1 WO NA 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Paul Anthony Robledo, No. CV 19-05349-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Unknown Bautista, et al., 13 14 Defendants.
15 16 Plaintiff Paul Anthony Robledo, who is confined in the Arizona State Prison 17 Complex-Lewis (ASPC-Lewis), filed a pro se civil rights Complaint pursuant to 42 U.S.C. 18 § 1983 and an Application to Proceed In Forma Pauperis. In a January 13, 2020 Order, the 19 Court granted the Application to Proceed and dismissed the Complaint because Plaintiff 20 had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint 21 that cured the deficiencies identified in the Order. 22 After requesting and receiving an extension of time, Plaintiff filed a First Amended 23 Complaint on February 12, 2020. On March 18, 2020, Plaintiff filed a Second Amended 24 Complaint (Doc. 11), which supersedes the First Amended Complaint in its entirety. See 25 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard 26 Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). The Court will dismiss the Second 27 Amended Complaint with leave to amend. 28 . . . . 1 I. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 1 If the Court determines that a pleading could be cured by the allegation of other 2 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 3 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 4 Plaintiff’s Second Amended Complaint will be dismissed for failure to state a claim, but 5 because it may possibly be amended to state a claim, the Court will dismiss it with leave 6 to amend. 7 II. Second Amended Complaint 8 In his three-count Second Amended Complaint, Plaintiff names as Defendants 9 ASPC-Lewis Corrections Officer (CO) II Unknown Bautista and Trinity Services Group. 10 Plaintiff seeks monetary damages, injunctive relief, and future “medical and living 11 expenses.” 12 In Count One, Plaintiff asserts a mail claim and alleges that Defendant Bautista 13 was “the mail and property COII” until April 2019. On March 14, 2019, Bautista 14 confiscated one page of Plaintiff’s incoming mail pursuant to the Arizona Department of 15 Corrections’ (ADC) policy regarding sexually explicit content. Plaintiff claims Bautista’s 16 actions violated his rights because the mail confiscated “had already been reviewed and 17 approved by the Lewis complex mailroom supervisors” pursuant to Department Order 18 (DO) 914.8. If the mailroom supervisors had not reviewed and approved Plaintiff’s 19 incoming mail, it would not have arrived at Plaintiff’s Unit, the Barchey Unit. Plaintiff 20 claims Bautista’s actions did not further any legitimate penological interests and were 21 “outside of her authority given to her by DO 914.8.” 22 In Count Two, Plaintiff asserts a freedom of speech claim and alleges DO 914.8 23 states that the second level of review concerning incoming inmate mail is an appeal to the 24 Complex Office of Publication Review. DO 914.82 provides that “complex mail room 25 supervisors shall inform the inmate when his or her incoming mail or its contents have been 26 confiscated and shall provide the inmate with the opportunity to appeal that decision to 27 confiscate.” DO 914.8.2.2.1 provides that inmates “must submit an appeal request by 28 inmate letter within 30 days from the receipt of the confiscation notice to the Complex 1 Office of Publication Review.” 2 On March 14, 2019, Defendant Bautista confiscated a page of Plaintiff’s incoming 3 mail. On March 15, 2019, Plaintiff submitted an appeal of Bautista’s decision to 4 confiscate. On March 19, 2019, Bautista returned Plaintiff’s appeal after “opening, 5 reading, and answering the request,” which Plaintiff claims is a violation of his right to 6 freedom of speech. The appeal request was addressed to ASPC-Lewis’s Complex Office 7 of Publication Review. Bautista does not work at the Complex Office of Publication 8 Review and should not have opened or read the appeal request. Plaintiff filed a grievance 9 appeal, and ADC’s Central Office responded, stating that “the inmate letter . . . should have 10 been forwarded for review.” 11 In Count Three, Plaintiff asserts a claim regarding a denial of basic necessities and 12 a state law negligence claim. Plaintiff alleges that Defendant Trinity Service Group (TSG) 13 failed to provide Plaintiff “constitutionally adequate food” because the food served caused 14 him to develop a “vitamin B12 deficiency anemia.” Plaintiff claims his vitamin B12 15 deficiency anemia was “due to dietary causes.” 16 III. Failure to State a Claim 17 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 18 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 19 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 20 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 21 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 22 as a result of the conduct of a particular defendant and he must allege an affirmative link 23 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 24 72, 377 (1976). 25 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 27 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 28 liberal interpretation of a civil rights complaint may not supply essential elements of the 1 claim that were not initially pled. Id. 2 A. Defendant Bautista 3 A suit against a defendant in his or her individual capacity seeks to impose personal 4 liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For a person 5 to be liable in his or her individual capacity, “[a] plaintiff must allege facts, not simply 6 conclusions, that show that the individual was personally involved in the deprivation of his 7 civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). By comparison, 8 a suit against a defendant in his or her official capacity represents only another way of 9 pleading an action against the entity that employs the defendant. Kentucky, 473 U.S. at 10 165. That is, the real party in interest is not the named defendant, but the entity that 11 employs the defendant. Id. To bring a claim against an individual in his official capacity, 12 a plaintiff must show that the constitutional deprivation resulted from the entity’s policy, 13 custom, or practice. Id.; Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 14 (1978). 15 Although Plaintiff has named Bautista in both her individual and official capacities, 16 Plaintiff’s allegations fail to plausibly show that any policy, practice, or custom of any 17 entity has resulted in his alleged injuries. Accordingly, the Court will construe Plaintiff’s 18 claims as directed against Bautista in her individual capacity only and evaluate them 19 accordingly. 20 1. Mail Claim 21 “[A] prison inmate retains those First Amendment rights that are not inconsistent 22 with his status as a prisoner or with the legitimate penological objectives of the corrections 23 system.” Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Clement v. Cal. Dep't of 24 Corr., 364 F.3d 1148, 1151 (9th Cir. 2004) (per curiam). An inmate has a First Amendment 25 right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1999). 26 However, that “right is subject to ‘substantial limitations and restrictions in order to allow 27 prison officials to achieve legitimate correctional goals and maintain institutional 28 security.’” Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (citing Walker 1 v. Sumner, 917 F.2d 382, 385 (9th Cir.1990)); Morrison v. Hall, 261 F.3d 896, 901 (9th 2 Cir. 2001). Prison officials may restrict an inmate’s First Amendment rights with respect 3 to nonlegal mail if such restrictions are reasonably related to legitimate penological 4 interests. Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (citing Turner v. 5 Safley, 482 U.S. 78, 92 (1986)). To that end, some forms of content regulation are 6 permissible in the prison context. McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987). 7 For example, courts have upheld restrictions on sexually explicit materials, Bahrampour v. 8 Lampert, 356 F.3d 969, 973 (9th Cir. 2004), and materials that were deemed to pose a 9 threat to the order and security of the institution, Harper v. Wallingford, 877 F.2d 728, 733 10 (9th Cir. 1989). 11 In Counts One and Two, Plaintiff alleges that Defendant Bautista confiscated one 12 page of his incoming mail pursuant to the prison mail policy regarding sexually explicit 13 content. Plaintiff fails to provide any details regarding the confiscated page or object to its 14 classification as sexually explicit. As noted above, restrictions on sexually explicit material 15 that could pose a threat to the order and security of the institution are permissible. 16 Accordingly, the Court will dismiss Plaintiff’s mail claim in Counts One and Two. 17 2. Grievance/Appeal Procedure 18 Prisoners have a First Amendment right to file prison grievances, Rhodes v. 19 Robinson, 408 F.3d 559, 567 (9th Cir. 2005), but “[t]here is no legitimate claim of 20 entitlement to a grievance procedure,” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), 21 and the failure to follow grievance procedures does not give rise to a due process claim. 22 See Flournoy v. Fairman, 897 F. Supp. 350, 354 (N.D. Ill. 1995) (jail grievance procedures 23 did not create a substantive right enforceable under § 1983); Spencer v. Moore, 638 F. 24 Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance system procedures do not deprive 25 inmates of constitutional rights). “[N]o constitutional right was violated by the defendants’ 26 failure, if any, to process all of the grievances [plaintiff] submitted for consideration.” 27 Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). In addition, “[t]he right to petition 28 the government for redress of grievances . . . does not guarantee a favorable response, or 1 indeed any response, from state officials. Moreover, the First Amendment’s right to 2 redress of grievances is satisfied by the availability of a judicial remedy.” Baltoski v. 3 Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003); see also Ashann-Ra v. Virginia, 112 4 F. Supp. 2d 559, 569 (W.D. Va. 2000) (failure to comply with state’s grievance procedure 5 is not actionable under § 1983 and does not compromise an inmate’s right of access to the 6 courts). 7 Therefore, Plaintiff claims regarding Defendant Bautista’s alleged failure to follow 8 the mail procedure fails to state a claim. And a mere violation of a Department Order or 9 prison policy does not amount to a constitutional violation. See Cousins v. Lockyer, 568 10 F.3d 1063, 1070 (9th Cir. 2009) (citations omitted). Moreover, Plaintiff has failed to 11 provide any authority to support Bautista’s opening, reading, and answering the appeal 12 request amounts to a constitutional violation. Accordingly, the Court will dismiss these 13 portions of Counts One and Two. 14 B. Defendant TSG 15 1. Eighth Amendment Claim 16 To state a claim under § 1983 against a private entity performing a traditional public 17 function, such as operating a jail kitchen, a plaintiff must allege facts to support that his 18 constitutional rights were violated as a result of a policy, decision, or custom promulgated 19 or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138- 20 39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997). A plaintiff must 21 allege the specific policy or custom and how it violated his constitutional rights. A private 22 entity is not liable merely because it employs persons who allegedly violated a plaintiff’s 23 constitutional rights. See Tsao, 698 F.3d at 1138-39; Buckner, 116 F.3d at 452. 24 To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must 25 meet a two-part test. “First, the alleged constitutional deprivation must be, objectively, 26 sufficiently serious” such that the “official’s act or omission must result in the denial of the 27 minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 28 (1994) (internal quotations omitted). Second, the prison official must have a “sufficiently 1 culpable state of mind,” i.e., he must act with “deliberate indifference to inmate health or 2 safety.” Id. (internal quotations omitted). Deliberate indifference is a higher standard than 3 negligence or lack of ordinary due care for the prisoner’s safety. Id. at 835. In defining 4 “deliberate indifference” in this context, the Supreme Court has imposed a subjective test: 5 “the official must both be aware of facts from which the inference could be drawn that a 6 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 7 (emphasis added). 8 With respect to food, the Constitution “requires only that prisoners receive food that 9 is adequate to maintain health; it need not be tasty or aesthetically pleasing.” LeMaire v. 10 Maass, 121 F.3d 1444, 1456 (9th Cir. 1993) (citations omitted). “The fact that the food 11 occasionally contains foreign objects or sometimes is served cold, while unpleasant, does 12 not amount to a constitutional deprivation.” Id. (quoting Hamm v. Dekalb County, 774 13 F.2d 1567, 1575 (9th Cir. 1985)). An inmate may, however, state a claim where he alleges 14 that he is served meals with insufficient calories for long periods of time. Id. 15 In Count Three, Plaintiff alleges that he developed “vitamin B12 deficiency anemia” 16 due to his diet and that Defendant TSG fails to provide him with a constitutionally adequate 17 diet. However, Plaintiff has not provided any details regarding the diet he is served or facts 18 to support that TSG’s policies with respect to his diet put him at substantial risk of serious 19 harm. Accordingly, the Court will dismiss Plaintiff’s Eighth Amendment claim against 20 Defendant TSG. 21 2. State Law Negligence Claim 22 Plaintiff asserts that this Court has federal diversity jurisdiction over his state-law 23 negligence claim. To invoke this Court’s diversity jurisdiction, Plaintiff must prove that 24 there is diversity of citizenship between the parties and that the amount in controversy 25 exceeds $75,000. 28 U.S.C. § 1332. For purposes of diversity jurisdiction, plaintiffs and 26 defendants must be completely diverse. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 27 545 U.S. 546, 553 (2005) (“we have consistently interpreted § 1332 as requiring complete 28 diversity: In a case with multiple plaintiffs and multiple defendants, the presence in the 1 action of a single plaintiff from the same State as a single defendant deprives the district 2 court of original diversity jurisdiction over the entire action.”); In re Digimarc Corp. 3 Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008) (“Diversity jurisdiction requires 4 complete diversity between the parties—each defendant must be a citizen of a different 5 state from each plaintiff.”) 6 Plaintiff alleges that he is a citizen of Arizona and that Defendant TSG is a citizen 7 of a different state. However, Plaintiff fails to allege the citizenship of Defendant Bautista. 8 Accordingly, complete diversity among the parties is lacking, and the Court cannot 9 exercise jurisdiction pursuant to § 1332. 10 In the absence of diversity jurisdiction, the only basis for exercising jurisdiction 11 over Plaintiff’s state-law claim is under 28 U.S.C. § 1367. Pursuant to § 1367, a federal 12 court with original jurisdiction may exercise jurisdiction over related state-law claims. The 13 Court declines to do so here, however, because it has already dismissed all claims over 14 which it had original jurisdiction. See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) 15 (“A court may decline to exercise supplemental jurisdiction over related state-law claims 16 once it has ‘dismissed all claims over which it has original jurisdiction[,]’”(quoting 28 17 U.S.C. § 1367(c)(3))); Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 18 1994) (when federal law claims are eliminated before trial, the court generally should 19 decline jurisdiction over state law claims and dismiss them without prejudice). 20 Accordingly, Plaintiff’s state-law negligence claim will be dismissed. 21 IV. Leave to Amend 22 For the foregoing reasons, Plaintiff’s Second Amended Complaint will be dismissed 23 for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may 24 submit a third amended complaint to cure the deficiencies outlined above. The Clerk of 25 Court will mail Plaintiff a court-approved form to use for filing a third amended complaint. 26 If Plaintiff fails to use the court-approved form, the Court may strike the third amended 27 complaint and dismiss this action without further notice to Plaintiff. 28 . . . . 1 Plaintiff must clearly designate on the face of the document that it is the “Third 2 Amended Complaint.” The third 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 or prior Amended Complaints by reference. Plaintiff may include only one 5 claim per count. 6 A third amended complaint supersedes the original Complaint and prior Amended 7 Complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios 8 v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court 9 will treat the original Complaint and prior Amended Complaints as nonexistent. Ferdik, 10 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or a prior 11 Amended Complaint and that was voluntarily dismissed or was dismissed without 12 prejudice is waived if it is not alleged in a third amended complaint. Lacey v. Maricopa 13 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 14 V. Warnings 15 A. Release 16 If Plaintiff is released while this case remains pending, and the filing fee has not 17 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 18 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 19 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 20 result in dismissal of this action. 21 B. Address Changes 22 Plaintiff must file and serve a notice of a change of address in accordance with Rule 23 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 24 relief with a notice of change of address. Failure to comply may result in dismissal of this 25 action. 26 C. Possible “Strike” 27 Because the Second Amended Complaint has been dismissed for failure to state a 28 claim, if Plaintiff fails to file a third amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a “strike” under the “3-strikes” 2| provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring 3| acivil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the 4 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 5 | brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 9 D. Possible Dismissal 10 If Plaintiff fails to timely comply with every provision of this Order, including these 11 | warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of 13 | the Court). 14| ITIS ORDERED: 15 (1) |The Second Amended Complaint (Doc. 11) is dismissed for failure to state aclaim. Plaintiff has 30 days from the date this Order is filed to file a third amended 17 | complaint in compliance with this Order. 18 (2) — If Plaintiff fails to file a third amended complaint within 30 days, the Clerk 19 | of Court must, without further notice, enter a judgment of dismissal of this action with 20 | prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 21 and deny any pending unrelated motions as moot. 22 (3) The Clerk of Court must mail Plaintiff a court-approved form for filing a 23 | civil rights complaint by a prisoner. 24 Dated this 2nd day of April, 2020. 25 26 a 27 28 James A. Teil Org Senior United States District Judge
Instructions for a Prisoner Filing a Civil Rights Complaint in the United States District Court for the District of Arizona
1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated persons prepare a complaint seeking relief for a violation of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement. This form should not be used to challenge your conviction or sentence. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. ' 2254 for a writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
4. The Filing and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing fee plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may request leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. ' 1915” for additional instructions.
5. Original and Judge=s Copy. You must send an original plus one copy of your complaint and of any other documents submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing.
6. Where to File. You should file your complaint in the division where you were confined when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson Division. Mail the original and one copy of the complaint with the $400 filing and administrative fees or the application to proceed in forma pauperis to:
Revised 3/11/16 1 Phoenix & Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
7. Change of Address. You must immediately notify the Court and the defendants in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case.
8. Certificate of Service. You must furnish the defendants with a copy of any document you submit to the Court (except the initial complaint and application to proceed in forma pauperis). Each original document (except the initial complaint and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: Attorney for Defendant(s)
(Signature)
9. Amended Complaint. If you need to change any of the information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the court-approved civil rights complaint form. You may file one amended complaint without leave (permission) of Court within 21 days after serving it or within 21 days after any defendant has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, you must file a motion for leave to amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants not included in the amended complaint are considered dismissed. All amended complaints are subject to screening under the Prison Litigation Reform Act; screening your amendment will take additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead, the relevant information should be paraphrased. You should keep the exhibits to use to support or oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion. 12. Completing the Civil Rights Complaint Form.
HEADING: 1. Your Name. Print your name, prison or inmate number, and institutional mailing address on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name more than four defendants, print the name of the first defendant on the first line, write the words “and others” on the second line, and attach an additional page listing the names of all of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may result in the loss of the right to a jury trial. A jury trial is not available if you are seeking only injunctive relief.
Part A. JURISDICTION: 1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. ' 1983 for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights occurred.
3. Defendants. Print all of the requested information about each of the defendants in the spaces provided. If you are naming more than four defendants, you must provide the necessary information about each additional defendant on separate pages labeled “2-A,” “2-B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS: You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION: You must identify what rights each defendant violated. The form provides space to allege three separate counts (one violation per count). If you are alleging more than three counts, you must provide the necessary information about each additional count on a separate page. Number the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that you are limited to a total of fifteen additional pages. 1. Counts. You must identify which civil right was violated. You may allege the violation of only one civil right per count.
2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. You may check only one box per count. If you check the box marked “Other,” you must identify the specific issue involved.
3. Supporting Facts. After you have identified which civil right was violated, you must state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you must identify which defendant did what act. You also should state the date(s) on which the act(s) occurred, if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.
5. Administrative Remedies. You must exhaust any available administrative remedies before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should disclose whether you have exhausted the inmate grievance procedures or administrative appeals for each count in your complaint. If the grievance procedures were not available for any of your counts, fully explain why on the lines provided.
Part D. REQUEST FOR RELIEF: Print the relief you are seeking in the space provided.
SIGNATURE: You must sign your name and print the date you signed the complaint. Failure to sign the complaint will delay the processing of your action. Unless you are an attorney, you may not bring an action on behalf of anyone but yourself.
FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your complaint being stricken or dismissed. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number the pages.
4 ___________________________________________ Name and Prisoner/Booking Number ___________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code (Failure to notify the Court of your change of address may result in dismissal of this action.)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
_________________________________________ , (Full Name of Plaintiff) ) Plaintiff, v. CASE NO. __________________________________ (To be supplied by the Clerk) (1) _______________________________________ ,
(Full Name of Defendant) CIVIL RIGHTS COMPLAINT (2) _______________________________________ , BY A PRISONER
(3) _______________________________________ , G Original Complaint (4) _______________________________________ , G First Amended Complaint G Second Amended Complaint Defendant(s).
G Check if there are additional Defendants and attach page 1-A listing them.
A. JURISDICTION
1. This Court has jurisdiction over this action pursuant to: G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983 G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). G Other: .
2. Institution/city where violation occurred: .
550/555 B. DEFENDANTS
1. Name of first Defendant: . The first Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
2. Name of second Defendant: . The second Defendant is employed as: as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
3. Name of third Defendant: . The third Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
4. Name of fourth Defendant: . The fourth Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)
If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.
C. PREVIOUS LAWSUITS
1. Have you filed any other lawsuits while you were a prisoner? G Yes G No
2. If yes, how many lawsuits have you filed? . Describe the previous lawsuits:
a. First prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
b. Second prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
c. Third prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) .
If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page. 2 D. CAUSE OF ACTION
COUNT I 1. State the constitutional or other federal civil right that was violated: .
2. Count I. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
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4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies: a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count I? G Yes G No c. Did you appeal your request for relief on Count I to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . COUNT II 1. State the constitutional or other federal civil right that was violated: .
2. Count II. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count II? G Yes G No c. Did you appeal your request for relief on Count II to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . COUNT III 1. State the constitutional or other federal civil right that was violated: .
2. Count III. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: .
3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments.
4. Injury. State how you were injured by the actions or inactions of the Defendant(s).
5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count III? G Yes G No c. Did you appeal your request for relief on Count III to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. .
If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page. E. REQUEST FOR RELIEF
State the relief you are seeking:
I declare under penalty of perjury that the foregoing is true and correct.
Executed on DATE SIGNATURE OF PLAINTIFF
___________________________________________ (Name and title of paralegal, legal assistant, or other person who helped prepare this complaint)
___________________________________________ (Signature of attorney, if any)
___________________________________________ (Attorney=s address & telephone number)
ADDITIONAL PAGES
All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number all pages.