1 WO SC 2 3 4 5 8 9 Shawn Franklin Reid, No. CV 20-01893-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Centurion, et al., 13 Defendants.
14 15 Plaintiff Shawn Franklin Reid, who is confined in the Arizona State Prison 16 Complex-Yuma, has 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 (Doc. 6). The Court will 18 dismiss the Complaint with leave to amend. 19 I. Application to Proceed In Forma Pauperis and Filing Fee 20 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 21 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 22 § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing 23 fee will be collected monthly in payments of 20% of the previous month’s income credited 24 to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 25 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 26 agency to collect and forward the fees according to the statutory formula. 27 II. Statutory Screening of Prisoner Complaints 28 The Court is required to screen complaints brought by prisoners seeking relief 1 against a governmental entity or an officer or an employee of a governmental entity. 28 2 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 3 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 4 relief may be granted, or that seek monetary relief from a defendant who is immune from 5 such relief. 28 U.S.C. § 1915A(b)(1)-(2). 6 A pleading must contain a “short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 8 not demand detailed factual allegations, “it demands more than an unadorned, the- 9 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Id. 12 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 14 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 15 that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 17 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 19 allegations may be consistent with a constitutional claim, a court must assess whether there 20 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 21 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 22 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 23 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 24 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 25 U.S. 89, 94 (2007) (per curiam)). 26 If the Court determines that a pleading could be cured by the allegation of other 27 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 28 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 1 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 2 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 3 III. Complaint 4 In his five-count Complaint, Plaintiff alleges denial of constitutionally adequate 5 medical care. Plaintiff sues David Shinn, the Director of the Arizona Department of 6 Corrections (ADC), Corrections Officer (CO) IV Roman, and an unknown Food Service 7 Administrator. He also sues “Centurion-Corizon,”1 which Plaintiff identifies as the 8 medical provider for ADC prisoners. Plaintiff sues the following medical providers at the 9 Yuma Complex: Carli Meyer, Director of Nursing; Dr. Karen Barcklay; Dr. Jordan; 10 “medical practitioner” Clariss Nguella NaNa; Facility Health Administrators Lori Johnson 11 and Brian Hofer2; Carrie Smalley, “Tele Meds”; and Head Nurse Marcel Meza. Plaintiff 12 seeks injunctive and compensatory relief. 13 In Count I, Plaintiff alleges the following: 14 At some point, Plaintiff was diagnosed with Hepatitis C (HCV). On August 29, 15 2019, September 23, 2019, and July 21, 2020, “Defendants” ignored Plaintiff’s 16 documented liver disease by “wrongfully” prescribing Fluconazole, ibuprofen, and Tylenol 17 despite Plaintiff’s HCV. Warnings for Fluconazole state not to prescribe to persons with 18 liver conditions, but “the Medical Providers” ignored the warning, causing harm to 19 Plaintiff. Plaintiff’s HCV is documented in his medical records and he contends that “staff” 20 knew or should have known not to prescribe him Fluconazole.3 As his injury, Plaintiff 21 alleges that his liver became more severely damaged, causing stage four liver disease and 22 adversely affecting his health. 23
24 1 Plaintiff also refers to this Defendant as “Corizon-Centurion.” (Doc. 1 at 3.) Until June 30, 2019, ADC contracted with Corizon to provide medical care to ADC prisoners. 25 Beginning July 1, 2019, ADC contracted with Centurion of Arizona, LLC, to provide medical care for ADC prisoners. 26 2 Plaintiff describes Johnson as a Federal Health Administrator and Hofer as a 27 Family Health Administrator with the Federal Health Administrator. Apparently, both are Facility Health Administrators. 28 3 Fluconazole is used primarily to prevent and treat fungal infections. 1 In Count II, Plaintiff alleges the following: 2 “Corizon-Centurion” medical providers, the non-party Cibola Warden, and 3 Defendant Shinn “failed to be responsible for Policy 1101 inmate access to health care” 4 and to provide inmate access to programs to ensure Plaintiff was transported to emergency 5 health care appointments.4 “Defendants” failed to have Plaintiff taken for follow-up 6 medical appointments at Desert Mirage Surgery Center, which were ordered on June 16, 7 2017 and received on July 5, 2017, for Plaintiff’s prostate medical procedure. 8 “Defendants” acted “in Deliberate Indifference” by “intentional” negligence and 9 incompetent actions resulting in delaying Plaintiff being seen at medical appointments for 10 seven months. As his injury, Plaintiff alleges that he suffered several months of 11 excruciating pain by being denied access to health care. 12 In Count III, Plaintiff alleges “Defendants” failed to comply with ADC customs 13 and policies to provide prisoner access to medical care and thereby violated Plaintiff’s due 14 process and equal protection rights. He contends Defendants continued a pattern of 15 negligence and incompetence alleged in Parsons v. Ryan, No. 2:12cv00601-PHX-ROS, a 16 prisoner class action concerning the provision of constitutionally adequate medical care. 17 According to Plaintiff, Defendants Barcklay, Johnson, and Meza acted negligently and 18 indifferently by failing to remove a catheter and failed to acknowledge emailed 19 correspondence from non-party Dr. Ganesh Sivarajan, a urologist,5 concerning removal of 20 the catheter. Plaintiff alleges that his Inmate Letters and Health Needs Requests (HNRs) 21 were ignored. As his injury, Plaintiff alleges untimely removal of the catheter caused 22 severe pain and resulted in severe infection of his bladder, kidney, and liver. 23 In Count IV, Plaintiff alleges the “Medical Providers Corizon/Centurion” failed to 24 perform any blood work before prescribing him Fluconazole and during administration of 25 Fluconazole, which he asserts constituted deliberate indifference. He alleges that
26 4 Plaintiff fails to allege facts to support that scheduled appointments were for 27 emergency care. 28 5 See https://azbomprod.azmd.gov/GLSuiteWeb/Clients/AZBOM/Public/ Profile.aspx, Search Ganesh Sivarajan (last accessed Feb. 19, 2021). 1 Centurion allowed its medical staff to over-medicate him with Fluconazole, which he 2 alleges was highly toxic to his liver and claims they failed to perform blood work at all. 3 As his injury, Plaintiff alleges that his liver was permanently damaged and caused him pain 4 and psychological harm. 5 In Count V, Plaintiff alleges that Defendant Shinn and the non-party Yuma Warden 6 “personally ignored and acted with deliberate indifference by ignoring Plaintiff’s multiple 7 grievances for adequate medical treatment,” and by failing to ensure missed medical 8 appointments were rescheduled. He alleges that his grievances were repeatedly delayed, 9 and he was not provided adequate medical attention. Plaintiff alleges that unidentified 10 “Prison Officials” knew of issues with his his medical care via Plaintiff’s grievances 11 concerning the failure to timely provide medical treatment. As his injury, Plaintiff alleges 12 that he suffered further damage to his liver, pain, and depression. 13 IV. Failure to State a Claim 14 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 15 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 16 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 17 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 18 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 19 as a result of the conduct of a particular defendant and he must allege an affirmative link 20 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 21 72, 377 (1976). 22 There is no respondeat superior liability under § 1983, and therefore, a defendant’s 23 position as the supervisor of persons who allegedly violated a plaintiff’s constitutional 24 rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); 25 Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 26 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983 27 suits, a plaintiff must plead that each Government-official defendant, through the official’ 28 s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 1 Finally, although pro se pleadings are liberally construed, Haines v. Kerner, 404 2 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of 3 action. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal 4 interpretation of a civil rights complaint may not supply essential elements of the claim 5 that were not initially pleaded. Id. 6 In each count, Plaintiff alleges that he was denied constitutionally adequate medical 7 care.6 Not every claim by a prisoner relating to inadequate medical treatment states a 8 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 9 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 10 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 11 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 12 Cir. 2006). 13 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 14 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 15 know of and disregard an excessive risk to inmate health; “the official must both be aware 16 of facts from which the inference could be drawn that a substantial risk of serious harm 17 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 18 Deliberate indifference in the medical context may be shown by a purposeful act or failure 19 to respond to a prisoner’s pain or possible medical need and harm caused by the 20 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 21 prison official intentionally denies, delays, or interferes with medical treatment or by the 22 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 23 97, 104-05 (1976); Jett, 439 F.3d at 1096. 24 Deliberate indifference is a higher standard than negligence or lack of ordinary due 25 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 26 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F.
27 6 A convicted prisoner’s claims that he was denied constitutionally adequate 28 medical care arise under the Eighth Amendment, not under the Due Process or Equal Protection Clauses. 1 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 2 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 3 do not support a claim under § 1983). “A difference of opinion does not amount to 4 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 5 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 6 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 7 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 8 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 9 Estelle, 429 U.S. at 105. 10 A. Corizon and Centurion 11 Plaintiff sues Corizon and Centurion. Each is a private entity that contracted with 12 ADC to provide medical care to ADC prisoners over different periods of time. To state a 13 claim under § 1983 against a private entity performing a traditional public function, such 14 as providing medical care to prisoners, a plaintiff must allege facts to support that his 15 constitutional rights were violated as a result of a policy, decision, or custom promulgated 16 or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138- 17 39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (per curiam). A 18 plaintiff must allege the specific policy or custom and how it violated his constitutional 19 rights. A private entity is not liable merely because it employs persons who allegedly 20 violated a plaintiff’s constitutional rights. See Tsao, 698 F.3d at 1139; Buckner, 116 F.3d 21 at 452. 22 Plaintiff largely fails to allege when, where, and by whom he was denied 23 constitutionally adequate medical care or facts to support that such denial was pursuant to 24 a policy or custom of Corizon prior to June 30, 2019, or pursuant to a policy or custom of 25 Centurion after June 30, 2019. Accordingly, Plaintiff fails to state a claim against Corizon 26 or Centurion and they will be dismissed. 27 B. Parsons 28 To the extent that Plaintiff may be seeking relief based upon Parsons, he fails to 1 state a claim. Plaintiff may not enforce a settlement entered in Parsons in a separate civil 2 rights action. See Cagle v. Sutherland, 334 F.3d 980, 986 (11th Cir. 2003); Klein v. 3 Zavaras, 80 F.3d 432, 435 (10th Cir. 1996); DeGidio v. Pung, 920 F.2d 525, 534 (8th Cir. 4 1990); Green v. McKaskle, 788 F.2d 1116, 1122-23 (5th Cir. 1986). Standing alone, 5 remedial orders such as those entered in Parsons cannot serve as a substantive basis for a 6 § 1983 claim for damages because such orders do not create “rights, privileges, or 7 immunities secured by the Constitution and laws [of the United States].” Green, 788 F.3d 8 at 1123-24. Rather, remedial decrees are the means by which unconstitutional conditions 9 are corrected. Id. at 1123. Accordingly, Plaintiff’s claims will be dismissed to the extent 10 that he may be seeking relief pursuant to Parsons. 11 C. Negligence 12 Plaintiff in part asserts that Defendants acted negligently. As discussed above, mere 13 negligence is not sufficient to state a claim under § 1983. Accordingly, to the extent that 14 Plaintiff alleges only negligence, his allegations will be dismissed. 15 D. Unknown Food Service Administrator 16 Plaintiff sues an unknown Food Service Administrator. Plaintiff fails to allege any 17 facts against this Defendant. Plaintiff does not allege where, when, or how this Defendant 18 allegedly denied him constitutionally adequate medical care. Accordingly, this Defendant 19 will be dismissed. 20 E. Shinn and Roman 21 Plaintiff sues ADC Director Shinn and ADC Case Manager Roman. Plaintiff 22 alleges no facts against Roman and therefore fails to state a claim against Roman. Plaintiff 23 alleges that Defendant Shinn “failed to be responsible for Policy 1101 inmate access to 24 health care” and to provide inmate access to programs to ensure he was transported to 25 emergency health care appointments. Plaintiff fails to allege facts to support that Shinn 26 either violated Plaintiff’s constitutional rights or knew but failed to act in response to 27 violations of Plaintiff’s constitutional rights, including when and how Shinn had such 28 knowledge. Accordingly, Plaintiff also fails to state a claim against Shinn and he will be 1 dismissed. 2 F. Remaining Defendants 3 Plaintiff sufficiently alleges that he has a serious medical condition, liver disease 4 and HCV. However, Plaintiff fails to specifically allege when, where, and how each of the 5 remaining Defendants alleged violated his constitutional right to medical care for his 6 conditions. Instead, Plaintiff largely refers to “Defendants” without specifically alleging 7 facts to support how each Defendant violated his constitutional rights. To the extent that 8 Plaintiff claims that he submitted grievances about alleged constitutional violations, 9 Plaintiff fails to allege when and to whom he submitted his grievances and whether or how 10 any particular Defendant responded to his grievances. For these reasons, Plaintiff fails to 11 sufficiently allege facts to support that any Defendant acted with deliberate indifference to 12 his serious medical needs. Accordingly, the Complaint will be dismissed for failure to state 13 a claim. 14 V. Leave to Amend 15 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 16 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 17 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 18 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 19 to use the court-approved form, the Court may strike the amended complaint and dismiss 20 this action without further notice to Plaintiff. 21 Plaintiff must clearly designate on the face of the document that it is the “First 22 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 23 entirety on the court-approved form and may not incorporate any part of the original 24 Complaint by reference. Plaintiff may include only one claim per count. 25 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 26 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 27 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 28 do; (4) how the action or inaction of that Defendant is connected to the violation of 1 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 2 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. He must provide specific 3 facts regarding how he was personally injured by the alleged constitutional violations and 4 omit any facts that pertain only to his former co-plaintiffs. 5 Plaintiff must repeat this process for each person he names as a Defendant. If 6 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 7 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 8 failure to state a claim. Conclusory allegations that a Defendant or group of 9 Defendants has violated a constitutional right are not sufficient to state a claim and 10 will be dismissed. 11 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 12 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 13 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 14 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 15 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 16 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 17 F.3d 896, 928 (9th Cir. 2012) (en banc). 18 VI. Warnings 19 A. Release 20 If Plaintiff is released while this case remains pending, and the filing fee has not 21 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 22 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 23 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 24 result in dismissal of this action. 25 B. Address Changes 26 Plaintiff must file and serve a notice of a change of address in accordance with Rule 27 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 28 relief with a notice of change of address. Failure to comply may result in dismissal of this 1 action. 2 C. Possible “Strike” 3 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 4 fails to file an amended complaint correcting the deficiencies identified in this Order, the 5 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 6 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 7 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 8 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 9 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 10 or fails to state a claim upon which relief may be granted, unless the prisoner is under 11 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 12 D. Possible Dismissal 13 If Plaintiff fails to timely comply with every provision of this Order, including these 14 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 15 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 16 the Court). 17 IT IS ORDERED: 18 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 6) is granted. 19 (2) As required by the accompanying Order to the appropriate government 20 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 21 fee. 22 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 23 has 30 days from the date this Order is filed to file a first amended complaint in compliance 24 with this Order. 25 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 26 Court must, without further notice, enter a judgment of dismissal of this action with 27 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 28 and deny any pending unrelated motions as moot. 1 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 3 Dated this Ist day of March, 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
tc
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.
.
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.