Mallory #360637 v. Touchet

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KM
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Michael Juvon Mallory,
Plaintiff,
v.
Unknown Touchet, et al.,
Defendants.
No. CV-25-03039-PHX-JAT (ASB)
ORDER
Self-represented Plaintiff Michael Juvon Mallory, who is confined in the Red Rock
Correctional Center and proceeding in forma pauperis, filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983. The Court dismissed the Complaint with leave to amend.
Pending before the Court are Plaintiff’s First Amended Complaint (Doc. 7) and two
Motions to “Amend Mailing List” (Docs. 8 and 10). The Court will dismiss the First
Amended Complaint and this action and deny as moot the Motions.
I. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or an officer or an employee of a governmental entity. 28
U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff
has raised claims that are legally frivolous or malicious, fail to state a claim upon which
relief may be granted, or seek monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b)(1)–(2).
. . . .
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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) (emphasis added). While Rule 8 does
not demand detailed factual allegations, “it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for
relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual
allegations may be consistent with a constitutional claim, a court must assess whether there
are other “more likely explanations” for a defendant’s conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts
must “continue to construe [self-represented litigant’s] filings liberally.” Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a self-represented prisoner]
‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id.
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
II. First Amended Complaint
In his three-count First Amended Complaint, Plaintiff sues Maricopa County Sheriff
Gerard Sheridan, Sergeant Touchet, Lieutenant Mikel, and Sergeant Houston. Plaintiff
seeks monetary damages.
In Count One, Plaintiff alleges Defendant Touchet used excessive force on him.
Plaintiff claims that on July 31, 2025, Defendant Touchet pushed Plaintiff and when
Plaintiff asked why, Touchet just kept “talking about what he want[ed] and not what just
happened.” Plaintiff claims this was a “lack of training.”
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In Count Two, Plaintiff alleges that on July 28, 2025, he was “let out 15 min[utes]
late” for a meeting with his lawyer. Plaintiff asked Defendant Mikel for the badge numbers
of the officers who did not let him out for the visit on time, but Defendant Mikel said he
would not give Plaintiff their badge numbers. Plaintiff asserts this is lack of training by an
officer.
In Count Three, Plaintiff claims Defendant Mikel retaliated against him. Plaintiff
asserts Defendant Mikel told Plaintiff he would not provide Plaintiff the badge numbers of
the officers who did not timely bring Plaintiff to his attorney visit and also told Plaintiff
that Plaintiff was “not gon[ing] to win this case.”
III. Failure to State a Claim
To state a § 1983 claim, a plaintiff must show that (1) acts by the defendants
(2) under color of state law (3) deprived him of federal rights, privileges or immunities and
(4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir.
2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278,
1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury
as a result of the conduct of a particular defendant and he must allege an affirmative link
between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-
72, 377 (1976).
A. Excessive Force
The Fourteenth Amendment’s Due Process Clause applies to the use of excessive
force against pretrial detainees that amounts to punishment. Kingsley v. Hendrickson, 576
U.S. 389, 397 (2015); Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002).
Force is excessive if the officers’ use of force was “objectively unreasonable” in light of
the facts and circumstances confronting them, without regard to their mental state.
Kingsley, 576 U.S. at 396; see also Graham v. Connor, 490 U.S. 386, 397 (1989) (applying
an objectively unreasonable standard to a Fourth Amendment excessive force claim arising
during an investigatory stop). In determining whether the use of force was reasonable, the
Court should consider factors including, but not limited to
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the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting.
Kingsley, 576 U.S. at 397.
Because officers are often forced to make split-second decisions in rapidly evolving
situations, the reasonableness of a particular use of force must be made “from the
perspective of a reasonable officer on the scene, including what the officer knew at the
time, not with the 20/20 vision of hindsight.” Id. (citing Graham, 490 U.S. at 396).
Further, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of
a judge’s chambers,” violates the Constitution. Graham, 490 U.S. at 396 (citation omitted).
Plaintiff alleges Defendant Touchet pushed him. Plaintiff does not allege he
suffered physical injuries or otherwise allege facts to support that Touchet’s use of force
rose to the level of a constitutional violation. Plaintiff has therefore failed to state an
excessive force claim in Count One.
B. Counts Two and Three
Plaintiff’s allegations that Defendant Mikel refused to give him the badge numbers
of the officers responsible for the delayed attorney fail to demonstrate Defendant Mikel
violated Plaintiff’s constitutional rights. Plaintiff does not allege Defendant Mikel was
involved in the delayed visit, nor does he claim he was unable to meet with his attorney or
that he suffered some other harm.
To the extent Plaintiff intends to claim Defendant Mikel impeded the grievance
process, he fails to state a claim. While prisoners have a First Amendment right to file
prison grievances, Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005), “[t]here is no
legitimate claim of entitlement to a grievance procedure,” Mann v. Adams, 855 F.2d 639,
640 (9th Cir. 1988), and the failure to follow grievance procedures does not give rise to a
due process claim. See Flournoy v. Fairman, 897 F. Supp. 350, 354 (N.D. Ill. 1995) (jail
grievance procedures did not create a substantive right enforceable under § 1983); Spencer
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v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance system
procedures do not deprive inmates of constitutional rights). “[N]o constitutional right was
violated by the defendants’ failure, if any, to process all of the grievances [plaintiff]
submitted for consideration.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). In
addition, “[t]he right to petition the government for redress of grievances . . . does not
guarantee a favorable response, or indeed any response, from state officials. Moreover, the
First Amendment’s right to redress of grievances is satisfied by the availability of a judicial
remedy.” Baltoski v. Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003); see also
Ashann-Ra v. Virginia, 112 F. Supp. 2d 559, 569 (W.D. Va. 2000) (failure to comply with
state’s grievance procedure is not actionable under § 1983 and does not compromise an
inmate’s right of access to the courts). Accordingly, these allegations fail to state a claim.
With respect to Plaintiff’s assertion that Defendant Mikel retaliated against him,
Plaintiff also fails to state a claim. A viable claim of First Amendment retaliation contains
five basic elements: (1) an assertion that a state actor took some adverse action against an
inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled
the inmate’s exercise of his First Amendment rights (or that the inmate suffered more than
minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes
v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265,
267 (9th Cir. 1997) (retaliation claim requires an inmate to show (1) that the prison official
acted in retaliation for the exercise of a constitutionally protected right, and (2) that the
action “advanced no legitimate penological interest”). The plaintiff has the burden of
demonstrating that his exercise of his First Amendment rights was a substantial or
motivating factor behind the defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314
(9th Cir. 1989).
Plaintiff alleges only that Defendant Mikel told Plaintiff he was not going to win his
lawsuit. This is insufficient to show Defendant Mikel took an adverse action against
Plaintiff that chilled Plaintiff’s exercise of his First Amendment rights or that Plaintiff
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suffered more than minimal harm. Accordingly, Plaintiff fails to state a retaliation claim
against Defendant Mikel.
The Court will dismiss Counts Two and Three for failure to state a claim.
IV. Dismissal Without Leave to Amend
Because Plaintiff has failed to state a claim in his First Amended Complaint, the
Court will dismiss his First Amended Complaint. Federal Rule of Civil Procedure 15(a)
provides that leave to amend should be freely granted “when justice so requires.” Fed. R.
Civ. P. 15(a). “The court considers five factors in assessing the propriety of leave to
amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment,
and whether the plaintiff has previously amended the complaint.” United States v.
Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (citing Johnson v. Buckley, 356
F.3d 1067, 1077 (9th Cir. 2004)). The Ninth Circuit in Corinthian Colleges explained that
leave to amend is not warranted unless the deficiencies “can be cured with additional
allegations that are ‘consistent with the challenged pleading’ and that do not contradict the
allegations in the original complaint,” 655 F.3d at 955 (quoting Reddy v. Litton Indus., Inc.,
912 F.2d 291, 296–97 (9th Cir. 1990)). In addition, “[l]eave to amend may be denied when
a plaintiff has demonstrated a ‘repeated failure to cure deficiencies by amendments
previously allowed.’” United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1183
(9th Cir. 2016) (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003)) (emphasis added); Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir.
2004) (a district court’s discretion to deny leave to amend is “particularly broad” where the
plaintiff has previously amended his complaint) (quoting Chodos v. W. Publ’g Co., 292
F.3d 992, 1003 (9th Cir. 2002)).
The Court notified Plaintiff of the deficiencies of the claims he raised in the original
Complaint. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (noting that a pro se
plaintiff is generally entitled to notice of the deficiencies of his claims and an opportunity
to amend). Plaintiff has had an opportunity to amend his claims but has alleged the same
facts as in his original Complaint. The Court finds that further opportunities to amend
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would be futile. Therefore, the Court, in its discretion, will dismiss Plaintiff’s First
Amended Complaint without leave to amend. The Court will deny as moot the pending
Motions.
IT IS ORDERED:
(1) Plaintiff’s Motions to Amend Mailing List (Docs. 8 and 10) are denied.
(2) The First Amended Complaint (Doc. 7) is dismissed for failure to state a
claim pursuant to 28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment
accordingly.
(3) The Clerk of Court must make an entry on the docket stating that the
dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
(4) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3)
and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal
of this decision would be taken in good faith and finds Plaintiff may appeal in forma
pauperis.
Dated this 14th day of April, 2026.
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