1 WO MH 2 3 4 5 8 9 Derek Anthony Higuera, No. CV 19-05554-PHX-MTL (JZB) 10 Plaintiff, 11 v. ORDER 12 City of Glendale, et al., 13 Defendants.
14 15 On November 1, 2019, Plaintiff Derek Anthony Higuera, who is confined in a 16 Maricopa County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 17 and an Application to Proceed In Forma Pauperis. On November 8, 2019, Plaintiff filed a 18 Motion for Legal Supplies and a Motion to Supplement the Complaint. On November 15, 19 2019, Plaintiff filed a Motion for Appointment of Counsel. On December 13, 2019, he 20 filed a Motion to Amend the Complaint. In a January 29, 2020 Order, the Court granted 21 the Application to Proceed, granted the Motion to Amend and Motion to Supplement the 22 Complaint in part, and denied without prejudice the Motion for Legal Supplies and Motion 23 for Appointment of Counsel. The Court gave Plaintiff 30 days to file an amended 24 complaint. 25 On February 10, 2020, Plaintiff filed his First Amended Complaint (Doc. 11). On 26 March 9, 2020, he filed a Letter (Doc. 12) addressed to the Clerk of Court. The Court will 27 dismiss the First Amended Complaint with leave to amend. Plaintiff’s Letter will be 28 1 granted insofar as this Order contains an update on the status of this case. In all other 2 respects, the Letter will be denied. 3 I. 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 First Amended Complaint will be dismissed for failure to state a claim, but 7 because it may possibly be amended to state a claim, the Court will dismiss it with leave 8 to amend. 9 II. First Amended Complaint 10 In his five-count First Amended Complaint, Plaintiff purports to assert claims under 11 the Eighth Amendment, the Fourteenth Amendment, and the Federal Food, Drug, and 12 Cosmetic Act (FDCA), 21 U.S.C. §§ 301-399i. He names as Defendants the City of 13 Glendale, Unknown Detention Officers, and Maricopa County Sheriff Paul Penzone. 14 Plaintiff is seeking compensatory damages. 15 In Count One, Plaintiff alleges that his rights under the FDCA have been violated 16 because he has been forced to consume foods containing trans fats in the Glendale City 17 Jail. According to Plaintiff, he was sentenced to complete a jail term in August 2019. After 18 arriving at the Glendale City Jail to serve his sentence, Plaintiff noticed that he was being 19 served prepackaged burritos containing trans fats. He advised “them” about the Food and 20 Drug Administration (FDA) ban on trans fats in prepackaged foods, and “[t]hey” said they 21 would look into it. (Doc. 1 at 3.)1 Plaintiff took this statement to mean that they would 22 “verify it and comply.” (Id.) When Plaintiff returned to the Glendale City Jail in 23 connection with another criminal case, he discovered that frozen burritos containing trans 24 fats were still being served. According to Plaintiff, these frozen burritos are the only meal 25 provided at the jail. As a result, Plaintiff is forced to consume chemicals “known to cause 26 heart disease [and] heart failure per the FDA” three times a day, seven days a week. (Id.) 27
28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 In Count Two, Plaintiff alleges that his Eighth and Fourteenth Amendment rights 2 were violated in October 2019 after he engaged in a “passive[] protest.” (Id. at 4.) He 3 claims that after verbally notifying “them” of the federal ban on trans fats, he protested by 4 “remaining silent” and refusing to assist them in the violation of his rights. (Id.) As a 5 result, he was isolated, handcuffed, shackled, and “thrown face first” and “stuffed in[]to” 6 a transport van for transport to a Maricopa County jail. Upon reaching the jail, he continued 7 his protest, refusing to assist the officers and notifying them again of the basis for his 8 protest. (Id.) Other detainees were unchained, but Plaintiff remained shackled, 9 handcuffed, and isolated “for hours.” (Id.) Plaintiff was unable to drink water, use the 10 bathroom, or perform any “basic task,” and he eventually urinated on himself because no 11 one answered when he called out. (Id.) Plaintiff was not given a change of clothes until 12 he had been admitted to the jail, at which point he was stripped naked and placed in an 13 isolation cell that lacked water, soap, or a shower for the duration of the intake process. 14 Plaintiff’s clothing was bagged as biohazard and stored, and the entire process was 15 allegedly captured by jail cameras. (Id.) As a result of this experience, Plaintiff was 16 “traumatized with [an] itching burning rash” and suffered the “cold embarrassment [and] 17 humiliation” of “remaining [in his] own filth.” (Id.) 18 In Count Three, Plaintiff complains that his Eighth and Fourteenth Amendment 19 rights were violated by City of Glendale Detention Officers, who allegedly responded to 20 his “passive, silent and harmless protest” by shackling him and handcuffing him behind his 21 back “extra tight,” while other detainees were permitted to be front-cuffed and unshackled. 22 (Id. at 5.) The City of Glendale Detention Officers then carried Plaintiff to a four-foot by 23 five-foot “cage,” into which they “tossed [him] face first” and “crammed [him] in.” They 24 proceeded to drive Plaintiff 15-20 miles with him “bouncing around . . . unsecured.” (Id.) 25 As a result of this conduct, Plaintiff allegedly suffered bruising to his head, shoulders, neck, 26 and ribs. 27 In Count Four, Plaintiff claims that while held in the Glendale City Jail in September 28 and October 2019, he was forced to eat prepackaged frozen burritos containing trans fats, 1 in violation of the FDCA. According to Plaintiff, this was the only source of nutrition at 2 the jail, and his forced consumption of such food caused him worry, anguish, and “potential 3 heart failure.” (Id. at 6.) 4 In Count Five, Plaintiff restates the Eighth and Fourteenth Amendment claims 5 related to his confinement in a Maricopa County jail. According to Plaintiff, he was 6 “forced to remain in [his] own bodily fluids” even after he had been accepted into Maricopa 7 County custody and was not permitted to bathe or given access to soap or water. (Id. at 7.) 8 As a result, he allegedly suffered embarrassment, humiliation, itching, burning, and a rash. 9 Plaintiff claims that even though all mental health cells have their own showers, he “was 10 the exception and [was] not allowed to bathe.” (Id.) 11 III. Failure to State a Claim 12 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 13 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 14 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 15 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 16 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 17 as a result of the conduct of a particular defendant and he must allege an affirmative link 18 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 19 72, 377 (1976). 20 A. City of Glendale 21 A municipality, such as the City of Glendale, may not be sued solely because an 22 injury was inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 23 F.3d 1178, 1185 (9th Cir. 2006). A § 1983 claim against a municipal defendant “cannot 24 succeed as a matter of law” unless a plaintiff: (1) contends that the municipal defendant 25 maintains a policy or custom pertinent to the plaintiff’s alleged injury; and (2) explains 26 how such policy or custom caused the plaintiff’s injury. Sadoski v. Mosley, 435 F.3d 1076, 27 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant to Fed. R. Civ. 28 P. 12(b)(6)). 1 Plaintiff has not alleged that the City of Glendale maintained a policy or custom that 2 resulted in a violation of his constitutional rights. Accordingly, Defendant City of Glendale 3 will be dismissed. 4 B. Defendant Penzone 5 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 6 specific injury as a result of specific conduct of a defendant and show an affirmative link 7 between the injury and the conduct of that defendant. See Rizzo, 423 U.S. at 371-72, 377. 8 There is no respondeat superior liability under § 1983, and therefore, a defendant’s position 9 as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights does 10 not impose liability. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978); 11 Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 12 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983 13 suits, a plaintiff must plead that each Government-official defendant, through the official’s 14 own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 15 Plaintiff has not alleged that Defendant Penzone personally participated in a 16 deprivation of Plaintiff’s constitutional rights, was aware of a deprivation and failed to act, 17 or formed policies that resulted in Plaintiff’s injuries. Thus, the Court will dismiss without 18 prejudice Defendant Penzone. 19 C. Unknown Detention Officers 20 Plaintiff does not allege any facts against the Defendants identified as “Unknown 21 Detention Officers.” Even if Plaintiff’s allegations against the “City of Glendale Detention 22 Officers” are construed as support for his claim against the Unknown Detention Officers, 23 these allegations are not sufficient to ascertain how each particular individual violated 24 Plaintiff’s rights. Plaintiff’s vague and conclusory allegations against an unspecified 25 number of individuals are simply insufficient to state a claim under § 1983. See Marcilis 26 v. Township of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (upholding dismissal of Bivens 27 complaint that referred to all defendants “generally and categorically” because the plaintiff 28 had failed to “‘allege, with particularity, facts that demonstrate what each defendant did to 1 violate the asserted constitutional right.’” (quoting Lanman v. Hinson, 529 F.3d 673, 684 2 (6th Cir. 2008))); Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the 3 complaint’s use of either the collective term ‘Defendants’ or a list of the defendants named 4 individually but with no distinction as to what acts are attributable to whom, it is impossible 5 for any of these individuals to ascertain what particular unconstitutional acts they are 6 alleged to have committed.”). Accordingly, the Court will dismiss without prejudice 7 Defendants Unknown Detention Officers. 8 IV. Leave to Amend 9 For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed 10 for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may 11 submit a second amended complaint to cure the deficiencies outlined above. The Clerk of 12 Court will mail Plaintiff a court-approved form to use for filing a second amended 13 complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second 14 amended complaint and dismiss this action without further notice to Plaintiff. 15 Plaintiff must clearly designate on the face of the document that it is the “Second 16 Amended Complaint.” The second amended complaint must be retyped or rewritten in its 17 entirety on the court-approved form and may not incorporate any part of the original 18 Complaint or First Amended Complaint by reference. Plaintiff may include only one claim 19 per count. 20 A second amended complaint supersedes the original Complaint and First Amended 21 Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. 22 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court 23 will treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 24 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or First 25 Amended Complaint and that was voluntarily dismissed or was dismissed without 26 prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa 27 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 28 . . . . 1 If Plaintiff files a second amended complaint, he must write short, plain statements 2 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 3 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 4 do; (4) how the action or inaction of that Defendant is connected to the violation of 5 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 6 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 7 Plaintiff must repeat this process for each person he names as a Defendant. If 8 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 9 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 10 failure to state a claim. Conclusory allegations that a Defendant or group of 11 Defendants has violated a constitutional right are not acceptable and will be 12 dismissed. 13 If Plaintiff files a second amended complaint, he should be aware that private 14 individuals lack standing to assert a claim under the Federal Food, Drug, and Cosmetic 15 Act. 21 U.S.C. § 337(a) and (b) (stating that enforcement proceedings may be brought by 16 the United States or, in certain circumstances, by individual States); Buckman Co. v. 17 Plaintiffs’ Legal Comm., 531 U.S. 341, 349 n. 4 (2001) (FDCA “leaves no doubt” that 18 private litigants are not authorized to file suit for noncompliance). 19 Plaintiff should also note that a pretrial detainee has a right under the Due Process 20 Clause of the Fourteenth Amendment to be free from punishment prior to an adjudication 21 of guilt. Bell v. Wolfish, 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to 22 ‘adequate food, clothing, shelter, sanitation, medical care, and personal safety.’” Alvarez- 23 Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 24 F.2d 1237, 1246 (9th Cir. 1982)). To state a claim of unconstitutional conditions of 25 confinement against an individual defendant, a pretrial detainee must allege facts that 26 show: 27 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 28 (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take 1 reasonable available measures to abate that risk, even though a 2 reasonable official in the circumstances would have appreciated the high degree of risk involved—making the 3 consequences of the defendant’s conduct obvious; and (iv) by 4 not taking such measures, the defendant caused the plaintiff’s injuries. 5 6 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 7 Whether the conditions and conduct rise to the level of a constitutional violation is 8 an objective assessment that turns on the facts and circumstances of each particular case. 9 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 10 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack 11 of due care by a state official’ does not deprive an individual of life, liberty, or property 12 under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 13 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a 14 plaintiff must “prove more than negligence but less than subjective intent—something akin 15 to reckless disregard.” Id. 16 To the extent Plaintiff’s claims relate to conditions to which he was exposed as a 17 convicted prisoner, such claims arise under the Eighth Amendment. To state an Eighth 18 Amendment conditions-of-confinement claim, plaintiffs must meet a two-part test. “First, 19 the alleged constitutional deprivation must be, objectively, sufficiently serious” such that 20 the “official’s act or omission must result in the denial of the minimal civilized measure of 21 life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations 22 omitted). Second, the prison official must have a “sufficiently culpable state of mind,” i.e., 23 he must act with “deliberate indifference to inmate health or safety.” Id. (internal 24 quotations omitted). Deliberate indifference is a higher standard than negligence or lack 25 of ordinary due care for the prisoner’s safety. Id. at 835. In defining “deliberate 26 indifference” in this context, the Supreme Court has imposed a subjective test: “the official 27 must both be aware of facts from which the inference could be drawn that a substantial risk 28 of serious harm exists, and he must also draw the inference.” Id. at 837 (emphasis added) 1 V. Letter 2 In his Letter, Plaintiff asks the Clerk of Court to advise him of the status of this case. 3 He also asks the Clerk to supplement his First Amended Complaint with certain grievance 4 documents that were enclosed with the Letter. According to Plaintiff, the grievance packet 5 he submitted with his First Amended Complaint was “incomplete . . . due to the County 6 refusing to respond within time frames.” According to Plaintiff, the documents he 7 submitted with his Letter represent “the complete packet with the exhausted grievance 8 procedure.” Plaintiff asks the Clerk to return these documents if they are not needed. 9 As an initial matter, it is improper for a party to communicate directly with court 10 personnel. Simply mailing a letter to the Clerk of Court, the judge, or any court personnel 11 is unacceptable. Any request for action by the Court must be in the form of a motion that 12 complies with the Rules of Practice of the United States District Court for the District of 13 Arizona (the Local Rules). Any future letters directed to the Clerk of Court, the judge, or 14 any court personnel will be stricken from the record and will be returned to Plaintiff. 15 Plaintiff’s Letter will be granted to the extent he seeks information concerning his 16 case status, as this Order provide an update on the status of this case. 17 Insofar as Plaintiff seeks consideration of the grievance documents attached to his 18 Letter, his request will be denied. The instructions included with the court-approved civil 19 rights complaint form specifically state: “You should not submit exhibits with the 20 complaint or amended complaint. Instead, the relevant information should be 21 paraphrased.” (Instructions at 2, ¶ 10.) In any event, the documents Plaintiff submitted do 22 not alter the Court’s conclusion that his First Amended Complaint fails to state a claim. 23 Accordingly, Plaintiff’s request to supplement the First Amended Complaint will be 24 denied. However, as a courtesy, the Court will direct the Clerk of Court to send Plaintiff a 25 copy of the grievance packet submitted with the Letter. 26 . . . . 27 . . . . 28 . . . . 1 VI. Warnings 2 A. Release 3 If Plaintiff is released while this case remains pending, and the filing fee has not 4 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 5 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 6 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 7 result in dismissal of this action. 8 B. Address Changes 9 Plaintiff must file and serve a notice of a change of address in accordance with Rule 10 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 11 relief with a notice of change of address. Failure to comply may result in dismissal of this 12 action. 13 C. Possible “Strike” 14 Because the First Amended Complaint has been dismissed for failure to state a 15 claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies 16 identified in this Order, the dismissal may count as a “strike” under the “3-strikes” 17 provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring 18 a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the 19 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 20 brought an action or appeal in a court of the United States that was dismissed on the 21 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be 22 granted, unless the prisoner is under imminent danger of serious physical injury.” 28 23 U.S.C. § 1915(g). 24 D. Possible Dismissal 25 If Plaintiff fails to timely comply with every provision of this Order, including these 26 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 27 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 28 the Court). ITIS ORDERED: 2 (1) Plaintiff's Letter (Doc. 12) is granted insofar as this Order provides an update on the status of this case. In all other respects, the Letter is denied. 4 (2) The Clerk of Court must send Plaintiff a copy of the grievance packet 5 submitted with his Letter (Doc. 12 at 2-13). 6 (3) | The First Amended Complaint (Doc. 11) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended 8 complaint in compliance with this Order. 9 (4) ‘If Plaintiff fails to file a second amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with 11 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot. 13 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a 14 civil rights complaint by a prisoner. 15 Dated this 15th day of April, 2020. 16
Michael T. Liburdi 19 United States District Judge 20 21 22 23 24 25 26 27 28
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Instructions for a Prisoner Filing a Civil Rights Complaint in the United States District Court for the District of Arizona
1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated persons prepare a complaint seeking relief for a violation of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement. This form should not be used to challenge your conviction or sentence. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. ' 2254 for a writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) 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 $400.00 ($350.00 filing fee plus $50.00 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 $400 filing and administrative fees or the application to proceed in forma pauperis to:
Revised 3/11/16 1 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. 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. 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.
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4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
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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. . 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. . 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. E. REQUEST FOR RELIEF
State the relief you are seeking:
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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.