendant. The costs of service must be enumerated on the return of
service form (USM-285) and must include the costs incurred by the Marshal
for photocopying additional copies of the Summons, Second Amended
Complaint, or this Order and for preparing new process receipt and return
forms (USM-285), if required. Costs of service will be taxed against the
personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of
Civil Procedure, unless otherwise ordered by the Court.
EFFECT OF RECOMMENDATION
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. The
parties shall have 14 days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a
response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
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1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 24th day of April, 2026.
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