Hunter #038313 v. Rand et al

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JL
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James R. Hunter,
Plaintiff,
v.
Lucy M. Rand, et al.,
Defendants.
No. CV-25-04418-PHX-JAT (CDB)
ORDER
Plaintiff James R. Hunter, who is confined in the Arizona State Prison Complex-
Yuma, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and
an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss this action.
I. Application to Proceed In Forma Pauperis and Filing Fee
The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28
U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C.
§ 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing
fee will be collected monthly in payments of 20% of the previous month’s income credited
to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C.
§ 1915(b)(2). The Court will enter a separate Order requiring the appropriate government
agency to collect and forward the fees according to the statutory formula.
II. 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
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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).
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 pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010). A “complaint [filed by a pro se 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)).
If the Court determines that a pleading could be cured by the allegation of other
facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal
of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
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Plaintiff’s Complaint will be dismissed for failure to state a claim, without leave to amend,
because the defects cannot be corrected to state a claim.
III. Complaint
In his Complaint, Plaintiff sues Assistant Arizona Attorneys General Lucy Rand and
Paul Edward Carter; Supervisors Luci Danielle Davis and Laura Louise Roubicek; Arizona
Department of Corrections, Rehabilitation and Reentry (ADCRR) General Counsel Ashley
Otto; and Correctional Officer IV Alan Cuen. Plaintiff brings claims regarding
Defendants’ roles in two of Plaintiff’s prior civil rights cases in this Court: Hunter v.
Pulicicchio, CV-18-00351-TUC-RCC (D. Ariz. 2018), and Hunter v. Shinn, CV-21-
01228-PHX-SRB (D. Ariz. 2021). Plaintiff seeks monetary relief.
A. Background
To lend context to Plaintiff’s allegations, the Court briefly describes the litigation
in Hunter v. Pulicicchio and Hunter v. Shinn.
In Hunter v. Pulicicchio, Plaintiff asserted a First Amendment retaliation claim
against Deputy Warden Stemple. (See Doc. 76 in CV-18-00351.) Assistant Attorney
General Carter represented Deputy Warden Stemple. (Id.) Stemple moved for summary
judgment based on failure to exhaust administrative remedies and on the merits of
Plaintiff’s claim. (Id.) The Court granted Stemple’s Motion for Summary Judgment for
failure to exhaust administrative remedies to the extent Plaintiff’s First Amendment
retaliation claim was based on: Stemple’s alleged failure to process Plaintiff’s grievances,
Plaintiff’s transfer to another housing unit, the destruction of Plaintiff’s property, and
Plaintiff’s lockdown upon return to Stemple’s housing unit. (Id.) The Court granted the
Motion for Summary Judgment on the merits of the remainder of Plaintiff’s First
Amendment retaliation claim. (Id.) Plaintiff appealed, and on January 24, 2023, the Ninth
Circuit Court of Appeals affirmed the Court’s decision. Hunter v. Pulicicchio, No. 21-
16513 (9th Cir. Jan. 24, 2023).
In Hunter v. Shinn, Plaintiff asserted an Eighth Amendment claim against Deputy
Warden Charles Galvan, who passed away while the litigation was pending. (See Doc. 130
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in CV-21-01228.) Assistant Attorney General Ken Sanders initially represented Galvan.
(Id.) On November 30, 2023, Mr. Sanders filed a Motion to Withdraw as Attorney, stating
that he had “made contact” with Mrs. Galvan in October 2023 and received her
authorization to enter an appearance and to file an answer on her behalf, but since then, he
had not been able to contact Mrs. Galvan by phone, e-mail, or mail. (Id.) On December
23, 2023, Assistant Attorney General Lucy Rand filed a Notice of Withdrawal of Mr.
Sanders’s Motion to Withdraw stating that she would represent Mrs. Galvan going forward.
(Id.) That same day, Ms. Rand filed a Notice of Substitution to substitute as counsel for
Mrs. Galvan in place of Mr. Sanders. (Id.)
Galvan’s Estate moved for summary judgment on exhaustion grounds as to
Plaintiff’s Eighth Amendment claim against Deputy Warden Galvan. (Id.) In support of
its Motion, the Estate submitted a Declaration from Grievance Coordinator Alan Cuen and
a copy of the Unit Grievance Coordinator Logs for Stiner Unit for March through August
2020. (Id.) In his Amended Response to the Motion for Summary Judgment, Plaintiff
pointed out that he had submitted a Formal Grievance on August 10, 2020, and although
the Unit Grievance Coordinator Log showed a Formal Grievance had been submitted in
Case No. 20-020231, his name had been blacked out. (Id.)
On April 26, 2024, the Estate filed a Notice of Errata regarding its Statement of
Facts in support of its Motion for Summary Judgment. (Id.) The Notice of Errata informed
the Court there were errors in paragraphs 35 and 40 of the Estate’s Statement of Facts and
the Cuen Declaration. (Id.) The Estate attached a Corrected Statement of Facts, with
exhibits. (Id.) The Unit Grievance Coordinator Log showed Plaintiff’s name for the entry
for Plaintiff’s unprocessed formal grievance for case #20-020231. (Id.)
Plaintiff moved to strike the Notice of Errata because the Estate filed it two months
after it filed its Motion for Summary Judgment and only after Plaintiff filed his Amended
Response to the Motion for Summary Judgment pointing out that he had submitted a
Formal Grievance and that his name was blacked out in the Unit Grievance Coordinator
Log. (Id.) Plaintiff also asked the Court to deny the Estate’s Motion for Summary
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Judgment, claiming Coordinator Cuen intentionally blacked out or redacted Plaintiff’s
name in the Unit Grievance Coordinator Log to mislead the Court into believing Plaintiff
failed to exhaust administrative remedies, and opposing counsel drafted the Cuen
Declaration to further mislead the Court. (Id.)
The Estate filed a Motion to Strike Plaintiff’s Motion to Strike the Notice of Errata.
(Id.) Plaintiff filed a Response to the Motion to Strike, in which he accused opposing
counsel of submitting “false and fraudulent documents” to the Court, manufacturing,
altering, and destroying public records “when dealing with” pro se ADCRR prisoners, and
“down[]play[ing]” alleged crimes counsel and Grievance Coordinator Cuen have
committed. (Id.) The Court declined to consider Plaintiff’s arguments in his Response to
the Motion to Strike and noted that Plaintiff’s personal attacks against opposing counsel
were inflammatory, baseless, and unacceptable. (Id.) The Court warned Plaintiff that it
would not tolerate any further personal attacks on opposing counsel, in that case or any
other case before this Court. (Id.)
With respect to the Motion for Summary Judgment, Plaintiff moved to strike
portions of the Declarations and exhibits the Estate submitted in support of its Motion for
Summary Judgment, including the entirety of the Declaration of Alan Cuen. (Id.) The
Court again observed that Plaintiff had “level[ed] various unsupported accusations against
opposing counsel,” that he had no evidence to support any of his claims, and that his attacks
on opposing counsel were inappropriate. (Id.) The Court further noted that Plaintiff
devoted a considerable portion of his Response to an argument regarding the Estate’s
attorney and those arguments should have been raised nine months earlier in an objection
to former counsel’s Motion for Withdrawal. (Id.) The Court granted the Estate’s Motion
for Summary Judgment on exhaustion grounds. (Id.)
Plaintiff appealed, and the appeal remains pending.
B. Plaintiff’s Allegations
Put briefly, Plaintiff alleges that Defendants Rand, Carter, Davis, and Roubicek
have created an informal policy to deny prisoners access to the courts and their
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constitutional right to petition for redress of grievances. Plaintiff asserts this policy calls
for “the manufacturing of facts that [an] inmate ha[s] not exhausted their remedies,” and to
“accomplish this feat,” Defendants “submit false declarations” and “manufacture”
documents with the assistance of ADCRR employees.
Plaintiff claims that in Hunter v. Shinn, Defendant Cuen “altered and manufactured
documents at the urging of” Defendant Rand and composed and submitted a fraudulent and
perjurious declaration concerning Plaintiff’s failure to exhaust administrative remedies.
Plaintiff alleges that in Hunter v. Pulicicchio, Defendant Carter “manufactured documents
similar” to the documents in Hunter v. Shinn to obtain summary judgment.
Plaintiff asserts that Defendants Davis and Roubicek are “aware of this practice as
supervisor[]s and approve this practice where without their approval this would not be.”
Plaintiff claims Defendant Otto “has condoned this practice to defeat prisoners’ claims for
years” and has “made sure that documents showing employee[s’] misconduct are
concealed.”
IV. Discussion
To prevail in 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. Statute of Limitations
Failure to state a claim includes circumstances where a defense is “complete and
obvious from the face of the pleadings.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th
Cir. 1984), abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989). In
the absence of waiver, the Court may raise the defense of statute of limitations sua sponte.
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See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993); see also Hughes
v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28
U.S.C. § 1915(e)(2)(B)(i) of prisoner’s time-barred complaint).
The applicable statute of limitations in an action under 42 U.S.C. § 1983 is the forum
state’s statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261,
276 (1985). The Arizona statute of limitations for personal injury actions is two years. See
Ariz. Rev. Stat. § 12-542(1).
Accrual of § 1983 claims is governed by federal law. Wallace v. Kato, 549 U.S.
384, 388 (2007). Under federal law, a claim accrues when the plaintiff “knows or has
reason to know of the injury that is the basis of the action.” Pouncil v. Tilton, 704 F.3d
568, 574 (9th Cir. 2012); Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir.
1998). Thus, to be timely, Plaintiff’s claims must have accrued no more than two years
before his Complaint was filed in this case on November 26, 2025.
In Hunter v. Pulicicchio, the Court granted Defendants’ Motion for Summary
Judgment on September 9, 2021. (Doc. 76 in CV-18-00351.) Any claims regarding that
case accrued no later than September 9, 2021, and the statute of limitations expired on
September 9, 2023, more than two years before Plaintiff filed the Complaint in this case.
Any claims with respect to Defendants’ conduct in Hunter v. Pulicicchio are barred by the
statute of limitations.
B. Absolute Immunity
1. Defendants Carter and Rand
If a government attorney is performing acts “intimately associated with the judicial
phase” of the litigation, that attorney is entitled to absolute immunity from damages
liability.” Fry v. Melaragno, 939 F.2d 832, 836-38 (9th Cir. 1991). “The proper forum for
challenges to these allegedly improper actions is in the adversary proceedings, not in a
separate suit for damages.” Id. However, government attorneys “are not immune from
any actions that are wholly unrelated to or outside of their official duties.” Bly–Magee v.
California, 236 F.3d 1014, 1018 (9th Cir. 2001). Plaintiff has not alleged any facts to
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support that Defendants Carter and Rand took any actions that were “wholly unrelated to
or outside of their official duties.” Thus, Defendants Carter and Rand are absolutely
immune from liability for damages for their conduct in Plaintiff’s prior civil rights cases.
2. Defendant Cuen
Defendant Cuen is absolutely immune for his role in Hunter v. Shinn, even if he
made a false statement in a declaration. See Paine v. City of Lompoc, 265 F.3d 975, 980
(9th Cir. 2001) (“Witnesses . . . are accorded absolute immunity from liability for their
testimony in judicial proceedings.”); Burns v. County of King, 883 F.2d 819 (9th Cir. 1989)
(per curiam) (where defendant claimed social worker submitted false information in
affidavit used in his bail revocation hearing, witness immunity applied because defendant
enjoyed the protections of the adversary process, from penalty for alleged perjury and the
opportunity to refute); Ortega v. Ritchie, 2017 WL 747326 (N.D. Cal. Feb. 27, 2017)
(granting summary judgment based on absolute immunity where plaintiff sued defendants
based solely upon the testimony (through sworn declarations) that they submitted in
plaintiff’s earlier lawsuit) (citing Paine, 265 F.3d at 980).
3. Defendants Davis, Roubicek, and Otto
With respect to Defendants Davis, Roubicek, and Otto, Plaintiff fails to allege any
facts to support that they were personally involved in Hunter v. Shinn. Plaintiff asserts that
as supervisors, Defendants Davis and Roubicek are “aware of” the purported practice of
manufacturing facts, submitting false documents, and manufacturing documents, and
Defendant Otto “has condoned this practice to defeat prisoners’ claims for years.”
There is no respondeat superior liability under § 1983, and therefore, a defendant’s
position as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights
does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Hamilton
v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
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Defendants Davis, Roubicek, and Otto cannot be held liable under § 1983 where
there is no underlying constitutional violation. As discussed, Defendants Carter and Rand
are absolutely immune for their conduct in Plaintiff’s prior civil cases, and Plaintiff cannot
state a claim against them for a constitutional violation in connection with their
representation of defendants in Plaintiff’s prior civil cases. Accordingly, Plaintiff fails to
state a claim against Davis, Roubicek, and Otto.
For the foregoing reasons, Plaintiff fails to state a claim in the Complaint, and it will
be dismissed.
V. Dismissal Without Leave to Amend
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)). Although a pro se
plaintiff is generally entitled to notice of the deficiencies of his claims and an opportunity
to amend, see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), 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)). See also
Lopez, 203 F.3d at 1130 (leave to amend should be granted unless a pleading “could not
possibly be cured by the allegation of other facts”).
Plaintiff has asserted claims that are barred by the statute of limitations and has
named Defendants who are absolutely immune for their conduct or Defendants who cannot
otherwise be held liable for any alleged injury. The defects in the Complaint cannot be
cured with additional allegations that are “‘consistent with the challenged pleading’ and
that do not contradict the allegations” in the Complaint. Corinthian Colleges, 655 F.3d at
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955. The Court finds further leave to amend is not warranted. The Court will therefore
dismiss the Complaint without leave to amend.
IT IS ORDERED:
(1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) As required by the accompanying Order to the appropriate government
agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing
fee.
(3) The Complaint (Doc. 1) 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.
(4) 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).
(5) 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 certifies that an appeal would not be taken
in good faith for the reasons stated in the Order and because there is no arguable factual or
legal basis for an appeal.
Dated this 11th day of December, 2025.
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