Williams #124345 v. Shinn et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
DaJuan Torrell Williams,
Plaintiff,
v.
David Shinn, et al.,
Defendants.
No. CV 21-02151 PHX MTL (CDB)
REPORT AND
RECOMMENDATION
TO THE HONORABLE MICHAEL T. LIBURDI:
Before the Court is Plaintiff’s motion for leave to proceed on a proposed second
amended complaint. (ECF No. 119).
Plaintiff, who is in custody and proceeds pro se, filed a civil rights complaint on
December 15, 2021. Plaintiff named as defendants David Shinn, the Director of the
Arizona Department of Corrections; C. Amos, the “Eyman Complex Inmate Trust Account
Business Manager;” and three Doe Defendants named as “ADC Central Office ITA
Business Manager,” “Eyman Complex ITA Staff,” and “Florence Complex ITA Business
Manager.” (ECF No. 1). Plaintiff alleged Defendants violated his civil rights by
withdrawing non-wage funds from his Inmate Trust Account (“ITA”) pursuant to an order
of restitution imposed by the state court in 1999, in the criminal matter giving rise to
Plaintiff’s incarceration. (Id.).
The Complaint was dismissed on March 11, 2022. (ECF No. 11). In the order of
dismissal the Court concluded Plaintiff’s claims were time-barred because “Plaintiff’s
claims accrued in 2009, when [the Arizona Department of Corrections] implemented its
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new policy altering how it collected inmates’ restitution payments from their inmate trust
accounts and allegedly began selectively applying that policy to some, but not all, inmates
…” (ECF No. 11 at 7). Plaintiff appealed the dismiss of his Complaint to the Ninth Circuit
Court of Appeals. (ECF No. 14).
Two years later, on May 10, 2024, the Ninth Circuit vacated the Court’s order
dismissing the case and remanded this matter, finding and concluding:
On December 15, 2021, Williams filed a pro se 42 U.S.C. § 1983
action alleging that ADOC violated the terms of his sentencing and
restitution orders, the Ex Post Facto clause, and the Due Process and Equal
Protection clauses of the Fourteenth Amendment by withdrawing funds
under the new statute. Screening under the Prison Litigation Reform Act,
28 U.S.C. § 1915A(a), the district court dismissed the complaint, finding that
Williams’s claims accrued in 2009 when ADOC first applied its post-
amendment policy to him and thus were barred by the applicable two-year
statute of limitations. …
1. The parties now agree that each deduction from Williams’s account
was a discrete act, see Pouncil v. Tilton, 704 F.3d 568, 579 (9th Cir. 2012),
and that claims concerning deductions made on or after December 15, 2019,
are therefore timely. … we decline ADOC’s invitation to address the merits
of Williams’s claims in the first instance. Rather, we vacate the judgment
below and remand to allow the district court to do so.
2. Williams alleges he was injured by a deduction from his inmate
trust account that occurred in December 2019. It is not clear from the
complaint whether this deduction occurred before, on, or after December 15,
2019, the key date for the applicable two-year limitations period. Because
this case was resolved at screening based on the district court’s conclusion
that Williams’s claims accrued in 2009 and were therefore untimely, that
court did not provide Williams an opportunity to amend his complaint to
specify the date on which the December 2019 deduction occurred, and can
do so on remand. …
(ECF No. 19-1 at 2-3).
On July 29, 2024, the Court instructed Plaintiff to file an amended complaint “to
specify the date on which the December 2019 deduction occurred.” (ECF No. 21 at 2).
Plaintiff filed a First Amended Complaint (ECF No. 23) on September 4, 2024, naming as
Defendants Ryan Thornell, the Director of the Arizona Department of Corrections,
Rehabilitation, and Reentry; Robert Ellis, the “Central Office ITA Manager;” C. Amos, the
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“Eyman Complex ITA Manager;” Cheryl Burtsfield, the “Eyman Complex ITA;” Charles
Ryan, the “former Director of ADOC;” and three Doe Defendants, identified as “Lewis
Complex ITA Business Manager;” “CoreCivic-La Palma Correctional Center ITA
Manager;” and “Florence Complex ITA Business Manager.” (ECF No. 22 at 1-4, 13).
Plaintiff asserts Defendants violated his Fourteenth Amendment rights by making
“unlawful” withdrawals (totaling $1432.76) from his ITA on December 23, 2019, and in
February, March, June, July, and August of 2022, and in February and March of 2024.
(ECF No. 22 at 9, 14).
In an order entered January 16, 2025, the Court ordered Defendants Thornell, Ellis,
Amos, and Burtsfield to answer the First Amended Complaint, and dismissed Defendant
Ryan without prejudice. (ECF No. 23). The Court construed Plaintiff’s claims as follows:
In Count One, Plaintiff alleges violations of his Fourteenth
Amendment rights. … Plaintiff argues he has a federally protected liberty
interest in all money placed into his ITA and a state-created liberty interest
in the manner in which restitution is collected. … Plaintiff argues the Arizona
statute permitting ADC to collect restitution from all monies in a prisoner’s
ITA should not be applied retroactively to him and asserts he has been denied
any meaningful pre- and post-deprivation process. (Id.) … Plaintiff contends
Defendants Ryan, Thornell, Ellis, Amos, Burtsfield, and Does 1- 3 violated
his Fourteenth Amendment rights when they “independently changed,
altered, or modified [Plaintiff’s] original sentencing and restitution order (as
it pertains to the manner of payment of [Plaintiff’s] restitution) as issued by
the Arizona Superior Court … and/or personally condoned … or
implemented . . . ADC current customs, polices or practices of systematically
stealing ‘non-wages’ money from [Plaintiff’s] Trust Account under
pretensions of a fiduciary agent ‘acting in trust.’” (Id.) Plaintiff claims ADC
continues to unlawfully take money from his ITA for restitution payments
and lists 10 dates, after December 15, 2019, on which such withdrawals
occurred. (Id. at 9.)
In Count Two, Plaintiff alleges Defendants Thornell, Ellis, Amos,
Burtsfield, Doe 1, and Doe 2 violated his Fourteenth Amendment rights when
they “independently changed, altered, or modified [Plaintiff’s] original
sentencing and restitution order (as it pertains to the manner of payment of
[Plaintiff’s] restitution) as issued by the Arizona Superior Court … in
violation of ARS § 13-804(M) and ARS § 1-244” by withholding “non-
wages” money from Plaintiff’s ITA. (Id. at 10.)
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In Count Three, Plaintiff claims violations of his equal protection
rights. Plaintiff asserts that on March 17, 2009, the prison began “unlawfully
stealing 20% of any and all money placed into [Plaintiff’s] ITA allegedly
based on Senate Bill 1619[,]” but did not apply the new law “fairly or equally
across the inmate population to all like and similarly situated inmates.” (Id.
at 11.) Plaintiff claims the “prison knew, or should have known, that state
law prevented SB 1619 from being applied retroactively … and/or knew …
that, by law, only the trial court could change, alter, or modify a standing
restitution (court) order.” (Id.) Plaintiff alleges the prison arbitrarily applies
SB 1619 “to certain and select inmates only, without cause, reason or
explanation.” (Id.) Plaintiff claims he knows at least two other inmates who,
like him, were sentenced at least 10 years prior to SB 1619’s enactment
“where the trial judge determined and specified the manner in which
restitution was to be paid, collected,” but who “have never been subjected to
this treatment, burden, or hardship nor had their rights violated by the prison
….” (Id. at 11-12.) Plaintiff contends Defendants Thornell, Ellis, Amos,
Burtsfield, Ryan, and Does 1-3 violated his Fourteenth Amendment equal
protection rights when they arbitrarily “and/or discriminatorily changed,
altered, or modified [his] original sentencing and restitution order” by
subjecting Plaintiff’s “non-wages” to restitution withholding and by not
applying this practice “equally and fairly to all like and similarly situated
inmates” like Plaintiff. (Id. at 12.)
***
… Claims for Which an Answer Will be Required
Liberally construed, Plaintiff has adequately stated Fourteenth
Amendment due process claims in Counts One and Two for the allegedly
unlawful withdrawal of restitution payments from his “non-wage” deposits,
and for the alleged alteration of his restitution order without due process. He
has also adequately stated an equal protection claim in Count Three. The
Court will require Defendant Thornell to answer these claims in his official
capacity, and Defendants Ellis, Amos, and Burtsfield to answer the claims in
their individual capacities.
(ECF No. 23 at 3-7).
The Court allowed Plaintiff 120 days, until May 16, 2025, to discover the names of
the Doe Defendants and file a notice of substitution identifying these defendants by their
actual names. (Id.). This deadline was later extended to June 20, 2025. (ECF No. 47).
Defendants Thornell, Ellis, Amos, and Burtsfield answered the First Amended
Complaint on May 2, 2025. (ECF No. 37). In an order entered May 5, 2025, the parties
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were allowed until September 22, 2025 to complete discovery. (ECF No. 38). Any
proposed amendments to the operative complaint were due May 30, 2025. (Id.). Dispositive
motions were due November 7, 2025. (Id.).
Plaintiff filed a motion seeking leave to proceed on a second amended complaint
and lodged a proposed second amended complaint on May 14, 2025. (ECF Nos. 44 & 45).
In addition to deleting Defendant Ryan and supplying the first name of Defendant Amos,
Plaintiff sought leave to add a defendant, “Captain S. Osterion,” and a claim for relief
solely against Osterion. (ECF No. 45 at 2, 14-16). In Count Four of the proposed second
amended complaint Plaintiff asserted Osterion violated Plaintiff’s Fourteenth Amendment
rights by conducting a disciplinary hearing on May 15, 2024, and wrongfully imposing a
monetary fine and assessing restitution as part of the disciplinary action, and wrongfully
authorizing the withdrawal of funds from Plaintiff’s ITA to satisfy the fine and order of
restitution. (ECF No. 45 at 15). A Report and Recommendation filed June 10, 2025,
recommended that Plaintiff’s motion to amend at ECF No. 44 be denied. (ECF No. 54).
On August 15, 2025, Plaintiff’s motion at ECF No. 82 was granted to the extent
Plaintiff sought to substitute Teresa Brown, an Administrative Services Officer II
employed by the Financial Services Division of the Arizona Department of Corrections,
Rehabilitation, and Reentry’s Central Office, for Doe #1 with regard to the claims stated
in Plaintiff’s First Amended Complaint at ECF No. 22, although the motion to substitute
was not filed prior to the deadline (June 20, 2025) for doing so. (ECF No. 87).1 On
August 19, 2025, Plaintiff was given leave to add Richard Evitch as a party to this matter
with regard to Counts One, Two, and Three of the First Amended Complaint,
notwithstanding that the deadline for doing so had expired. (ECF No. 89).2
1 Plaintiff never returned a service packet for Brown to the Court. In response to an order
to show cause issued October 20, 2025, Plaintiff averred Brown had never been a defendant in any
claim. (ECF No. 117).
2 Defendant Evitch was served and answered the operative complaint on November 4,
2025. (ECF Nos. 106 & 122). Defendant Evitch has not sought to reopen discovery. At this time
discovery has closed and the deadline for filing dispositive motions expires December 5, 2025.
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On September 5, 2025, long after the deadline for amending the operative complaint
expired, Plaintiff filed a motion seeking leave to proceed on an amended complaint. (ECF
No. 103). Inter alia, the proposed amended complaint names Thornell, Evitch, Ellis, White,
Teresa Brown, Jaime Ramsey, Burtsfield, and Osterion as defendants, and also names four
Doe Defendants. (Id.). Evitch, Ellis, White, and Brown are named personally “and/or” as
Does 1 through 4. (ECF No. 103 at 10). Plaintiff also includes the same Count IV of the
prior proposed amended complaint against Osterion in the proposed amended complaint at
ECF No. 103. (ECF No. 103 at 17-20). Plaintiff also seeks to add a claim of retaliation
against Osterion. (ECF No. 103 at 21-22). In a Report and Recommendation issued
October 16, 2025, it was recommended that the motion to proceed on the proposed
amended complaint be denied. (ECF No. 115). To date the Report and Recommendation
at ECF No. 115 has not been adopted nor rejected.
On September 8, 2025, the Court accepted the Report and Recommendation at ECF
No. 54 and denied Plaintiff’s motion (ECF No. 45) to amend the operative complaint. (ECF
No. 104).
On September 23, 2025, the unexpired deadlines in this matter were extended,
allowing the parties until October 31, 2025, to further supplement disclosure and to serve
responses to requests for discovery which requests had already been served, and allowing
the parties until December 5, 2025, to file dispositive motions with regard to Plaintiff's
claims against Defendants Thornell, Ellis, Burtsfield, and Amos. (ECF No. 109).
On October 30, 2025, Plaintiff filed the pending motion seeking leave to proceed
on an amended complaint (ECF No. 119) and lodged a proposed amended complaint (ECF
No. 120). Plaintiff seeks to substitute the proposed amended complaint at ECF No. 120 for
the proposed amended complaint at ECF No. 103 (the Report and Recommendation at ECF
No. 115 recommends Plaintiff not be allowed to proceed on the proposed amended
complaint lodged at ECF No. 103). Named as defendants in the proposed amended
complaint at ECF No. 120 are Thornell, Evitch, Ellis, White, Brown, Victor Esquivel,
Lynda Wade, Linda Finchum, and Penny Bracket. (ECF No. 120 at 1-2). Plaintiff asserts
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the purpose of the proposed amended complaint is to delete his claims against Osterion and
Burtsfield, and substitute named individuals for the Doe Defendants; it is noted that
Ramsey, named as a defendant in the proposed amended complaint at ECF No. 103, is not
named as a defendant in the proposed amended complaint at ECF No. 120. It is also noted
that the deadline for identifying the Doe Defendants expired June 20, 2025, four months
prior to the filing of the proposed amended complaint at ECF No. 120.
Rule 15(a) of the Federal Rules of Civil Procedure provides a plaintiff should be
given leave to amend their complaint when justice so requires. Granting or denying leave
to amend is a matter committed to the Court's discretion. E.g., Hartmann v. California
Dep’t of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). Rule 15(a) requires the
Court to evaluate the elements of bad faith, undue delay, prejudice to the opposing party,
and futility of amendment before granting leave to amend. See, e.g., Serra v. Lappin,
600 F.3d 1191, 1200 (9th Cir. 2010). Leave to amend may be denied when allowing a
plaintiff to proceed on an amended complaint would delay the on-going proceedings. See,
e.g., Pierce v. Multnomah Cnty., 76 F.3d 1032, 1043 (9th Cir. 1996); Eckard v. Langdon,
No. 21-cv-35729, 2023 WL 6129523, at *1 (9th Cir. 2023).
Prejudice to the opposing parties is the most important factor in determining
whether to grant leave to amend, and the Court may deny leave to amend when “permitting
an amendment ... would produce an undue delay in the litigation.” Jackson v. Bank of Haw.,
902 F.2d 1385, 1387-88 (9th Cir. 1990). See also Premo v. Martin, 119 F.3d 764, 772 (9th
Cir. 1997). Moreover, Plaintiff seeks to amend his operative complaint after a responsive
pleading was filed and after the deadline for amending the operative complaint has expired.
Plaintiff also seeks to add parties and identify Doe Defendants after the deadlines for doing
so have been extended and expired, implicating Rule 16(b) of the Federal Rules of Civil
Procedure. When a party seeks to extended deadlines set in a scheduling order, Rule 16(b)’s
good cause requirement must be satisfied, and the party seeking an extension of the
requisite deadline must establish their diligence in complying with the Court’s scheduling
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order. See Cano v. Schriro, 236 F.R.D. 437, 439 (D. Ariz. 2006), aff'd 269 F. App’x 755
(9th Cir. 2008).
Defendants Thornell, Amos, Burtsfield, Ellis, and Evitch oppose allowing Plaintiff
to proceed on the amended complaint at ECF No. 120. (ECF No. 123). Defendants assert
Plaintiff has not been diligent in moving to substitute named individuals for the Doe
Defendants, noting White’s identity was disclosed on July 21, 2025, and Plaintiff waited
until 43 days later to seek to substitute White for a Doe Defendant. Defendants also note
Plaintiff sought to add four new Doe Defendants in the proposed amended complaint at
ECF No. 103, four months after the deadline expired to identify any Doe Defendant.
Defendants also note that in the proposed amended complaint at ECF No. 120 Plaintiff now
seeks to identify the Doe Defendants “named” in the proposed amended complaint at ECF
No. 103, notwithstanding that he has not been given permission to proceed on any claims
against those Doe Defendants. Notably, both the motion to amend at ECF No. 103 and the
motion to amend at ECF No. 120 were not filed by the deadline for amending Plaintiff’s
operative pleading or by the deadline for identifying the Doe Defendants in the operative
complaint.
Plaintiff was not diligent in seeking to substitute named individuals for the Doe
defendants after learning their identities. And it is not at all evident from Plaintiff’s
proposed amended complaint(s) that the individuals he seeks to add as defendants are those
actually responsible for the harms alleged in the specific claims remanded by the Ninth
Circuit Court of Appeals. Furthermore, Plaintiff has added and removed, and attempted to
add and remove, individuals and Doe Defendants in the proposed amended complaints at
ECF No. 103 and ECF No. 120, filed after the relevant deadlines had expired, in addition
to Plaintiff’s prior attempt (ECF No. 65) to substitute one proposed amended complaint for
another proposed amended complaint.
Discovery in this matter has closed and the deadline for filing dispositive motions
is December 5, 2025. Allowing Plaintiff to add defendants and claims at this time would
require reopening discovery and prejudice Defendants, and unduly delay resolution of
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claims first asserted in December of 2021 and remanded to the Court 18 months ago. The
certain prejudice to Defendants and the very real prospect of extensive undue delay in the
ongoing proceedings weighs heavily against granting the pending motion to amend.
Accordingly,
IT IS RECOMMENDED that Plaintiff’s motion to amend his complaint (ECF
No. 119) be denied.
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) of the Federal
Rules of Appellate Procedure should not be filed until entry of the District Court’s
judgment. The parties shall have fourteen 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. 7(b)(2). Thereafter, the parties have fourteen days
within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules
of Civil Procedure for the United States District Court for the District of Arizona,
objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to file timely 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,
1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the
Magistrate Judge may be considered a waiver of a party’s right to appellate review of the
findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 1st day of December, 2025.
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