1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Randall Osborn, No. CV 20-01155-PHX-MTL (JZB) 10 Plaintiff, 11 v. ORDER 12 Unknown Wishchuen, et al., 13 Defendants.
14 15 On June 9, 2020, Plaintiff David Randall Osborn, who is confined in the Arizona 16 State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. In a June 19, 2020 18 Order, the Court denied the deficient Application to Proceed with leave to refile within 30 19 days. 20 On July 7, 2020, Plaintiff filed a new Application to Proceed In Forma 21 Pauperis (Doc. 8). The Court will dismiss the Complaint with leave to amend. 22 I. Application to Proceed In Forma Pauperis and Filing Fee 23 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 24 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 25 § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing 26 fee will be collected monthly in payments of 20% of the previous month’s income credited 27 to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 28 1 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 2 agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 8 relief may be granted, or that seek monetary relief from a defendant who is immune from 9 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 27 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 28 1 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 2 U.S. 89, 94 (2007) (per curiam)). 3 If the Court determines that a pleading could be cured by the allegation of other 4 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 5 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 6 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 7 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 8 III. Complaint1 9 In her three-count Complaint,2 Plaintiff sues Facility Health Administrator 10 Wishchuen, Provider Pamela Olmstead, Nurse Y. Simpson, and Correctional Officer (CO) 11 II Chacon. Plaintiff asserts claims related to her conditions of confinement and retaliation. 12 She seeks injunctive relief and monetary relief in the amount of $20,000,000. 13 In Count One, Plaintiff alleges that she is transgender and started hormone therapy 14 on April 1, 2020. Plaintiff requested two supportive bras from the medical department, per 15 “their” policy, set forth in Department Orders (DOs) 810, Management of LGBTI Inmates, 16 and 909, Inmate Property. Both policies state that the medical department is responsible 17 for ordering bras, which are delivered to the property unit to be inspected before they are 18 given to Plaintiff. As of June 2, 2020, Plaintiff’s bras had not been ordered, pending 19 approval by the medical director. 20 On April 14, 2020, Plaintiff submitted an Informal Complaint regarding the bras. 21 On April 22, 2020, Plaintiff was given a special needs order authorizing her to have two 22 bras per year. On April 29, 2020, Plaintiff submitted a revised Informal Complaint 23 concerning the same issue. On May 20, 2020, a grievance “was submitted.” On May 23, 24 2020, “they” responded to the April 14 Informal Complaint and tried to say “they” sent a
25 1 Plaintiff has attached 15 pages of exhibits to the Complaint. The rules 26 accompanying the court-approved form specify that plaintiffs should not submit exhibits. Plaintiff must raise her claims in her complaint or amended complaint, not in exhibits. If 27 she files an amended complaint, she must not submit exhibits. 28 2 Plaintiff indicates she is transgender, and the Court will therefore refer to her with feminine pronouns. 1 response to Plaintiff on May 5, in an attempt—according to Plaintiff—to prevent her from 2 exhausting her remedies. The medical department, “not knowing their policy,” told 3 Plaintiff to contact the CO III. Plaintiff claims she has suffered mental anguish and sexual 4 discrimination. 5 In Count Two, Plaintiff alleges that she is denied her right to freedom of expression 6 and is subject to sexual discrimination through “lack of care,” deliberate indifference, or 7 “negl[i]gence of care” due to “ignorance of their policy” regarding transgender prisoners. 8 Plaintiff was told to contact her CO III or the property unit, as stated on a Health Needs 9 Request (HNR). Plaintiff claims the copy of this HNR proves Browning Unit’s lack of the 10 knowledge required to care for transgender prisoners. She alleges that Defendants 11 Olmstead and Simpson lied to her about her bras being ordered. Plaintiff also asserts that 12 Defendant Wishchuen and the nursing staff lied about “response dates” (presumably, the 13 response to Plaintiff’s Informal Complaint) and Wishchuen is “always on vacation not 14 doing her duty.” Plaintiff claims that the COs disrespect her sexuality and that Browning 15 Unit is a “hot bed” for sexual bigotry. She alleges she asked Defendant Simpson for her 16 LPN number, and Simpson refused, called Plaintiff a “faggot,” and told Plaintiff to get her 17 LPN number from the internet. 18 In Count Three, Plaintiff alleges that on June 4, 2020, Defendant Chacon 19 disrespected her sexuality by telling her that she is “not really” transgender, that she is on 20 a “man run,” and telling her to take off her shirt. At the time, Plaintiff had her shirt tied up 21 like a halter top because it was hot. Plaintiff asked Defendant Chacon to ask Sergeant 22 Lopez when the Lieutenant would take Plaintiff for measurements. Plaintiff also “asked 23 for help” and told Chacon “all that was said to [her].” Plaintiff claims that because of her 24 lawsuit against the medical department, retaliation and the measurements were a “far[c]e” 25 by staff to see how she would react and to see if she is “really” transgender. She asserts 26 that Defendant Chacon says hurtful things to get her in trouble by assaulting him, but she 27 refuses to be violent. Plaintiff submitted an Informal Complaint and reported Chacon on 28 the PREA hotline. 1 Plaintiff also makes various allegations in two handwritten pages included with the 2 Complaint. Plaintiff alleges that certain events occurred because she had a legal visit 3 regarding her lawsuit against the medical department. Plaintiff reasserts the allegations 4 that on June 2, 2020, when Plaintiff asked Defendant Simpson for her LPN number for 5 Plaintiff’s lawsuit, Simpson refused, saying, “Fuck you, get my [number] off the internet” 6 and called Plaintiff a faggot. Plaintiff also alleges that she gave an Informal Complaint to 7 “Psyc Willerd” on June 3, 2020. 8 Plaintiff claims that on June 4, 2020, Sergeant Lopez approached her cell door and 9 told Plaintiff they were going to pick up Plaintiff’s bras that day and asked what size she 10 is. Plaintiff said she is a size large. Sergeant Lopez left Plaintiff’s cell and yelled from the 11 front door of the pod that the lieutenant would pull Plaintiff out for measurements. Plaintiff 12 “wonder[s]” if this is protocol and states that it “seems” inappropriate. Plaintiff alleges 13 this was “deceit” or a trick to find out if she is “really” transgender and to see how she 14 would react. Sergeant Lopez never returned for Plaintiff’s measurements. 15 Plaintiff further alleges that on June 4, 2020, she asked Defendant Chacon to speak 16 to Sergeant Lopez regarding Lopez’s comments. At the time, Plaintiff had her shirt pulled 17 up like a halter top or bra because it was hot, and Chacon told Plaintiff to “undo [her] shirt 18 like that.” Plaintiff said, “No, I have breasts. I[’]d wear my bras if I had them.” Chacon 19 said, “[Y]ou[’re] a man right?” and Plaintiff responded that she is transgender and is 20 transitioning to a woman. Chacon told her to take off her shirt and that she is “on a mans 21 run” and asked her if any of the prisoners in the pod were female. Chacon also told Plaintiff 22 she is not “really transgender,” making a scene in the pod. Plaintiff told Chacon she is on 23 estrogen therapy and has breasts, and she was not taking off her shirt. Plaintiff claims 24 Chacon disrespected her sexuality and denied her the right of self-expression. 25 Later that evening, Sergeant Bennet came to Plaintiff’s door, and Plaintiff asked to 26 be pulled out to report a PREA violation. Sergeant Bennet told Plaintiff he would pull her 27 out later and write up a PREA packet and that he had to put Plaintiff “on watch” for a 28 1 PREA report, presumably, according to Plaintiff, to “look at [her] naked to see if [she has] 2 breasts or not.” Bennet never returned. 3 Plaintiff alleges that on June 5, 2020, Defendant Chacon walked in with another 4 prisoner who was returning from the medical department. The other prisoner told Plaintiff 5 “they” confronted him in a holding cell and showed him “false documents” that say, 6 “misconduct with a minor” to “get the people in [Plaintiff’s] pod to discontinue associating 7 with [her].” 8 IV. Failure to State a Claim 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. Defendant Wishchuen 15 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 16 specific injury as a result of specific conduct of a defendant and show an affirmative link 17 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 18 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, 19 a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s 20 constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 21 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 22 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and 23 § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 24 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 25 Plaintiff has not alleged that Defendant Wishchuen personally participated in a 26 deprivation of Plaintiff’s constitutional rights, was aware of a deprivation and failed to act, 27 or formed policies that resulted in Plaintiff’s injuries. Rather, Plaintiff vaguely alleges that 28 1 Defendant Wishchuen and the nursing staff lied about “response dates,” and Wishchuen is 2 “always on vacation not doing her duty.” Such allegations are insufficient to support a 3 conclusion that any of Wishchuen’s conduct resulted in any injury to Plaintiff. Thus, the 4 Court will dismiss without prejudice Defendant Wishchuen. 5 B. Conditions of Confinement 6 Although Plaintiff designates her claims as medical care claims, they are more 7 properly evaluated as conditions-of-confinement claims. To state an Eighth Amendment 8 conditions-of-confinement claim, plaintiffs must meet a two-part test. “First, the alleged 9 constitutional deprivation must be, objectively, sufficiently serious” such that the 10 “official’s act or omission must result in the denial of the minimal civilized measure of 11 life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations 12 omitted). Second, the prison official must have a “sufficiently culpable state of mind,” i.e., 13 he must act with “deliberate indifference to inmate health or safety.” Id. (internal 14 quotations omitted). Deliberate indifference is a higher standard than negligence or lack 15 of ordinary due care for the prisoner’s safety. Id. at 835. In defining “deliberate 16 indifference” in this context, the Supreme Court has imposed a subjective test: “the official 17 must both be aware of facts from which the inference could be drawn that a substantial risk 18 of serious harm exists, and he must also draw the inference.” Id. at 837 (emphasis added). 19 Plaintiff’s allegations regarding her bras are insufficient to support a conclusion that 20 any named Defendant was aware of and disregarded a substantial risk that Plaintiff would 21 suffer serious harm if she did not receive bras. Plaintiff vaguely alleges that Defendants 22 Olmstead and Simpson lied to her about her bras being ordered, but Plaintiff does not 23 provide any facts to support that allegation, such as when and how Olmstead and Simpson 24 told her bras had been ordered, how that statement was false, and how the false statement 25 amounted to deliberate indifference to a substantial risk of serious harm. 26 Plaintiff also makes allegations regarding sexual harassment and discrimination in 27 Browning Unit, claims that Defendant Simpson called Plaintiff a “faggot” after Plaintiff 28 asked for Simpson’s LPN number, and asserts that Defendant Chacon made comments that 1 disrespected her sexuality. These allegations are insufficient to state an Eighth Amendment 2 claim against Simpson. Although physical sexual assault on a prisoner by a prison official 3 violates the Eighth Amendment, Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), 4 and “prisoners have a right to be free from sexual abuse,” Austin v. Terhune, 367 F.3d 5 1167, 1171 (9th Cir. 2004), “ the Eighth Amendment’ s protections do not necessarily 6 extend to mere verbal sexual harassment.” Austin, 367 F.3d at 1171. The Ninth Circuit 7 Court of Appeals “has recognized that sexual harassment may constitute a cognizable claim 8 for an Eighth Amendment violation, [but] has specifically differentiated between sexual 9 harassment that involves verbal abuse and that which involves allegations of physical 10 assault, finding [only] the latter to be in violation of the [C]onstitution.” Minifield v. 11 Butikofer, 298 F. Supp. 2d 900, 904 (N.D. Cal. 2004) (citing Schwenk, 204 F.3d at 1198); 12 see also Austin, 367 F.3d at 1171-72 (officer’s conduct was not sufficiently serious to 13 violate the Eighth Amendment where officer exposed himself to prisoner but never 14 physically touched him); Patrick v. Martin, 402 Fed. App’x 284, 285 (9th Cir. 2010) 15 (sexual harassment claim based on verbal harassment insufficient to state a claim under 16 § 1983). Likewise, “‘[v]erbal harassment or abuse . . . is not sufficient to state a 17 constitutional deprivation under 42 U.S.C. § 1983.’” Oltarzewski v. Ruggiero, 830 F.2d 18 136, 139 (9th Cir. 1987) (quoting Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979)); see 19 also Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997) (“To hold that gawking, 20 pointing, and joking violates the prohibition against cruel and unusual punishment would 21 trivialize the objective component of the Eighth Amendment test and render it absurd.”). 22 Plaintiff makes various allegations against Sergeant Lopez and Sergeant Bennet, but 23 she has not named these individuals as Defendants. As presented, Plaintiff has failed to 24 state an Eighth Amendment claim in the Complaint. 25 C. Retaliation 26 A viable claim of First Amendment retaliation contains five basic elements: (1) an 27 assertion that a state actor took some adverse action against an inmate (2) because of 28 (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise 1 of her First Amendment rights (or that the inmate suffered more than minimal harm) and 2 (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 3 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 4 1997) (retaliation claims requires an inmate to show (1) that the prison official acted in 5 retaliation for the exercise of a constitutionally protected right, and (2) that the action 6 “advanced no legitimate penological interest”). The plaintiff has the burden of 7 demonstrating that her exercise of her First Amendment rights was a substantial or 8 motivating factor behind the defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. 9 v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 10 (9th Cir. 1989). 11 Plaintiff’s allegations are insufficient to support a conclusion that any named 12 Defendant took any adverse action against her because of her protected conduct. Plaintiff 13 claims Defendant Chacon disrespects her sexuality and says hurtful things to provoke 14 Plaintiff, but she has not alleged any facts to show that Chacon engaged in such conduct in 15 order to retaliate against Plaintiff for exercising a protected right. Plaintiff also vaguely 16 alludes to a “false” report that another prisoner saw, which apparently indicated Plaintiff 17 had had inappropriate contact with a minor, and which Plaintiff claims was created and 18 displayed so that the other prisoners would not associate with her. However, Plaintiff 19 provides no detail about this allegation, such as what the report said or who wrote and 20 displayed it. Nor does she allege any facts to support that the report was written in 21 retaliation for Plaintiff’s protected conduct. Thus, the Court will dismiss Count Three. 22 V. Leave to Amend 23 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 24 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 25 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 26 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 27 to use the court-approved form, the Court may strike the amended complaint and dismiss 28 this action without further notice to Plaintiff. 1 Plaintiff must clearly designate on the face of the document that it is the “First 2 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 3 entirety on the court-approved form and may not incorporate any part of the original 4 Complaint by reference. Plaintiff may include only one claim per count. 5 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 6 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 7 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 8 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 9 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 10 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 11 F.3d 896, 928 (9th Cir. 2012) (en banc). 12 If Plaintiff files an amended complaint, she must write short, plain statements telling 13 the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the 14 Defendant who violated the right; (3) exactly what that Defendant did or failed to do; 15 (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff’s 16 constitutional right; and (5) what specific injury Plaintiff suffered because of that 17 Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 18 Plaintiff must repeat this process for each person she names as a Defendant. If 19 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 20 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 21 failure to state a claim. Conclusory allegations that a Defendant or group of 22 Defendants has violated a constitutional right are not acceptable and will be 23 dismissed. 24 VI. Warnings 25 A. Release 26 If Plaintiff is released while this case remains pending, and the filing fee has not 27 been paid in full, Plaintiff must, within 30 days of her release, either (1) notify the Court 28 that she intends to pay the unpaid balance of her filing fee within 120 days of her release 1 or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 2 result in dismissal of this action. 3 B. Address Changes 4 Plaintiff must file and serve a notice of a change of address in accordance with Rule 5 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 6 relief with a notice of change of address. Failure to comply may result in dismissal of this 7 action. 8 C. Possible “Strike” 9 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 10 fails to file an amended complaint correcting the deficiencies identified in this Order, the 11 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 12 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 13 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 14 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 15 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 16 or fails to state a claim upon which relief may be granted, unless the prisoner is under 17 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 18 D. Possible Dismissal 19 If Plaintiff fails to timely comply with every provision of this Order, including these 20 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 21 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 22 the Court). 23 IT IS ORDERED: 24 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 8) is granted. 25 (2) As required by the accompanying Order to the appropriate government 26 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 27 fee. 28 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 1| has 30 days from the date this Order is filed to file a first amended complaint in compliance 2| with this Order. 3 (4) ‘If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 4} Court must, without further notice, enter a judgment of dismissal of this action with 5 | prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 6| and deny any pending unrelated motions as moot. 7 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a 8 | civil rights complaint by a prisoner. 9 Dated this 21st day of July, 2020. 10 Wichak T. gihuade Michael T. Liburdi 13 United States District Judge 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.