1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benny G. Rivera, No. CV 20-01255-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 J. Adam Sheppard, et al., 13 Defendants.
14 15 On June 24, 2020, Plaintiff Benny G. Rivera, who is confined in the Gila County 16 Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an 17 Application to Proceed In Forma Pauperis. In a July 1, 2020 Order, the Court denied the 18 deficient Application to Proceed and gave Plaintiff thirty days to either pay the 19 administrative and filing fees or file a complete Application to Proceed In Forma Pauperis. 20 On July 16, 2020, Plaintiff filed a second Application to Proceed In Forma Pauperis. 21 In an August 3, 2020 Order, the Court denied the deficient Application to Proceed and gave 22 Plaintiff thirty days to either pay the administrative and filing fees or file a complete 23 Application to Proceed In Forma Pauperis. 24 On August 19, 2020, Plaintiff filed a third Application to Proceed In Forma 25 Pauperis (Doc. 7). The Court will grant the third Application to Proceed and will dismiss 26 the Complaint with leave to amend. 27 . . . . 28 . . . . 1 I. Third Application to Proceed In Forma Pauperis and Filing Fee 2 The Court will grant Plaintiff’s third Application to Proceed In Forma Pauperis. 28 3 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 4 § 1915(b)(1). The Court will assess an initial partial filing fee of $33.67. The remainder 5 of the fee will be collected monthly in payments of 20% of the previous month’s income 6 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 7 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 8 government agency to collect and forward the fees according to the statutory formula. 9 II. Statutory Screening of Prisoner Complaints 10 The Court is required to screen complaints brought by prisoners seeking relief 11 against a governmental entity or an officer or an employee of a governmental entity. 28 12 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 13 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 14 relief may be granted, or that seek monetary relief from a defendant who is immune from 15 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 16 A pleading must contain a “short and plain statement of the claim showing that the 17 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 18 not demand detailed factual allegations, “it demands more than an unadorned, the- 19 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 20 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Id. 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 23 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 24 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 25 that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 27 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 1 allegations may be consistent with a constitutional claim, a court must assess whether there 2 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 3 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 4 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 5 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 6 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 7 U.S. 89, 94 (2007) (per curiam)). 8 If the Court determines that a pleading could be cured by the allegation of other 9 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 10 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 11 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 12 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 13 III. Complaint 14 In his three-count Complaint, Plaintiff names as Defendants Gila County Sheriff J. 15 Adam Sheppard, Jail Commander Justin Solberg, and Lieutenants Osborn and Kenney. In 16 his Request for Relief, Plaintiff seeks access to the courts, transfer to a facility that will 17 provide him with medical care and will accommodate his needs, and monetary damages. 18 In Count One, Plaintiff raises a claim under the Americans with Disabilities 19 Act (ADA), asserting that “Gila County has no handicapp[ed] rooms or showers” and this 20 limits his ability to “move about” and prevents him from showering. In Count Two, 21 Plaintiff contends he is being denied access to the courts because he has not seen an 22 attorney in over ninety days and “memor[ie]s are fading and evidence is being lost.”1 In 23 Count Three, Plaintiff raises a claim under the ADA, asserting that he was on “pain 24 management and it was denied at [the] Gila County Jail,” which is causing him constant 25 pain. 26 . . . .
27 1 It is unclear whether Plaintiff is claiming he has not seen an attorney regarding the 28 criminal charges pending against him or the civil case discussed in the attachment to his Complaint. 1 IV. Failure to State a Claim 2 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 3 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 4 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 5 civil rights complaint may not supply essential elements of the claim that were not initially 6 pled. Id. 7 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 8 specific injury as a result of specific conduct of a defendant and show an affirmative link 9 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 10 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, 11 a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s 12 constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 13 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 14 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and 15 § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 16 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 17 Plaintiff has not alleged that any Defendant personally participated in a deprivation 18 of Plaintiff’s constitutional rights, was aware of a deprivation and failed to act, or formed 19 policies that resulted in Plaintiff’s injuries. Plaintiff has made no allegations against any 20 Defendant. Thus, the Court will dismiss without prejudice Plaintiff’s Complaint. 21 V. Leave to Amend 22 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 23 a claim upon which relief may be granted. Within thirty days, Plaintiff may submit a first 24 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 25 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 26 to use the court-approved form, the Court may strike the amended complaint and dismiss 27 this action without further notice to Plaintiff. 28 . . . . 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, Plaintiff must write short, plain statements 13 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 14 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 15 do; (4) how the action or inaction of that Defendant is connected to the violation of 16 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 17 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 18 Plaintiff must repeat this process for each person he 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 Plaintiff should take note that under Title II of the ADA, “no qualified individual 25 with a disability shall, by reason of such disability, be excluded from participation in or be 26 denied the benefits of the services, programs, or activities of a public entity, or be subjected 27 to discrimination by any such entity.” 42 U.S.C. § 12132. To state an ADA claim, a 28 plaintiff must demonstrate that: 1 (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity’s services, 2 programs, or activities; (3) he was either excluded from participation 3 in or denied the benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; 4 and (4) such exclusion, denial of benefits, or discrimination was by 5 reason of [his] disability. 6 Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (quoting McGary 7 v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)). 8 “The ADA and Rehabilitation Act afford disabled persons legal rights regarding 9 access to programs and activities enjoyed by all, but do not provide them with a general 10 federal cause of action for challenging the medical treatment of their underlying 11 disabilities.” Carrion v. Wilkinson, 309 F. Supp. 2d 1007, 1016 (N.D. Ohio 2004) (quoting 12 Galvin v. Cook, 2000 WL 1520231, at *6 (D. Or. 2000)). Claims based only on the 13 provision of inadequate or negligent medical care are not cognizable under the ADA. See 14 Simmons, 609 F.3d at 1022 (“The ADA prohibits discrimination because of disability, not 15 inadequate treatment for disability.”); Kiman v. New Hampshire Dep’t of Corr., 451 F.3d 16 274, 285 (1st Cir. 2006) (“When the decision being challenged is ‘simply a reasoned 17 medical judgment with which the patient disagreed,’ it is more appropriate for the patient 18 to turn to ‘state medical malpractice law, not [the ADA].’” (quoting Lesley v. Chie, 250 19 F.3d 47, 58 (1st Cir. 2001))); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he 20 Act would not be violated by a prison’s simply failing to attend to the medical needs of 21 disabled patients. . . . The ADA does not create a remedy for medical malpractice.”). 22 However, a plaintiff may have a valid claim under the ADA if he can show that a 23 defendant discriminated against him because of his disability by denying him access to 24 prescribed medications or accommodations. See Kiman, 451 F.3d at 284-90 (upholding 25 grant of summary judgment against plaintiff on claims that defendant failed to properly 26 diagnose and treat plaintiff’s condition, but finding disputed issues of fact regarding claims 27 that plaintiff was denied routine access to prescribed medicines, a prescribed shower chair, 28 1 prescribed front cuffing, and that a bottom bunk pass and cane pass that had been issued 2 by prison officials were not being honored). 3 Plaintiff should also be aware that a pretrial detainee has a right under the Due 4 Process Clause of the Fourteenth Amendment to be free from punishment prior to an 5 adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 (1979). “Pretrial detainees are 6 entitled to ‘adequate food, clothing, shelter, sanitation, medical care, and personal safety.’” 7 Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. 8 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). To state a claim of unconstitutional conditions 9 of confinement against an individual defendant, a pretrial detainee must allege facts that 10 show: 11 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 12 (ii) those conditions put the plaintiff at substantial risk of 13 suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a 14 reasonable official in the circumstances would have 15 appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by 16 not taking such measures, the defendant caused the plaintiff’s 17 injuries. 18 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 19 Whether the conditions and conduct rise to the level of a constitutional violation is 20 an objective assessment that turns on the facts and circumstances of each particular case. 21 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 22 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack 23 of due care by a state official’ does not deprive an individual of life, liberty, or property 24 under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 25 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a 26 plaintiff must “prove more than negligence but less than subjective intent—something akin 27 to reckless disregard.” Id. A mere delay in medical care, without more, is insufficient to 28 1 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 2 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 3 Finally, Plaintiff should take note that the right of access to the courts is only a right 4 to bring petitions or complaints to federal court and not a right to discover such claims or 5 even to ligate them effectively once filed with a court. Lewis v. Casey, 518 U.S. 343, 354 6 (1996). The right “guarantees no particular methodology but rather the conferral of a 7 capability–the capability of bringing contemplated challenges to sentences or conditions of 8 confinement before the courts.” Id. at 356. 9 As a matter of standing for an access-to-courts claim, a plaintiff must show that he 10 suffered an “actual injury”—i.e., “actual prejudice with respect to contemplated or existing 11 litigation, such as the inability to meet a filing deadline or to present a claim.” Id. at 348 12 (citation omitted); see also Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (“Mere ‘delay 13 in being able to work on one’s legal action or communicate with the courts does not rise to 14 the level of a constitutional violation.’”) (citations omitted); cf. Silva, 658 F.3d at 1104 15 (actual injury alleged where plaintiff claimed pending lawsuits had been dismissed as the 16 result of defendants’ actions). A prisoner must demonstrate that defendants’ conduct 17 frustrated or impeded him from bringing to court a nonfrivolous or arguable claim he 18 wished to present. Lewis, 518 U.S. at 353 and n.3. 19 However, “the injury requirement is not satisfied by just any type of frustrated legal 20 claim.” Id. at 354. The right of access to the courts “does not guarantee inmates the 21 wherewithal to transform themselves into litigating engines capable of filing everything 22 from shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous 23 claim must be a direct or collateral attack on the inmate’s sentence or a challenge to the 24 conditions of his confinement. Id. “Impairment of any other litigating capacity is simply 25 one of the incidental (and perfectly constitutional) consequences of conviction and 26 incarceration.” Id. 27 . . . . 28 . . . . 1 VI. Warnings 2 A. Release 3 If Plaintiff is released while this case remains pending, and the filing fee has not 4 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 5 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 6 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 7 result in dismissal of this action. 8 B. Address Changes 9 Plaintiff must file and serve a notice of a change of address in accordance with Rule 10 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 11 relief with a notice of change of address. Failure to comply may result in dismissal of this 12 action. 13 C. Possible “Strike” 14 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 15 fails to file an amended complaint correcting the deficiencies identified in this Order, the 16 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 17 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 18 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 19 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 20 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 21 or fails to state a claim upon which relief may be granted, unless the prisoner is under 22 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 23 D. Possible Dismissal 24 If Plaintiff fails to timely comply with every provision of this Order, including these 25 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 26 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 27 the Court). 28 . . . . ITIS ORDERED: 2 (1) Plaintiff’s third Application to Proceed In Forma Pauperis (Doc. 7) is 3 granted. 4 (2) As required by the accompanying Order to the appropriate government 5) agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 6| of $33.67. 7 (3) |The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 8 | has 30 days from the date this Order is filed to file a first amended complaint in compliance 9| with this Order. 10 (4) ‘If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 11 | Court must, without further notice, enter a judgment of dismissal of this action with 12 | prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 13 | and deny any pending unrelated motions as moot. 14 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a 15 civil rights complaint by a prisoner. 16 Dated this 28th day of August, 2020. 17 18 A 19 James A. Teilborg 20 Senior United States District Judge 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.
.
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.