Gwen v. Unknown Parties

Opinion

1 MDR 2 WO 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, et al., 13 14 Defendants.

15 16 Pro se Plaintiff Gerald Vaughn Gwen is confined in CoreCivic’s Red Rock 17 Correctional Center and is proceeding in forma pauperis. After the Court dismissed 18 Plaintiff’s civil rights Complaint because he had failed to state a claim, Plaintiff filed a 19 First Amended Complaint. The Court dismissed the First Amended Complaint because 20 Plaintiff had again failed to state a claim and gave Plaintiff an opportunity to file a second 21 amended complaint that cured the deficiencies the Court identified. 22 On June 13, 2022, Plaintiff filed a Second Amended Complaint (Doc. 15). The 23 Court will order Defendant Becky P. to answer the portion of Count One regarding her July 24 2020 response to Plaintiff’s July 2020 grievance and her related failure to provide medical 25 care, order Defendant Caholico to answer the portion of Count One regarding his 26 November 2020 response to Plaintiff’s medical concerns regarding his weight and 27 coronavirus-like symptoms, and dismiss the remaining claims and Defendants without 28 prejudice. 1 I. 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 II. Second Amended Complaint 2 In his two-count Second Amended Complaint, Plaintiff sues Defendants Yavapai 3 County Jail Medical Providers, Dr. Leon Caholico, Health Services Administrator Becky 4 P., and Jail Commander Captain Newnun. Plaintiff seeks declaratory relief and monetary 5 damages. 6 In Count One, Plaintiff alleges a violation of his Eighth Amendment rights 7 regarding his medical care. He contends Defendants Caholico, Becky P., and Newnun, 8 acting “pursuant to a policy, custom or practice,” were deliberately indifferent to Plaintiff’s 9 serious medical needs when they “refused to provide reasonably necessary medical care or 10 medical treatment or access to medical services.” (Doc. 15 at 3.)1 He claims Defendants 11 had “actual knowledge of a subjectively serious medical condition to Plaintiff[’s] spine 12 diagnosed by an independent phys[ic]ian [and] were indifferent to the impending harm, 13 easily preventable.” (Id.) 14 Specifically, Plaintiff alleges that on July 17, 2020, he told “the medical services 15 provider” that he was concerned about his weight loss and that he was experiencing severe 16 pain in his neck, shoulder, and back. (Id. at 5.) Four days later, Plaintiff met with a medical 17 counselor, not a physician, and discussed his weight loss, neck injury, and inability to sleep 18 because of his pain. (Id.) The medical counselor stated that he would discuss Plaintiff’s 19 problems with the “appropriate parties” and would respond within a week. (Id.) 20 Plaintiff contends that on July 27, 2020, Defendant Newnun responded to an 21 “Appeal of Grievance,” that allegedly gave him “constructive notice of practices that 22 violated Plaintiff[’]s constitutional rights.” (Id. at 6.) He claims Defendant Newnun 23 “failed to act on the knowledge provided to him” and, “by denying Plaintiff’s appeal,” 24 acquiesced to the deprivation of Plaintiff’s “right to be free from deliberate 25 indifference.” (Id.) 26 . . . . 27

28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 Plaintiff contends that after a week with no response from the medical counselor, 2 he filed a grievance on July 28, 2020. (Id. at 5.) That same day, Defendant Becky P. 3 responded to the grievance, which allegedly gave her “constru[c]tive notice of a denial of 4 medical care or medical treatment.” (Id.) Plaintiff alleges Defendant Becky P. “refused 5 Plaintiff medical care for his serious medical needs” and “denied Plaintiff’s claims that he 6 was not receiving medical care for his neck injury or other concerns.” (Id. at 5-6.) He 7 contends this was a “fail[ure] to act” and “demonstrate[ed] deliberate indifference to 8 Plaintiff[’s] serious medical needs.” (Id. at 6.) 9 Next, Plaintiff contends that on November 8, 2020, he informed medical providers 10 that he was experiencing coronavirus-like symptoms, including shortness of breath, 11 nausea, headaches, dry mouth, and a loss of appetite. (Id. at 7.) On November 8 and 18, 12 he notified several members of the jail’s operations staff and several members of the 13 nursing staff that he was experiencing coronavirus-like symptoms, was unable to eat, and 14 would like to see a physician. (Id.) He claims “[a]ll parties” indicated they would notify 15 the medical doctor. (Id.) 16 Plaintiff asserts that on November 15, 2020, he appealed to the duty nurse, 17 explaining that he was suffering from coronavirus-like symptoms, had not eaten in ten 18 days, and had not received any medical care, despite repeated requests. (Id.) The nurse 19 sent an email to Defendant Becky P., explaining that Plaintiff “had not been rec[ei]ving 20 responses to his serious medical needs.” (Id.) As a result of the nurse’s efforts, Plaintiff 21 was scheduled to see Defendant Caholico on November 20, twelve days after he first 22 reported his symptoms. (Id. at 8.) 23 Plaintiff contends that when he met with Defendant Caholico on November 20, 24 2020, he expressed his concern that he had lost ten pounds since October 5, had been unable 25 to eat any food for the last twelve days, and was experiencing shortness of breath, nausea, 26 headaches, a loss of appetite, and a loss of taste. (Id.) He also told Defendant Caholico 27 that he was experiencing severe pain in his neck, shoulder, and back; numbness in his right 28 hand; and an inability to sleep due to the severe pain. (Id.) Plaintiff claims Defendant 1 Caholico did not perform a physical evaluation “in light of Plaintiff exhibiting coronavirus 2 s[y]mpto[m]s,” completely disregarded those symptoms, and “refused to do anything about 3 Plaintiff[’]s weigh[t] loss.” (Id.) He alleges, however, that Defendant Caholico scheduled 4 an examination by a radiologist for Plaintiff’s neck injury. (Id. at 9.) 5 Plaintiff allege that on November 25, 2020, he “again attempted to secure medical 6 care for a serious medical need” and “was denied after exhausting first complaint, first 7 appeal and a second appeal.” (Id. at 6.) He also contends “[o]ther grievances were filed 8 [that] raised the same issue and were all denied.” (Id.) 9 Plaintiff asserts that on January 25, 2021, a nurse delivered a message from 10 Defendant Caholico stating that Plaintiff suffered from a “degenerative ailment to his 11 spine” and that he should let Defendant Caholico know if he wanted pain medication. (Id. 12 at 9.) Plaintiff contends Defendant Caholico “failed to act upon his knowledge of a serious 13 medical need[], even upon conclusive dia[g]nos[i]s from an independent source.” (Id.) He 14 also claims Defendant Caholico failed to act after being informed of Plaintiff’s coronavirus 15 symptoms and “did nothing to protect Plaintiff from impending harm, easily 16 preventable.” (Id.) 17 Plaintiff also contends that he filed six consecutive grievances on January 22, 2021, 18 “in a last attempt to secure his right to medical care or medical treatment for his neck injury, 19 among other things, and was denied such medical care” by Defendants Caholico, Becky P., 20 and Newnun. (Id.) 21 In Count Two, Plaintiff raises a failure-to-protect claim under the Eighth and 22 Fourteenth Amendments. He claims Defendants Yavapai County Jail Medical Providers, 23 Becky P., and Newnun were deliberately indifferent to Plaintiff’s health and safety because 24 “they failed to take reasonable measures to protect Plaintiff from unreasonable threat and 25 e[x]posure to infectious or contag[i]ous d[is]ease known to them to be an immediate threat 26 to Plaintiff’s health and safety.” (Id. at 4.) Plaintiff asserts that the Centers for Disease 27 Control (CDC) have determined that tuberculosis, staphylococcus, and coronavirus are 28 “highly contagious[,] requiring distance[,] and capable of causing severe medical 1 complications, including death, if not timely diagnosed and treated.” (Id.) He contends 2 Defendants “did nothing to avoid placing inmates with known illnesses, potentially 3 dangerous to Plaintiff’s health, in the same confined space” and were deliberately 4 indifferent to Plaintiff’s medical needs resulting from their failure to protect him. (Id.) 5 Plaintiff alleges he was housed in a small, confined space with an inmate who had 6 tested positive for tuberculosis, and medical providers were aware of this. (Id. at 10.) He 7 claims he was also housed in a small, confined space with a second inmate who had an 8 open wound. (Id.) Plaintiff contends medical providers were actively treating the wound 9 and “should have reasonably known[,] as [the inmate’s] condition worsened[,] that it could 10 be dangerous to Plaintiff[’]s health.” (Id.) Plaintiff asserts the second inmate’s infection 11 worsened, and Plaintiff complained to the duty officer that he was not safe. (Id.) Plaintiff 12 claims the officer “unreasonably decided” the entire dormitory should be confined to their 13 cells, which created further “exposure to harm” for Plaintiff, “who was “subjected to close 14 contact with the infected person.” (Id.) 15 In addition, Plaintiff claims he was housed with an inmate who had only quarantined 16 for six days, which was four less that that recommended by the CDC. (Id.) Plaintiff alleges 17 the inmate had previously been housed in an adjacent cell where three inmates became ill 18 with the coronavirus. (Id. at 11.) He contends jail and medical providers knew that an 19 active case of coronavirus existed when “[the] decision was made to quarantine the entire 20 dormit[or]y.” (Id.) Plaintiff alleges the jail staff, Defendant Newnun, and medical 21 providers “did nothing to protect Plaintiff, even after they were informed and had 22 knowledge of impending harm, easily preventable.” (Id.) 23 Plaintiff contends Defendants “share individual liability” because they acted with 24 deliberate indifference and “shared a common goal of deprivation of a constitutional right 25 to be free from deliberate indifference.” (Id.) 26 . . . . 27 . . . . 28 . . . . 1 In a Claims for Relief section,2 Plaintiff contends Defendants’ “failure . . . to act 2 on their knowledge of a substantial risk of harm to Plaintiff violated his Eighth Amendment 3 right to be free from deliberate indifference.” (Id. at 12.) He alleges that as a result of 4 Defendants’ “failure to protect Plaintiff or provide reasonable safeguards from potentially 5 dangerous infections or contag[i]ous d[is]ease, Plaintiff suffered serious physical and 6 emotional injury.” (Id.) 7 Plaintiff contends Defendant Caholico failed to act “when he knew that there existed 8 an active outbreak of the coronavirus” in the unit where Plaintiff was housed and when he 9 knew of a serious injury to Plaintiff’s neck. (Id.) Plaintiff asserts he suffered the 10 “unnecessary and wanton infliction of pain and the impending harm, easily preventable,” 11 and this constitutes deliberate indifference. (Id. at 12-13.) 12 Plaintiff claims Defendants Becky P. and Newnun failed to act “on their 13 knowledge,” were deliberately indifferent, and “demonstrated []reckless disregard to 14 Plaintiff’s constitutional rights,” and their conduct deprived Plaintiff of medical care or 15 treatment. (Id. at 13.) He asserts their refusal to provide reasonably necessary medical 16 care and their “denial to deal with Plaintiff’s problems[,] contributed to the current and 17 ongoing unnecessary and wanton inflection of pain.” (Id.) He contends this constitutes 18 deliberate indifference to his serious medical needs. (Id.) 19 Plaintiff alleges Defendant Yavapai County Jail Medical Providers and Defendant 20 Newnun failed to “ensure that safeguards were in place to guarantee all constitutional rights 21 are in full force.” (Id.) He also claims Defendants “have a policy of restricting, if not 22 outright denying” medical care, medical treatment, or access to medical services, “when 23 such care is too expensive or carries a burden to provide.” (Id. at 14.) He contends 24 Defendant’s failure to take “necessary measures” to ensure he received “the needed 25

26 2 In filing a “Claims for Relief” section, Plaintiff ignored the Court’s instruction in the April 5, 2022 Order that, “he must include his “claims for relief” in the relevant 27 counts, not in a separate section.” (Emphasis in original.) Future failures to comply with the Court’s orders may result in dismissal of this action. See Ferdik v. Bonzelet, 963 F.2d 28 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). 1 medical care or treatment, d[e]spite their knowledge of Plaintiff’s serious medical needs,” 2 constitutes deliberate indifference. (Id.) 3 III. Discussion of Second Amended Complaint 4 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 5 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 6 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 7 civil rights complaint may not supply essential elements of the claim that were not initially 8 pled. Id. 9 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 10 specific injury as a result of specific conduct of a defendant and show an affirmative link 11 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 12 371-72, 377 (1976). “[A] plaintiff must plead that each Government-official defendant, 13 through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 14 U.S. at 676. 15 A pretrial detainee has a right under the Due Process Clause of the Fourteenth 16 Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, 17 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, 18 shelter, sanitation, medical care, and personal safety.’” Alvarez-Machain v. United States, 19 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 20 1982)). To state a claim of unconstitutional conditions of confinement against an 21 individual defendant, a pretrial detainee must allege facts that show: 22 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 23 (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take 24 reasonable available measures to abate that risk, even though a 25 reasonable official in the circumstances would have appreciated the high degree of risk involved—making the 26 consequences of the defendant’s conduct obvious; and (iv) by 27 not taking such measures, the defendant caused the plaintiff’s injuries. 28 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 1 Whether the conditions and conduct rise to the level of a constitutional violation is 2 an objective assessment that turns on the facts and circumstances of each particular case. 3 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 4 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack 5 of due care by a state official’ does not deprive an individual of life, liberty, or property 6 under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 7 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a 8 plaintiff must “prove more than negligence but less than subjective intent—something akin 9 to reckless disregard.” Id. 10 A. Defendant Yavapai County Medical Providers 11 Regarding Defendant Yavapai County Medical Providers, Plaintiff has simply made 12 vague and conclusory allegations against a group of Defendants, without any factual 13 specificity as to what any particular Defendant did or failed to do. This is insufficient. See 14 Marcilis v. Twp. of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (upholding dismissal of 15 Bivens complaint that referred to all defendants “generally and categorically” because the 16 plaintiff had failed to “‘allege, with particularity, facts that demonstrate what each 17 defendant did to violate the asserted constitutional right.’” (quoting Lanman v. Hinson, 529 18 F.3d 673, 684 (6th Cir. 2008))); Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 19 2008) (“Given the complaint’s use of either the collective term ‘Defendants’ or a list of the 20 defendants named individually but with no distinction as to what acts are attributable to 21 whom, it is impossible for any of these individuals to ascertain what particular 22 unconstitutional acts they are alleged to have committed.”). Thus, the Court will dismiss 23 without prejudice Defendant Yavapai County Medical Providers. 24 B. Defendant Becky P. 25 Plaintiff asserts he spoke to a medical counselor in July 2020 about his loss of 26 weight and inability to sleep because of severe pain in his neck, shoulder, and back, and 27 the medical counselor stated that he would discuss these problems with the “appropriate 28 parties” and respond within a week. When the medical counselor failed to respond, 1 Plaintiff filed a grievance. Plaintiff alleges that when Defendant Becky P. responded, she 2 denied Plaintiff’s claim that he was not receiving medical care for his neck injury and other 3 issues, and refused to provide Plaintiff with medical care. Liberally construed, Plaintiff 4 has stated a claim against Defendant Becky P. regarding her response to his July 2020 5 grievance. The Court will require Defendant Becky P. to answer this portion of Count 6 One. 7 As to Plaintiff’s November 2020 complaints regarding coronavirus-like symptoms, 8 Plaintiff asserts that he was scheduled to see a doctor after a nurse sent an email to 9 Defendant Becky P. explaining that Plaintiff was not receiving responses to his requests 10 for medical care. Nothing about Defendant Becky P.’s conduct rises to the level of a 11 constitutional violation. Thus, the Court will dismiss without prejudice Plaintiff’s claim 12 against Defendant Becky P. regarding his coronavirus-like symptoms. 13 C. Defendant Caholico 14 Plaintiff alleges he met with Defendant Caholico in November 2020 and expressed 15 concern about his weight loss; inability to eat for the last twelve days; shortness of breath, 16 nausea, headaches, loss of appetite, and loss of taste; numbness in his hand; severe pain in 17 his neck, shoulder, and back; and inability to sleep due to the severe pain. Plaintiff 18 contends Defendant Caholico scheduled an examination with a radiologist regarding 19 Plaintiff’s neck injury, but did not perform a physical evaluation, disregarded Plaintiff’s 20 coronavirus-like symptoms, and refused to do anything regarding Plaintiff’s weight loss. 21 Liberally construed, Plaintiff has stated a claim against Defendant Caholico regarding his 22 response to Plaintiff’s medical concerns regarding his weight and coronavirus-like 23 symptoms. The Court will require Defendant Caholico to answer this portion of Count 24 One. 25 Plaintiff also alleges Defendant Caholico failed to act after becoming aware that 26 Plaintiff had a degenerative ailment to his spine. But Defendant Caholico told Plaintiff to 27 let him know if Plaintiff wanted pain medication. Plaintiff does not allege that there was 28 some other treatment for his ailment or that Defendant Caholico’s response placed Plaintiff 1 at substantial risk of suffering serious harm. Plaintiff’s allegations are insufficient to state 2 a claim against Defendant Caholico regarding his response to Plaintiff’s diagnosis of a 3 degenerative ailment to his spine. Thus, the Court will dismiss without prejudice this 4 portion of Count One. 5 Finally, Plaintiff alleges Defendant Caholico failed to act “when he knew that there 6 existed an active outbreak of the coronavirus” in the unit where Plaintiff was housed. This 7 vague and conclusory allegation is insufficient to state a claim against Defendant Caholico. 8 Thus, the Court will dismiss without prejudice this portion of Plaintiff’s Second Amended 9 Complaint. 10 D. Defendant Newnun 11 Plaintiff contends that on July 27, 2020, Defendant Newnun responded to an 12 “Appeal of Grievance,” which gave him “constructive notice of practices that violated 13 Plaintiff[’]s constitutional rights.” He claims Defendant Newnun “failed to act on the 14 knowledge provided to him” and, “by denying Plaintiff’s appeal,” acquiesced to the 15 deprivation of Plaintiff’s “right to be free from deliberate indifference.” Plaintiff does not 16 identify the contents of his “Appeal of Grievance” or the “practices that violated 17 Plaintiff[’]s constitutional rights” about which Defendant Newnun allegedly had 18 constructive notice. Nor is it clear what Plaintiff requested in his grievance or appeal, what 19 Defendant Newnun stated in his denial of the appeal, how Defendant Newnun’s failure to 20 act placed Plaintiff at substantial risk of suffering serious harm, what Plaintiff believes 21 Defendant Newnun should have done, or how Plaintiff was harmed. Absent more, 22 Plaintiff’s allegations are too vague and conclusory to state a claim against Defendant 23 Newnun regarding his July 27, 2020 response to Plaintiff’s grievance appeal. The Court, 24 therefore, will dismiss without prejudice this portion of Count One. 25 E. January 2021 Grievances 26 In Count One, Plaintiff contends that he filed six consecutive grievances on January 27 22, 2021, “in a last attempt to secure his right to medical care or medical treatment for his 28 neck injury, among other things, and was denied such medical care” by Defendants 1 Caholico, Becky P., and Newnun. As previously noted, it is insufficient to simply make 2 vague and conclusory allegations against a group of Defendants, without any factual 3 specificity as to what any particular Defendant did or failed to do. See Marcilis, 693 F.3d 4 at 596. Thus, the Court will dismiss without prejudice this portion of Count One. 5 F. Failure to Protect 6 In addition to the fact that Plaintiff again makes conclusory allegations against a 7 group of individuals without factual specificity as to what any particular Defendant did or 8 failed to do, Plaintiff does not allege that suffered any injury from being housed with an 9 inmate with tuberculosis or an inmate with an open wound. See Brown v. Ellis, 1999 WL 10 197222, *2 (7th Cir. 1999) (“Failure to protect from actual physical injury, not failure to 11 protect from the fear of injury, is what violates the Eighth Amendment.”). Similarly, 12 because Plaintiff fails to identify when he was housed with the inmate who had only 13 quarantined for six days, it is unclear whether this time period corresponded with Plaintiff’s 14 coronavirus-like symptoms in November 2020. Thus, the Court will dismiss without 15 prejudice Count Two. 16 G. Policy, Custom, or Practice 17 Plaintiff contends Defendants Caholico, Becky P., and Newnun, were acting 18 “pursuant to a policy, custom or practice.” He also claims Defendants “have a policy of 19 restricting, if not outright denying” medical care, medical treatment, or access to medical 20 services, “when such care is too expensive or carries a burden to provide.” But Plaintiff 21 alleges nothing to suggest that he was denied care because it was too expensive or because 22 it “carries a burden to provide.” Thus, the Court will dismiss without prejudice this portion 23 of Plaintiff’s Second Amended Complaint. 24 IV. Warnings 25 A. Release 26 If Plaintiff is released while this case remains pending, and the filing fee has not 27 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 28 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 1 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 2 result in dismissal of this action. 3 B. Address Changes 4 Plaintiff must file and serve a notice of a change of address in accordance with Rule 5 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 6 relief with a notice of change of address. Failure to comply may result in dismissal of this 7 action. 8 C. Copies 9 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 10 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 11 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 12 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 13 to comply may result in the filing being stricken without further notice to Plaintiff. 14 D. Possible Dismissal 15 If Plaintiff fails to timely comply with every provision of this Order, including these 16 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 17 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 18 to comply with any order of the Court). 19 IT IS ORDERED: 20 (1) Defendant Becky P. must answer the portion of Count One of the Second 21 Amended Complaint regarding her July 2020 response to Plaintiff’s July 2020 grievance 22 and her related failure to provide medical care. 23 (2) Defendant Caholico must answer the portion of Count One Second Amended 24 Complaint regarding his November 2020 response to Plaintiff’s medical concerns 25 regarding his weight and coronavirus-like symptoms. 26 (3) Defendants Yavapai County Jail Medical Providers and Newnun, Count 27 Two, and those portions of the Second Amended Complaint for which the Court is not 28 requiring an answer, are dismissed. 1 (4) The Clerk of Court must send Plaintiff a service packet including the Second 2 Amended Complaint (Doc. 15), this Order, and both summons and request for waiver 3 forms for Defendants Caholico and Becky P. 4 (5) Plaintiff must complete and return the service packet to the Clerk of Court 5 within 21 days of the date of filing of this Order. The United States Marshal will not 6 provide service of process if Plaintiff fails to comply with this Order. 7 (6) If Plaintiff does not either obtain a waiver of service of the summons or 8 complete service of the Summons and Second Amended Complaint on a Defendant within 9 90 days of the filing of the Complaint or within 60 days of the filing of this Order, 10 whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. 11 Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 12 (7) The United States Marshal must retain the Summons, a copy of the Second 13 Amended Complaint, and a copy of this Order for future use. 14 (8) The United States Marshal must notify Defendants of the commencement of 15 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 16 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 17 Order. 18 (9) A Defendant who agrees to waive service of the Summons and Second 19 Amended Complaint must return the signed waiver forms to the United States Marshal, not 20 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 21 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 22 personal service. 23 (10) The Marshal must immediately file signed waivers of service of the 24 summons. If a waiver of service of summons is returned as undeliverable or is not returned 25 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 26 the Marshal must: 27 . . . . 28 . . . . 1 (a) personally serve copies of the Summons, Second Amended 2 Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal 3 Rules of Civil Procedure; and 4 (b) within 10 days after personal service is effected, file the return of 5 service for Defendant, along with evidence of the attempt to secure a waiver of 6 service of the summons and of the costs subsequently incurred in effecting service 7 upon Defendant. The costs of service must be enumerated on the return of service 8 form (USM-285) and must include the costs incurred by the Marshal for 9 photocopying additional copies of the Summons, Second Amended Complaint, or 10 this Order and for preparing new process receipt and return forms (USM-285), if 11 required. Costs of service will be taxed against the personally served Defendant 12 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 13 ordered by the Court. 14 (11) Defendants Caholico and Becky P must answer the relevant portions of the 15 | Second Amended Complaint or otherwise respond by appropriate motion within the time 16 | provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 17 (12) Any answer or response must state the specific Defendant by name on whose 18 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 19 | does not identify the specific Defendant by name on whose behalf it is filed. 20 (13) This matter is referred to Magistrate Judge James F. Metcalf pursuant to 21 Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 22 | authorized under 28 U.S.C. § 636(b)(1). 23 Dated this 27th day of July, 2022. 24 25 a 26 7 _ James A. Teil Org Senior United States District Judge 28