1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David M. Trevino, No. CV-24-03712-PHX-SHD (CDB) 10 Plaintiff, 11 v. ORDER 12 NaphCare Incorporated, et al., 13 Defendants. 14 15 Plaintiff David M. Trevino, who is confined in the Arizona State Prison Complex- 16 Eyman, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and 17 subsequently paid the filing and administrative fees. The Court dismissed the Complaint 18 for failure to state a claim with leave to amend. Plaintiff filed a motion for extension of 19 time (Doc. 9)1 and then filed a First Amended Complaint (Doc. 10). The Court will grant 20 the motion and will deem the First Amended Complaint timely filed. The Court will order 21 Defendants NaphCare and Karanja-Adams to respond to Counts I and II. With respect to 22 Count III, the Court will grant Plaintiff 120 days to discover the identify of Defendant 23 Unknown Physician and file a notice of substitution. 24 I. Statutory Screening of Prisoner Complaints 25 The Court is required to screen complaints brought by prisoners seeking relief 26 against a governmental entity or an officer or an employee of a governmental entity. 28 27 28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 U.S.C. § 1915A(a). The Court must dismiss a complaint, or portion thereof, if a plaintiff 2 raises claims that are legally frivolous or malicious, fails to state a claim upon which relief 3 may be granted, or seeks monetary relief from a defendant who is immune from such relief. 4 28 U.S.C. § 1915A(b)(1)–(2). 5 A pleading must contain a “short and plain statement of the claim showing that the 6 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 7 not demand detailed factual allegations, “it demands more than an unadorned, the- 8 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 9 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Id. 11 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 13 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 14 that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 16 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 18 allegations may be consistent with a constitutional claim, a court must assess whether there 19 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 20 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 21 must “continue to construe [self-represented litigant’s] filings liberally.” Hebbe v. Pliler, 22 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a self-represented prisoner] 23 ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. 24 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 25 II. First Amended Complaint 26 In his three-count First Amended Complaint, Plaintiff alleges claims for denial of 27 constitutionally adequate medical care. Plaintiff sues Defendants NaphCare Incorporated 28 (“NaphCare”), Nurse Practitioner Grace Karanja-Adams, and an Unknown Physician, 1 seeking declaratory, injunctive, compensatory, and punitive relief. 2 In Count I, Plaintiff alleges the following facts: 3 On May 26, 2023, Plaintiff was suffering from “really bad chest pain,” and a 4 correctional officer initiated the Incident Command System (ICS).2 Plaintiff was 5 transported to the medical unit, where non-party Nurse Hernandez performed an EKG. 6 Plaintiff reported that he also had ongoing shoulder pain. When the EKG “came back 7 normal,” Plaintiff was sent back to his unit. (Doc. 10 at 3.) 8 Plaintiff submitted Health Needs Requests (HNRs) about symptoms including 9 severe abdominal and chest pain, vomiting, difficulty keeping food and water down, 10 burning on his side on a 10 out of 10 scale, excessive sweating, clamminess, and difficulty 11 sleeping, urinating, and performing everyday tasks. On July 13, 2023, Defendant Karanja- 12 Adams ordered a scan of Plaintiff’s shoulder, which was performed by outside provider 13 Simon Med, but that also captured Plaintiff’s abdomen. According to Plaintiff, the Simon 14 Med report “clearly show[ed] a major medical issue” with Plaintiff’s gall bladder. (Id. at 15 4.) The Simon Med report stated in part, “[d]iffusely inflamed gall bladder containing 16 gallstones with suggestion of focal perforation in the gallbladder fossa,” and reported an 17 impression that, “diffusely inflamed gallbladder containing gallstones with suggestion of 18 focal contained perforation in the gallbladder fossa. Etiology of pain likely due to this 19 phenomenon. CT abdomen with IV contrast likely recommended for further 20 evaluation[.]”3 (Id. at 4-5.) 21 The report further stated:
22 2 An ICS is an Arizona Department of Corrections, Rehabilitation & Reentry process 23 “to prepare for, prevent, respond to, recover from, and mitigate incidents and emergencies.” See Department Order (DO) 706 at 1 [https://perma.cc/B8LH-UEJT]. 24 3 According to the Mayo Clinic, gallstones are hardened deposits of digestive fluid 25 that form in the gall bladder. See https://www.mayoclinic.org/diseases- conditions/gallstones/symptoms-causes/syc-20354214 [https://perma.cc/Q9B7-AHNT]. 26 Gallstones may cause no signs or symptoms, but if a gallstone lodges in a duct and causes a blockage, resulting signs and symptoms may include sudden and rapidly intensifying pain 27 in the upper right abdomen or the center abdomen just below the breastbone, back pain between the shoulder blades, pain in the right shoulder, and nausea or vomiting. Id. Risk 28 factors include being overweight, sedentary, eating a high fat or high cholesterol diet, and eating a low fiber diet, among others. Id. Critical results pathway was initiated secondary to positive findings noted 1 above. This examination has been assigned to the Simon Med support staff 2 for communication to the ordering physician or their representative. In addition, the report will be immediately transmitted via the electronic 3 medical record or by fax at the time of dictation. If you require further 4 assistance, please contact our Radiologist Hotline. 5 (Id. 4-5 and 6.) Despite the report, prison medical staff, namely Defendant Karanja- 6 Adams, who ordered the scan, took no action in response to the report. 7 On August 1, 2023, Plaintiff began to again experience severe abdominal pain, 8 vomiting, inability to keep food and liquids down, burning in his side at a level of 10 out 9 of 10, excessive sweating, clamminess, and difficulty sleeping, urinating, and performing 10 everyday tasks. After several “man downs,” the ICS was initiated for a medical emergency. 11 (Id.
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1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David M. Trevino, No. CV-24-03712-PHX-SHD (CDB) 10 Plaintiff, 11 v. ORDER 12 NaphCare Incorporated, et al., 13 Defendants. 14 15 Plaintiff David M. Trevino, who is confined in the Arizona State Prison Complex- 16 Eyman, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and 17 subsequently paid the filing and administrative fees. The Court dismissed the Complaint 18 for failure to state a claim with leave to amend. Plaintiff filed a motion for extension of 19 time (Doc. 9)1 and then filed a First Amended Complaint (Doc. 10). The Court will grant 20 the motion and will deem the First Amended Complaint timely filed. The Court will order 21 Defendants NaphCare and Karanja-Adams to respond to Counts I and II. With respect to 22 Count III, the Court will grant Plaintiff 120 days to discover the identify of Defendant 23 Unknown Physician and file a notice of substitution. 24 I. Statutory Screening of Prisoner Complaints 25 The Court is required to screen complaints brought by prisoners seeking relief 26 against a governmental entity or an officer or an employee of a governmental entity. 28 27 28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 U.S.C. § 1915A(a). The Court must dismiss a complaint, or portion thereof, if a plaintiff 2 raises claims that are legally frivolous or malicious, fails to state a claim upon which relief 3 may be granted, or seeks monetary relief from a defendant who is immune from such relief. 4 28 U.S.C. § 1915A(b)(1)–(2). 5 A pleading must contain a “short and plain statement of the claim showing that the 6 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 7 not demand detailed factual allegations, “it demands more than an unadorned, the- 8 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 9 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Id. 11 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 13 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 14 that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 16 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 18 allegations may be consistent with a constitutional claim, a court must assess whether there 19 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 20 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 21 must “continue to construe [self-represented litigant’s] filings liberally.” Hebbe v. Pliler, 22 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a self-represented prisoner] 23 ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. 24 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 25 II. First Amended Complaint 26 In his three-count First Amended Complaint, Plaintiff alleges claims for denial of 27 constitutionally adequate medical care. Plaintiff sues Defendants NaphCare Incorporated 28 (“NaphCare”), Nurse Practitioner Grace Karanja-Adams, and an Unknown Physician, 1 seeking declaratory, injunctive, compensatory, and punitive relief. 2 In Count I, Plaintiff alleges the following facts: 3 On May 26, 2023, Plaintiff was suffering from “really bad chest pain,” and a 4 correctional officer initiated the Incident Command System (ICS).2 Plaintiff was 5 transported to the medical unit, where non-party Nurse Hernandez performed an EKG. 6 Plaintiff reported that he also had ongoing shoulder pain. When the EKG “came back 7 normal,” Plaintiff was sent back to his unit. (Doc. 10 at 3.) 8 Plaintiff submitted Health Needs Requests (HNRs) about symptoms including 9 severe abdominal and chest pain, vomiting, difficulty keeping food and water down, 10 burning on his side on a 10 out of 10 scale, excessive sweating, clamminess, and difficulty 11 sleeping, urinating, and performing everyday tasks. On July 13, 2023, Defendant Karanja- 12 Adams ordered a scan of Plaintiff’s shoulder, which was performed by outside provider 13 Simon Med, but that also captured Plaintiff’s abdomen. According to Plaintiff, the Simon 14 Med report “clearly show[ed] a major medical issue” with Plaintiff’s gall bladder. (Id. at 15 4.) The Simon Med report stated in part, “[d]iffusely inflamed gall bladder containing 16 gallstones with suggestion of focal perforation in the gallbladder fossa,” and reported an 17 impression that, “diffusely inflamed gallbladder containing gallstones with suggestion of 18 focal contained perforation in the gallbladder fossa. Etiology of pain likely due to this 19 phenomenon. CT abdomen with IV contrast likely recommended for further 20 evaluation[.]”3 (Id. at 4-5.) 21 The report further stated:
22 2 An ICS is an Arizona Department of Corrections, Rehabilitation & Reentry process 23 “to prepare for, prevent, respond to, recover from, and mitigate incidents and emergencies.” See Department Order (DO) 706 at 1 [https://perma.cc/B8LH-UEJT]. 24 3 According to the Mayo Clinic, gallstones are hardened deposits of digestive fluid 25 that form in the gall bladder. See https://www.mayoclinic.org/diseases- conditions/gallstones/symptoms-causes/syc-20354214 [https://perma.cc/Q9B7-AHNT]. 26 Gallstones may cause no signs or symptoms, but if a gallstone lodges in a duct and causes a blockage, resulting signs and symptoms may include sudden and rapidly intensifying pain 27 in the upper right abdomen or the center abdomen just below the breastbone, back pain between the shoulder blades, pain in the right shoulder, and nausea or vomiting. Id. Risk 28 factors include being overweight, sedentary, eating a high fat or high cholesterol diet, and eating a low fiber diet, among others. Id. Critical results pathway was initiated secondary to positive findings noted 1 above. This examination has been assigned to the Simon Med support staff 2 for communication to the ordering physician or their representative. In addition, the report will be immediately transmitted via the electronic 3 medical record or by fax at the time of dictation. If you require further 4 assistance, please contact our Radiologist Hotline. 5 (Id. 4-5 and 6.) Despite the report, prison medical staff, namely Defendant Karanja- 6 Adams, who ordered the scan, took no action in response to the report. 7 On August 1, 2023, Plaintiff began to again experience severe abdominal pain, 8 vomiting, inability to keep food and liquids down, burning in his side at a level of 10 out 9 of 10, excessive sweating, clamminess, and difficulty sleeping, urinating, and performing 10 everyday tasks. After several “man downs,” the ICS was initiated for a medical emergency. 11 (Id. at 6.) At the medical unit, a nurse gave Plaintiff Milk of Magnesia, an injection for 12 nausea, and told Plaintiff that he was fine. Plaintiff showed the nurse his Simon Med report 13 and said something was wrong. The nurse took no further steps, but told Plaintiff to watch 14 what he was eating, then took his blood pressure, again told him he was fine, and sent him 15 back to his unit. 16 On August 2, 2023, a correctional officer activated the ICS for another “man-down” 17 medical emergency due to Plaintiff again experiencing the same symptoms as the day 18 before. The same nurse who had seen Plaintiff the day before said that Plaintiff was 19 “faking” it. (Id. at 8.) Non-party Provider Johnson asked Plaintiff what was wrong with 20 his shoulder and knee, and Plaintiff responded that there was something wrong with his 21 stomach too. Johnson stated that she already knew, and they were getting Plaintiff “out of 22 here.” (Id.) Johnson told the nurse to get on the phone and get Plaintiff to the hospital; 23 Plaintiff was taken to the hospital. At the hospital, a surgeon told Plaintiff that his gall 24 bladder would be removed. Post-surgery, after Plaintiff regained consciousness, a nurse 25 told him that there had been some complications, and a different surgeon, Dr. Sudwal, told 26 Plaintiff that he could have died if another day had passed before he came to the hospital, 27 and that Plaintiff should have been treated long before. She told Plaintiff that she was able 28 to save his colon, that his gallbladder had a large opening in it and had fused with his colon, 1 that his colon had been leaking into his gall bladder and his body, and that his gall bladder 2 had been leaking into his colon. The surgeon told Plaintiff that he had been “literally 3 dying,” and she had never seen anything like it in ten years of practice. (Id. at 10.) Plaintiff 4 was hospitalized for six days before returning to prison. 5 There, Plaintiff was assigned to a top bunk despite instructions that he was not to 6 engage in strenuous physical activities for four weeks after surgery. Plaintiff had “much 7 difficulty climbing up [to] the top bunk,” and a surgical staple popped out. (Id. at 11.) 8 After several days, Plaintiff was reassigned to a bottom bunk. Plaintiff suffered and 9 continues to suffer from pain and “extreme difficulty urinating.” (Id.) 10 Plaintiff contends that Defendant NaphCare maintains a policy that overrides or 11 delays implementing provider or specialist recommendations and encourages a practice of 12 medical staff not scheduling medically necessary appointments and treatment due to cost 13 and/or complexity. Plaintiff contends that NaphCare, via its medical staff, received 14 Plaintiff’s radiology report on July 13, 2023, which reflected a serious and life-threatening 15 medical need but failed to act on the report. Plaintiff claims that even a layperson reading 16 the Simon Med report would have recognized that he had a major medical issue and would 17 have immediately performed further evaluation or sent Plaintiff to the hospital, but prison 18 medical staff failed to do either. 19 In Count II, Plaintiff largely repeats the allegations in Count I, but also alleges the 20 following: 21 Defendant Karanja-Adams acted with deliberate indifference to his serious medical 22 needs by failing to act in response to the Simon Med report, which reflected a perforation 23 of Plaintiff’s gall bladder. Plaintiff suffered severe pain, and nearly died, because no action 24 was taken for approximately 20 days after the report was transmitted to her. Both before 25 and after the July 13, 2023 scan, Plaintiff suffered severe pain and related symptoms, but 26 Karanja-Adams failed to act on his symptoms. 27 In Count III, Plaintiff incorporates the allegations in Counts I and II, but 28 additionally alleges the following: 1 Defendant Unknown Physician directly supervised Defendant Karanja-Adams. 2 Plaintiff claims that Defendant Unknown Physician is liable for failing to sufficiently 3 supervise Defendant Karanja-Adams and was obligated to monitor Defendant Karanja- 4 Adams. Plaintiff contends that both Defendants Unknown Physician and Karanja-Adams 5 knew or should have known about the results of the July 13, 2023 scan and both failed to 6 take adequate and necessary steps based upon the results. Only about twenty days later did 7 Plaintiff receive appropriate medical care on an emergent basis after non-party Provider 8 Johnson directed that Plaintiff be transferred to the hospital. Plaintiff claims that Defendant 9 Unknown Physician acted with deliberate indifference to Plaintiff’s serious needs by 10 failing to adequately supervise the provision of care by Defendant Karanja-Adams. 11 III. Claims for Which an Answer Will be Required 12 Plaintiff alleges that he was denied constitutionally adequate medical care, which 13 arises under the Eighth Amendment, and not the Fourteenth Amendment. To state a § 1983 14 medical claim, a plaintiff must show (1) a “serious medical need” by demonstrating that 15 failure to treat the condition could result in further significant injury or the unnecessary 16 and wanton infliction of pain and (2) the defendant’s response was deliberately indifferent. 17 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 18 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 19 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 20 know of and disregard an excessive risk to inmate health; “the official must both be aware 21 of facts from which the inference could be drawn that a substantial risk of serious harm 22 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 23 Deliberate indifference in the medical context may be shown by a purposeful act or failure 24 to respond to a prisoner’s pain or possible medical need and harm caused by the 25 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 26 prison official intentionally denies, delays, or interferes with medical treatment or by prison 27 doctors’ response to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 28 (1976); Jett, 439 F.3d at 1096. 1 Deliberate indifference is a higher standard than negligence or lack of ordinary due 2 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 3 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 4 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 5 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 6 do not support a claim under § 1983). “A difference of opinion does not amount to 7 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 8 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 9 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 10 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 11 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 12 Estelle, 429 U.S. at 105. 13 A. Defendants NaphCare and Karanja-Adams 14 Plaintiff sufficiently alleges facts to state a claim against NaphCare and Karanja- 15 Adams. They will be required to respond to Counts I and II of the First Amended 16 Complaint. 17 B. Defendant Unknown Physician 18 Although Plaintiff has stated a claim against Defendant Unknown Physician in 19 Count III, the Court will not require service on that individual at this time because it is, in 20 most instances, impossible for the United States Marshal or his designee to serve a 21 summons and complaint upon an anonymous defendant. However, the Court will not 22 dismiss the claim against Defendant Unknown Physician at this time. The Court will allow 23 Plaintiff 120 days in which to discover the actual name of Defendant Unknown Physician, 24 through subpoena or otherwise, and to substitute that individual’s actual name by filing a 25 “notice of substitution.” See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). 26 The Court may dismiss Count III of this action without prejudice if Plaintiff fails to timely 27 file a notice of substitution identifying Defendant Unknown Defendant, unless Plaintiff 28 seeks and is granted an extension of time. 1 IV. 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. Copies 14 Because Plaintiff is currently confined in an Arizona Department of Corrections, 15 Rehabilitation & Reentry Complex or Private Facility subject to General Order 23-19, 16 Plaintiff can comply with Federal Rule of Civil Procedure 5(d) by including, with every 17 document Plaintiff files, a certificate of service stating that this case is subject to General 18 Order 23-19 and indicating the date the document was delivered to prison officials for filing 19 with the Court. Plaintiff is not required serve Defendants with copies of every document 20 or provide an additional copy of every document for the Court’s use. 21 If Plaintiff is transferred to a facility other than one subject to General Order 23-19, 22 Plaintiff will be required to: (a) serve Defendants, or counsel if an appearance has been 23 entered, a copy of every document Plaintiff files, and include a certificate stating that a 24 copy of the filing was served; and (b) submit an additional copy of every filing for use by 25 the Court. See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in 26 the filing being stricken without further notice to Plaintiff. 27 D. Possible Dismissal 28 If Plaintiff fails to timely comply with every provision of this Order, including these 1 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 2 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 3 to comply with any order of the Court). 4 IT IS ORDERED: 5 (1) Plaintiff’s motion for extension of time to file his amended complaint (Doc. 6 9) is granted and the First Amended Complaint is deemed timely filed. 7 (2) The Clerk of Court must send Plaintiff a service packet including the First 8 Amended Complaint (Doc. 10), this Order, and both summons and request for waiver 9 forms for Defendants NaphCare and Karanja-Adams. 10 (3) Plaintiff must complete4 and return the service packet to the Clerk of Court 11 within 21 days of the date of filing of this Order. The United States Marshal will not 12 provide service of process if Plaintiff fails to comply with this Order. 13 (4) If Plaintiff does not either obtain a waiver of service of the summons or 14 complete service of the Summons and First Amended Complaint on a Defendant within 90 15 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 16 is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 17 LRCiv 16.2(b)(2)(B)(ii). 18 (5) The United States Marshal must retain the Summons, a copy of the First 19 Amended Complaint, and a copy of this Order for future use. 20 (6) The United States Marshal must notify Defendants of the commencement of 21 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 22 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 23 Order. 24 (7) A Defendant who agrees to waive service of the Summons and First 25 Amended Complaint must return the signed waiver forms to the United States Marshal, not
26 4 If a Defendant is an officer or employee of the Arizona Department of Corrections, 27 Rehabilitation & Reentry, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the 28 Central Office of the Arizona Department of Corrections, Rehabilitation & Reentry unless the officer or employee works there. 1 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 2 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 3 personal service. 4 (8) The Marshal must immediately file signed waivers of service of the 5 summons. If a waiver of service of summons is returned as undeliverable or is not returned 6 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 7 the Marshal must: 8 (a) personally serve copies of the Summons, First Amended Complaint, 9 and this Order upon Defendant pursuant to Rule 4(e)(2) and Rule 10 4(h)(1) of the Federal Rules of Civil Procedure; and 11 (b) within 10 days after personal service is effected, file the return of 12 service for Defendant, along with evidence of the attempt to secure a 13 waiver of service of the summons and of the costs subsequently 14 incurred in effecting service upon Defendant. The costs of service 15 must be enumerated on the return of service form (USM-285) and 16 must include the costs incurred by the Marshal for photocopying 17 additional copies of the Summons, First Amended Complaint, or this 18 Order and for preparing new process receipt and return forms (USM- 19 285), if required. Costs of service will be taxed against the personally 20 served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of 21 Civil Procedure, unless otherwise ordered by the Court. 22 (9) Defendants NaphCare and Karanja-Adams must answer the First Amended 23 Complaint or otherwise respond by appropriate motion within the time provided by the 24 applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 25 (10) Any answer or response must state the specific Defendant by name on whose 26 behalf it is filed. The Court may strike any answer, response, or other motion or paper that 27 does not identify the specific Defendant by name on whose behalf it is filed. 28 (11) Plaintiff has 120 days from the filing date of this Order in which to discover, 1 | by subpoena or otherwise, the identity of Defendant Unknown Physician, and to file a 2| “notice of substitution” for that Defendant. 3 (12) The Clerk of Court must issue one subpoena in blank and one copy of the 4| Marshal’s Process Receipt & Return form (USM-285) to Plaintiff. 5 (13) Plaintiff shall complete the subpoena and USM-285 form and promptly 6| return them to the Clerk of Court. 7 (14) Upon receipt of properly completed subpoena and USM-285 form, the Clerk 8 | of Court must deliver the subpoena, the USM-285 form, and a copy of this Order, to the United States Marshal for service. 10 (15) Within 20 days of receiving the subpoena, USM-285 form, and a copy of this 11 | Order, the United States Marshal must personally serve the subpoena and a copy of this 12 | Order in accordance with the provisions of Rule 45 of the Federal Rules of Civil Procedure 13 | and 28 U.S.C. §§ 566(c) and 1915(d). 14 (16) Within 10 days after personal service is effected, the United States Marshal 15 | must file a proof of service. 16 (17) The Clerk of Court may dismiss Count III of the First Amended Complaint 17 | for failure to prosecute without prejudice and without further notice to Plaintiff, if Plaintiff fails to file a notice of substitution within 120 days for Defendant Unknown Physician, unless Plaintiff seeks and is granted an extension of time. 20 (18) This matter is referred to Magistrate Judge Camille D. Bibles pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 22 | authorized under 28 U.S.C. § 636(b)(1). 23 Dated this Ist day of October, 2025. 24 25 ' pf 26 □ 7 H le Sharad H. Desai United States District Judge 28