1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Vaughn Gwen, No. CV 21-02211-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Yavapai County Jail Medical Providers, 13 et al., 14 Defendants.
15 16 Plaintiff Gerald Vaughn Gwen, who is confined in CoreCivic’s Red Rock 17 Correctional Center, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 18 § 1983 (Doc. 1). After the Court gave him an opportunity to either file an Application to 19 Proceed In Forma Pauperis or pay the filing and administrative fees, he filed an Application 20 to Proceed In Forma Pauperis (Doc. 4). The Court will grant the Application to Proceed 21 and will dismiss the Complaint with leave to amend. 22 I. Application to Proceed In Forma Pauperis and Filing Fee 23 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 24 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 25 § 1915(b)(1). The Court will assess an initial partial filing fee of $33.14. The remainder 26 of the fee will be collected monthly in payments of 20% of the previous month’s income 27 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 1 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 2 government agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 8 relief may be granted, or that seek monetary relief from a defendant who is immune from 9 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 27 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 28 1 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 2 U.S. 89, 94 (2007) (per curiam)). 3 If the Court determines that a pleading could be cured by the allegation of other 4 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 5 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 6 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 7 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 8 III. Complaint 9 In his one-count Complaint, Plaintiff seeks declaratory relief and monetary damages 10 from Defendants Yavapai County Jail, Yavapai County Jail Medical Providers, Health 11 Services Administrator Becky P., and Doctor Leon Caholico. 12 Plaintiff raises a claim under the Eighth and Fourteenth Amendments regarding his 13 medical care. He alleges that for over 2.5 years, Defendants showed deliberate indifference 14 to his serious medical needs by refusing to provide medical care, medical treatment, or 15 access to medical services. Plaintiff contends Defendants had “actual knowledge of a 16 subjectively serious medical condition that had been identified by a medical practitioner’s 17 radiology report”; failed to act, “even in the face of several medical requests and grievances 18 to provide medical care”; and “understood that what they were doing violated Plaintiff’s 19 constitutional rights.” He also asserts that the Yavapai County Sheriff’s deputies who 20 “directly participated in the grievance process,” were acting “pursuant to a policy, custom 21 or practice [that] deprived Plaintiff of medical care.” 22 Plaintiff claims Defendants exposed him to COVID-19 and other contagious 23 diseases when (1) Defendants housed him with an inmate who tested positive for 24 tuberculosis; (2) Plaintiff was housed in a small space for an indeterminate time with an 25 inmate who was suspected of having a highly contagious staphylococcus infection; and 26 (3) Plaintiff was housed with an inmate who had only been quarantined for six days before 27 being placed in the general population. Plaintiff contends the quarantined inmate “may 28 have infected” him. Plaintiff also alleges Defendants “intentionally and knowingly passed 1 on the serious medical issue(s) to the Arizona Department of Corrections with a willful 2 disregard to Plaintiff’s immediate and long-term health.” He contends sufficient notice 3 was provided to Defendants of “a serious medical condition requiring medical treatment” 4 that was “interfering with daily activities” and, therefore “the risk was obvious to Plaintiff’s 5 immediate health and delay in Plaintiff obtaining proper diagnoses or treatment.” 6 Plaintiff asserts that on July 17, 2020, he filed a grievance regarding “d[e]bilitating 7 health, weight loss, [and] neck, sho[u]lder and back pain.” He claims he was scheduled to 8 meet with a health services counsel, met with the counselor on July 21, and was instructed 9 to file another request for medical care. He also alleges the counselor “would follow-up 10 on the diet concerns,” but did not, so Plaintiff filed another grievance on July 28. Plaintiff 11 contends Defendant Becky P. responded to the grievance “without a resolution being 12 reached,” and the grievance was dismissed. Plaintiff alleges that on August 20, 2020, the 13 July grievance was “intentionally removed or deleted, thus terminating the grievance 14 before the process was completed.” 15 Plaintiff contends he filed several health needs requests and grievances that “went 16 unnoticed by the medical staff and jail operational staff.” He claims he filed grievances on 17 November 4 and 11, 2020, regarding COVID-19 symptoms and a November 25 grievance 18 regarding neck, shoulder, and back pain. Plaintiff alleges “[t]he result of these grievance[s] 19 was deliberate indifference when none of the grievances were properly litigated by the 20 Defendant[]s.” He claims he therefore filed a fourth grievance to the “jail command 21 officer,” but it went unanswered, and filed a “sixth” grievance on January 22, 2021. 22 Plaintiff alleges that between October 5 and November 20, 2020, his weight dropped 23 more than 16 pounds. He claims the medical staff took no notice or action “when it was 24 apparent that a serious and significant weight loss had occurred.” Plaintiff asserts that on 25 November 8, 2020, he began to experience COVID-19 symptoms. He claims that between 26 November 8 and 18, he informed several deputies and nurses that he was unable to eat, had 27 no taste, and was experiencing nausea, a loss of appetite, and fatigue. Plaintiff alleges that 28 1 after eight days of his symptoms not being addressed, he pleaded with a nurse, who 2 promised to send an email to Defendant Becky P. 3 Plaintiff contends that as a result of the nurse’s efforts, he met with Defendant 4 Caholico on November 20, 2020, and “expressed [his] concerns” regarding his COVID-19 5 symptoms, diet, weight loss, and pain in his neck, back, and shoulder. Plaintiff claims that 6 “the only action taken” was that Defendant Caholico order x-rays for Plaintiff’s neck 7 injury. Plaintiff asserts the x-rays were scheduled to be taken on November 27, but were 8 not taken until December 6. Plaintiff claims that on January 25, 2021, a nurse delivered an 9 e-mail message from Defendant Caholico stating that Plaintiff suffered from degenerative 10 arthritis and, if Plaintiff wanted medication, he should let Defendant Caholico know. 11 Plaintiff contends no other medical care or treatments were provided for the other issues 12 Plaintiff raised. 13 Plaintiff contends he suffered psychological pain, emotional distress, physical pain, 14 a loss of sleep, and elevated blood pressure that caused headaches, dizziness, and nose 15 bleeds. 16 IV. Failure to State a Claim 17 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 18 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 19 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 20 civil rights complaint may not supply essential elements of the claim that were not initially 21 pled. Id. 22 A. Yavapai County Jail 23 Section 1983 imposes liability on any “person” who violates an individual’s federal 24 rights while acting under color of state law. Congress intended municipalities and other 25 local government units to be included among those persons to whom § 1983 applies. 26 Monell v. Dept. of Soc. Servs., 436 U.S. 658, 689-90 (1978). However, the Yavapai County 27 Jail is a building or collection of buildings, not a person or legally created entity capable 28 of being sued. Thus, the Court will dismiss Defendant Yavapai County Jail. 1 B. Medical Care Claim 2 The Ninth Circuit Court of Appeals has held that “claims for violations of the right 3 to adequate medical care ‘brought by pretrial detainees against individual defendants under 4 the Fourteenth Amendment’ must be evaluated under an objective deliberate indifference 5 standard.” Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (quoting 6 Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016)). To state a medical 7 care claim, a pretrial detainee must show 8 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those 9 conditions put the plaintiff at substantial risk of suffering 10 serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable 11 official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the 12 defendant’s conduct obvious; and (iv) by not taking such 13 measures, the defendant caused the plaintiff’s injuries. 14 Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively 15 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each 16 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 17 389, 397 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)). 18 The “‘mere lack of due care by a state official’ does not deprive an individual of 19 life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 20 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more 21 than negligence but less than subjective intent—something akin to reckless disregard.” Id. 22 A mere delay in medical care, without more, is insufficient to state a claim against prison 23 officials for deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 24 F.2d 404, 407 (9th Cir. 1985). 25 Regarding Defendant Yavapai County Jail Medical Providers, Plaintiff has simply 26 provided the elements of a cause of action, supported by mere conclusory statements. This 27 is insufficient. Iqbal, 556 U.S. at 678. Similarly insufficient are Plaintiff’s vague and 28 conclusory allegations against groups of Defendants, without any factual specificity as to 1 what any particular Defendant did or failed to do. See Marcilis v. Twp. of Redford, 693 2 F.3d 589, 596 (6th Cir. 2012) (upholding dismissal of Bivens complaint that referred to all 3 defendants “generally and categorically” because the plaintiff had failed to “‘allege, with 4 particularity, facts that demonstrate what each defendant did to violate the asserted 5 constitutional right.’” (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))); 6 Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s use 7 of either the collective term ‘Defendants’ or a list of the defendants named individually but 8 with no distinction as to what acts are attributable to whom, it is impossible for any of these 9 individuals to ascertain what particular unconstitutional acts they are alleged to have 10 committed.”). Thus, the Court will dismiss without prejudice Plaintiff’s claims against 11 Defendant Yavapai County Jail Medical Providers. 12 Plaintiff’s only specific allegation regarding Defendant Becky P. is that she 13 responded to a grievance “without a resolution being reached.” Plaintiff does not identify 14 the contents of his grievance, what Defendant Becky P. stated in her response, or anything 15 to suggest that her response placed him at a substantial risk of suffering serious harm. 16 Plaintiff’s allegations are too vague and conclusory to state a claim against Defendant 17 Becky P. Thus, the Court will dismiss without prejudice Defendant Becky P. 18 Plaintiff’s only specific allegation regarding Defendant Caholico is that although 19 Plaintiff expressed concerns about COVID-19 symptoms, diet, weight loss, and pain in his 20 neck, back, and shoulder, Defendant Caholico only ordered x-rays for Plaintiff’s neck 21 injury and did not provide any other medical care or treatment. However, Plaintiff does 22 not identify what he told Defendant Caholico when he expressed his concerns; what, if 23 anything, Defendant Caholico told Plaintiff about the COVID-19, diet, and weight loss 24 issues; and how Defendant Caholico’s response placed Plaintiff at substantial risk of 25 suffering serious harm. Absent more, Plaintiff’s allegations are too vague and conclusory 26 to state a claim against Defendant Caholico, and, therefore, the Court will dismiss without 27 prejudice Defendant Caholico. 28 . . . . 1 V. Leave to Amend 2 For the foregoing reasons, the Court will dismiss Plaintiff’s Complaint for failure to 3 state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 4 first amended complaint to cure the deficiencies outlined above. The Clerk of Court will 5 mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff 6 fails to use the court-approved form, the Court may strike the amended complaint and 7 dismiss this action without further notice to Plaintiff. 8 Plaintiff must clearly designate on the face of the document that it is the “First 9 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 10 entirety on the court-approved form and may not incorporate any part of the original 11 Complaint by reference. Plaintiff may include only one claim per count. 12 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 13 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 14 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 15 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 16 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 17 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 18 F.3d 896, 928 (9th Cir. 2012) (en banc). 19 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 20 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 21 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 22 do; (4) how the action or inaction of that Defendant is connected to the violation of 23 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 24 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 25 Plaintiff must repeat this process for each person he names as a Defendant. If 26 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 27 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 28 failure to state a claim. Conclusory allegations that a Defendant or group of 1 Defendants has violated a constitutional right are not acceptable and will be 2 dismissed. 3 VI. Warnings 4 A. Release 5 If Plaintiff is released while this case remains pending, and the filing fee has not 6 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 7 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 8 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 9 result in dismissal of this action. 10 B. Address Changes 11 Plaintiff must file and serve a notice of a change of address in accordance with Rule 12 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 13 relief with a notice of change of address. Failure to comply may result in dismissal of this 14 action. 15 C. Possible “Strike” 16 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 17 fails to file an amended complaint correcting the deficiencies identified in this Order, the 18 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 19 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 20 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 21 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 22 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 23 or fails to state a claim upon which relief may be granted, unless the prisoner is under 24 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 25 D. Possible Dismissal 26 If Plaintiff fails to timely comply with every provision of this Order, including these 27 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 28 1| at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court). 3| ITIS ORDERED: 4 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 4) is granted. 5 (2) As required by the accompanying Order to the appropriate government 6) agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 7) of $33.14. 8 (3) |The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance 10 | with this Order. 11 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 12 | Court must, without further notice, enter a judgment of dismissal of this action with 13 | prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 14| and deny any pending unrelated motions as moot. 15 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 17 Dated this 16th day of February, 2022. 18 19 a 3 20 1 _ James A. Teil Org Senior United States District Judge 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 $402.00 ($350.00 filing fee plus $52.00 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 $402 filing and administrative fees or the application to proceed in forma pauperis to:
1 Revised 12/1/20 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. 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. .
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.