1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ramon Luis Mendoza, No. CV 21-00829-PHX-MTL (DMF) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants.
14 15 On May 6, 2021, Plaintiff Ramon Luis Mendoza, who is confined in the Arizona 16 State Prison Complex-Eyman (ASPC-Eyman) in Florence, Arizona, filed a “Motion 17 Requesting Exception to Exceed 15 Page Limit in § 1983 Civil Rights Complaint” and 18 lodged a 36-page pro se civil rights Complaint. In a May 13, 2021 Order, the Court denied 19 the Motion, gave Plaintiff thirty days to file a Complaint that complied with Local Rule of 20 Civil Procedure 3.4 and the instructions provided with the court-approved civil rights 21 complaint form, and gave Plaintiff thirty days to either pay the filing and administrative 22 fees or file a complete Application to Proceed In Forma Pauperis. 23 On May 19, 2021, Plaintiff filed a Complaint (Doc. 6). On June 1, 2021, he paid 24 the filing and administrative fees. The Court will order Defendants to answer the 25 Complaint. 26 I. Statutory Screening of Prisoner Complaints 27 The Court is required to screen complaints brought by prisoners seeking relief 28 against a governmental entity or an officer or an employee of a governmental entity. 28 1 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 2 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 3 relief may be granted, or that seek monetary relief from a defendant who is immune from 4 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 5 A pleading must contain a “short and plain statement of the claim showing that the 6 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 7 not demand detailed factual allegations, “it demands more than an unadorned, the- 8 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 9 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Id. 11 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 13 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 14 that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 16 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 18 allegations may be consistent with a constitutional claim, a court must assess whether there 19 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 20 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 21 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 22 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 23 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 24 U.S. 89, 94 (2007) (per curiam)). 25 II. Complaint 26 In his two-count Complaint, Plaintiff sues the following Defendants in their 27 individual and official capacities: Arizona Department of Corrections (ADC) Director 28 David Shinn, Special Security Unit (SSU) Statewide Supervisor Carlos Reyna, Security 1 Threat Group (STG) Supervisory Investigator Lance Uehling, Northern Regional Director 2 Kevin Curran, Classification Administrator Evangelina C. Flores, Offender Service Bureau 3 Administrator Stacy Crabtree, Warden W. Hensley, Deputy Warden Panam S. Days, 4 Assistant Deputy Warden Orin N. Romney, SSU Lieutenant/Coordinator Steve Young, 5 Classification Review Officer David Lewis, and Grievance Coordinator Delacruz. In his 6 Request for Relief, Plaintiff seeks declaratory and injunctive relief, monetary damages, and 7 his costs of suit. 8 Plaintiff is confined in ASPC-Eyman’s Browning Unit, which was previously called 9 the Special Management Unit II. Plaintiff claims confinement in that unit imposes an 10 atypical and significant hardship in relation to the ordinary incidents of prison 11 life. (Doc. 6 ¶ 45.)1 According to Plaintiff, “STG-Subclass” inmates in the Browning 12 Unit, in contrast to general population inmates, have virtually every aspect of their lives 13 controlled and monitored. (Id. ¶¶ 47-48.) He claims the Browning Unit “is synonymous 14 with extreme isolation” and inmates are “deprived of almost any environmental or sensory 15 stimuli.” (Id. ¶ 50.) Inmates are confined, alone, in constantly illuminated 8’ by 10’ 16 windowless concrete cells. (Id. ¶ 49.) Inmates are only fed twice a day, in their cells, and 17 the calories in those meals are fewer than those served to general population 18 inmates. (Id. ¶ 48.) Inmates are handcuffed and subjected to strip searches whenever they 19 leave their cells, are prohibited from having physical contact with other inmates, cannot 20 have contact visits, and their physical interaction with others is limited to those situations 21 when staff members handcuff them. (Id. ¶¶ 49-50.) Their recreation is limited to 22 “chute[-]style” recreation areas with 20’ high concrete walls and no exercise equipment 23 other than a racquetball. (Id. ¶ 50.) In addition, the inmates receive, at best, minimal 24 general and educational programing. (Id.) 25 Plaintiff alleges STG members in the Browning Unit are placed in these conditions 26 for a mandatory 24-month term, whereas non-STG inmates are only placed in these
27 1 The citation refers to the document number generated by the Court’s Case 28 Management/Electronic Case Filing system and the paragraph number listed in Plaintiff’s Complaint. 1 conditions for 12 months. (Id. ¶ 63.) Plaintiff also contends that because he has a “STG- 2 Maximum Custody assignment,” he cannot earn early release credits (ERC). (Id. ¶ 56.) 3 He claims that pursuant to ADC policy, inmates designated as current or active STG 4 members lose good time credits, are ineligible for “escorted leave” or the recission or 5 restoration of forfeited time credits, and are ineligible for restoration of Parole Class III or 6 other credits unless they renounce or successfully complete ADC’s Step-Down 7 Program. (Id.) 8 Plaintiff contends the Step-Down Program is a program that allows active STG 9 members to “remove themselves from STG activity and reject gang affiliation.” (Id. ¶ 4.) 10 He alleges the Step-Down Program “is not a privilege ‘per-se,” but is an “alternative exit 11 mechanism” that is “distinct from debriefing.” (Id. ¶¶ 38-39.) He claims ADC established 12 the Step-Down Program after the courts concluded that continued segregation in the 13 Browning Unit under STG-status, with annual review alone, violated prisoners’ due 14 process rights. (Id.) 15 Plaintiff asserts he successfully completed the Step-Down Program, left the 16 Browning Unit as an “inactive” STG member, and has been in close custody confinement 17 since March 2018. (Id. ¶¶ 3, 40.) He claims, however, that on January 23, 2021, his status 18 as an “inactive” STG member was revoked, he was removed from the Step-Down Program, 19 he was “remanded/transferred” to the Browning Unit, and he is now designated as an 20 “active” STG member. (Id. ¶¶ 1-2, 5.) Plaintiff alleges this impacted “eligibility to 21 E.R.C.’s, rehabilitative, educational, substance abuse, mental health treatment, vocational 22 training and work programs . . . and Honor Pod living and contact visits.” (Id. ¶ 31.) 23 Plaintiff claims placement in a maximum-security segregation unit implicates a 24 liberty interest and requires due process protections. (Id. ¶ 30.) He asserts that once an 25 inmate completes the Step-Down Program and successfully reintegrates into the general 26 population as an inactive STG member, his “[liberty] interest [is] now an entitlement,” and 27 he should receive due process, “especially where there exist specific substantive and 28 procedural due process predicates to be had.” (Id. ¶ 34.) 1 Plaintiff alleges the procedures in Department Order (DO) 806.11 in effect on 2 January 23, 2021, severely limited ADC officials’ authority to revoke an inmate’s status as 3 an inactive STG member, remove an inmate from the Step-Down Program, and transfer 4 the inmate back to the Browning Unit. (Id. ¶ 33.) He claims that when his inactive status 5 was revoked, he was removed from the Step-Down Program, and he was returned to 6 Browning Unit, he did not receive due process, the “specific substantive process of DO 7 806.11.0,” or proper notice, a hearing, or an opportunity to be heard. (Id. ¶¶ 1, 5, 16.) 8 Plaintiff contends Defendants made an “illegitimate and arbitrary decision” and did not 9 comply with “all procedural safeguards.” (Id. ¶ 5.) 10 Specifically, Plaintiff claims Defendant Reyna authorized Plaintiff’s removal from 11 close custody, the revocation of his status as an inactive STG member, and his return to the 12 Browning Unit. (Id. ¶ 10.) Plaintiff alleges that on January 23, 2021, Defendant Young 13 and two of his subordinates removed Plaintiff from his cell and informed him that he was 14 being removed from close custody, his status as an inactive STG member was being 15 revoked, and he was being transferred back to the Browning Unit. (Id. ¶ 6.) Plaintiff 16 contends this was done “with no valid explanation,” no due process, and none of the 17 procedural requirements outlined in DO 806.11.0. (Id.) Plaintiff asserts that one of 18 Defendant Young’s subordinates told Plaintiff he would not be “accorded” due process, 19 notice, a hearing, or “redress” of his change in STG status, even though this was mandated 20 by ADC policy, because “the policy was being changed” and the new policy, which did 21 not provide for notice or hearing, was “being practiced.” (Id. ¶ 8.) 22 On January 25, 2021, Defendant Reyna told Plaintiff that the “policy regarding the 23 STG-Subclass was being completely changed” and that “due to the changes to come[,] 24 there would no longer be any notice, hearings or opportunities to be heard” regarding STG 25 validation, revocation of inactive STG status, or remand of STG inmates. (Id. ¶ 10.) 26 Plaintiff claims, however, that the written policy that was in effect mandated pre- 27 deprivation due process procedures regarding validation, revocation, and 28 remand. (Id. ¶ 11.) Defendant Reyna allegedly told Plaintiff that “his hands were tied 1 because [Defendants Curran and Uehling] ordered the recent removals, revocations and 2 remands of Plaintiff and about a dozen other prisoners without according specific 3 substantive and procedural due process.” (Id. ¶ 11.) 4 Plaintiff filed an informal complaint regarding the deviation from policy and the 5 denial of due process. (Id. ¶ 14.) He then filed a February 22, 2021 grievance. (Id.) 6 Plaintiff claims Defendant Delacruz “ignored the unlawful acts being imposed on Plaintiff” 7 and returned the grievance unprocessed, explaining that Plaintiff could not grieve STG and 8 classification issues under the general grievance policy because the Department Orders 9 governing classification and STGs have their own appeal process. (Id.) Plaintiff filed an 10 appeal, but Defendant Delacruz intercepted it. (Id. ¶ 15.) On March 5, 2021, Defendant 11 Delacruz explained that the Arizona Attorney General’s Office had stated that the “the need 12 for due process” regarding “[Step-Down Program] revocations . . . is to be satisfied by [the 13 Department Order governing classification].” (Id.) Plaintiff asserts, however, that this was 14 “false and improper” because on March 18, 2021, ADC’s general counsel sent an email to 15 the director of Middle Ground Prison Reform detailing the process required in DO 806 16 regarding the removal of inmates from the Step-Down Program and “illustrated that the 17 Plaintiff should have appeared before an STG-VHC and [wa]s required an appeal 18 process.” (Id.) 19 On February 13, 2021, Defendant Lewis conducted a “Periodic/Initial Review of 20 Plaintiff[’]s Maximum Custody Placement in Administrative Segregation.” (Id. ¶ 17.) 21 Plaintiff claims the review was inadequate and did not comport with due process. (Id.) He 22 contends Defendant Lewis “utilized vagarious and invalid statements” as the basis for 23 Plaintiff’s current placement in the Browning Unit and improperly used Plaintiff’s initial 24 STG validation as a “pretext” for Plaintiff’s current placement in the Browning Unit. (Id.) 25 On February 17, 2021, Defendant Romney approved the review of Plaintiff’s 26 placement in the Browning Unit. (Id. ¶ 19.) On February 19, 2021, Defendant Days 27 approved Plaintiff’s placement, using Plaintiff’s initial STG validation as a “pretext” for 28 his current placement in the Browning Unit. (Id. ¶ 18.) Plaintiff claims Defendant Days’ 1 review of his confinement was “meaningless, rote, repetitious and did not safeguard him 2 against the risk of an erroneous deprivation” and that he never received a revocation 3 hearing to “substantiate the current placement in [the Browning Unit] under the pretense 4 of validation as an ‘active’ STG member.” (Id.) Plaintiff contends this “shows the 5 systemic failure to ensure that such reviews . . . conform[] to due process 6 requirements.” (Id.) 7 On February 26, 2021, Defendant Flores, “on a review of [Plaintiff’s] placement 8 and status,” approved Plaintiff’s placement in the Browning Unit. (Id. ¶ 20.) On March 6, 9 2021, Defendant Crabtree approved Plaintiff’s placement in the Browning Unit based on a 10 validation hearing she asserted took place on November 30, 2019. (Id. ¶ 21.) Plaintiff 11 claims this is incorrect because he has been designated as an inactive STG member since 12 March 2018. (Id.) Plaintiff contends that Defendant Crabtree’s review was “meaningless 13 and did not comport with due process” and that he “never received the specific substantive 14 predicates of DO 806.11 required to revoke his ‘inactive’ status or remand him to . . . [the 15 Browning Unit].” (Id.) 16 Plaintiff claims that on March 15, 2021, Defendant Uehling told him that he was 17 not entitled to due process because the Step-Down Program was a “privilege” and that he 18 would not be receiving “revocation, revalidation[-]type notice, [a] hearing or [an] 19 opportunity to be heard” in light of the new policy that would go into effect on April 15, 20 2021. (Id. ¶¶ 26, 39.) Defendant Uehling allegedly told Plaintiff that “his ‘Big Dawgs’ 21 (presumably Defendants Shinn and Curran)” had authorized him to deviate from the 22 current policy, which required due process before an inmate’s status as an inactive STG 23 member was revoked and the inmate was removed from the Step-Down Program and 24 returned to the Browning Unit. (Id. ¶ 26.) According to Defendant Uehling, the new policy 25 would remove notice, hearing, and an opportunity to be heard and would give Defendants 26 Uehling and Reyna the authority to decide “who will ‘go’ and who ‘wont.’” (Id. ¶ 27.) 27 In Count One, Plaintiff alleges he was denied due process, in violation of the 28 Fourteenth Amendment. Plaintiff asserts he has been in the Browning Unit since January 1 23, 2021, “under the pretense of being an active STG member” without the “due process 2 predicates” required to determine “active status-distinction, revocation [and] 3 remand).” (Id. ¶ 42.) He claims he should have been provided due process protections 4 before his inactive status was revoked and he was removed from the Step-Down Program 5 and returned to the Browning Unit, but Defendants intentionally deviated from the written 6 policy, which provided notice, a hearing, and an opportunity to be heard. (Id. ¶ 29.) 7 Plaintiff alleges he was subjected to conditions of confinement that constitute an atypical 8 and significant hardship and was denied “any meaningful review” of his classification and 9 his continued confinement in the Browning Unit. (Id. ¶¶ 29, 37.) 10 Plaintiff contends the “patterns and practices” imposed on him violated due process; 11 were the result of policies and practices approved and implemented by Defendants Shinn, 12 Curran, Reyna, Uehling, “and more”; and were the “result of failings by an already corrupt 13 and malicious SSU/STG office.” (Id. ¶¶ 35-36.) He alleges Defendant Young provided 14 no due process and the review process provided by Defendants Lewis, Romney, Days, 15 Flores, and Crabtree “did not conform to the due process requirements” in Wilkinson v. 16 Austin, 545 U.S. 209 (2005), and denied him due process. (Id. ¶ 22.) Plaintiff claims “all 17 named Defendants” and, specifically, Defendants Reyna, Delacruz, Days, Romney, Flores, 18 Shinn, Curran, Hensley, and Uehling “knowingly acquiesced” in the “unlawful acts, 19 omissions[, and] ratifications of Practices and Procedures . . . which violated and continue 20 to violate Plaintiff’s rights.” (Id. ¶¶ 13, 15, 18-20, 23-25, 28, 40.) 21 In Count Two, Plaintiff alleges he has been subjected to cruel and unusual 22 punishment, in violation of the Eighth Amendment. Plaintiff claims prolonged solitary 23 confinement violates international standards; constitutes “torture or cruel, inhuman[e, or] 24 degrading treatment or punishment”; and causes a persistent and heightened level of 25 anxiety and nervousness, headaches, insomnia, lethargy or chronic fatigue, obsessive 26 ruminations, an oversensitivity to stimuli, irrational anger, social withdrawal, and 27 emotional flatness. (Id. ¶¶ 42 67.) He alleges he suffers from all of these effects as a result 28 of his confinement in the Browning Unit. (Id. ¶ 67.) Plaintiff also contends the conditions 1 in the Browning Unit impose “long-term physical isolation,” “exert[] psychological control 2 with the aim to break the human spirit,” and inflict “severe psychological 3 decompensation.” (Id. ¶¶ 48, 54, 60.) He alleges the conditions in the Browning Unit have 4 caused him psychological distress, “unrelenting and crushing mental anguish,” pain and 5 suffering, anxiety, insomnia, weight loss, paranoia, sociopathic tendencies, and post- 6 traumatic stress disorder. (Id. ¶¶ 14, 55, 66.) 7 Plaintiff alleges Defendants’ “decades-long infliction of significant psychological 8 and physical harm and the risk of future debilitating harm on those incarcerated [in the 9 Browning Unit] . . . offends civilized society’s sense of decency[] and is a disproportionate 10 punishment” that violates the Eighth and Fourteenth Amendments. (Id. ¶ 57.) He claims 11 that Defendants’ practices and procedures “violate contemporary standards of human 12 dignity and decency” and that Defendants know the conditions in the Browning Unit are 13 “harmful and detrimental to the overall health and well[-]being of humans,” but they 14 continue to arbitrarily subject inmates to these conditions without proper due process 15 protections. (Id. ¶¶ 51, 59.) He alleges ADC has been using “these ‘status-based’ 16 confinements since 1991, and all Defendants have knowingly acquiesced in the illegal, 17 unconstitutional, and inhumane conditions, actions, policies, customs and practices” at the 18 Browning Unit. (Id. ¶ 61.) 19 Plaintiff contends Defendant Reyna initially validated Plaintiff as an STG member 20 in 2012 and “once again is the cause of Plaintiff’s current incarceration” in the Browning 21 Unit. (Id.) Plaintiff asserts Defendants Shinn and Curran are “especially responsible” 22 because they “knowingly authorized the practices and actions which were imposed upon 23 Plaintiff” and developed a “‘new’ [DO] 806 policy which only enforces, induces and 24 perpetuates the punitive nature of such confinements and status[-]based 25 segregations.” (Id. ¶ 62.) 26 Plaintiff alleges he has never received a finding or hearing to validate him as a 27 current or active STG member, but he is nevertheless being subjected to the conditions in 28 the Browning Unit. (Id. ¶ 57.) He claims this “illustrat[es] disproportionate punishment 1 and deprivation of [a] liberty interest.” (Id.) He also asserts that Defendants have “no 2 legitimate penological interest in retaining [him] in [the] debilitating conditions [in the 3 Browning Unit] absent . . . [the] due process predicates in DO 806.11” and their actions 4 are “unmoored from any legitimate penological purpose or security 5 need.” (Id. ¶¶ 57, 64-65.) Finally, Plaintiff contends reviews are “meaningless and rote” 6 and use invalid “initial status-based justifications as a context for Plaintiff[’]s 7 incarceration.” (Id. ¶ 59.) 8 III. Discussion 9 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 10 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 11 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 12 civil rights complaint may not supply essential elements of the claim that were not initially 13 pled. Id. 14 A suit against a defendant in his or her individual capacity seeks to impose personal 15 liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For a person 16 to be liable in his or her individual capacity, “[a] plaintiff must allege facts, not simply 17 conclusions, that show that the individual was personally involved in the deprivation of his 18 civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 19 A claim against an individual in his or her official capacity is “only another way of 20 pleading an action against an entity of which an officer is an agent.” Monell v. Dep’t of 21 Soc. Servs., 436 U.S. 658, 690 n.55 (1978). “[A] suit against a state official in his or her 22 official capacity is not a suit against the official but rather is a suit against the official’s 23 office. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep’t 24 of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). 25 Although a plaintiff can maintain a lawsuit for damages against ADC employees in 26 their individual capacities, a plaintiff cannot maintain a lawsuit for damages against ADC 27 employees in their official capacities. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State 28 officials sued for damages in their official capacity are not ‘persons’ for purposes of the 1 suit because they assume the identity of the government that employs them.”); see also 2 Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (“[A] state is not 3 a ‘person’ for purposes of section 1983. Likewise[,] ‘arms of the State’ such as the Arizona 4 Department of Corrections are not ‘persons’ under section 1983.”) (citation omitted). A 5 plaintiff, however, may maintain a lawsuit against ADC employees in their official capacity 6 for prospective declaratory and injunctive relief because under the doctrine set forth in Ex 7 parte Young, 209 U.S. 123 (1908), the Eleventh Amendment “does not . . . bar actions for 8 prospective declaratory or injunctive relief against state officers in their official capacities 9 for their alleged violations of federal law.” Coal. to Defend Affirmative Action v. Brown, 10 674 F.3d 1128, 1134 (9th Cir. 2012). 11 A. Count One 12 Liberally construed, Plaintiff has stated due process claims in Count One against 13 Defendants in their individual capacities and against Defendant Shinn in his official 14 capacity. The Court will dismiss the official capacity claims against the remaining 15 Defendants because they are duplicative of the claim against Defendant Shinn. See Monell, 16 436 U.S. at 690 n.55 (a claim against an individual in his or her official capacity is “only 17 another way of pleading an action against an entity of which an officer is an agent.”). The 18 Court will require Defendants Hensley, Curran, Reyna, Uehling, Young, Lewis, Days, 19 Flores, Crabtree, Romney, and Delacruz to answer Count One in their individual capacities 20 only and Defendant Shinn to answer Count One in his individual and official capacities. 21 B. Count Two 22 To state an Eighth Amendment conditions-of-confinement claim against a 23 defendant in his or her individual capacity, plaintiffs must meet a two-part test. “First, the 24 alleged constitutional deprivation must be, objectively, sufficiently serious” such that the 25 “official’s act or omission must result in the denial of the minimal civilized measure of 26 life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations 27 omitted). Second, the prison official must have a “sufficiently culpable state of mind,” i.e., 28 he must act with “deliberate indifference to inmate health or safety.” Id. (internal 1 quotations omitted). Deliberate indifference is a higher standard than negligence or lack 2 of ordinary due care for the prisoner’s safety. Id. at 835. In defining “deliberate 3 indifference” in this context, the Supreme Court has imposed a subjective test: “the official 4 must both be aware of facts from which the inference could be drawn that a substantial risk 5 of serious harm exists, and he must also draw the inference.” Id. at 837 (emphasis added). 6 Plaintiff’s allegations in Count Two do not support a claim that any Defendant, in 7 his or her individual capacity, acted with deliberate indifference. Thus, the Court will 8 dismiss the individual capacity claims in Count Two. Liberally construed, Plaintiff has 9 stated an Eighth Amendment claim in Count Two against Defendant Shinn in his official 10 capacity only. The Court will dismiss as duplicative the official capacity claims against 11 the remaining Defendants. See Monell, 436 U.S. at 690 n.55. 12 IV. Warnings 13 A. Address Changes 14 Plaintiff must file and serve a notice of a change of address in accordance with Rule 15 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 16 relief with a notice of change of address. Failure to comply may result in dismissal of this 17 action. 18 B. Copies 19 Because Plaintiff is currently confined in an Arizona Department of Corrections unit 20 subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy 21 of every document he files or to submit an additional copy of every filing for use by the 22 Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule 23 of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by 24 including, with every document he files, a certificate of service stating that this case is 25 subject to General Order 14-17 and indicating the date the document was delivered to 26 prison officials for filing with the Court. 27 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he 28 will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a 1 copy of every document that he files, and include a certificate stating that a copy of the 2 filing was served; and (b) submit an additional copy of every filing for use by the Court. 3 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 4 being stricken without further notice to Plaintiff. 5 C. Possible Dismissal 6 If Plaintiff fails to timely comply with every provision of this Order, including these 7 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 8 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 9 to comply with any order of the Court). 10 IT IS ORDERED: 11 (1) The official capacity claims against Defendants Hensley, Curran, Reyna, 12 Uehling, Young, Lewis, Days, Flores, Crabtree, Romney, and Delacruz are dismissed as 13 duplicative. 14 (2) The individual capacity claims in Count Two are dismissed without 15 prejudice. 16 (3) Defendants Hensley, Curran, Reyna, Uehling, Young, Lewis, Days, Flores, 17 Crabtree, Romney, and Delacruz must answer Count One in their individual capacities 18 only. Defendant Shinn must answer Count One in his individual and official capacities. 19 Defendant Shinn must answer Count Two in his official capacity only. 20 (4) The Clerk of Court must send Plaintiff this Order, and a copy of the 21 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 22 for Waiver of Service of Summons form for Defendants Shinn, Hensley, Curran, Reyna, 23 Uehling, Young, Lewis, Days, Flores, Crabtree, Romney, and Delacruz. 24 (5) Plaintiff must complete2 and return the service packet to the Clerk of Court 25 within 21 days of the date of filing of this Order. The United States Marshal will not 26 provide service of process if Plaintiff fails to comply with this Order.
27 2 If a Defendant is an officer or employee of the Arizona Department of Corrections, 28 Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the 1 (6) If Plaintiff does not either obtain a waiver of service of the summons or 2 complete service of the Summons and Complaint on a Defendant within 90 days of the 3 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 4 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 5 16.2(b)(2)(B)(ii). 6 (7) The United States Marshal must retain the Summons, a copy of the 7 Complaint, and a copy of this Order for future use. 8 (8) The United States Marshal must notify Defendants of the commencement of 9 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 10 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 11 Order. 12 (9) A Defendant who agrees to waive service of the Summons and Complaint 13 must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 14 30 days of the date of the notice and request for waiver of service pursuant to Federal 15 Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. 16 (10) The Marshal must immediately file signed waivers of service of the 17 summons. If a waiver of service of summons is returned as undeliverable or is not returned 18 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 19 the Marshal must: 20 (a) personally serve copies of the Summons, Complaint, and this Order 21 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 22 and 23 (b) within 10 days after personal service is effected, file the return of 24 service for Defendant, along with evidence of the attempt to secure a waiver of 25 service of the summons and of the costs subsequently incurred in effecting service 26 upon Defendant. The costs of service must be enumerated on the return of service 27 form (USM-285) and must include the costs incurred by the Marshal for 28
Arizona Department of Corrections unless the officer or employee works there. 1 photocopying additional copies of the Summons, Complaint, or this Order and for 2 preparing new process receipt and return forms (USM-285), if required. Costs of 3 service will be taxed against the personally served Defendant pursuant to Rule 4 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 5 Court. 6 (11) Defendants must answer the Complaint or otherwise respond by appropriate 7 | motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 8 | Rules of Civil Procedure. 9 (12) Any answer or response must state the specific Defendant by name on whose 10 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 11 | does not identify the specific Defendant by name on whose behalf it is filed. 12 (13) This matter is referred to Magistrate Judge Deborah M. Fine pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). 15 Dated this 20th day of September, 2021. 16 Michal T. diburde Michael T. Liburdi 19 United States District Judge 20 21 22 23 24 25 26 27 28