1 ASH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kenneth Bryant, No. CV 23-00312-PHX-JAT (CDB) 10 Plaintiff, 11 v. ORDER 12 Arizona Department of Public Safety, et 13 al., 14 Defendants.
15 16 Plaintiff Kenneth Bryant, who is not in custody, has filed a pro se civil rights 17 Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed 18 Without Prepaying Fees or Costs (Doc. 2). The Court will dismiss the Complaint. 19 I. Application to Proceed 20 Plaintiff’s Application to Proceed indicates that he lacks funds to pay for this action. 21 Accordingly, the Court will grant the Application to Proceed. 28 U.S.C. § 1915(e). 22 Plaintiff is not required to pay the filing fees for this action. 23 II. Statutory Screening of In Forma Pauperis Actions 24 Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted 25 in forma pauperis status, the Court
26 shall dismiss the case at any time if the court determines that– (A) the 27 allegation of poverty is untrue; or (B) the action or appeal– (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or 28 (iii) seeks monetary relief against a defendant who is immune from such relief. 1 2 28 U.S.C. § 1915(e)(2). 3 A pleading must contain a “short and plain statement of the claim showing that the 4 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 5 not demand detailed factual allegations, “it demands more than an unadorned, the- 6 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 7 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Id. 9 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 10 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 11 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 12 that allows the court to draw the reasonable inference that the defendant is liable for the 13 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 14 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 15 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 16 allegations may be consistent with a constitutional claim, a court must assess whether there 17 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 18 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 19 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 20 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 21 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 22 U.S. 89, 94 (2007) (per curiam)). 23 If the Court determines that a pleading could be cured by the allegation of other 24 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 25 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 26 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 27 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 28 . . . . 1 III. Complaint 2 In his Complaint, Plaintiff names Arizona Attorney General Kris Mayes, the 3 Arizona Department of Public Safety (DPS), and the Arizona Department of Child Safety 4 (DCS) as Defendants. Plaintiff alleges that he was improperly arrested by DPS and his 5 minor son (who was in the car when Plaintiff was arrested) was placed with DCS. Plaintiff 6 seeks monetary relief. 7 IV. Failure to State a Claim 8 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 9 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 10 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 11 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 12 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 13 as a result of the conduct of a particular defendant and he must allege an affirmative link 14 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 15 72, 377 (1976). 16 As an initial matter, Plaintiff makes no allegations against Mayes. Accordingly, she 17 will be dismissed. 18 Further, under the Eleventh Amendment to the Constitution of the United States, a 19 state or state agency may not be sued in federal court without its consent. Pennhurst State 20 School and Hospital v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 21 1045 (9th Cir. 1989). “Furthermore, a state is not a ‘person’ within the meaning of § 22 1983.” Hale v. State of Arizona, 993 F.2d 1387, 1398 (9th Cir. 1993) (en banc). “This 23 limitation on § 1983 also extends to ‘arms of the State,’” such as DPS and DCS. Id. 24 (citation omitted); see also Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th 25 Cir. 1991). Accordingly, DPS and DCS will be dismissed. Because Plaintiff has failed to 26 state a claim against any named Defendant, the Complaint will be dismissed. 27 V. Leave to Amend 28 Within 30 days, Plaintiff may submit a first amended complaint to cure the 1 deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form 2 to use for filing a first amended complaint.1 3 Plaintiff must clearly designate on the face of the document that it is the “First 4 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 5 entirety and may not incorporate any part of the original Complaint by reference. Plaintiff 6 may include only one claim per count. 7 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 8 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 9 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 10 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 11 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 12 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 13 F.3d 896, 928 (9th Cir. 2012) (en banc). 14 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 15 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 16 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 17 do; (4) how the action or inaction of that Defendant is connected to the violation of 18 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 19 that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 20 Plaintiff must repeat this process for each person he names as a Defendant. If 21 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 22 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 23 failure to state a claim. Conclusory allegations that a Defendant or group of 24 Defendants has violated a constitutional right are not acceptable and will be 25
26 1 Although Plaintiff is not a prisoner, and therefore not required to use the form, the Court recommends Plaintiff use this form to assist him in coherently presenting his claims 27 to the Court. In addition, the Court suggests Plaintiff review the Court’s informational Handbook for Self-Represented Litigants, available at 28 https://www.azd.uscourts.gov/handbook-self-represented-litigants, prior to submitting an amended complaint. 1 dismissed. 2 Plaintiff should also be aware that probable cause to arrest exists when, taking 3 together the totality of circumstances known to the arresting officer, a prudent person 4 would conclude that there was a fair probability that the arrested person committed a crime. 5 Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994). If a Defendant had probable 6 cause, Plaintiff’ s arrest was lawful regardless of the officer’s subjective motivation. Tatum 7 v. City & County of S.F., 441 F.3d 1090, 1094 (9th Cir. 2006). 8 VI. Warnings 9 A. Address Changes 10 If Plaintiff’s address changes, Plaintiff must file and serve a notice of a change of 11 address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff 12 must not include a motion for other relief with a notice of change of address. Failure to 13 comply may result in dismissal of this action. 14 B. Possible Dismissal 15 If Plaintiff fails to timely comply with every provision of this Order, including these 16 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 17 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 18 the Court). 19 IT IS ORDERED: 20 (1) Plaintiff’s Application to Proceed Without Prepaying Fees or Costs (Doc. 2). 21 is granted. Plaintiff is not required to pay the filing fees for this action. 22 (2) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 23 has 30 days from the date this Order is filed to file a first amended complaint in compliance 24 with this Order. 25 (3) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 26 Court must, without further notice, enter a judgment of dismissal of this action with 27 prejudice and deny any pending unrelated motions as moot. 28 (4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 2 Dated this 22nd day of March, 2023. 3 4 '
6 James A. Teil Org Senior United States District Judge 7 8 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.