1 WO MDR 2 3 4 5 8 9 Kenneth W. Reed, No. CV 21-00016-PHX-JAT (CDB) 10 Plaintiff, 11 v. ORDER 12 Trinity Services Group, Inc., et al., 13 Defendants.
14 15 I. Procedural History 16 On November 12, 2019, Plaintiff Kenneth W. Reed, who is confined in the Arizona 17 State Prison Complex-Tucson in Tucson, Arizona, filed a Complaint (Doc. 1-3 at 2-28)1 in 18 the Superior Court of Pima County, Arizona, against Trinity Services Group (“Trinity”), 19 Charles L. Ryan, Ruben Montaño, David Merriman, Jones, Gaye, K. Muko, L. Valisto, 20 P. Tuozzo, Barr, Urrea, and a variety of fictitiously named individuals. On November 25, 21 2020, Defendant Merriman filed a Notice of Removal in the Tucson Division of this Court 22 and removed the case to this Court. In the Notice of Removal, Defendant Merriman stated 23 that Defendant Trinity, who filed a waiver of service in March 2020, “consents to this 24 removal” and that none of the other Defendants had been served. 25 On December 9, 2020, Defendants Merriman and Trinity each filed Applications 26 for Substitution of Counsel. On December 29, 2020, Plaintiff filed a “Motion for Remand 27
28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 of Cause” (Doc. 5). He also filed a Motion to Correct Clerical Error-Wrong Venue, in 2 which he alleged that this action should have been transferred to the Phoenix Division of 3 this Court because the transactions and events discussed in the Complaint occurred at the 4 Arizona State Prison Complex-Florence in Florence, Arizona. On January 4, 2021, 5 Defendant Trinity Services Group filed a “Joinder in or Consent to Removal.” 6 In a January 6, 2021 Order, Senior United States District Court Raner C. Collins 7 granted the Applications for Substitution of Counsel. In a second January 6, 2021 Order, 8 Judge Collins granted the Motion to Correct Clerical Error-Wrong Venue and directed the 9 Clerk of Court to transfer this action to the Phoenix Division. The Clerk of Court did so 10 and assigned the case to the undersigned. 11 II. Removal 12 A state court defendant may remove to federal court any civil action brought in the 13 state court over which the federal district courts would have original jurisdiction. 28 U.S.C. 14 § 1441(a). In his Complaint, Plaintiff seeks redress pursuant to 42 U.S.C. § 1983 for 15 Defendants’ alleged violations of his Eighth Amendment rights. This Court’s jurisdiction 16 extends to such claims. See 28 U.S.C. § 1331 (a federal court has original jurisdiction “of 17 all civil actions arising under the Constitution, laws, or treaties of the United States”). 18 In his Motion for Remand of Cause, Plaintiff does not dispute that Defendant 19 Merriman’s Notice of Removal was timely filed within thirty days of Defendant Merriman 20 being served. He claims, however, that “[t]here is absolutely nothing contained within 21 Defendant Merriman’s Notice of Removal of Jurisdiction or even filed contemporaneously 22 therewith which might constitute Defendant Trinity’s joinder to the contemplated 23 removal.” 24 Plaintiff states that Defendant Merriman’s counsel “made a passing remark [in the 25 Notice of Removal] that Defendant Trinity ‘consents to this removal.’” Plaintiff contends, 26 however, that because Defendant Merriman’s counsel was not representing Defendant 27 Trinity, “that remark can[]not conceivably be construed to have any force or effect.” 28 Plaintiff also contends that there was nothing else “contained within or annexed to 1 Defendant Merriman’s Notice of Removal of Jurisdiction, or file contemporaneously 2 therewith[,] to evince Defendant Trinity’s putative consent to the contemplated removal.” 3 He argues that the Court should remand this action to the state court because of this 4 “procedural deficiency.” 5 If an action is removed solely because the court has original jurisdiction over the 6 action, “all defendants who have been properly joined and served must join in or consent 7 to removal of the action.” 28 U.S.C. § 1446(b)(2)(A). However, as the Ninth Circuit Court 8 of Appeals explained in Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th 9 Cir. 2009), “the filing of a notice of removal can be effective without individual consent 10 documents on behalf of each defendant. One defendant’s timely removal notice containing 11 an averment of the other defendants’ consent and signed by an attorney of record is 12 sufficient.” Here, as in Proctor, the removing Defendant’s attorney “submitted such an 13 averment under threat of sanctions pursuant to Rule 11 [of the Federal Rules of Civil 14 Procedure]; the other co-defendants were notified of the removal notice and had an 15 opportunity to object to it.”2 Id. “These two considerations—the availability of sanctions 16 and of objection—mitigate concerns that one defendant might falsely state the other 17 defendants’ consent, or that one defendant might game the system by silently allowing 18 another to remove and, if the federal forum proves disadvantageous, belatedly object that 19 he had not consented.” Id. Thus, the Court will deny Plaintiff’s Motion for Remand of 20 Cause. 21 III. Statutory Screening of Prisoner Complaints 22 The Court is required to screen complaints brought by prisoners seeking relief 23 against a governmental entity or an officer or an employee of a governmental entity. 28 24 U.S.C. § 1915A(a). After screening is complete, the Court will notify the parties if an 25 answer to the Complaint or any subsequently filed amended complaint is required. 26 . . . .
27 2 The Court notes that Defendant Trinity did not object, but, instead, stated in its 28 Joinder in or Consent to Removal that “Defendant Merriman accurately states that Trinity consented to the removal.” 1 The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims 2 that are legally frivolous or malicious, that fail to state a claim upon which relief may be 3 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 4 U.S.C. § 1915A(b)(1)–(2). If the Court determines that a pleading could be cured by the 5 allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint 6 before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) 7 (en banc). 8 Local Rule of Civil Procedure 3.4 requires in part that “[a]ll complaints . . . by 9 incarcerated persons must be signed and legibly written or typewritten on forms approved 10 by the Court and in accordance with the instructions provided with the forms.” Plaintiff’s 11 Complaint is not on the court-approved form. The Court may, in its discretion, forgo the 12 requirement that a plaintiff use a court-approved form. See LRCiv 3.4. The Court will 13 require use of the court-approved form because Plaintiff’s Complaint substantially differs 14 from the court-approved form. Thus, Plaintiff’s Complaint will be dismissed without 15 prejudice and with leave to amend, in order for Plaintiff to file an amended complaint on a 16 court-approved form. 17 IV. Leave to Amend 18 Within 30 days, Plaintiff may submit a first amended complaint on a court-approved 19 form. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first 20 amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike 21 the amended complaint and dismiss this action without further notice to Plaintiff. 22 Plaintiff must clearly designate on the face of the document that it is the “First 23 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 24 entirety on the court-approved form and may not incorporate any part of the original 25 Complaint by reference. Plaintiff may include only one claim per count. 26 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 27 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 28 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 1 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 2 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 3 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 4 F.3d 896, 928 (9th Cir. 2012) (en banc). 5 If Plaintiff files an amended complaint, he should take note that the court-approved 6 form complaint is six pages long and both the form complaint and accompanying 7 instructions permit an inmate to attach “no more than fifteen additional pages” of 8 standard letter-sized paper. (Emphasis in original.) Thus, a document that complies with 9 Local Rule of Civil Procedure 3.4 would be no longer than 21 pages. 10 V. Warnings 11 A. Address Changes 12 Plaintiff must file and serve a notice of a change of address in accordance with Rule 13 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 14 relief with a notice of change of address. Failure to comply may result in dismissal of this 15 action. 16 B. Possible Dismissal 17 If Plaintiff fails to timely comply with every provision of this Order, including these 18 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 19 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 20 the Court). 21 IT IS ORDERED: 22 (1) Plaintiff’s Motion for Remand of Cause (Doc. 5) is denied. 23 (2) Plaintiff’s Complaint (Doc. 1-3 at 2-28) is dismissed for failure to file on a 24 court-approved form. Plaintiff has 30 days from the date this Order is filed to file a first 25 amended complaint in compliance with this Order. 26 (3) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 27 Court must, without further notice, enter a judgment of dismissal of this action without 28 prejudice and deny any pending unrelated motions as moot. 1 (4) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 3 Dated this 29th day of January, 2021. 4 ' ° 7 = James A. C rg Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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.
.
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.