1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel Alan Kleinfelt, No. CV 20-00872-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Correctional Officer III Gilbert, et al., 13 Defendants.
14 15 Plaintiff Daniel Alan Kleinfelt, who is confined in the Arizona State Prison 16 Complex-Lewis, in Buckeye, Arizona, has filed a pro se civil rights Complaint pursuant to 17 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2).1 The 18 Court will dismiss the Complaint with leave to amend.2 19 I. Application to Proceed In Forma Pauperis and Filing Fee 20 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 21 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 22 § 1915(b)(1). The Court will assess an initial partial filing fee of $38.72. The remainder 23 24 1 Plaintiff filed a previous case, Kleinfelt v. Gilbert, No. 2:20cv00793-PHX-JAT (JFM), in which he filed a notice of change of address indicating that he is now incarcerated 25 in the Arizona State Prison Complex-Tucson. Plaintiff has not, to date, filed a notice of change of address in this case and must do so if his address has changed. 26 2 If Plaintiff is granted in forma pauperis status in his previously filed case, CV 20- 27 00793, he will be responsible for paying the filing fee for both this case and that case. In that event, the Court would be required to collect 20% of Plaintiff’s previous month’s 28 income, for each case, each month. Bruce v. Samuels, ___ U.S. ___, ___, 136 S. Ct. 627, 631 (2016) (“[Section] 1915(b)(2) calls for simultaneous, not sequential recoupment of multiple filing fees.”). 1 of the fee will be collected monthly in payments of 20% of the previous month’s income 2 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 3 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 4 government agency to collect and forward the fees according to the statutory formula. 5 II. Statutory Screening of Prisoner Complaints 6 The Court is required to screen complaints brought by prisoners seeking relief 7 against a governmental entity or an officer or an employee of a governmental entity. 28 8 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 9 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 10 relief may be granted, or that seek monetary relief from a defendant who is immune from 11 such relief. 28 U.S.C. § 1915A(b)(1)-(2). 12 A pleading must contain a “short and plain statement of the claim showing that the 13 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 14 not demand detailed factual allegations, “it demands more than an unadorned, the- 15 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Id. 18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 19 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 20 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 23 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 25 allegations may be consistent with a constitutional claim, a court must assess whether there 26 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 27 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 28 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 1 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 2 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 3 U.S. 89, 94 (2007) (per curiam)). 4 If the Court determines that a pleading could be cured by the allegation of other 5 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 6 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 7 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 8 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 9 III. Complaint 10 In his two-count Complaint, Plaintiff alleges claims for denial of due process in 11 disciplinary proceedings and wrongful or excessive confinement. Plaintiff sues the 12 following employees of the Arizona Department of Corrections (ADC) at the Lewis 13 Complex: Correctional Officers (COs) III Gilbert and T. Wade; CO IV Trapanier; and 14 Captain Hileman. Plaintiff seeks injunctive, compensatory, and punitive relief. 15 Plaintiff alleges the following facts in Count I: 16 On April 28, 2020, Plaintiff had a disciplinary hearing on three incidents. Prior to 17 the hearing, Plaintiff requested staff assistance because he had been placed in segregation, 18 which prevented Plaintiff from preparing a defense to the charges. The Disciplinary 19 Hearing Officer (DHO) said “too bad.” Prior to the hearing, Plaintiff also asked whether 20 he had to convince DHO that he was not guilty, and the DHO responded, “yes.” Plaintiff 21 claims the DHO was not impartial and denied him due process. Plaintiff claims that he 22 was charged with the disciplinary infractions in retaliation for submitting grievances and 23 complaints. Plaintiff claims that “prison officials” refused to interview or call witnesses, 24 which prevented Plaintiff from effectively presenting a defense. Plaintiff claims that the 25 denial of staff assistance and the right to be heard significantly hindered Plaintiff’s ability 26 to defend himself against the charges. Plaintiff contends that he reasonably relied on ADC 27 regulations, and the failure to produce witnesses and comply with its own regulations 28 violated his right to due process. 1 As his injury, Plaintiff alleges that he was classified from a minimum custody to a 2 level 4 custody, lost early release credit (ERC), and experienced physical and mental pain 3 and suffering. 4 In Count II, Plaintiff alleges the following: 5 On December 17, 2020, Plaintiff brought a concern under the Prison Rape 6 Elimination Act (PREA) to an unidentified sergeant and asked for assistance in addressing 7 the issue. The same day, Plaintiff was placed in segregation in a detention unit, where 8 Plaintiff was held through the filing of his Complaint in this case, awaiting transfer to a 9 permanent facility. Plaintiff claims that he has not received a periodic review to determine 10 whether his placement in segregation was necessary. He claims that prison officials 11 arbitrarily have housed him in segregation, which was clearly excessive. He claims that his 12 continued housing in segregation violated a state liberty interest and violated due process. 13 He contends that his continued confinement in segregation was retaliatory. 14 As his injury, Plaintiff alleges lost wages and physical and mental suffering. 15 IV. Failure to State a Claim 16 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 17 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 18 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 19 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 20 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 21 as a result of the conduct of a particular defendant and he must allege an affirmative link 22 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 23 72, 377 (1976). 24 A. Defendants 25 Plaintiff sues four correctional officers employed in the Lewis Complex, Bachman 26 Detention Unit. While each of the Defendants may be sued under § 1983, Plaintiff fails to 27 state a claim against any of them. 28 To state a claim against a defendant, “[a] plaintiff must allege facts, not simply 1 conclusions [to] show that an individual was personally involved in the deprivation of his 2 civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual 3 to be liable in his or her official capacity, a plaintiff must allege injuries resulting from a 4 policy, practice, or custom of the agency over which that individual has final policy-making 5 authority. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). In 6 addition, there is no respondeat superior liability under § 1983, so a defendant’s position 7 as the supervisor of someone who allegedly violated a plaintiff’s constitutional rights, 8 absent more, does not make him liable. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 9 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his personal 10 capacity “is only liable for constitutional violations of his subordinates if the supervisor 11 participated in or directed the violations, or knew of the violations and failed to act to 12 prevent them.” Taylor, 880 F.2d at 1045. Further, under Ninth Circuit law, a defendant 13 can be liable for failure to act. Id. 14 Plaintiff fails to allege any facts against any of the named Defendants. For that 15 reason, he fails to state a claim for relief against any named Defendant, and they will be 16 dismissed. 17 B. Count I 18 1. Heck v. Humphrey 19 A prisoner’s claim for damages cannot be brought under 42 U.S.C. § 1983 if “a 20 judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction 21 or sentence,” unless the prisoner demonstrates that the conviction or sentence has 22 previously been reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512 23 U.S. 477, 486-87 (1994). See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] 24 state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief 25 sought (damages or equitable relief), no matter the target of the prisoner’s suit (state 26 conduct leading to conviction or internal prison proceedings)–if success in that action 27 would necessarily demonstrate the invalidity of confinement or its duration.”). 28 Plaintiff alleges that he lost ERC as a result of the disciplinary proceeding he is 1 challenging in Count I. In other words, the finding of guilt affects the duration of Plaintiff’s 2 confinement. If Plaintiff succeeded on the merits of his due process claim, that success 3 would necessarily demonstrate the invalidity of the duration of his confinement as to the 4 loss of good time credit. Plaintiff has not alleged that the disciplinary finding has been 5 invalidated, therefore, Plaintiff’s due process claim is barred as not yet having accrued 6 under Heck. If Plaintiff files an amended complaint asserting a due process claim, he must 7 allege when and how his disciplinary was invalidated. 8 2. Due Process 9 Even if Plaintiff’s due process claim is not barred as not having yet accrued, Plaintiff 10 fails to state a claim for violation of due process. Liberty interests that entitle an inmate to 11 due process are “generally limited to freedom from restraint which, while not exceeding 12 the sentence in such an unexpected manner as to give rise to protection by the Due Process 13 Clause of its own force, nonetheless imposes atypical and significant hardship on the 14 inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 15 484 (1995) (internal citations omitted). Thus, “[a]s long as the conditions or degree of 16 confinement to which the prisoner is subjected is within the sentence imposed upon him 17 and [does] not otherwise violat[]e . . . the Constitution, the Due Process Clause does not in 18 itself subject an inmate’ s treatment by prison authorities to judicial oversight.” Montanye 19 v. Haymes, 427 U.S. 236, 242 (1976). But a prisoner may challenge a disciplinary action 20 that deprives or restrains a state-created liberty interest in some “unexpected manner.” 21 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Sandin, 515 U.S. at 483-84)). 22 However, a claim that prison officials “added things” to an appeal to mask procedural 23 errors, for example, is not significant and atypical, because inmates lack a separate 24 constitutional entitlement to a specific prison grievance procedure. Id. (citing Mann v. 25 Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 26 In analyzing whether a hardship is atypical and significant, three guideposts to 27 consider are: (1) the conditions of confinement; (2) the duration of the condition and the 28 degree of restraint imposed; and (3) whether the sanction will affect the duration of the 1 prisoner’s sentence. Ramirez, 334 F.3d at 861; Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th 2 Cir. 1996). “Atypicality” requires not merely an empirical comparison but turns on the 3 importance of the right taken away from the prisoner. See Carlo v. City of Chino, 105 F.3d 4 493, 499 (9th Cir. 1997); see, e.g., Sandin , 515 U.S. at 472 (30 days disciplinary 5 segregation is not atypical and significant); Torres v. Fauver, 292 F.3d 141, 151 (3d Cir. 6 2002) (4 months in administrative segregation is not atypical and significant); Griffin v. 7 Vaughn, 112 F.3d 703, 706-708 (3d Cir. 1997) (15 months administrative segregation is 8 not atypical and significant); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (6 months 9 of confinement in especially disgusting conditions that were “more burdensome than those 10 imposed on the general prison population were not atypical . . . in relation to the ordinary 11 incidents of prison life.”); Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (two years in 12 administrative segregation is not atypical and significant); Jacks v. Crabtree, 114 F.3d 983 13 (9th Cir. 1997) (denial of year sentence reduction is not an atypical and significant 14 hardship). Thus, to determine whether an inmate is entitled to the procedural protections 15 afforded by the Due Process Clause, the Court must look to the particular restrictions 16 imposed and ask whether they “‘present the type of atypical, significant deprivation in 17 which a state might conceivably create a liberty interest.’” Mujahid v. Meyer, 59 F.3d 931, 18 932 (9th Cir. 1995) (quoting Sandin, 515 U.S. at 486). 19 The Supreme Court has held that a liberty interest may be implicated by disciplinary 20 placement in a cell with almost no human contact, 24-hour lighting, and exercise for only 21 one hour per day, particularly where the placement is of infinite duration and results in 22 disqualification of an otherwise eligible inmate for parole. Wilkinson v. Austin, 545 23 U.S.209, 223-24 (2005). In such cases, the type of process due before such a placement 24 requires consideration of three factors: (1) the private interest that will be affected by the 25 official action; (2) the risk of an erroneous deprivation of such interest through the 26 procedures used, and the probable value, if any, of additional or substitute procedural 27 safeguards; and (3) the government’s interest, including the function involved and the fiscal 28 and administrative burden that the additional or substitute procedural requirement would 1 entail. Id. at 224 (quoting Matthews v. Eldridge, 424 U.S. 319, 335 (1976)). On the first 2 factor, prisoners have more than a minimal interest at stake, but lawful confinement entails 3 curtailment of liberty by definition. Wilkinson, 545 U.S. at 225. On the second factor, 4 notice of the factual basis for the placement and a fair opportunity for rebuttal are among 5 the most important procedural mechanisms. Id. at 225-26. A short statement of reasons 6 for the placement guards against arbitrary decision-making and multiple levels of review 7 also reduces the risk of erroneous placement. Id. at 226. The third factor is dominant due 8 to a State’s responsibility for managing numerous inmates and obligations to ensure the 9 safety of prison personnel, the public, and the prisoners themselves. Id. at 227. Thus, the 10 ability to call witnesses or to provide “other attributes of an adversary hearing” are not 11 required. Id. at 228. Notice and an opportunity to be heard are sufficient. Id. at 229 (citing 12 Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1 (1979), and Hewitt v. 13 Helms, 459 U.S. 460 (1983)). 14 In addition to alleging an atypical and significant hardship in relationship to the 15 ordinary incidents of incarceration, a plaintiff must also specify the due process safeguard 16 he was denied and by whom. “Prison disciplinary proceedings are not part of a criminal 17 prosecution, and the full panoply of rights due a defendant in such proceedings does not 18 apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Procedural due process safeguards 19 in a prison disciplinary hearing require that the defendant receive: (1) written notice of the 20 charges, no less than twenty-four hours prior to the hearing; (2) a written statement by the 21 fact-finder as to the evidence relied on and reasons for the disciplinary action and (3) a 22 limited right to call witnesses and present documentary evidence when it would not be 23 unduly hazardous to institutional safety or correctional goals to allow the defendant to do 24 so. Id. at 565-66. In addition, due process requires that there be “some evidence” to 25 support the official’s decision. Superintendent v. Hill, 472 U.S. 445, 455 (1985). 26 However, this “does not require examination of the entire record, independent assessment 27 of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question 28 is whether there is any evidence in the record that could support the conclusion.” Hill, 472 1 U.S. at 455-56 (emphasis added). 2 Even assuming Plaintiff alleges an atypical and significant hardship in relation to 3 the ordinary incidents of incarceration based on the loss of ERC, and that the disciplinary 4 charges have been invalidated, Plaintiff fails to allege facts to support that he was denied 5 any of the procedural protections required under Wolff. Accordingly, Plaintiff fails to state 6 a due process claim. If Plaintiff alleges a due process claim in an amended complaint, he 7 must identify the procedural due process he was denied, when, how, and by whom. 8 C. Count II 9 Although unclear, Plaintiff appears to be asserting a claim of retaliation in Count II. 10 A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion 11 that a state actor took some adverse action against an inmate (2) because of (3) that 12 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 13 First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did 14 not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 15 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) 16 (retaliation claims requires an inmate to show (1) that the prison official acted in retaliation 17 for the exercise of a constitutionally protected right, and (2) that the action “advanced no 18 legitimate penological interest”). The plaintiff has the burden of demonstrating that his 19 exercise of his First Amendment rights was a substantial or motivating factor behind the 20 defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 21 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 22 Plaintiff has not alleged facts to support that any Defendant retaliated against him 23 for exercising constitutionally protected rights. Accordingly, Plaintiff fails to state a claim 24 for retaliation in Count II. 25 V. Leave to Amend 26 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 27 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 28 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 1 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 2 to use the court-approved form, the Court may strike the amended complaint and dismiss 3 this action without further notice to Plaintiff. 4 Plaintiff must clearly designate on the face of the document that it is the “First 5 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 6 entirety on the court-approved form and may not incorporate any part of the original 7 Complaint by reference. Plaintiff may include only one claim per count. 8 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 9 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 10 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 11 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 12 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 13 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 14 F.3d 896, 928 (9th Cir. 2012) (en banc). 15 VI. Warnings 16 A. Release 17 If Plaintiff is released while this case remains pending, and the filing fee has not 18 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 19 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 20 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 21 result in dismissal of this action. 22 B. Address Changes 23 Plaintiff must file and serve a notice of a change of address in accordance with Rule 24 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 25 relief with a notice of change of address. Failure to comply may result in dismissal of this 26 action. 27 C. Possible “Strike” 28 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 1 fails to file an amended complaint correcting the deficiencies identified in this Order, the 2 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 3 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 4 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 5 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 6 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 7 or fails to state a claim upon which relief may be granted, unless the prisoner is under 8 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 9 D. Possible Dismissal 10 If Plaintiff fails to timely comply with every provision of this Order, including these 11 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 12 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 13 the Court). 14 IT IS ORDERED: 15 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 16 (2) As required by the accompanying Order to the appropriate government 17 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 18 of $38.72. 19 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 20 has 30 days from the date this Order is filed to file a first amended complaint in compliance 21 with this Order. 22 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 23 Court must, without further notice, enter a judgment of dismissal of this action with 24 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 25 and deny any pending unrelated motions as moot. 26 . . . . 27 . . . . 28 . . . . 1 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a 2| civil rights complaint by a prisoner. 3 Dated this 8th day of June, 2020. 4 ' ° 7 = James A. C rg Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 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).
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:
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.