Parks v. Allan et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James Lavon Parks, III,
Plaintiff,
v.
Unknown Party, et al.,
Defendants.
No. CV-26-02388-PHX-JAT (CDB)
ORDER
Pending 	before 	the 	Court 	is 	the 	Report 	and 	Recommendation 	(“R&R”) 	of
Magistrate Judge Camille D. Bibles, (Doc. 23), recommending the denial of Plaintiff’s
motion for leave to amend his complaint, (Doc. 20). Plaintiff timely objected to the R&R,
(Doc. 26), and Defendants did not respond. The Court now rules.
I. 	BACKGROUND
On April 6, 2026, Plaintiff James Lavon Parks III filed a pro se civil rights complaint
pursuant to U.S.C. § 1983 against 13 defendants. (Doc. 1). Count I alleges an Eighth
Amendment conditions of confinement claim due to the Defendants’ failure to remedy the
“unsanitary and dangerous living conditions” in Plaintiff’s jail cell. (Doc. 1 at 5). Count II
alleges an Eighth and Fourteenth Amendments medical claim. (Id. at 9). After screening
the complaint, the Court dismissed Count I and dismissed Defendants Allen, Parker, R.
Perkins, Frye, Loni, Pablo, Nofel, Wilson, Male Provider and Detention Officer Mr.
Perkins but allowed Plaintiff’s Eighth and Fourteenth Amendments claim (Count II)
against Defendants Heather and Ronay to proceed. (Doc. 5 at 14).
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In August 2026, Plaintiff filed a motion to amend his complaint, attaching a copy of
his initial complaint and a copy of his proposed amended complaint to the motion. (Doc.
20). The R&R found that Plaintiff sought to restate Count I of his initial complaint and to
add more defendants to Count I, but Plaintiff failed to allege adequate facts to state a
cognizable claim for relief. (Doc. 23 at 23). As for Count II, the R&R likewise found
Plaintiff sought to add more defendants and failed to allege adequate facts against each
defendant to state a cognizable claim for relief. (Id.) Based on these findings, the R&R
recommends that the Court deny Plaintiff’s motion to amend his complaint. (Id.)
II. 	STANDARD OF REVIEW
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district judge
must review the findings and recommendations of the Magistrate Judge de novo only if
there is an objection from one or both parties, but not otherwise. United States v. Reyna-
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Klamath Siskiyou Wildlands Ctr. v.
U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must
review de novo the portions of the [Magistrate Judge’s] recommendations to which the
parties object”). District courts are not obligated to perform any review of any issue to
which no party has objected. Thomas v. Arn, 474 U.S. 140, 149 (1985).
III. 	DISCUSSION
Plaintiff raised the following objections to the R&R only regarding his Fourteenth
Amendment conditions of confinement claim: (1) the conditions in his jail cell were not
reasonably addressed and the Defendant’s actions amounts to reckless disregard for
Plaintiff’s physical injuries, (2) Plaintiff sufficiently alleged facts showing knowledge of
the conditions, (3) Plaintiff sufficiently alleged facts regarding the seriousness of the risk
or actual injury he experienced, (4) Plaintiff’s allegations against Marquez should be
considered or Plaintiff should be allowed to correct his pleadings, and (5) Plaintiff should
be given leave to cure any deficiencies in his proposed amended complaint. (Doc. 26 at 2–
8).
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A. Legal Standard
i. 	Fourteenth Amendment Claim for Unconstitutional Conditions of
Confinement
A pretrial detainee has a right under the Due Process Clause of the Fourteenth
Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish,
441 U.S. 520, 535 (1979). And “[p]retrial detainees are also entitled to ‘adequate food,
clothing, shelter, sanitation, medical care, and personal safety.’” Alvarez-Machain v.
United States, 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237,
1246 (9th Cir. 1982)). To state a Fourteenth Amendment claim for unconstitutional
conditions of confinement, a plaintiff must allege (1) the defendant made an intentional
decision with respect to the conditions under which the plaintiff was confined, (2) the
conditions placed the plaintiff at substantial risk of serious harm, (3) the defendant did not
take reasonable available measures to abate that risk, and (4) by failing to take those
measures, the defendant caused plaintiff’s injuries. Gordon v. Cnty. of Orange, 888 F.3d
1118, 1125 (9th Cir. 2018).
B. Plaintiff’s Objections
The Court addresses each of Plaintiff’s objections, to the best it can discern
Plaintiff’s arguments.
i. 	Objection 1–Conditions Were Not Reasonably Addressed
Plaintiff argues the mold conditions in his jail cell were not reasonably addressed
by simply moving Plaintiff to a different cell and “repeatedly clean[ing] [his] toilet.” (Doc.
26 at 2). The R&R found that Plaintiff’s factual statements were insufficient to state a
Fourteenth Amendment conditions of confinement claim. (Doc. 23 at 18). Although
Plaintiff does not specifically indicate which portion of the R&R he is objecting to, the
Court construes this objection to challenge the third element of his conditions of
confinement claim under Count 1.
The third element of a Fourteenth Amendment conditions of confinement claim
requires a plaintiff to allege the defendants failed to take reasonable available measures to
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abate the substantial risk of serious harm to the plaintiff. Castro, 833 F.3d at 1070. “With
respect to the third element, the defendant’s conduct must be objectively unreasonable, a
test that will necessarily ‘turn[] on the facts and circumstance of each particular case.’”
Castro, 833 F.3d 1060, 1071 (9th Cir. 2016) (quoting Kingsley v. Hendrickson, 576 U.S.
389, 397 (2015)). To establish objective unreasonableness, a plaintiff must “prove more
than negligence but less than subjective intent—something akin to reckless disregard.”1
Castro, 833 F.3d at 1071 (quoting Daniels v. Williams, 474 U.S. 327, 330–31 (1986)).
And the Ninth Circuit Court of Appeals has held that “[t]he ‘reckless disregard’
standard is a formidable one.” Fraihat v. U.S. Immigr. & Customs Enf’t, 16 F.4th 613, 636
(9th Cir. 2021) (citing Roman v. Wolf, 977 F.3d 935, 947 (9th Cir. 2020)). To meet the
reckless disregard standard, a plaintiff “must show that the defendant ‘disregard[ed] an
excessive risk to the plaintiff’s health and safety by failing to take ‘reasonable and available
measures’ that could have eliminated that risk.” Id. (quoting Castro, 833 F.3d at 1070–71).
Plaintiff argues that his movement to different cells does not demonstrate that
Defendants 	took 	reasonable 	measures 	to 	“eliminate 	the 	alleged 	substantial 	risk 	to
[Plaintiff’s] health.”2 (Doc. 26 at 2, 6). But Plaintiff has not alleged that any defendant
made the intentional decision to move him into cells that had the alleged black mold, nor
has he alleged that any defendants failed to take reasonable available measures to abate
that risk. To the contrary, Plaintiff alleges that he was moved multiple times to
accommodate his complaints of the alleged mold. (Doc. 20 at 50, 55). Plaintiff has not
alleged sufficient facts that Defendants failed to take reasonable measures by moving
Plaintiff to a different cell multiple times. See Fraihat, 16 F.4th at 636 (citation modified)
(noting 	that 	a 	defendant’s 	actions 	are 	objectively 	unreasonable 	if 	the 	defendant
1 In Plaintiff’s fourth objection, he objects to the R&R finding that “at best[,] the named
defendants’ acts were negligent.” (Doc. 23 at 20; Doc. 26 at 4–5). Plaintiff contends the
“repeated complaints, recurring contamination, physical symptoms, breathing problems,
grievances, photographs of the conditions, maintenance being made aware of the problem,
repeated unsuccessful cleaning and continued exposure” amounted to reckless disregard.
(Doc. 26 at 5). Because this objection addresses reckless disregard, it is analyzed in this
section with objection 1.
2 Although this objection is listed separately as objection 5, the Court construes it as
challenging the R&R’s finding that the condition was reasonably addressed and therefore,
the Court analyzes it with objection 1. (Doc. 26 at 5).
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“disregarded an excessive risk to the plaintiff’s health and safety by failing to take
reasonable and available measures that could have eliminated that risk.”).
As to Plaintiff’s objection regarding the unreasonableness of merely repeatedly
cleaning his toilet, Plaintiff likewise fails to allege facts to sufficiently state a claim.
Plaintiff argues the toilet cleaning “did not actually correct the problem,” as the mold
“repeatedly returned after cleaning.” (Doc. 26 at 2). But taking the facts in Plaintiff’s
proposed amended complaint as true, his toilet was cleaned a number of times and was
even replaced. (Doc. 20 at 8, 52, 53, 54). Plaintiff alleges that in addition to having the
toilet cleaned, he was also moved to different cells. (Id. 6, 50). Plaintiff does not allege that
any Defendant had the authority to ensure the jail cells where Plaintiff was moved had no
black mold. See Rayford v. Sherman, 1:19-cv-002250AWI0GSA-PC, 2022 WL 1793162,
at * 18 (E.D. Ca. 2022) (finding the defendants did not fail to take reasonable measures
when plaintiff was moved from one flooded cell to another flooded cell because the
defendants had no control over funding or replacing the roof to remedy the flooding).
Therefore, the Court concludes that these attempts to clean the toilet and move
Plaintiff amounted to Defendants taking “reasonable available measures to abate th[e] risk”
of Plaintiff “suffering serious harm.” Gordon, 888 F.3d at 1125. Accordingly, accepting
Plaintiff’s facts as true, he fails to state a claim and amendment would be futile. See Bonin
v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (futility alone justifies denying leave to
amend).
ii. 	Objection 2–Knowledge of the Condition
Plaintiff argues he alleged sufficient facts showing Defendants actual knowledge of
the condition. (Doc. 26 at 2). Specifically, he argues that Perkins personally took
photographs of the black mold identified by Plaintiff and Sergeant 2500 told Plaintiff that
maintenance was aware of the mold issue. (Id. at 3). To the extent Plaintiff is objecting to
the R&R’s finding that “the claims alleged against the named defendants do not provide a
description of the knowledge or actions of any particular individual from which it can be
inferred that the named individual made an intentional decision to disregard Plaintiff’s
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complaints regarding the cleanliness of Plaintiff’s toilet,” the Court disagrees. (Doc. 23 at
18–19).
Plaintiff misreads the R&R. The R&R did not find that Plaintiff failed to allege
sufficient facts showing Perkins and Sergeant 2500 had actual knowledge of the condition.
Instead, the R&R found that Plaintiff’s “allegations [were] sufficient to establish that the
named defendants were aware of the problem,” but “they [were] insufficient to establish
that the [D]efendants themselves either caused the problem or failed to act to resolve the
problem.” (Doc. 23 at 19). Because Plaintiff does not object to the finding that his
allegations were insufficient to establish that defendants caused the mold or failed to act to
resolve the mold, the Court does not address this part of the R&R’s finding. See Thomas,
474 U.S. at 149 (noting that no review is required on issues to which no party objects).
iii. 	Objection 3–Serious Risk or Actual Injury Suffered by Plaintiff
Plaintiff objects to the R&R finding that he failed to sufficiently allege a serious risk
or actual injury because he alleged he suffered from physical symptoms such as breathing
problems, worsening asthma, skin breakouts, rashes, runny eyes and nose, headaches, and
gastrointestinal problems. (Doc. 26 at 4). To the extent Plaintiff’s objection is challenging
the R&R’s finding as to each Defendant he lists under Count I, the Court disagrees.
Plaintiff again misreads the R&R. The R&R did not find that Plaintiff failed to
allege a serious risk or actual injury. Rather, it found he did not sufficiently allege an
“actual injury arising from the asserted deprivation of his right to be free of cruel and
unusual 	punishment 	by 	being 	subjected 	to 	the 	allegedly 	unsanitary 	conditions 	of
confinement.” (Doc. 23 at 19). The fourth element of a Fourteenth Amendment conditions
of confinement claim requires a plaintiff to allege a defendant failed to take reasonable
measures, which caused the plaintiff’s injuries. Castro, 833 F.3d at 1070.
In Plaintiff’s proposed amended complaint, he alleges R. Perkins never came to
inspect the problem and deliberately chose not to do anything about the black mold. (Doc.
20 at 51). R. Perkins ruled the substance was mildew, but he “never took sampling
[pro]cedures.” (Id.). But Plaintiff does not allege that R. Perkins, who appears to be a
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member of the prison maintenance team (see Doc. 20 at 5), had the authority to enter
Plaintiff’s cell. This allegation is insufficient to allege that R. Perkins failed to take
reasonable measures and this failure caused Plaintiff’s injuries. Castro, 833 F.3d at 1071
(citation modified).
Plaintiff also alleges that West lied about Plaintiff seeing nurse 2 days before. (Id.).
“The pattern practice of continuous” disregarding of Plaintiff’s health caused [P]laintiff to
suffer inflicting pain “due to the poorly customs [sic] of practice.” (Id.) And the black mold
and sewage smell makes him throw up and have stomach [crips].” (Id. at 52). To the extent
Plaintiff is alleging a delay in medical care, without more, this is “insufficient to state a
claim against prison officials for deliberate indifference.” Shapley v. Nev. Bd. Of State
Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The action must rise to a level of
“unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 105 (1976).
Plaintiff alleges that Lieutenant Parker “ha[d] the influence to move [him] to [a]
safe cell.” (Id. at 54). He also alleges that Lieutenant Parker knew about the mold and
“show[ed] deliberately [sic] indifferen[ce] of the substantial risk of harm that the ‘black
mold’/mildew is causing [Plaintiff]” because no one came to test for black mold. (Id. at
53–54). This, however, is nothing more than an attempt at “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). And although pro se pleadings are liberally construed, Haines
v. Kerner, 404 U.S. 519, 520–21 (1972), conclusory and vague allegations will not support
a cause of action, Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.
1982). Therefore, amendment would be futile.
Plaintiff also alleges the following:
 	Plaintiff has “real bad asthma [and] [his] lungs can’t handle as [sic] as it
damage[s] [his] skin.” (Id.) Sergeant 2500 did not take reasonable available
measures. (Id.)
 	“I stated I suffered of [sic] inflicting pain. [Mr.] Frye continue[s] to lie and show
misconduct.” (Id. at 53).
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 	McKey “made false statements” regarding whether Plaintiff saw a nurse. (Id.)3
These allegations likewise do not sufficiently allege that these Defendants’ actions
amounted to the failure to take reasonable measures that caused Plaintiff’s injuries.
iv. 	Objection 4–Allegations Concerning Marquez
Plaintiff objects to footnote 1 in the R&R, which recommends disregarding
allegations made in Plaintiff’s “proposal” due to Plaintiff’s failure to comply with LRCiv.
15.1 (Doc. 23 at 15 n.1). Specifically, Plaintiff requests the Court consider the allegation
that Marquez made him clean the toilet after seeing Plaintiff’s physical discomfort. (Doc.
26 at 7). LRCiv 15.1 requires a party who moves for leave to amend a pleading to attach a
copy of the proposed amended pleading and indicate “in what respect it differs from which
it amends, by bracketing or striking through the text to be deleted and underlining the text
to be added.”
Here, Plaintiff did not indicate in the proposed amended complaint the changes he
made from the initial complaint, and he included allegations in his “proposal” that were
not included in the text of the proposed amended complaint. (Doc. 20 at 5–9 (proposal),
50–61 (amended complaint)). The Court previously instructed Plaintiff that if he wanted to
amend his complaint to address its shortcomings, he would need to comply with LRCiv.
15.1. (Doc. 5 at 14). Because Plaintiff failed to comply with LRCiv. 15.1, the Court
declines to consider the allegations listed against Marquez in Plaintiff’s proposal. See
Hollingsworth v. Perry, 558 U.S. 183, 191 (2010) (citation omitted) (noting that a district
court’s local rules have “the force of law”).
i. 	Objection 5–Leave to Amend
Plaintiff’s final “objection” is a request for leave of the Court to file another
amended complaint to cure the deficiencies in his proposed amended complaint. (Doc. 26
at 7–8). An objection to R&R is not the appropriate vehicle for Plaintiff to seek leave to
amend. See Skinner v. Tel-Drug Inc., No. CV-16-00236-TUC-JGZ (BGM), 2017 WL
1075029, at *2 (D. Ariz. 2017) (finding it inappropriate to seek leave to amend in an
3 The Court also notes that Plaintiff lists Marquez in the left margin of the proposed
amended complaint but does not develop any allegations against him. (Doc. 20 at 51).
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objection to an R&R). Accordingly, the Court declines to consider Plaintiff’s request, but
this does not preclude Plaintiff from filing another motion to amend.
IV. 	CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s “Objections to Report and Recommendation”
(Doc. 26) are OVERRULED.
IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate
Judge Camille D. Bibles (Doc. 23) is ACCEPTED and ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Amended
Complaint (Doc. 20) is DENIED.
Dated this 14th day of October, 2026.
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