1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dayshaun Darion Conner, No. CV-23-02525-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 K. Taylor, et al., 13 Defendants.
15 On December 5, 2023, pro se Plaintiff Dayshaun Darion Conner, who is confined 16 in the Arizona State Prison Complex-Eyman (ASPC-Eyman), filed a civil rights Complaint 17 pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a 18 January 10, 2024 Order, the Court granted the Application to Proceed and dismissed the 19 Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days 20 to file an amended complaint that cured the deficiencies identified in the Order. 21 On January 12, 2024, Plaintiff filed his First Amended Complaint. In a March 26, 22 2024 Order, the Court dismissed the First Amended Complaint because Plaintiff had failed 23 to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that 24 cured the deficiencies identified in the Order. The Court warned Plaintiff that the Clerk of 25 Court would enter a judgment of dismissal with prejudice if he failed to timely file a second 26 amended complaint. 27 Not having received a second amended complaint or a motion for extension of time, 28 on May 10, 2024, the Clerk of Court entered a Judgment of dismissal with prejudice. The 1 Clerk of Court sent the May 10, 2024 Judgment to Plaintiff at his address of record. On 2 May 13, 2024, the mail was returned as undeliverable because Plaintiff was out to court in 3 Maricopa County. Plaintiff did not file a notice of change of address. 4 I. Motion for Excusable Neglect 5 On August 21, 2024, Plaintiff filed a “Motion for Excusable Neglect Pursuant to 6 FRCP 60(b)(1) and (6), Prayer to Reopen Case and for Leave to File a Second Amended 7 Complaint” (Doc. 12) and lodged a proposed Second Amended Complaint (lodged 8 at Doc. 13). In his Motion, Plaintiff states that on March 7, 2024, he was transferred to a 9 Maricopa County Jail on new criminal charges, where he remained until May 23, 2024. 10 Plaintiff asserts he was unable to file a notice of change of address or “make any other 11 action in this case” because his paperwork and documents remained at the prison, and he 12 had no access to any information concerning this case. 13 Plaintiff states that on May 30, 2024, he received the May 10, 2024 Judgment. 14 Plaintiff asserts that he did not “understand the Court’s [Judgment] at the time” because 15 the Judgment referenced a March 26, 2024 Order, which Plaintiff states he never received. 16 Plaintiff states that on June 10, 2024, he was transferred to the La Palma Correctional 17 Center, and on July 25, 2024, he was transferred back to ASPC-Eyman. Plaintiff states 18 that at some point, another prisoner explained to Plaintiff that the First Amended Complaint 19 had been “rejected,” and this case had been dismissed and closed. Plaintiff asserts that any 20 untimeliness or failure to comply was not his fault because multiple transfers between 21 facilities resulted in him not receiving documents or notices about this case, and his lack 22 of experience “le[]d to Plaintiff not knowing what actions to take next.” Plaintiff asks the 23 Court to reopen this case and allow him to file the lodged proposed Second Amended 24 Complaint. 25 The Court construes the Motion as a Motion for Relief from Judgment pursuant to 26 Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b), which sets forth the 27 grounds for relief from judgment, “provides for reconsideration only upon a showing of 28 (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a 1 void judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances’ 2 which would justify relief.” School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 3 F.3d 1255, 1263 (9th Cir. 1993) (citation omitted). The moving party bears the burden of 4 proving the existence of a basis for Rule 60(b) relief. Cassidy v. Tenorio, 856 F.2d 1412, 5 1415 (9th Cir. 1988). Although the moving party’s factual allegations are to be accepted 6 as true, mere legal conclusions, general denials, or simple assertions are insufficient to 7 justify overturning the underlying judgment. Id. 8 The Court will grant relief from the May 10, 2024 Judgment pursuant to Rule 9 60(b)(1) and will grant Plaintiff’s request to reopen this case. The Court will direct the 10 Clerk of Court to vacate the May 10, 2024 Judgment, reopen this case, and send Plaintiff a 11 copy of the March 26, 2024 Order. Because Plaintiff did not have the benefit of the March 12 26, 2024 Order when he drafted the lodged proposed Second Amended Complaint, the 13 Court will direct the Clerk of Court not to file the lodged proposed Second Amended 14 Complaint and will grant Plaintiff 30 days from the filing date of this Order to file a second 15 amended complaint that cures the deficiencies identified in the Order. 16 II. Warnings 17 A. Release 18 If Plaintiff is released while this case remains pending, and the filing fee has not 19 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 20 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 21 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 22 result in dismissal of this action. 23 B. Address Changes 24 Plaintiff must file and serve a notice of a change of address in accordance with Rule 25 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 26 relief with a notice of change of address. Failure to comply may result in dismissal of this 27 action. 28 . . . . 1 C. Possible “Strike” 2 Because the First Amended Complaint has been dismissed for failure to state a 3 claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies 4 identified in the March 26, 2024 Order, the dismissal may count as a “strike” under the “3- 5 strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may 6 not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 7 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 8 facility, brought an action or appeal in a court of the United States that was dismissed on 9 the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 10 be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 11 U.S.C. § 1915(g)U.S.C. § 1915(g). 12 D. Possible Dismissal 13 If Plaintiff fails to timely comply with every provision of this Order, including these 14 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 15 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 16 to comply with any order of the Court). 17 IT IS ORDERED: 18 (1) Plaintiff’s “Motion for Excusable Neglect Pursuant to FRCP 60(b)(1) 19 and (6), Prayer to Reopen Case and for Leave to File a Second Amended 20 Complaint) (Doc. 12) is granted in part and denied in part. 21 (2) The Clerk of Court must vacate the May 10, 2024 Judgment (Doc. 10) and 22 reopen this case. 23 (3) The Clerk of Court must not file the lodged proposed Second Amended 24 Complaint (lodged at Doc. 13). 25 (4) Plaintiff has 30 days from the date this Order is filed to file a second amended 26 complaint in compliance with the March 26, 2024 Order and this Order. 27 (5) If Plaintiff fails to file a second amended complaint within 30 days, the Clerk 28 of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot. 3 (6) The Clerk of Court must mail Plaintiff a copy of the March 26, 2024 4} Order (Doc. 9) and a court-approved form for filing a civil rights complaint by a prisoner. 5 Dated this 10th day of October, 2024. 6 ' James A. Teilborg ? Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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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 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 $455.00 ($350.00 filing fee plus $55.00 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. Unless you are an inmate housed at an Arizona Department of Corrections facility that participates in electronic filing, mail the original and one copy of the complaint with the $455 filing and administrative fees or the application to proceed in forma pauperis to:
1 Revised 12/1/23 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.
2 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.
3 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. 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. .
3 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. .
4 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.
5 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.