Deng 304373 v. Henry

• Court: District Court, D. Arizona
• Decided: September 12, 2025
• Docket: 2:25-cv-01554
• Status: Unknown

Opinion

1 KM 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tony Deng, No. CV-25-01554-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Unknown Henry, et al., 13 Defendants.

15 Self-represented Plaintiff Tony Deng, who is confined in the Arizona State Prison 16 Complex- Lewis, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) 17 and paid the filing and administrative fees. The Court will order Defendants Barnes and 18 NaphCare to answer Counts One and Two of the Complaint; give Plaintiff 120 days to 19 discover the identity of Defendant Jane Doe; and will dismiss the remaining claims and 20 Defendants without prejudice. 21 I. Statutory Screening of Prisoner Complaints 22 The Court is required to screen complaints brought by prisoners seeking relief 23 against a governmental entity or an officer or an employee of a governmental entity. 28 24 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 25 has raised claims that are legally frivolous or malicious, fail to state a claim upon which 26 relief may be granted, or seek monetary relief from a defendant who is immune from such 27 relief. 28 U.S.C. § 1915A(b)(1)–(2). 28 1 A pleading must contain a “short and plain statement of the claim showing that the 2 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 3 not demand detailed factual allegations, “it demands more than an unadorned, the- 4 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 5 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Id. 7 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 8 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 9 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 10 that allows the court to draw the reasonable inference that the defendant is liable for the 11 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 12 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 13 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 14 allegations may be consistent with a constitutional claim, a court must assess whether there 15 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 16 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 17 must “continue to construe [self-represented litigant’s] filings liberally.” Hebbe v. Pliler, 18 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a self-represented prisoner] 19 ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. 20 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 21 II. Complaint 22 In his three-count Complaint, Plaintiff names the following Defendants: Deputy 23 Warden Henry, Correctional Officer (CO) IV Rocky Sutton, CO II Barnes, Night Shift 24 Commander or Supervisor Jane Doe, CO IV Larson, CO III Gilbert, NaphCare, Inc., and 25 Nurse Practitioner Coronado. Plaintiff seeks monetary damages. 26 In Count One, Plaintiff alleges his Eighth Amendment right to adequate medical 27 care was violated from August 2022 to May 2023, when he was denied a full meal after 28 receiving his morning insulin treatments. Plaintiff is an insulin dependent diabetic and 1 receives a daily insulin treatment around 4:30 or 5:00 a.m. To prevent hypoglycemia, 2 Plaintiff must eat his morning meal immediately after the insulin treatment. This occurred 3 up until July 2022, when the kitchen was closed for repair and diabetic prisoners were 4 given a snack instead of a full meal. After the kitchen reopened in August 2022, Plaintiff 5 and other diabetic prisoners continued to receive a snack instead of the morning meal, 6 which Plaintiff claims “is very bad for diabetics.” (Doc. 1 at 5.) The snack consisted of 7 two pieces of bread and small bag of peanut butter. Diabetic prisoners like Plaintiff were 8 “forced to wait up to 2.5 to 3 hours before eating their normal morning meal after their 9 insulin treatment.” (Id.) 10 On August 27, 2022, Plaintiff submitted an informal complaint about the new 11 procedure and explained it could cause hypoglycemic events. Plaintiff’s informal 12 complaint was not answered. 13 On September 21, 2022, Plaintiff submitted a formal grievance complaining that the 14 new feeding procedure “severely affected his ability to adequately manage his glucose 15 level,” caused him to “fall out many times,” and was inappropriately implemented by non- 16 medical security officers. (Id.) Plaintiff asked that diabetic inmates be allowed to take 17 their morning meal and go to “early chow” if needed, immediately after receiving insulin 18 treatments. (Id. at 6.) Defendant Sutton responded that “Cook Unit is not currently looking 19 to review current chow hall turnouts and feeding procedures.” (Id.) Plaintiff contends “the 20 administration deliberately avoided this issue and did not address it squarely.” (Id.) 21 On October 3, 2022, Plaintiff filed a grievance appeal. Plaintiff’s appeal was 22 received and signed by a CO II, but never “arrived at its appropriate final destination.” 23 (Id.) Defendant Gilbert told Plaintiff there was no record of the appeal being filed. Plaintiff 24 contends “the administration deliberately avoided the issues by not filing [Plaintiff’s] 25 appeal.” (Id.) 26 On October 15, 2022, Plaintiff and other inmates talked to Defendant Barnes about 27 the issue and Barnes stated, “we are not doing early chow for insulin diabetics because you 28 guys complained to medical crying about not being fed.” (Id.) On January 10, 2023, 1 Plaintiff and other inmates again asked Defendant Barnes why insulin dependent diabetics 2 are not allowed to eat after their insulin treatments while inmates who are not diabetics, 3 but have early jobs or classes, are allowed to eat, and Barnes responded, “because one of 4 you guys got caught double dipping (eating twice).” (Id.) On April 7, 2023, Plaintiff and 5 others asked Defendant Barnes to talk to a sergeant about the issue. Barnes “got angry” 6 and told an inmate to “get the fuck out of here, Sergeant is busy he does not have time to 7 talk to you about this.” (Id.) 8 On April 19, 2023, Plaintiff submitted another informal complaint, citing the 9 permanent injunction in Jensen v. Thornell, which, according to Plaintiff, requires regular 10 insulin be administered within 30 minutes of serving a meal and fast-acting insulin be 11 administered within 15 minutes of serving a meal. In a May 10, 2023 response, non-party 12 Captain Brewer stated, “the matter has been investigated and the process in place currently 13 is to have all inmates who receive insulin immediately escorted to the dining hall to eat 14 their first meal of the day.” (Id. at 7.) However, on May 12, 2023, Defendant Barnes 15 denied Plaintiff a “proper meal” after his insulin treatment. Instead, Plaintiff was given a 16 small bag of peanut butter and two pieces of bread. When Plaintiff showed Defendant 17 Barnes Captain Brewer’s response to the informal complaint, Barnes read it and handed it 18 to commander or shift supervisor Defendant Jane Doe who said, “we don’t do early chow 19 for insulin diabetics, this is coming from the DW, the Captain does not know the 20 procedure.” (Id.) Defendants Barnes and Doe “refused to honor the resolution, refused to 21 follow the directive and refuse[d] to accommodate the medical needs of [Plaintiff] and 22 other diabetics.” (Id.) 23 On May 15, 2023, Plaintiff filed another grievance on the issue, which he states 24 “was finally redressed on 5/16/2023, over 9 months later.” (Id.) On June 7, 2023, 25 Defendant Sutton responded to Plaintiff’s grievance by stating that Captain Brewer’s 26 resolution “is affirmed and all shifts have received notice of the insulin feeding process.” 27 (Id.) 28 1 Plaintiff contends Defendants Barnes and Doe “are responsible for this violation 2 because they knew diabetics need to eat following their insulin treatment” and that the meal 3 timing must be coordinated with insulin administration; knew that eating after insulin 4 treatment is a medical need because they had been escorting diabetic inmates to the dining 5 hall after insulin treatments up until July 2022; but deliberately “defied the procedure and 6 deprived insulin dependent diabetics including [Plaintiff] of a much needed proper meal 7 after their morning treatment for over 9 months.” (Id. at 7-8.) Plaintiff asserts Defendants 8 Henry and Sutton are responsible because they knew about the issue but “deliberately 9 avoided looking into it and resolv[ing] it.” (Id. at 8.) 10 As his injury, Plaintiff alleges his “A1C [was] above 9.0 from August to December 11 2022 and still above 8 in February 2023, after his insulin dosage [was] increased three 12 times.” (Id. at 15.) Plaintiff claims a high A1C significantly increases his chance of heart 13 attack, stroke, and kidney failure. (Id.) 14 In Count Two, Plaintiff claims Defendants NaphCare and Coronado violated his 15 Eighth Amendment right to adequate healthcare. Plaintiff states he is an insulin dependent 16 diabetic with multiple diagnosed chronic pain conditions and has been placed in chronic 17 care since 2015. On October 27, 2024, Plaintiff submitted a Health Needs Request (HNR), 18 requesting the pain medication Meloxicam for his back pain. He did not receive a response. 19 On November 3, 2024, Plaintiff submitted another HNR inquiring about the October 27 20 request and was told he was scheduled to see a provider. Two months passed and Plaintiff 21 was not seen, nor was he provided any pain medication. 22 On January 7, 2025, Plaintiff submitted another HNR requesting an appointment 23 with a medical provider because he was experiencing severe pain in his left hand “in 24 addition to other chronic pain conditions.” (Id. at 9.) Plaintiff was told he was scheduled 25 to see the provider but not given a specific date. On January 12, 2025, Plaintiff submitted 26 another HNR “pleading that . . . if you can’t get me in to see a provider please renew my 27 Meloxicam so I can have some temporary relief.” (Id.) Plaintiff’s request was never 28 answered and he was not given pain medication. 1 On January 20, 2025, Plaintiff filed an informal grievance. A February 11, 2025 2 response stated, “only staff that can review medication order[s] or prescription is a provider 3 live staff member.” (Id. at 10.) Plaintiff claims the response did not give a reason for the 4 delay and did not inform Plaintiff what corrective action would be taken. Plaintiff received 5 pain medication on January 27, 2025, three months after his initial request. 6 Plaintiff alleges Defendant Coronado knew Plaintiff has chronic pain conditions and 7 that he had a prescription for Meloxicam but failed to timely renew his prescription. 8 Plaintiff asserts the “unreasonable delay” caused him “to suffer from severe pain without 9 relief from 10/27/2024 to 1/27/2025 (90 days).” (Id.) 10 Plaintiff claims he was again denied pain medication in a second incident. On 11 February 20, 2025 and March 23, 2025, Plaintiff submitted HNRs requesting Meloxicam 12 for pain relief “due to severe pain in his hand, lower back, sciatic nerves and neuropathy 13 on his feet.” (Id.) The HNRs were answered, but Plaintiff was not given medication. On 14 March 27, 2025, Plaintiff submitted another HNR, “pleading to have his refill of 15 Meloxicam . . . expedited [and] stating that he has been suffering from severe pain without 16 relief for over a month” and “needed something to subdue the pain so that he could function 17 in his daily activities.” (Id.) Plaintiff was told his requests were sent to the provider, but 18 he did not receive medications. 19 On March 31, 2025, Plaintiff filed an informal complaint. Plaintiff alleges 20 “NaphCare administration refused to process the complaint stating that it was a duplicate 21 issue.” (Id.) On April 22, 2025, Plaintiff “moved to file a formal grievance” and argued 22 “that the reason he [kept] complaining about the same issue [was] because the issue [had] 23 never been resolved and [was] ongoing,” and Plaintiff had been suffering from severe pain 24 for over a month. (Id. at 11.) Plaintiff’s grievance was not processed. Plaintiff received 25 pain medication on March 31, 2025, “which was 41 days later.” (Id.) 26 Plaintiff asserts Defendant Coronado’s failure to timely renew his pain medication 27 “constitutes deliberate indifference to his health needs because she knew Plaintiff is a 28 chronic care patient, an insulin dependent diabetic with multiple chronic conditions 1 including chronic pains,” and had been informed through multiple HNRs of Plaintiff’s need 2 for pain medication, but “failed to renew his prescription in a timely fashion.” (Id.) 3 Plaintiff was “forced to suffer[] from severe pain without relief on two unreasonably long 4 periods of time” and during these times he “could not participate or function in his daily 5 activities due to severe chronic pains in his hands, lower back, sciatic nerve and neuropathy 6 on his feet due to being a diabetic.” (Id.) 7 Plaintiff contends Defendant NaphCare was also responsible “because it failed to 8 provide adequate medical staffing, training, and failed to establish an adequate procedure 9 for renewing medication especially for chronic care patients.” (Id.) Plaintiff alleges that 10 despite his multiple requests and complaints, “NaphCare administration refused to address 11 the issue and refused to [take] corrective actions.” Plaintiff claims the injunction portal 12 “will show that many of NaphCare’s practices are below the standards set forth in the 13 permanent injunction issued . . . [in] Jensen v. Thornell, CV-12-00601-PHX-ROS.” (Id. at 14 12.) Plaintiff concludes, “ultimately, the excessive and unreasonable delays in this case 15 were the result of NaphCare and its employee [Defendant] Coronado’s deliberate 16 indifference to Plaintiff’s medical needs.” (Id.) 17 As his injury, Plaintiff alleges he was forced to endure severe pain without 18 medication for a 90-day period and a second, 41-day period. Plaintiff could not function 19 or participate in daily activities, lost sleep due to severe pain, and suffered from emotional 20 stress and depression. Plaintiff also “had no appetite, [felt] lethargic just from walking to 21 and from the chow hall to his dorm” and exercise “was completely out of the question.” 22 (Id. at 15.) 23 In Count Three, Plaintiff alleges his Eighth Amendment right to humane living 24 conditions was violated. Plaintiff claims that from 2020 to 2023, he was housed with 46 25 other inmates in a 504 square foot dormitory that was designed to house 24 people. 26 According to Plaintiff, the dormitory had no windows and inadequate ventilation because 27 none of the exhaust fans worked. During the pandemic up to May 19, 2023, the “yard 28 [was] a locked down yard” meaning “all of the doors of the building [were] closed and 1 locked over 20 hours a day.” (Id. at 13.) Plaintiff asserts that because of inadequate 2 ventilation, if one person got sick, everyone in the in dormitory got sick. Plaintiff alleges 3 “inmates have been sick over and over again suffering from flu[-]like symptoms” and there 4 “could be a fire hazard with the doors locked all the time with short staff on duty.” (Id.) 5 Plaintiff claims the air quality was poor “because the vents and the air conduit have never 6 been cleaned and inspected and black spots are visible around the vents on the ceiling . . . 7 the air inside the dorms always smell[s] stale, musty and swamp like.” (Id.) 8 On February 20, 2023, Plaintiff filed an informal complaint about the poor air 9 quality due to inadequate ventilation and air flow. In a February 23, 2023 response, 10 Defendant Sutton stated, “your dorm is up to date on all proper service that is provided and 11 scheduled,” but did not address any of Plaintiff’s health concerns. On March 15, 2023, 12 Plaintiff filed a formal grievance about overcrowding, the lack of windows, and poor air 13 circulation due to always-closed doors. Plaintiff stated that when he is inside, he 14 experiences sneezing, an itchy nose, and feels lethargic. Plaintiff also raised concerns 15 about the possibility of mold in the air vents. 16 On April 7, 2023, Defendant Larson responded to Plaintiff’s grievances by stating, 17 “building front doors will not be left open for security reasons and your individual runs do 18 have windows.” (Id. at 14.) Plaintiff contends that had Larson investigated and “actually 19 come inside the runs and checked,” she would have known the runs had no windows. On 20 April 10, 2023, Plaintiff submitted an appeal. The appeal was received and signed by a 21 CO III Gilbert, but was never answered. Plaintiff asserts “there is a good chance that it 22 was never filed because [Plaintiff] was told by CO III Gilbert that this case was closed.” 23 Plaintiff claims two of his grievance appeals have been “deliberately blocked from going 24 up to the director’s level.” (Id.) 25 On May 21, 2023, Plaintiff activated a medical Incident Command System (ICS) 26 because he was coughing up blood. Plaintiff had had a similar incident on December 15, 27 2022, and believed “polluted air might have been the cause of the infection, but no 28 investigation had been conducted.” (Id.) 1 Plaintiff contends “the Cook Unit administration did not investigate and see why 2 inmates kept getting sick over and over, and whether there is mold inside the air conduit 3 causing inmates to get sick.” (Id.) Plaintiff asserts Defendants Larson, Sutton, and Gilbert 4 are responsible “because of their deliberate indifference to [Plaintiff’s] health and safety 5 and their refusal to investigate and resolve the issues raised by [Plaintiff].” (Id.) 6 As his injury, Plaintiff claims he was forced to “live in a condition that is below 7 constitutional standard[s] for over three years at the Cook Unit.” (Id. at 15.) He claims the 8 “overcrowded living conditions exacerbated by poor air quality . . . caused [him] to suffer 9 from flu like symptoms constantly and cough[] up blood on multiple occasions.” (Id.) 10 III. Failure to State a Claim 11 A. Medical Claims – Counts One and Two 12 To state a § 1983 medical claim, a plaintiff must show (1) a “serious medical need” 13 by demonstrating that failure to treat the condition could result in further significant injury 14 or the unnecessary and wanton infliction of pain and (2) the defendant’s response was 15 deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 16 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 17 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 18 know of and disregard an excessive risk to inmate health; “the official must both be aware 19 of facts from which the inference could be drawn that a substantial risk of serious harm 20 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 21 Deliberate indifference in the medical context may be shown by a purposeful act or failure 22 to respond to a prisoner’s pain or possible medical need and harm caused by the 23 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 24 prison official intentionally denies, delays, or interferes with medical treatment or by the 25 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 26 97, 104-05 (1976); Jett, 439 F.3d at 1096. 27 Deliberate indifference is a higher standard than negligence or lack of ordinary due 28 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 1 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 2 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 3 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 4 do not support a claim under § 1983). “A difference of opinion does not amount to 5 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 6 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 7 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 8 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 9 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 10 Estelle, 429 U.S. at 105. 11 1. Count One - Defendants Sutton, Henry, and Gilbert 12 In Count One, Plaintiff alleges Defendants Sutton and Henry are liable because they 13 were aware of the meal issue but failed to “look[] into it and resolve it.” Plaintiff also 14 claims Defendant Sutton responded to Plaintiff’s September 2022 grievance by stating that 15 meal procedures were not being reviewed and that Defendant Gilbert informed him there 16 was no record of one of his grievance appeals being filed. These allegations are insufficient 17 to demonstrate these Defendants were deliberately indifferent to Plaintiff’s serious medical 18 needs. The Court will dismiss Defendants Sutton, Henry, and Gilbert from Count One. 19 2. Count Two – Defendant Coronado 20 In Count Two, Plaintiff alleges Defendant Coronado failed to timely renew Plaintiff 21 pain medication prescription. This allegation suggests, at most, that Defendant Coronado 22 may have been negligent with regard to prescription ordering, but negligence is insufficient 23 to state an Eighth Amendment claim. See Broughton, 622 F.2d at 460 (mere claims of 24 “indifference,” “negligence,” or “medical malpractice” do not support a claim under 25 § 1983). Accordingly, the Court will dismiss Defendant Coronado. 26 B. Count Three 27 As with medical claims, to state an Eighth Amendment conditions-of-confinement 28 claim, plaintiffs must meet a two-part test. “First, the deprivation alleged must be, 1 objectively, sufficiently serious” such that the “official’s act or omission must result in the 2 denial of the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834 3 (internal quotations omitted). Second, the prison official must have a “sufficiently culpable 4 state of mind,” i.e., he must act with “deliberate indifference to inmate health or safety.” 5 Id. (internal quotations omitted). Deliberate indifference is a higher standard than 6 negligence or lack of ordinary due care for the prisoner’s safety. Id. at 835. In defining 7 “deliberate indifference” in this context, the Supreme Court has imposed a subjective test: 8 “the official must both be aware of facts from which the inference could be drawn that a 9 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 10 (emphasis added). 11 In Count Three, Plaintiff alleges he was housed for three years in the Cook Unit 12 where there is poor ventilation and possible mold. Plaintiff believes the conditions caused 13 him to experience flu-like symptoms and to cough up blood on two occasions. Plaintiff’s 14 claims are speculative at best; Plaintiff offers no facts connecting his injures to black mold 15 exposure or inadequate ventilation. The Court will therefore dismiss Count Three. 16 IV. Claims for Which an Answer Will be Required 17 Liberally construed, Plaintiff has adequately stated Eight Amendment medical 18 claims against Defendants Barnes and Doe in Count One and against Defendant NaphCare 19 in Count Two. The Court will require Defendant Barnes to answer Count One, in his 20 individual capacity, and Defendant NaphCare to answer Count Two. 21 Although Plaintiff has stated a claim against Defendant Doe, the Court will not 22 require service on Defendant Doe at this time because it is, in most instances, impossible 23 for the United States Marshal or his designee to serve a summons and complaint upon an 24 anonymous defendant. However, the Court will not dismiss the claim against Defendant 25 Doe at this time. 26 The Ninth Circuit has held that where identity is unknown prior to the filing of a 27 complaint, the plaintiff should be given an opportunity through discovery to identify the 28 unknown defendants, unless it is clear that discovery would not uncover the identities, or 1 that the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 F.3d 2 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 3 The Court will allow Plaintiff 120 days in which to discover the actual name of Defendant 4 Doe, through subpoena or otherwise, and to substitute the Defendant’s actual name by 5 filing a “notice of substitution.” See Wakefield, 177 F.3d at 1163. The Court may dismiss 6 without prejudice Defendant Doe if Plaintiff fails to timely file a notice of substitution, 7 unless Plaintiff seeks and is granted an extension of time. 8 V. Warnings 9 A. Address Changes 10 Plaintiff must file and serve a notice of a change of address in accordance with Rule 11 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 12 relief with a notice of change of address. Failure to comply may result in dismissal of this 13 action. 14 B. Copies 15 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 16 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 17 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 18 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 19 to comply may result in the filing being stricken without further notice to Plaintiff. 20 C. Possible Dismissal 21 If Plaintiff fails to timely comply with every provision of this Order, including these 22 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 23 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 24 to comply with any order of the Court). 25 IT IS ORDERED: 26 (1) Count Three is dismissed without prejudice. 27 (2) Defendants Henry, Sutton, Larson, Gilbert, and Coronado are dismissed 28 without prejudice. 1 (3) If Plaintiff attempts to amend to address the shortcomings identified in this 2 Order, the amended complaint must be filed on the court-approved form and retyped or 3 rewritten in its entirety (including those claims and Defendants that were not dismissed), 4 and Plaintiff must comply with Rule 15 of the Federal Rules of Civil Procedure and Rule 5 15.1 of the Local Rules of Civil Procedure. 6 (4) Within 120 days from the filing date of this Order, Plaintiff must file a 7 “Notice of Substitution,” substituting Defendant Doe’s actual name. The Court may 8 dismiss without prejudice Defendant Doe if Plaintiff fails to timely file a notice of 9 substitution, unless Plaintiff seeks and is granted an extension of time. 10 (5) Defendants Barnes must Count One and NaphCare must answer Count Two. 11 (6) The Clerk of Court must send Plaintiff a service packet including the 12 Complaint (Doc. 1), this Order, and both summons and request for waiver forms for 13 Defendants Barnes and NaphCare. 14 (7) Plaintiff must complete1 and return the service packet to the Clerk of Court 15 within 21 days of the date of filing of this Order. The United States Marshal will not 16 provide service of process if Plaintiff fails to comply with this Order. 17 (8) If Plaintiff does not either obtain a waiver of service of the summons or 18 complete service of the Summons and Complaint on a Defendant within 90 days of the 19 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 20 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 21 16.2(b)(2)(B)(ii). 22 (9) The United States Marshal must retain the Summons, a copy of the 23 Complaint, and a copy of this Order for future use. 24 (10) The United States Marshal must notify Defendants of the commencement of 25 this action and request waiver of service of the summons pursuant to Rule 4(d) of the

26 1 If a Defendant is an officer or employee of the Arizona Department of Corrections, 27 Rehabilitation & Reentry, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the 28 Central Office of the Arizona Department of Corrections, Rehabilitation & Reentry unless the officer or employee works there. 1 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 2 Order. 3 (11) A Defendant who agrees to waive service of the Summons and Complaint 4 must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 5 30 days of the date of the notice and request for waiver of service pursuant to Federal 6 Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. 7 (12) The Marshal must immediately file signed waivers of service of the 8 summons. If a waiver of service of summons is returned as undeliverable or is not returned 9 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 10 the Marshal must: 11 (a) personally serve copies of the Summons, Complaint, and this Order 12 upon Defendant pursuant to Rule 4(e)(2) and/or Rule 4(h)(1) of the 13 Federal Rules of Civil Procedure; and 14 (b) within 10 days after personal service is effected, file the return of 15 service for Defendant, along with evidence of the attempt to secure a 16 waiver of service of the summons and of the costs subsequently 17 incurred in effecting service upon Defendant. The costs of service 18 must be enumerated on the return of service form (USM-285) and 19 must include the costs incurred by the Marshal for photocopying 20 additional copies of the Summons, Complaint, or this Order and for 21 preparing new process receipt and return forms (USM-285), if 22 required. Costs of service will be taxed against the personally served 23 Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 24 Procedure, unless otherwise ordered by the Court. 25 (13) Defendants must answer the Complaint or otherwise respond by appropriate 26 motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 27 Rules of Civil Procedure. 28 1 (14) Any answer or response must state the specific Defendant by name on whose 2| behalf it is filed. The Court may strike any answer, response, or other motion or paper that 3| does not identify the specific Defendant by name on whose behalf it is filed. 4 (15) This matter is referred to Magistrate Judge James F. Metcalf pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). 7 Dated this 12th day of September, 2025. 8 7 ' 10 , C : James A. Teilborg I] Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28