1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cody James Wilkins, No. CV 20-08298-PCT-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 Yavapai County, et al., 13 Defendants.
14 15 Plaintiff Cody James Wilkins, who is confined in the Yavapai County Detention 16 Center, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and 17 an Application to Proceed In Forma Pauperis (Doc. 4). The Court will dismiss the 18 Complaint with leave to amend. 19 I. Application to Proceed In Forma Pauperis and Filing Fee 20 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 21 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 22 § 1915(b)(1). The Court will assess an initial partial filing fee of $40.33. The remainder 23 of the fee will be collected monthly in payments of 20% of the previous month’s income 24 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 25 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 26 government agency to collect and forward the fees according to the statutory formula. 27 II. Statutory Screening of Prisoner Complaints 28 The Court is required to screen complaints brought by prisoners seeking relief 1 against a governmental entity or an officer or an employee of a governmental entity. 28 2 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 3 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 4 relief may be granted, or that seek monetary relief from a defendant who is immune from 5 such relief. 28 U.S.C. § 1915A(b)(1)-(2). 6 A pleading must contain a “short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 8 not demand detailed factual allegations, “it demands more than an unadorned, the- 9 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Id. 12 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 14 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 15 that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 17 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 19 allegations may be consistent with a constitutional claim, a court must assess whether there 20 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 21 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 22 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 23 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 24 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 25 U.S. 89, 94 (2007) (per curiam)). 26 If the Court determines that a pleading could be cured by the allegation of other 27 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 28 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 1 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 2 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 3 III. Background 4 Plaintiff is charged in Yavapai County Superior Court, cases ## CR 201900879, CR 5 201901290, and CR 202000553, with drug offenses and organized retail theft.1 According 6 to a February 12, 2021 Minute Entry, trial in CR 201900879 is scheduled to be held on 7 May 3-6, 2021.2 In the same Minute Entry, the court took Plaintiff’s motion to suppress 8 under advisement following a hearing. According to a November 20, 2020 Minute Entry, 9 trial in CR 201901290 is scheduled to be held on June 7-9, 2021 and trial in CR 202000553 10 is scheduled to be held on June 21 and 22, 2021.3 11 IV. Complaint 12 In his three-count Complaint, Plaintiff alleges claims for malicious prosecution or 13 illegal warrant, “undue oppression” that he categorizes as a denial of medical care, and 14 “undue oppression” prior to his detention. Plaintiff sues Yavapai County, “Partners 15 Against Narcotics Trafficking” (PANT), Deputy Detective Pizzi, and Detective Scissons. 16 Plaintiff seeks to press criminal charges against “all parties,” an investigation by the 17 Arizona Attorney General’s Office, and a Federal Bureau of Investigations (FBI) 18 investigation. Thus, Plaintiff appears to seek injunctive relief. 19 In Count I, Plaintiff alleges the following: 20 On February 12, 2019, Yavapai County Superior Court Judge Handcock granted 21 Defendant Scissons’ application for a search warrant to use a GPS tracking device on 22 Plaintiff’s Mazda. Later that day, the tracking device was placed on Plaintiff’s Mazda. A
23 1 See https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx, Search First 24 Name Cody, Last Name Wilkins (last accessed Mar. 10, 2021). 25 2 See https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx, Search CR 201900879, February 12, 2021 Minute Entry, YAVAPAI_MINUTE- 26 ENTRIES_15267106.PDF (last accessed Mar. 10, 2021). 27 3 See https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx, Search CR 202000553 and CR 201901290, November 25, 2020 Minute Entry, YAVAPAI_MINUTE- 28 ENTRIES_14969914.PDF and YAVAPAI_MINUTE-ENTRIES_14969895.PDF (last accessed Mar. 10, 2021). 1 day later, Plaintiff allowed a friend to drive the Mazda, when there was a traffic stop. In 2 an affidavit for authorization for an electronic tracking device in case# SW201900031, it 3 is unclear how the search warrant case relates to Plaintiff’s criminal proceedings. Scissons 4 stated that: 5 Chino Valley Conducted a traffic stop on Cody Wilkins vehicle . . . the driver was found in possession of a used syringe with an unknown clear substance 6 inside of it as well as several suboxone pills, which is a narcotic drug. At 7 this time due to the miscommunication on my part, I believed Cody Wilkins was the driver of the vehicle at that time. It was discovered a day later or so 8 that Cody had allowed a close friend to drive his vehicle. 9 (Doc. 1 at 3.) Nevertheless, the GPS tracking device remained on Plaintiff’s Mazda, until 10 April 16, 2019, the full 60 days authorized for the tracking device, despite the detectives’ 11 knowledge that Plaintiff had not been driving his car when it was stopped and a syringe 12 and drugs were found. 13 Plaintiff has been in lockdown for more than six months while he awaits trial. He 14 alleges he has suffered mental anguish, lack of exposure to sunlight, and harm to his mental 15 health. 16 In Count II, Plaintiff states that in the 410 days that he has been detained,4 he has 17 only been able to go outside three times for a half hour. He alleges that he has been 18 deprived of Vitamin D, which has affected regeneration of immune cells, and he suffered 19 “undue oppression” prior to incarceration. He adds, “8 hours a month for medical health 20 and mental health has been completely ignored—Sheriff Scott Masher-Sgt. Byers Yavapai 21 County.” As his injury, Plaintiff alleges “medically immune cell regeneration, vitamin D, 22 as well [as] carbon monoxide in ventilation system in blood test results 18%-toxic, since 23 no fresh air to circulate out (fresh oxygen) Also dungeon syndrome no natural light- 24 ‘Sever[e] Mentally ill[]ness from mental anguish.” 25 In Count III, Plaintiff alleges that he has been placed in lockdown because he would 26 not sign a plea bargain. According to Plaintiff, on June 1, 2019, Detective Scissons told 27
28 4 The discrepancy between the length of his detention in his three counts are not explained. 1 Plaintiff that he (Scissons) “own[ed]” the I-17 from Maricopa County to Coconino County 2 with Detective Pizzi, “this” is his town, “all drug sales go through him” in Yavapai County., 3 and he “run[s] this show” and has already “got those drugs on the street.” After the 4 interview, Detectives Pizzi and Scissons “planted” a black magnetic box under Plaintiff’s 5 vehicle, which contained illicit drugs. Plaintiff again alleges that he has been locked down 6 for seven months without review or a hearing due to his rejection of a plea offer. Plaintiff 7 contends that the denial of a hearing or review violated his due process rights and 8 constitutes undue oppression by Yavapai County Detention Services, Sergeant Byers, and 9 Sheriff Mascher. As his injury, Plaintiff alleges he has spent 188 days in solitary and 10 administrative segregation. He indicates that he is considered seriously mentally ill and is 11 suffering sadness because he wants to exercise his right to trial. 12 IV. Failure to State a Claim 13 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 14 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 15 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 16 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 17 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 18 as a result of the conduct of a particular defendant and he must allege an affirmative link 19 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 20 72, 377 (1976). 21 To state a claim against a defendant, “[a] plaintiff must allege facts, not simply 22 conclusions [to] show that an individual was personally involved in the deprivation of his 23 civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual 24 to be liable in his or her official capacity, a plaintiff must allege injuries resulting from a 25 policy, practice, or custom of the agency over which that individual has final policy-making 26 authority. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). In 27 addition, there is no respondeat superior liability under § 1983, so a defendant’s position 28 as the supervisor of someone who allegedly violated a plaintiff’s constitutional rights, 1 absent more, does not make him liable. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 2 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his personal 3 capacity “is only liable for constitutional violations of his subordinates if the supervisor 4 participated in or directed the violations, or knew of the violations and failed to act to 5 prevent them.” Taylor, 880 F.2d at 1045. Further, under Ninth Circuit law, a defendant 6 can be liable for failure to act. Id. 7 A. Yavapai County 8 Plaintiff sues Yavapai County. A municipality, such as Yavapai County, may not 9 be sued solely because an injury was inflicted by one of its employees or agents. Long v. 10 County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Rather, the municipality is 11 liable only when the execution of its policy or custom inflicts the constitutional injury. Id.; 12 Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005). Thus, a § 1983 claim 13 against a municipal defendant “cannot succeed as a matter of law” unless the plaintiff: (1) 14 contends that the municipal defendant maintains a policy or custom pertinent to the 15 plaintiff’s alleged injury; and (2) explains how such policy or custom caused the plaintiff’s 16 injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a 17 municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)). 18 Plaintiff fails to allege facts to support that his constitutional rights were violated 19 pursuant to a policy or custom of Yavapai County. At most, Plaintiff asserts violations by 20 employees or agents of the County, which is not sufficient to state a claim against the 21 County. Accordingly, Yavapai County will be dismissed as a Defendant. 22 B. PANT 23 Plaintiff also names PANT as a Defendant. PANT is a county-wide drug task force 24 providing undercover narcotic sting operations, interstate highway narcotic interdiction, 25 and community outreach and education.5 Although municipalities, such as cities and 26 counties, are included among those “persons” who may be sued under § 1983, Monell, 436 27
28 5 See https://www.pvaz.net/1002/Criminal-Investigations-Section (last accessed Mar. 11, 2021). 1 U.S. at 690, a city or county police department is not a separate entity for purposes of suit. 2 Gotbaum v. City of Phoenix, 617 F. Supp. 2d 878, 886 (D. Ariz. 2008); see Braillard v. 3 Maricopa Cnty., 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) (county sheriff’s office is a 4 nonjural entity); see also Vincente v. City of Prescott, No. CV 11-08204-PCT-DGC, 2012 5 WL 1438695 (D. Ariz. Apr. 26, 2012) (city fire department is a nonjural entity); Wilson v. 6 Yavapai Cnty, No. CV 11-08199-PCT-JAT, 2012 WL 1067959 (D. Ariz. Mar. 29, 2012) 7 (county sheriff’s office and county attorney’s office are nonjural entities). Similarly, a task 8 force of a city or county police department is not a separate entity that can be sued under 9 § 1983. Accordingly, the Court will dismiss Defendant PANT. 10 C. Pizzi and Scissons 11 Plaintiff also sues Detectives Pizzi and Scissons. Plaintiff appears to allege that 12 they planted evidence or falsified affidavits in support of applications for search warrants. 13 Such claims should be presented to the state court in the first instance. Indeed, a motion to 14 suppress appears to be pending before the Yavapai County Superior Court. 15 Plaintiff also appears to allege that he continues to be detained and subject to 16 lockdown because he has refused to enter into a plea agreement, which he appears to 17 attribute to these detectives. The decision whether a criminal defendant is detained is 18 determined by the court, in this case, the Yavapai County Superior Court, as are conditions 19 for bail and release. If Plaintiff seeks a modification of his detention or bail status, he may 20 apply to the Yavapai County Superior Court. To the extent that Plaintiff complains of 21 long-term detention on lockdown and the lack of outside recreation, Plaintiff appears to 22 assert a claim for unconstitutional conditions of confinement, which is addressed below. 23 D. Conditions of Confinement 24 Plaintiff appears to primarily seek relief concerning his conditions of confinement, 25 and in particular, the lack of almost all outside recreation for seven months. A pretrial 26 detainee has a right under the Due Process Clause of the Fourteenth Amendment to be free 27 from punishment prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 28 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, shelter, sanitation, 1 medical care, and personal safety.’” Alvarez-Machain v. United States, 107 F.3d 696, 701 2 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). To state 3 a claim of unconstitutional conditions of confinement against an individual defendant, a 4 pretrial detainee must allege facts that show: 5 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff 6 at substantial risk of suffering serious harm; (iii) the defendant did not take 7 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 8 involved—making the consequences of the defendant’s conduct obvious; 9 and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 10 11 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 12 Whether the conditions and conduct rise to the level of a constitutional violation is 13 an objective assessment that turns on the facts and circumstances of each particular case. 14 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 15 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack 16 of due care by a state official’ does not deprive an individual of life, liberty, or property 17 under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 18 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a 19 plaintiff must “prove more than negligence but less than subjective intent—something akin 20 to reckless disregard.” Id. 21 Plaintiff alleges he has had almost no outside recreation for approximately seven 22 months. Plaintiff does not allege whether he requested outside recreation, from whom and 23 when, and any reasons given for denying Plaintiff outside recreation. Further, Plaintiff 24 fails to name as a defendant anyone who denied him outside recreation or that he was 25 denied outside recreation pursuant to a policy of Yavapai County or the Yavapai County 26 Sheriff. For all these reasons, Plaintiff fails to state a claim for unconstitutional conditions 27 of confinement against any properly named Defendant. 28 . . . . 1 V. Leave to Amend 2 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 3 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 4 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 5 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 6 to use the court-approved form, the Court may strike the amended complaint and dismiss 7 this action without further notice to Plaintiff. 8 Plaintiff must clearly designate on the face of the document that it is the “First 9 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 10 entirety on the court-approved form and may not incorporate any part of the original 11 Complaint by reference. Plaintiff may include only one claim per count. 12 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 13 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 14 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 15 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 16 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 17 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 18 F.3d 896, 928 (9th Cir. 2012) (en banc). 19 VI. Warnings 20 A. Release 21 If Plaintiff is released while this case remains pending, and the filing fee has not 22 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 23 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 24 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 25 result in dismissal of this action. 26 B. Address Changes 27 Plaintiff must file and serve a notice of a change of address in accordance with Rule 28 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 1 relief with a notice of change of address. Failure to comply may result in dismissal of this 2 action. 3 C. Possible “Strike” 4 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 5 fails to file an amended complaint correcting the deficiencies identified in this Order, the 6 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 7 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 8 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 9 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 10 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 11 or fails to state a claim upon which relief may be granted, unless the prisoner is under 12 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 13 D. Possible Dismissal 14 If Plaintiff fails to timely comply with every provision of this Order, including these 15 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 16 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 17 the Court). 18 IT IS ORDERED: 19 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 4) is granted. 20 (2) As required by the accompanying Order to the appropriate government 21 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 22 of $40.33. 23 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 24 has 30 days from the date this Order is filed to file a first amended complaint in compliance 25 with this Order. 26 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 27 Court must, without further notice, enter a judgment of dismissal of this action with 28 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 1| and deny any pending unrelated motions as moot. 2 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 4 Dated this 19th day of March, 2021. 5 6 '
= James A, CO 8 Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 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.
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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.