1 WO WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jyles Jon Dale McCarty, No. CV 21-00473-PHX-MTL (MTM) 10 Plaintiff, 11 v. ORDER 12 Logan Jeffrey Egnor, et al., 13 Defendants.
14 15 Plaintiff Jyles Jon Dale McCarty, who is confined in a Maricopa County Jail, has 16 filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an 17 Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint 18 with leave to amend. 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 $22.55. The remainder 23 of the fee will be collected monthly in payments of 20% of the previous month’s income 24 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 25 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 26 government agency to collect and forward the fees according to the statutory formula. 27 . . . . 28 . . . . 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 1 If the Court determines that a pleading could be cured by the allegation of other 2 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 3 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 4 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 5 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 6 III. Complaint 7 In his three-count Complaint, Plaintiff sues the Phoenix Police Department and 8 Officers Logan Jeffrey Egnor, Sanjo Sabu, A. Branvits, and Emily Huskisson. Plaintiff 9 asserts claims of excessive force, denial of medical care, and defamation. He seeks 10 monetary relief, for “all parties involved” to be placed on unpaid leave, and for a reporter 11 from CNN to be notified of the incident described in the Complaint so that it can be 12 “place[d]” on the national news. 13 In Count One, Plaintiff alleges that Defendant Egnor “pulled up on the sidewalk,” 14 jumped out of a squad car, and fired five beanbag rounds at Plaintiff. Defendant Egnor 15 told Plaintiff to “shut the fuck up and be qui[e]t,” or “next time it will be live rounds.” As 16 his injury, Plaintiff claims he was bleeding from two wounds he received from the beanbag 17 rounds and “from the handcuffs.” 18 In Count Two, Plaintiff alleges that he asked to be taken to the hospital because his 19 legs and stomach were bleeding from the beanbag rounds. Instead, Plaintiff was hogtied 20 and thrown into the squad car. “[T]hey” said Plaintiff would be “okay” and slammed the 21 door to the squad car. As his injury, Plaintiff claims he did not receive medical attention, 22 and the handcuffs cut into his wrists. 23 In Count Three, Plaintiff alleges that Phoenix Police Department officers charged 24 him with drug use and possession of drug paraphernalia, and as a result, Plaintiff will be 25 identified as a “drug addict” on his adult record. Plaintiff also asserts he was charged with 26 assault on an officer and resisting arrest, which will also appear in his record. 27 . . . . 28 . . . . 1 IV. Failure to State a Claim 2 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 3 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 4 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 5 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 6 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 7 as a result of the conduct of a particular defendant and he must allege an affirmative link 8 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 9 72, 377 (1976). 10 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 11 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 12 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 13 civil rights complaint may not supply essential elements of the claim that were not initially 14 pled. Id. 15 A. Defendant Phoenix Police Department 16 Defendant Phoenix Police Department is a subpart of the City of Phoenix, not a 17 separate entity for purposes of suit. Gotbaum v. City of Phx., 617 F. Supp. 2d 878, 886 (D. 18 Ariz. 2008); see Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) 19 (county sheriff’s office is a nonjural entity); see also Vicente v. City of Prescott, 2012 WL 20 1438695, at *3 (D. Ariz. 2012) (city fire department is a nonjural entity); Wilson v. Yavapai 21 County Sheriff’s Office, 2012 WL 1067959, at *4 (D. Ariz. 2012) (county sheriff’s office 22 and county attorney’s office are nonjural entities). Because Defendant Phoenix Police 23 Department is not a separate entity, it is not capable of being separately sued. Thus, the 24 Court will dismiss Defendant Phoenix Police Department. 25 Moreover, even if Plaintiff had sued the City of Phoenix, his allegations do not 26 support a claim. A municipality may not be sued solely because an injury was inflicted by 27 its employees or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 28 2006). The actions of individuals may support municipal liability only if the employees 1 were acting pursuant to an official policy or custom of the municipality. Botello v. 2 Gammick, 413 F.3d 971, 978-79 (9th Cir. 2005). A § 1983 claim against a municipal 3 defendant “cannot succeed as a matter of law” unless a plaintiff: (1) contends that the 4 municipal defendant maintains a policy or custom pertinent to the plaintiff’s alleged injury; 5 and (2) explains how such policy or custom caused the plaintiff’s injury. Sadoski v. Mosley, 6 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant 7 to Fed. R. Civ. P. 12(b)(6)). Plaintiff has failed to allege facts to support that the City of 8 Phoenix maintained a specific policy or custom that resulted in a violation of Plaintiff’s 9 federal constitutional rights and has failed to explain how his injuries were caused by any 10 municipal policy or custom. 11 B. Defendants Sabu, Branvits, and Huskisson 12 Plaintiff does not connect the allegations in the Complaint to Defendants Sabu, 13 Branvits, and Huskisson. Plaintiff makes no allegations at all against these Defendants. 14 Accordingly, the Court will dismiss Defendants Sabu, Branvits, and Huskisson. 15 C. Count One (Excessive Force) 16 The use of excessive force by police officers in the course of an arrest can violate 17 the arrestee’s Fourth Amendment right to be free from unreasonable seizures. See White 18 by White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). The Fourth Amendment 19 does not prohibit the use of reasonable force. Tatum v. City & County of S.F., 441 F.3d 20 1090, 1095 (9th Cir. 2006). Whether the force was excessive depends on “whether the 21 officers’ actions [were] ‘objectively reasonable’ in light of the facts and circumstances 22 confronting them, without regard to their underlying intent or motivation.” Graham v. 23 Connor, 490 U.S. 386, 397 (1989); Tatum, 441 F.3d at 1095; Lolli v. County of Orange, 24 351 F.3d 410, 415 (9th Cir. 2003). The Court must balance the nature and quality of the 25 intrusion against the countervailing governmental interests at stake. Graham, 490 U.S. at 26 396; Lolli, 351 F.3d at 415. Moreover,
27 [t]he “reasonableness” of a particular use of force must be judged from the 28 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . . “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth 1 Amendment. 2 3 Graham, 490 U.S. at 396 (citations omitted). “Whether a particular use of force was 4 ‘objectively reasonable’ depends on several factors, including the severity of the crime that 5 prompted the use of force, the threat posed by a suspect to the police or to others, and 6 whether the suspect was resisting arrest.” Tatum, 441 F.3d at 1095. 7 Plaintiff provides virtually no factual detail concerning his arrest, including the date 8 he was arrested, the circumstances surrounding his arrest, and the events that resulted in 9 Defendant Egnor shooting Plaintiff with beanbag rounds. Plaintiff does not allege that he 10 was not resisting arrest or did not pose a threat to the officers or others. Absent additional 11 information, Plaintiff fails to state an excessive force claim. The Court will therefore 12 dismiss Count One and Defendant Egnor. 13 D. Count Two (Medical Care) 14 Plaintiff does not connect the allegations in Count Two to any named Defendant. 15 Plaintiff therefore fails to state a claim in Count Two, and it will be dismissed. 16 E. Count Three (Defamation) 17 Plaintiff does not specifically link the allegations in Count Three to any properly 18 named Defendant. In any event, Plaintiff does not state a defamation claim. 19 Both slander and libel concern damage to reputation. An action for damage to 20 reputation ordinarily “lies . . . in the tort of defamation, not in section 1983.” Fleming v. 21 Dep’t of Public Safety, 837 F.2d 401, 409 (9th Cir. 1988). To recover damages for 22 defamation under § 1983, a plaintiff must meet the “stigma-plus test,” which requires a 23 plaintiff to show either that “the injury to reputation was inflicted in connection with a 24 federally protected right,” or that “ the injury to reputation caused the denial of a federally 25 protected right.” Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 645 (9th 26 Cir. 1999) (emphasis in original). Moreover, “[t]o be defamatory, a publication must be 27 false, and truth is a defense.” Godbehere v. Phx. Newspapers, Inc., 783 P.2d 781, 787 28 (Ariz. 1989) (emphasis added); see also Read v. Phx. Newspapers, Inc., 819 P.2d 939, 941 1 (Ariz. 1991) (“Substantial truth is an absolute defense to a defamation action in Arizona. 2 Slight inaccuracies will not prevent a statement from being true in substance, as long as the 3 ‘gist’ or ‘sting’ of the publication is justified.”) (citations omitted). 4 Plaintiff was charged with one count each of possession of a dangerous drug and 5 possession of drug paraphernalia.1 Thus, a statement in Plaintiff’s adult record that he was 6 charged with these offenses is true and cannot form the basis of a defamation. The Court 7 will therefore dismiss Count Three. 8 V. Leave to Amend 9 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 10 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 11 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 12 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 13 to use the court-approved form, the Court may strike the amended complaint and dismiss 14 this action without further notice to Plaintiff. 15 Plaintiff must clearly designate on the face of the document that it is the “First 16 Amended Complaint.” The first 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 by reference. Plaintiff may include only one claim per count. 19 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 20 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 21 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 22 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 23 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 24 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 25 F.3d 896, 928 (9th Cir. 2012) (en banc). 26 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements
27 1 See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/ 28 caseInfo.asp?caseNumber=CR2020-137562 (last accessed Mar. 24, 2021). It does not appear that Plaintiff was charged with resisting arrest or assault on an officer. See id. 1 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 2 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 3 do; (4) how the action or inaction of that Defendant is connected to the violation of 4 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 5 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 6 Plaintiff must repeat this process for each person he names as a Defendant. If 7 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 8 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 9 failure to state a claim. Conclusory allegations that a Defendant or group of 10 Defendants has violated a constitutional right are not acceptable and will be 11 dismissed. 12 If Plaintiff files an amended complaint, he should be aware that the Ninth Circuit 13 Court of Appeals has held that “claims for violations of the right to adequate medical care 14 ‘brought by pretrial detainees against individual defendants under the Fourteenth 15 Amendment’ must be evaluated under an objective deliberate indifference standard.” 16 Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (quoting Castro v. 17 County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016)). To state a medical care 18 claim, a pretrial detainee must show
19 (i) the defendant made an intentional decision with respect to the conditions 20 under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take 21 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 22 involved—making the consequences of the defendant’s conduct obvious; 23 and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 24 25 Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively 26 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each 27 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 28 389, 397 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)). 1 The “‘mere lack of due care by a state official’ does not deprive an individual of 2 life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 3 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more 4 than negligence but less than subjective intent—something akin to reckless disregard.” Id. 5 A mere delay in medical care, without more, is insufficient to state a claim against prison 6 officials for deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 7 F.2d 404, 407 (9th Cir. 1985). 8 VI. Warnings 9 A. Release 10 If Plaintiff is released while this case remains pending, and the filing fee has not 11 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 12 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 13 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 14 result in dismissal of this action. 15 B. Address Changes 16 Plaintiff must file and serve a notice of a change of address in accordance with Rule 17 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 18 relief with a notice of change of address. Failure to comply may result in dismissal of this 19 action. 20 C. Possible “Strike” 21 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 22 fails to file an amended complaint correcting the deficiencies identified in this Order, the 23 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 24 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 25 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 26 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 27 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 28 1| or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 3 D. Possible Dismissal 4 If Plaintiff fails to timely comply with every provision of this Order, including these 5 | warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 6| at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court). 8| ITIS ORDERED: 9 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 10 (2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 12| of $22.55. 13 (3) |The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 14 has 30 days from the date this Order is filed to file a first amended complaint in compliance 15 | with this Order. 16 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 17 | Court must, without further notice, enter a judgment of dismissal of this action with 18 | prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 19 | and deny any pending unrelated motions as moot. 20 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a 21 civil rights complaint by a prisoner. 22 Dated this 25th day of March, 2021. 23 Wichad T. gibuade Michael T. Liburdi 26 United States District Judge 27 28
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Instructions for a Prisoner Filing a Civil Rights Complaint in the United States District Court for the District of Arizona
1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated persons prepare a complaint seeking relief for a violation of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement. This form should not be used to challenge your conviction or sentence. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. ' 2254 for a writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4 provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
4. The Filing and Administrative Fees. The total fees for this action are $402.00 ($350.00 filing fee plus $52.00 administrative fee). If you are unable to immediately pay the fees, you may request leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. ' 1915” for additional instructions.
5. Original and Judge=s Copy. You must send an original plus one copy of your complaint and of any other documents submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing.
6. Where to File. You should file your complaint in the division where you were confined when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson Division. Mail the original and one copy of the complaint with the $402 filing and administrative fees or the application to proceed in forma pauperis to:
1 Revised 12/1/20 Phoenix & Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
7. Change of Address. You must immediately notify the Court and the defendants in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case.
8. Certificate of Service. You must furnish the defendants with a copy of any document you submit to the Court (except the initial complaint and application to proceed in forma pauperis). Each original document (except the initial complaint and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: Attorney for Defendant(s)
(Signature)
9. Amended Complaint. If you need to change any of the information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the court- approved civil rights complaint form. You may file one amended complaint without leave (permission) of Court within 21 days after serving it or within 21 days after any defendant has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, you must file a motion for leave to amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants not included in the amended complaint are considered dismissed. All amended complaints are subject to screening under the Prison Litigation Reform Act; screening your amendment will take additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead, the relevant information should be paraphrased. You should keep the exhibits to use to support or oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion.
2 12. Completing the Civil Rights Complaint Form.
HEADING: 1. Your Name. Print your name, prison or inmate number, and institutional mailing address on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name more than four defendants, print the name of the first defendant on the first line, write the words “and others” on the second line, and attach an additional page listing the names of all of the defendants. Insert the additional page after page 1 and number it “1- A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may result in the loss of the right to a jury trial. A jury trial is not available if you are seeking only injunctive relief.
Part A. JURISDICTION: 1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. ' 1983 for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights occurred.
3. Defendants. Print all of the requested information about each of the defendants in the spaces provided. If you are naming more than four defendants, you must provide the necessary information about each additional defendant on separate pages labeled “2-A,” “2-B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS: You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION: You must identify what rights each defendant violated. The form provides space to allege three separate counts (one violation per count). If you are alleging more than three counts, you must provide the necessary information about each additional count on a separate page. Number the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that you are limited to a total of fifteen additional pages.
3 1. Counts. You must identify which civil right was violated. You may allege the violation of only one civil right per count.
2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. You may check only one box per count. If you check the box marked “Other,” you must identify the specific issue involved.
3. Supporting Facts. After you have identified which civil right was violated, you must state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you must identify which defendant did what act. You also should state the date(s) on which the act(s) occurred, if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.
5. Administrative Remedies. You must exhaust any available administrative remedies before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should disclose whether you have exhausted the inmate grievance procedures or administrative appeals for each count in your complaint. If the grievance procedures were not available for any of your counts, fully explain why on the lines provided.
Part D. REQUEST FOR RELIEF: Print the relief you are seeking in the space provided.
SIGNATURE: You must sign your name and print the date you signed the complaint. Failure to sign the complaint will delay the processing of your action. Unless you are an attorney, you may not bring an action on behalf of anyone but yourself.
FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your complaint being stricken or dismissed. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number the pages.
4 ___________________________________________ Name and Prisoner/Booking Number ___________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code (Failure to notify the Court of your change of address may result in dismissal of this action.)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
_________________________________________ , (Full Name of Plaintiff) ) Plaintiff, v. CASE NO. __________________________________ (To be supplied by the Clerk) (1) _______________________________________ ,
(Full Name of Defendant) CIVIL RIGHTS COMPLAINT (2) _______________________________________ , BY A PRISONER
(3) _______________________________________ , G Original Complaint (4) _______________________________________ , G First Amended Complaint G Second Amended Complaint Defendant(s).
G Check if there are additional Defendants and attach page 1-A listing them.
A. JURISDICTION
1. This Court has jurisdiction over this action pursuant to: G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983 G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). G Other: .
2. Institution/city where violation occurred: .
550/555 B. DEFENDANTS
1. Name of first Defendant: . The first Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
2. Name of second Defendant: . The second Defendant is employed as: as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
3. Name of third Defendant: . The third Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
4. Name of fourth Defendant: . The fourth Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.
C. PREVIOUS LAWSUITS
1. Have you filed any other lawsuits while you were a prisoner? G Yes G No
2. If yes, how many lawsuits have you filed? . Describe the previous lawsuits:
a. First prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
b. Second prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
c. Third prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page. 2 D. CAUSE OF ACTION
COUNT I 1. State the constitutional or other federal civil right that was violated: .
2. Count I. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
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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. .
3 COUNT II 1. State the constitutional or other federal civil right that was violated: .
2. Count II. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count II? G Yes G No c. Did you appeal your request for relief on Count II to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. .
4 COUNT III 1. State the constitutional or other federal civil right that was violated: .
2. Count III. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count III? G Yes G No c. Did you appeal your request for relief on Count III to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. .
If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page.
5 E. REQUEST FOR RELIEF
State the relief you are seeking:
I declare under penalty of perjury that the foregoing is true and correct.
Executed on DATE SIGNATURE OF PLAINTIFF
___________________________________________ (Name and title of paralegal, legal assistant, or other person who helped prepare this complaint)
___________________________________________ (Signature of attorney, if any)
___________________________________________ (Attorney=s address & telephone number)
ADDITIONAL PAGES
All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number all pages.