Drew 048508 v. Paul

Opinion

1 KM 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tommy D. Drew, No. CV 21-01488-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Theodora Paul, et al., 13 14 Defendants.

15 16 Pending before the Court is Plaintiff Tommy D. Drew’s October 4, 2021 Second 17 Amended Complaint (Doc. 11). The Court will order Defendants Furar, Paul, and Young 18 to answer the Second Amended Complaint and will dismiss the remaining Defendants 19 without prejudice. 20 I. Procedural Background 21 On August 30, 2021, Plaintiff, who is confined in the Arizona State Prison 22 Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an 23 Application to Proceed In Forma Pauperis. On September 13, 2021, Plaintiff filed a First 24 Amended Complaint. In a September 24, 2021 Order, the Court granted the Application 25 to Proceed and dismissed the First Amended Complaint with leave to amend. Plaintiff 26 filed the Second Amended Complaint on October 4, 2021. 27 . . . . 28 . . . . 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 1 III. Second Amended Complaint 2 Plaintiff names the following Defendants in his one-count Second Amended 3 Complaint: Site Medical Director Theodora Paul; Medical Provider Renae Furar; Director 4 of Nursing Donna Mendoza; Medical Providers Nicole Johnson, Lillian Davod, Xiao-Ke 5 Gao, and Michelle Jennings; Nurses Jessica Gonzalez, Nivia Campa, Michelle Bryniak, 6 Marcella Aumack, Melissa Michel, Angela White, Christina Robles, Oyuki Coronado, 7 Sarah Ziegler, and Anita Benavidez; and Regional Medical Director Young. Plaintiff seeks 8 declaratory, injunctive, and monetary relief. 9 Plaintiff’s alleges violations of his Eighth Amendment right to adequate medical 10 care. In 2016, Plaintiff began experiencing excruciating and debilitatingly painful 11 headaches. (Doc. 11 at 4.)1 He was prescribed Imitrex, Excedrin, indomethacin, Tylenol 12 III, ibuprofen, and Toradol injections “after he began bringing his pain and suffering to the 13 attention of the ASPC-Lewis medical staff.” (Id.) Plaintiff alleges none of these 14 medications has alleviated his pain and “subsequently, in order to attain relief from the 15 constant excruciating and sometimes debilitating pain . . ., he began self-medicating with 16 heroin.” (Id.) 17 On February 4, 2020, Defendant Furar examined Plaintiff and ordered a CT 18 scan. (Id. at 5.) Plaintiff informed Furar that the Excedrin had no effect in alleviating his 19 pain and “departed from his examination [still] suffering excruciating pain . . . .” (Id.) For 20 the entire month of March 2020, Plaintiff suffered “excruciating pain” and his Health 21 Needs Requests (HNRs) were ignored. (Id.) 22 On April 2, 2020, Defendant Furar again examined Plaintiff and Plaintiff again 23 informed her that the Excedrin “did nothing.” (Id. at 6.) Defendant Furar told Plaintiff, 24 “you’re a liar,” and refused to prescribe Plaintiff an alternative treatment to alleviate the 25 pain. (Id.) On May 4, 2020, Plaintiff again informed Furar that the Excedrin was “doing 26 nothing” to stop his pain, and Furar again “indicated to [Plaintiff] she did not believe 27

28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 him.” (Id. at 6, 7.) 2 On May 5 and 12, 2020, Plaintiff spoke with Defendant Nurse Gonzalez regarding 3 his HNRs. Gonzalez refused to refer him to a medical provider and “accused him of 4 malingering and ordered Plaintiff [to] be immediately returned to his housing unit.” (Id. 5 at 7.) 6 On June 23, 2020, Defendant Campa saw Plaintiff and “avoided all discussion” 7 concerning Plaintiff’s pain. (Id. at 8.) On June 29, 2020, “in relation to Campa’s referral,” 8 Defendant Furar met with Plaintiff and accused him of lying about his pain. (Id.) 9 On July 20, 2020, Plaintiff had a CT scan that revealed a “small arachnoid cyst in 10 the left middle cranial fossa with low-attenuation in the right sphenoid bone measuring 11 17x10 mm.” (Id. at 9.) Plaintiff asserts that according to the National Institute of Health, 12 an untreated arachnoid cyst may cause permanent severe neurological damage “when 13 progressive expansion of the cyst or bleeding into the cyst injures the brain or spinal 14 cord.” (Id.) 15 On August 17, 2020, Plaintiff filed an Inmate Informal Complaint Resolution. On 16 September 11, 2020, Defendant Mendoza responded, omitting “all mention of the fact of 17 the excruciating pain inside [Plaintiff’s] skull.” (Id. at 10.) 18 From September 2020 through January 2021, Plaintiff filed multiple HNRs relating 19 to his pain. From October 2020 through January 2021, Plaintiff was seen thirteen times 20 “by various named Defendants, and on each occasion[,] Plaintiff was accused of fabricating 21 his claim that he was suffering from excruciating pain inside his skull, that began in 22 2016.” (Id.) 23 On January 28, 2021, Plaintiff collapsed as a result of his pain and an Incident 24 Command System (ICS) was called. Defendants Bryniak and Aumack examined Plaintiff, 25 ignored his “pleas to assist him with the excruciating pain inside his skull,” and referred 26 him to Defendant Mendoza. (Id.) Defendant Mendoza informed Plaintiff that she was not 27 going to do anything to treat Plaintiff’s pain. (Id. at 11.) On January 29, 2021, Defendant 28 Michel met with Plaintiff and refused to treat Plaintiff’s pain. (Id.) 1 On February 9, 2021, Plaintiff again collapsed from pain and another ICS was 2 called. (Id.) Defendant Bryniak met with Plaintiff regarding the pain. On February 10, 3 2021, Defendant White ordered Plaintiff to be “fed in-house.” (Id.) On February 15, 2021, 4 Defendant Campa met with Plaintiff and refused to “provide any form of treatment” for 5 Plaintiff’s pain. (Id.) 6 On February 18, 2021, Defendant Paul examined Plaintiff and administered two 7 Tylenol III pills, an injection into Plaintiff’s left shoulder, and an injection behind each of 8 Plaintiff’s ears. (Id. at 12.) Plaintiff suffered a reaction to the injections behind his ears, 9 two “golf ball sized knots developed,” and Plaintiff was taken to the hospital. (Id.) Plaintiff 10 claims that at the hospital, the treating physician stated, “why the hell would she give you 11 injections at the back of your scalp?” (Id.) On February 19, 2021, after Plaintiff returned 12 from the hospital, Defendant Davod examined Plaintiff, accused him of malingering, and 13 refused to treat him. (Id. at 13.) On February 27, 2021, Plaintiff met with Defendant 14 Coronado who accused him of malingering and refused to treat him. (Id.) 15 Plaintiff submitted an Inmate Grievance. On March 9, 2021, Defendant Mendoza 16 responded, stating Plaintiff had seen Defendant Paul on February 18, 2021, was sent to the 17 hospital for evaluation on February 19, saw “a different provider” on February 27, had “a 18 neuro consult in place,” and was “scheduled soon to be evaluated and to determine next 19 step.” (Id. at 14.) On March 9, 2021, Defendant Gao met with Plaintiff “through digital 20 means,” and wrote in his records that Plaintiff’s cyst “has no clinical significance.” (Id.) 21 On March 10, 2021, Plaintiff again collapsed due to pain and an ICS was 22 called. (Id.) Defendant Bryniak examined Plaintiff and informed Plaintiff there was 23 nothing wrong with him. (Id.) Another ICS was activated for Plaintiff on March 12, 2021, 24 after which Defendant Michel examined him. (Id. at 15.) Defendant Michel told Plaintiff, 25 “you need to stop, we’re not gonna give you any drugs.” (Id.) On March 23, 2021, another 26 ICS was activated for Plaintiff after which Defendant Ziegler met with Plaintiff and 27 informed him “that he was not suffering from the excruciating pain in his skull . . . .” (Id.) 28 On April 12, 2021, an ICS was activated after Plaintiff collapsed. Plaintiff met with 1 Defendant Campa, and Defendant Campa told him “we’re not gonna do anything for 2 you.” (Id. at 16.) On April 20, 2021, Plaintiff saw Defendants Davod and Paul regarding 3 his pain. Defendant Paul informed Plaintiff “that it was her opinion there was nothing 4 wrong with Plaintiff and that his consultation with a neurologist was going to be 5 denied.” (Id.) 6 On May 4, 2021, Plaintiff saw Defendant Robles, who told him that he “needed to 7 stop wasting medical staff’s time within his bogus claims that his head hurt.” (Id. at 17.) 8 On May 22, 2021, Plaintiff spoke with Defendant Jennings, who told Plaintiff “that even 9 if it were true that he was suffering excruciating pain inside his skull, Jennings would do 10 nothing for it.” (Id.) On May 30, 2021, non-party Nurse Porter examined Plaintiff and 11 referred him to Defendant Johnson. Defendant Johnson subsequently ordered Nurse Porter 12 to terminate Plaintiff’s treatment. (Id. at 18.) 13 On June 1, 2021, Defendant Benavidez “refused to so much as listen to Plaintiff’s 14 pleadings concerning treatment for the excruciating pain inside his skull.” (Id. at 19.) On 15 June 3, 2021, Defendant Avila met with Plaintiff and refused treatment. (Id. at 20.) On 16 June 7, 2021, Defendant Jennings saw Plaintiff and “made no effort” to treat Plaintiff’s 17 pain. (Id.) 18 Plaintiff also claims he began to experience seizures in 2009 and was prescribed 19 Keppra and Gabapentin. (Id.) On June 15, 2021, “due to the fact that [Plaintiff] had tested 20 positive for opiates in his system, resulting from Plaintiff self-medicating for relief from 21 the excruciating pain inside his skull, Defendant Johnson discontinued [Plaintiff’s] 22 gabapentin prescription.” (Id.) Plaintiff began experience seizures on a regular basis. On 23 June 25, 2021, Plaintiff collapsed and an ICS was activated. Defendant Avila “spent a 24 short time with [Plaintiff],” but Plaintiff claims he “left his encounter with Defendant Avila 25 still suffering excruciating pain.” (Id.) 26 On July 7, 2021, Plaintiff submitted an Inmate Letter to the Assistant Deputy 27 Warden (ADW). On July 22, 2021, Plaintiff met with Defendants Paul and Coleman,2 the

28 2 Although Plaintiff refers to Coleman as a Defendant, Plaintiff does not list 1 ADW and five other officials from the prison and “medical departments.” (Id. at 21.) 2 Defendant Paul stated Plaintiff was fabricating is claims regarding his pain and suggested 3 Plaintiff seek mental health treatment. (Id.) Coleman warned Plaintiff that if he continued 4 seeking treatment for his pain, he would face disciplinary action. (Id.) On July 23, 2021, 5 Plaintiff met with a Mental Health Assistant, who informed Plaintiff she could do nothing 6 to stop Plaintiff’s pain. (Id. at 22.) On July 30, 2021, Plaintiff submitted an HNR “begging 7 for a neurological examination.” (Id.) Defendant Mendoza responded by stating that 8 Plaintiff’s medical concerns were addressed at his meeting with the site medical director 9 and that if he disagreed with Defendant Paul’s plan of care, he should submit his concerns 10 in a grievance. (Id.) 11 On September 9, 2021, Defendant Davod informed Plaintiff that Defendant Young 12 denied Plaintiff’s request for a consultation with a neurological specialist. (Id. at 23.) On 13 September 27, 2021, Plaintiff met with a Mental Health Assistant who informed Plaintiff 14 “that because the cyst on [Plaintiff’s] brain was a physical issue and not a matter rooted in 15 psychology, there existed no form of treatment whereby [the Mental Health Assistant] 16 could begin to staunch the excruciating pain.” (Id.) Plaintiff asserts he continues to suffer 17 excruciating pain “twenty-four hours each and every day.” (Id.) 18 IV. Claims for Which an Answer Will be Required 19 Liberally construed, Plaintiff as adequately stated Eighth Amendment medical 20 claims against Defendants Furar, Paul, Young, and Mendoza. The Court will require these 21 Defendants to answer the Second Amended Complaint. 22 V. Failure to State a Claim 23 Not every claim by a prisoner relating to inadequate medical treatment states a 24 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 25 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 26 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 27 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th

28 Coleman in the “Defendants” section of the Second Amended Complaint or explain who Coleman is. 1 Cir. 2006). 2 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 3 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 4 know of and disregard an excessive risk to inmate health; “the official must both be aware 5 of facts from which the inference could be drawn that a substantial risk of serious harm 6 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 7 Deliberate indifference in the medical context may be shown by a purposeful act or failure 8 to respond to a prisoner’s pain or possible medical need and harm caused by the 9 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 10 prison official intentionally denies, delays, or interferes with medical treatment or by the 11 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 12 97, 104-05 (1976); Jett, 439 F.3d at 1096. 13 Deliberate indifference is a higher standard than negligence or lack of ordinary due 14 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 15 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 16 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 17 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 18 do not support a claim under § 1983). “A difference of opinion does not amount to 19 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 20 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 21 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 22 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 23 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 24 Estelle, 429 U.S. at 105. 25 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 27 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 28 civil rights complaint may not supply essential elements of the claim that were not initially 1 pled. Id. 2 A. Medical Providers 3 1. Johnson 4 Plaintiff alleges Defendant Johnson ordered a nurse to “terminate treatment” on 5 May 30, 2021, and, on June 15, 2021, discontinued Plaintiff’s prescription for Gabapentin 6 after Plaintiff tested positive for opiates. Plaintiff’s allegations are too vague to state a 7 claim against Defendant Johnson. Plaintiff does not allege what specific treatment 8 Defendant Johnson discontinued in May 2021. With respect to Plaintiff’s Gabapentin 9 prescription, Plaintiff does not allege Defendant Johnson was aware, before discontinuing 10 Gabapentin, that treating Plaintiff’s seizures with Keppra would be insufficient. Plaintiff 11 claims he started to experience seizures after being switched to Keppra, but Plaintiff does 12 not claim that he told Johnson, or any other provider, of his increase in seizures, and that 13 Johnson failed to act. Plaintiff has failed to state a claim against Defendant Johnson and 14 he will be dismissed. 15 2. Gao 16 Plaintiff’s only allegation concerning Defendant Gao is that he met with Gao 17 through a “digital” appointment and Gao wrote in Plaintiff’s records that his cyst had “no 18 clinical significance.” These allegations are insufficient to show Defendant Gao was 19 deliberately indifferent to Plaintiff’s serious medical needs, and the Court will therefore 20 dismiss Defendant Gao. 21 3. Davod 22 Plaintiff claims Defendant Davod “refused to treat” him on February 19, 2021, after 23 Plaintiff’s return from the hospital; was present at the April 20, 2021 meeting with 24 Defendant Paul; and informed Plaintiff, on September 9, 2021, that Defendant Young had 25 denied Plaintiff a neurological consult. 26 These allegations are insufficient to show Defendant Davod was deliberately 27 indifferent to Plaintiff’s serious medical needs. Plaintiff does not allege whether the 28 hospital provided discharge instructions or prescribed medication, or whether Defendant 1 Davod “refused” some other type of unspecified treatment after Plaintiff returned from the 2 hospital. With respect to the April 20, 2021 meeting, Plaintiff claims Defendant Paul, not 3 Davod, denied his request for a neurological consultation at that meeting. Finally, 4 Plaintiff’s claim that Davod informed Plaintiff of Defendant Young’s decision to deny a 5 neurological consultation indicates Young, not Davod, was responsible for denying the 6 consultation. The Court will dismiss without prejudice Defendant Davod. 7 4. Jennings 8 Plaintiff claims that on May 22, 2021, Defendant Jennings told him he would “do 9 nothing” for Plaintiff’s pain and, on June 7, 2021, Jennings “made no effort” to treat 10 Plaintiff’s pain. These allegations are too vague to state a claim. Plaintiff does not allege 11 what information he provided to Jennings or describe what treatment he requested. The 12 Court will dismiss without prejudice Defendant Jennings. 13 B. Nurses 14 Although Plaintiff alleges the defendant nurses (Gonzalez, Campa, Bryniak, 15 Aumack, Michel, White, Robles, Coronado, Ziegler, and Benavidez) accused him of 16 malingering and refused to treat him, Plaintiff does not allege that any of the defendant 17 nurses had authority to give Plaintiff medication or treatment not already prescribed by a 18 doctor or physician’s assistant and Plaintiff does not allege that any of the defendant nurses 19 denied him prescribed medication or treatment. Plaintiff’s claims against the nurses are 20 insufficient to state Eighth Amendment claims and the Court will therefore dismiss them 21 without prejudice. 22 VI. Warnings 23 A. Release 24 If Plaintiff is released while this case remains pending, and the filing fee has not 25 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 26 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 27 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 28 result in dismissal of this action. 1 B. Address Changes 2 Plaintiff must file and serve a notice of a change of address in accordance with Rule 3 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 4 relief with a notice of change of address. Failure to comply may result in dismissal of this 5 action. 6 C. Copies 7 Because Plaintiff is currently confined in an Arizona Department of Corrections unit 8 subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy 9 of every document he files or to submit an additional copy of every filing for use by the 10 Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule 11 of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by 12 including, with every document he files, a certificate of service stating that this case is 13 subject to General Order 14-17 and indicating the date the document was delivered to 14 prison officials for filing with the Court. 15 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he 16 will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a 17 copy of every document that he files, and include a certificate stating that a copy of the 18 filing was served; and (b) submit an additional copy of every filing for use by the Court. 19 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 20 being stricken without further notice to Plaintiff. 21 D. Possible Dismissal 22 If Plaintiff fails to timely comply with every provision of this Order, including these 23 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 24 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 25 to comply with any order of the Court). 26 IT IS ORDERED: 27 (1) Defendants Johnson, Gonzalez, Campa, Bryniak, Aumack, Michel, White, 28 Robles, Davod, Gao, Jennings, Coronado, Ziegler, and Benavidez are dismissed without 1 prejudice. 2 (2) Defendants Furar, Paul, Young, and Mendoza must answer the Second 3 Amended Complaint. 4 (3) The Clerk of Court must send Plaintiff this Order, and a copy of the 5 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 6 for Waiver of Service of Summons form for Defendants Furar, Paul, Young, and Mendoza. 7 (4) Plaintiff must complete1 and return the service packet to the Clerk of Court 8 within 21 days of the date of filing of this Order. The United States Marshal will not 9 provide service of process if Plaintiff fails to comply with this Order. 10 (5) If Plaintiff does not either obtain a waiver of service of the summons or 11 complete service of the Summons and Second Amended Complaint on a Defendant within 12 90 days of the filing of the Complaint or within 60 days of the filing of this Order, 13 whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. 14 Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 15 (6) The United States Marshal must retain the Summons, a copy of the Second 16 Amended Complaint, and a copy of this Order for future use. 17 (7) The United States Marshal must notify Defendants of the commencement of 18 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 19 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 20 Order. 21 (8) A Defendant who agrees to waive service of the Summons and Second 22 Amended Complaint must return the signed waiver forms to the United States Marshal, not 23 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 24 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 25 personal service.

26 1If a Defendant is an officer or employee of the Arizona Department of Corrections, 27 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 Central Office of the 28 Arizona Department of Corrections unless the officer or employee works there. 1 (9) The Marshal must immediately file signed waivers of service of the 2 summons. If a waiver of service of summons is returned as undeliverable or is not returned 3 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 4 the Marshal must: 5 (a) personally serve copies of the Summons, Second Amended 6 Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal 7 Rules of Civil Procedure; and 8 (b) within 10 days after personal service is effected, file the return of 9 service for Defendant, along with evidence of the attempt to secure a waiver of 10 service of the summons and of the costs subsequently incurred in effecting service 11 upon Defendant. The costs of service must be enumerated on the return of service 12 form (USM-285) and must include the costs incurred by the Marshal for 13 photocopying additional copies of the Summons, Second Amended Complaint, or 14 this Order and for preparing new process receipt and return forms (USM-285), if 15 required. Costs of service will be taxed against the personally served Defendant 16 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 17 ordered by the Court. 18 (10) Defendants must answer the Second Amended Complaint or otherwise 19 respond by appropriate motion within the time provided by the applicable provisions of 20 Rule 12(a) of the Federal Rules of Civil Procedure. 21 (11) Any answer or response must state the specific Defendant by name on whose 22 behalf it is filed. The Court may strike any answer, response, or other motion or paper that 23 does not identify the specific Defendant by name on whose behalf it is filed. 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 | (12) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 2 | 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 3 | authorized under 28 U.S.C. § 636(b)(1). 4 | Dated this 8th day of November, 2021.

Michal T. df burde Michael T. Liburdi 8 | United States District Judge

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