1 KM 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Quaraii Rashad Brumfield, No. CV-23-01659-PHX-JAT (ASB) 10 Plaintiff, 11 v. ORDER 12 Unknown, 13 Defendant.
14 15 On August 14, 2023, pro se Plaintiff Quaraii Rashad Brumfield, who was then 16 confined in the Arizona State Prison Complex-Eyman, filed a document that appears to be 17 a civil complaint (“Complaint”). Plaintiff did not pay the $350.00 civil action filing fee 18 and $50.00 administrative fee or file an Application to Proceed In Forma Pauperis. 19 In other cases before the Court, Plaintiff has filed a Notice of Change of Address 20 indicating he is no longer in custody.1 The Court will give Plaintiff 30 days to pay the 21 filing and administrative fees or file a non-prisoner Application to Proceed in District Court 22 Without Prepaying Fees or Costs. The Court will also dismiss the Complaint and give 23 Plaintiff 30 days to file an amended complaint that complies with the Local Rules of Civil 24 Procedure. 25 . . . . 26 . . . . 27
28 1 See Doc. 6 in CV-23-00367-TUC-RM and Doc. 5 in CV-23-01657-PHX-JAT (ASB). 1 I. Proceeding In Forma Pauperis 2 Pursuant to 28 U.S.C. § 1915(a), the Court “may authorize the commencement . . . 3 of any suit . . . , without prepayment of fees or security therefor, by a person who submits 4 an affidavit that includes a statement of all assets such prisoner possesses that the person 5 is unable to pay such fees or give security therefor. Such affidavit shall state nature of the 6 action . . . and affiant’s belief that the person is entitled to redress.”2 The Court provides 7 an Application to Proceed in District Court Without Prepaying Fees or Costs to assist 8 persons seeking to proceed in forma pauperis. The Court will give Plaintiff 30 days from 9 the date this Order is filed to either pay the $350.00 filing fee and the $50.00 administrative 10 fee or file a non-prisoner Application to Proceed in District Court Without Prepaying Fees 11 or Costs using the form included with this Order. 12 II. Complaint 13 Plaintiff’s Complaint does not name Defendants, allege a basis for this Court’s 14 jurisdiction, or comply with Rule 7.1 of the Local Rules of Civil Procedure. Accordingly, 15 the Court will dismiss the Complaint and give Plaintiff 30 days to file an amended 16 complaint. The Court will send Plaintiff a court-approved form to assist him in drafting an 17 amended complaint. 18 An amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 19 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 20 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 21 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 22 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 23 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 24 F.3d 896, 928 (9th Cir. 2012) (en banc).
25 2 “Numerous Courts of Appeal have held that, notwithstanding the term ‘prisoner’ 26 in the statute, section 1915(a) ‘applies to all persons applying for IFP status, and not just prisoners.’” Charov v. Perry, 2010 WL 3522270, *1 (D. Nev. 2010), citing Lister v. Dep’t 27 of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (collecting cases from the Eleventh, Fifth, and Sixth Circuits so holding); see also Andrews v. Cervantes, 493 F.3d 1047, 1051 28 (9th Cir. 2007) (citing Lister and stating § 1915(a) “allows the district court to waive the fee, for most individuals unable to afford it, by granting IFP status.”) 1 III. Warnings 2 A. Address Changes 3 Plaintiff must file and serve a notice of a change of address in accordance with Rule 4 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 5 relief with a notice of change of address. Failure to comply may result in dismissal of this 6 action. 7 B. Possible Dismissal 8 If Plaintiff fails to timely comply with every provision of this Order, including these 9 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 10 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply 11 with any order of the Court). 12 IT IS ORDERED: 13 (1) Within 30 days of the date this Order is filed, Plaintiff must either pay the 14 $350.00 filing fee and the $50.00 administrative fee or file a non-prisoner Application to 15 Proceed in District Court Without Prepaying Fees or Costs using the form included with 16 this Order. 17 (2) If Plaintiff fails to either pay the $350.00 filing fee and $50.00 administrative 18 fee or file a non-prisoner Application to Proceed in District Court Without Prepaying Fees 19 or Costs within 30 days, the Clerk of Court must enter a judgment of dismissal of this 20 action without prejudice and without further notice to Plaintiff. 21 (3) The Complaint (Doc. 1) is dismissed without prejudice. Plaintiff has 30 22 days from the date this Order is filed to file a first amended complaint. 23 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 24 Court must, without further notice, enter a judgment of dismissal of this action without 25 prejudice. 26 (5) The Clerk of Court must mail Plaintiff the court-approved forms for filing a 27 civil rights complaint by a prisoner and a non-prisoner Application to Proceed in District 28 Court Without Prepaying Fees or Costs. 1 (6) The Clerk of Court must update Plaintiff's address to: 2 Quaraii Rashad Brumfield 3 2005 E. 36th St. Tucson, Arizona 85713. Dated this 23rd day of October, 2023.
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g James A. Teilborg Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Instructions for a Prisoner Filing a Civil Rights Complaint in the United States District Court for the District of Arizona
1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated persons prepare a complaint seeking relief for a violation of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement. This form should not be used to challenge your conviction or sentence. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. ' 2254 for a writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
4. The Filing and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing fee plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may request leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. ' 1915” for additional instructions.
5. Original and Judge=s Copy. You must send an original plus one copy of your complaint and of any other documents submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing.
6. Where to File. You should file your complaint in the division where you were confined when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson Division. Mail the original and one copy of the complaint with the $400 filing and administrative fees or the application to proceed in forma pauperis to:
Revised 3/11/16 1 Phoenix & Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
7. Change of Address. You must immediately notify the Court and the defendants in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case.
8. Certificate of Service. You must furnish the defendants with a copy of any document you submit to the Court (except the initial complaint and application to proceed in forma pauperis). Each original document (except the initial complaint and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: Attorney for Defendant(s)
(Signature)
9. Amended Complaint. If you need to change any of the information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the court-approved civil rights complaint form. You may file one amended complaint without leave (permission) of Court within 21 days after serving it or within 21 days after any defendant has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, you must file a motion for leave to amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants not included in the amended complaint are considered dismissed. All amended complaints are subject to screening under the Prison Litigation Reform Act; screening your amendment will take additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead, the relevant information should be paraphrased. You should keep the exhibits to use to support or oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion. 12. Completing the Civil Rights Complaint Form.
HEADING: 1. Your Name. Print your name, prison or inmate number, and institutional mailing address on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name more than four defendants, print the name of the first defendant on the first line, write the words “and others” on the second line, and attach an additional page listing the names of all of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may result in the loss of the right to a jury trial. A jury trial is not available if you are seeking only injunctive relief.
Part A. JURISDICTION: 1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. ' 1983 for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights occurred.
3. Defendants. Print all of the requested information about each of the defendants in the spaces provided. If you are naming more than four defendants, you must provide the necessary information about each additional defendant on separate pages labeled “2-A,” “2-B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS: You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION: You must identify what rights each defendant violated. The form provides space to allege three separate counts (one violation per count). If you are alleging more than three counts, you must provide the necessary information about each additional count on a separate page. Number the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that you are limited to a total of fifteen additional pages. 1. Counts. You must identify which civil right was violated. You may allege the violation of only one civil right per count.
2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. You may check only one box per count. If you check the box marked “Other,” you must identify the specific issue involved.
3. Supporting Facts. After you have identified which civil right was violated, you must state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you must identify which defendant did what act. You also should state the date(s) on which the act(s) occurred, if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.
5. Administrative Remedies. You must exhaust any available administrative remedies before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should disclose whether you have exhausted the inmate grievance procedures or administrative appeals for each count in your complaint. If the grievance procedures were not available for any of your counts, fully explain why on the lines provided.
Part D. REQUEST FOR RELIEF: Print the relief you are seeking in the space provided.
SIGNATURE: You must sign your name and print the date you signed the complaint. Failure to sign the complaint will delay the processing of your action. Unless you are an attorney, you may not bring an action on behalf of anyone but yourself.
FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your complaint being stricken or dismissed. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number the pages.
4 ___________________________________________ Name and Prisoner/Booking Number __________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code (Failure to notify the Court of your change of address may result in dismissal of this action.)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
_________________________________________ , (Full Name of Plaintiff)
Plaintiff, v. CASE NO. __________________________________ (To be supplied by the Clerk) (1) _______________________________________ ,
(Full Name of Defendant) CIVIL RIGHTS COMPLAINT (2) _______________________________________ , BY A PRISONER
(3) _______________________________________ , G Original Complaint (4) _______________________________________ , G First Amended Complaint G Second Amended Complaint Defendant(s).
G Check if there are additional Defendants and attach page 1-A listing them.
A. JURISDICTION
1. This Court has jurisdiction over this action pursuant to: G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983 G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). G Other: .
2. Institution/city where violation occurred: .
550/555 B. DEFENDANTS
1. Name of first Defendant: . The first Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
2. Name of second Defendant: . The second Defendant is employed as: as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
3. Name of third Defendant: . The third Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
4. Name of fourth Defendant: . The fourth Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.
C. PREVIOUS LAWSUITS
1. Have you filed any other lawsuits while you were a prisoner? G Yes G No
2. If yes, how many lawsuits have you filed? . Describe the previous lawsuits:
a. First prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
b. Second prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
c. Third prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page. 2 D. CAUSE OF ACTION
COUNT I 1. State the constitutional or other federal civil right that was violated: .
2. Count I. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies: a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count I? G Yes G No c. Did you appeal your request for relief on Count I to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . COUNT II 1. State the constitutional or other federal civil right that was violated: .
2. Count II. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count II? G Yes G No c. Did you appeal your request for relief on Count II to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . COUNT III 1. State the constitutional or other federal civil right that was violated: .
2. Count III. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count III? G Yes G No c. Did you appeal your request for relief on Count III to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. .
If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page. E. REQUEST FOR RELIEF
State the relief you are seeking:
I declare under penalty of perjury that the foregoing is true and correct.
Executed on DATE SIGNATURE OF PLAINTIFF
___________________________________________ (Name and title of paralegal, legal assistant, or other person who helped prepare this complaint)
___________________________________________ (Signature of attorney, if any)
___________________________________________ (Attorney=s address & telephone number)
ADDITIONAL PAGES
All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number all pages. Page 1 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) UNITED STATES DISTRICT COURT for the
Plaintiff/Petitioner ) v. ) Civil Action No.
Defendant/Respondent ) APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Long Form)
Affidavit in Support of the Application Instructions Iam a plaintiff or petitioner in this case and declare Complete all questions in this application and then sign it. that I am unable to pay the costs of these proceedings Do not leave any blanks: if the answer to a question is “0,” and that I am entitled to the relief requested. declare “none,” or “not applicable (N/A),” write that response. If under penalty of perjury that the information below is | you need more space to answer a question or to explain your true and understand that a false statement may result in answer, attach a separate sheet of paper identified with your a dismissal of my claims. name, your case's docket number, and the question number. Signed: Date:
l. For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise. Income source Average monthly income Income amount expected amount during the past 12 next month months Spouse □□ Serene □□ Income from real property (such as rental income) ¢
Gift mS pew
Page 2 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) Retirement (such as social security, pensions, annuities, $ $ $ $ insurance) Disability (such as social security, insurance payments) § Unemployment payments Public-assistance (such as welfare $ Other (specify): $
Total monthly income: § § § § 2. List your employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pa
3. List your spouse's employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pa
4. How much cash do you and your spouse have? $ Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial institution Type of account Amount you have Amount your spouse has PB Pe BB If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account.
Page 3 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) 5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings. Assets owned by you or your spouse
Make and year: Model: Registration #:
Make and year: Model: | Registration #:
6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse Amount owed to you Amount owed to your spouse mone
7. State the persons who rely on you or your spouse for support. Name (or, if under 18, initials only) Relationship
Page 4 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) 8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. ee “See Are real estate taxes included? O Yes No Is property insurance included? O Yes © No ern wini
SSSSSCS—SBSi SSSiB aarsne BB neonates in een mci Insurance (not deducted from wages or included in mortgage payments) ee Homeowner's or renter's: sf
Pescador Installment payments ee
Department store (name): sf mans atoneerniociee
Page 5 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) Regular expenses for operation of business, profession, or farm (attach detailed statement)
0.00 0.00 Total monthly expenses: 9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months? O Yes O No If yes, describe on an attached sheet. 10. Have you spent — or will you be spending — any money for expenses or attorney fees in conjunction with this lawsuit? [ Yes [No If yes, how much? $ 11. Provide any other information that will help explain why you cannot pay the costs of these proceedings.
12. Identify the city and state of your legal residence.
Your daytime phone number: Your age: Your years of schooling: