Gemza v. Duarte et al

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WO
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)
ORDER
This matter was referred to Magistrate Judge Alison S. Bachus. (Doc. 6). On April
24, 2026, the Magistrate Judge filed a Report and Recommendation with this Court.
(Doc. 16). The Magistrate Judge recommends that the Court dismiss all claims in the
Second Amended Complaint (“SAC”) except for the equal protection class-of-one claim
in Count Two as to Defendants Durazo, Zimmerman, Russom, Meza, and Cortez. (Id. at
17). Plaintiff filed objections (Doc. 23) and Defendants filed a reply (Doc. 24) to
Plaintiff’s objections.
STANDARD OF REVIEW
The Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the
service of a copy of the Magistrate’s recommendation within which to file specific
written objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to
object to a Magistrate Judge’s recommendation relieves the Court of conducting de novo
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review of the Magistrate Judge’s factual findings and waives all objections to those
findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to
object to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the
propriety of finding waiver of an issue on appeal.” Id.
DISCUSSION
Having reviewed the Report and Recommendation of the Magistrate Judge, and
the objections having been made by the parties thereto, the Court hereby incorporates and
adopts the Magistrate Judge’s Report and Recommendation.1
A. Eighth Amendment Claims
The Court agrees with the Magistrate Judge that Plaintiff does not state a claim
regarding his Eight Amendment Claim in Count One of his SAC. But upon review of
Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation, the Court
will allow Plaintiff to amend his complaint on his Eighth Amendment claim because it is
likely that Plaintiff will state a claim after amendment. (Doc. 23).
First, the alleged constitutional deprivation must be, objectively, “sufficiently
serious”; the official’s act or omission must result in the denial of “the minimal civilized
measure of life’s necessities.” Id. at 834 (citations omitted). “The circumstances, nature,
and duration of a deprivation of [ ] necessities must be considered in determining whether
a constitutional violation has occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
2000). When considering the conditions of confinement, the court should consider how
long to which the prisoner was subjected to the condition. See Hutto v. Finney, 437 U.S.
678, 686-87 (1978). “[S]ubjection of a prisoner to lack of sanitation that is severe or
prolonged 	can 	constitute 	an 	infliction 	of 	pain 	within 	the 	meaning 	of 	the 	Eighth
Amendment.” Anderson v. County of Kern, 45 F.3d 1310, 1314, as amended, 75 F.3d
448 (9th Cir. 1995).
Plaintiff 	contends 	in 	his 	objections 	to 	the 	Magistrate 	Judge’s 	Report 	and
Recommendation that he was in “Medical Segregation without clean drinking water for
1 	The 	factual 	and 	procedural 	history 	is 	in 	the 	Magistrate 	Judge’s 	Report 	and
Recommendation. (Doc. 16).
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12 days” and the conditions were unsanitary due to “raw sewage floodings.” (Doc. 23 at
3-4). The Ninth Circuit has held that substantial deprivations of shelter, food, drinking
water, or sanitation for four days, for example, are sufficiently serious to satisfy the
objective component of an Eighth Amendment claim. See, e.g., Hearns v. Terhune, 413
F.3d 1036, 1041–42 (9th Cir. 2005) (allegations of serious health hazards in disciplinary
segregation yard for a period of nine months, including toilets that did not work, sinks
that were rusted and stagnant pools of water infested with insects, and a lack of cold
water even though the temperature in the prison yard exceeded 100 degrees, enough to
state a claim of unconstitutional prison conditions); see also Walker v. Schult, 717 F.3d
119, 127 (2d Cir. 2013) (citing, inter alia, LaReau v. MacDougall, 473 F.2d 974, 978 (2d
Cir. 1972) (“Causing a man to live, eat and perhaps sleep in close confines with his own
human waste is too debasing and degrading to be permitted.”); see also Gaston v.
Coughlin, 249 F.3d 156, 165-66 (2d. Cir. 2001) (inmate stated an Eighth Amendment
claim where the area in front of his cell “was filled with human feces, urine, and sewage
water” for several consecutive days). The Court agrees with Plaintiff that the alleged
conditions, lack of clean drinking water and sleeping the ground with sewage floodings,
are sufficient to satisfy the objective component of an Eighth Amendment claim.
Second, the prison official must have a “sufficiently culpable state of mind,” i.e.,
he must act with deliberate indifference to inmate health or safety. Id. (citations omitted).
In defining “deliberate indifference” in this context, the Supreme Court has imposed a
subjective test: “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 (emphasis added).
In Plaintiff’s objections, he contends that it took prison officials 18 days to
respond to his written complaint that he did not have clean drinking water for 12 days.
(Doc. 23 at 4). Plaintiff also attached various exhibits to his objections demonstrating the
length of time it took Defendants to address his grievances. But Plaintiff does not include
this information in his SAC to support his allegations that Defendants were deliberately
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indifferent. Thus, Plaintiff does not state a claim for an Eighth Amendment violation in
his SAC. But the Court will allow Plaintiff to amend his complaint to include the
information about how long it took Defendants to respond to his grievances about his
conditions of confinement since it is likely that Plaintiff will then state a claim. See
Hearns, 413 F.3d at 1041–42.
B. ADA Claims
Plaintiff contends in his objections that it is not a reasonable accommodation for
his seizure disorder for his mattress to be on the floor “drown[ed] in sewage.” (Doc. 23 at
3). But Plaintiff still does not demonstrate how Defendants were deliberately indifferent
in addressing his grievance regarding a mattress on the floor as an accommodation for a
seizure 	disorder. 	In 	fact, 	Plaintiff 	still 	demonstrates 	that 	his 	grievances 	with 	his
accommodations were responded to and addressed. Accordingly, the Court agrees with
the 	Magistrate 	Judge 	and 	will 	dismiss 	count 	two 	of 	Plaintiff’s 	Second 	Amended
Complaint. (Doc. 10).
C. Official Capacity Claims
Plaintiff objects to the dismissal of Defendants Wilmont, Tizcareno, Grimaldi,
Sanchez, and Kellner. (Doc. 23). But as stated above, Plaintiff still does not state
cognizable claims for relief under the Eighth Amendment, ADA, and Rehabilitation Act
regarding those Defendants. Accordingly, the Court will adopt the Magistrate Judge’s
recommendation and will dismiss those Defendants.
D. Equal Protection Claims
The Court agrees with the Magistrate Judge that Plaintiff states a claim for relief
regarding his claim that there is no rational basis for a difference in treatment as to why
he received disciplinary sanctions. The Court also agrees with the Magistrate Judge that
Plaintiff does not state an equal protection claim regarding the seizure protocol, and
Plaintiff merely reiterates the same allegations in his objections. (See Doc. 23).
E. Leave to File Third Amended Complaint
Leave to amend may be afforded under Rule 15 if justice so requires. See Fed. R.
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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). For the preceding reasons, the Court will grant Plaintiff leave to
amend to file a Third Amended Complaint.
CONCLUSION
Accordingly, for the reasons set forth,
IT IS ORDERED adopting the Report and Recommendation of the Magistrate
Judge. (Doc. 16).
IT IS FURTHER ORDERED dismissing without prejudice Plaintiff’s Eighth
Amendment claim in Count One, the ADA claim in Count Two, and the official capacity
claims in the Second Amended Complaint with leave to amend. (Doc. 10).
IT 	IS 	FURTHER 	ORDERED 	dismissing 	Defendants 	Wilmont, 	Tizcareno,
Grimaldi, Sanchez, and Kellner without prejudice.
IT 	IS 	FURTHER 	ORDERED 	that 	Plaintiff 	may 	file 	a 	Third 	Amended
Complaint on or before July 6, 2026.
IT IS FURTHER ORDERED that if Plaintiff attempts to amend to address the
shortcomings identified in this Order, the amended complaint must be filed on the court-
approved form and retyped or rewritten in its entirety (including those claims and
Defendants that were not dismissed), and Plaintiff must comply with Rule 15 of the
Federal Rules of Civil Procedure and Rule 15.1 of the Local Rules of Civil Procedure.
IT IS FURTHER ORDERED that Defendants Durazo, Russom, Meza, and
Cortez answer the equal protection class-of-one-claim in Count Two of the Second
Amended Complaint.
IT IS FURTHER ORDERED that 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,
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Russom, Meza, and Cortez.
IT IS FURTHER ORDERED that Plaintiff must complete and return the service
packet to the Clerk of Court on or before July 6, 2026. The United States Marshal will
not provide service of process if Plaintiff fails to comply with the Order.
IT IS FURTHER ORDERED that 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).
IT IS FURTHER ORDERFED that 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.
IT IS FURTHER ORDERED 	that 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.
IT IS FURTHER ORDERED that 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 charged the cost of personal service.
IT IS FURTHER ORDERED that 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
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Procedure; and
b) within 10 days after personal service is affected, 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.
Dated this 12th day of June, 2026.
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