Smith v. Schuster ( 2021 )

1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joshua Daniel Smith, No. CV 20-08141-PCT-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Doug Schuster, et al., 13 14 Defendants. 15 16 On June 15, 2020, Plaintiff Joshua Daniel Smith, who was then-confined in the 17 Mohave County Jail in Kingman, Arizona, filed a pro se civil rights Complaint pursuant to 18 42 U.S.C. § 1983. Plaintiff did not pay the $350.00 civil action filing fee and $50.00 19 administrative fee or file an Application to Proceed In Forma Pauperis (Non-Habeas). In 20 a June 23, 2020 Order, the Court granted Plaintiff 30 days to pay the filing and 21 administrative fees or file a complete Application to Proceed In Forma Pauperis (Non- 22 Habeas) (Doc. 3). On June 29, 2020, Plaintiff filed an Application to Proceed In Forma 23 Pauperis (Habeas) (Doc. 4) and an inmate trust account statement (Doc. 5). Plaintiff 24 included an explanation indicating that his Application to Proceed In Forma Pauperis (Non- 25 Habeas) was mistakenly filed in his habeas corpus case, Smith v. Unknown, CV 20-08125- 26 PCT-MTL (JFM).1 The Court ordered the Application to Proceed In Forma Pauperis 27 28 1 In that case, the Court denied the non-habeas Application to Proceed because the wrong form had been used. Smith, CV 20-08125, Doc. 7. 1 (Habeas) (Doc. 4) filed in this case to be re-docketed in CV 20-08125-PCT-MTL (JFM). 2 In an Order filed in CV 20-08125, the Court ordered the non-habeas Application to Proceed 3 filed in that case, Doc. 5, be re-docketed in this case, which occurred on July 22, 2020 4 (Doc. 7). 5 In seeking leave to proceed in forma pauperis, Plaintiff used the court-approved 6 Application to Proceed In Forma Pauperis for use by prisoners (Doc. 7). On August 10, 7 2020, Plaintiff filed a Notice of Change of Address (Doc. 9) indicating he is no longer in 8 custody.2 Because Plaintiff had been released since he filed his prisoner Application to 9 Proceed In Forma Pauperis, the Court denied his prisoner Application to Proceed and 10 granted him 30 days to file a non-prisoner application to proceed in forma pauperis. 11 Plaintiff has filed a non-prisoner Application to Proceed in District Court Without 12 Prepaying Fees or Costs, which will be granted. The Court will dismiss the Complaint 13 with leave to amend. 14 I. Statutory Screening of In Forma Pauperis Complaints 15 Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted 16 in forma pauperis status, the Court shall dismiss the case “if the court determines that . . . 17 (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may 18 be granted; or (iii) seeks monetary relief against a defendant who is immune from such 19 relief.” 20 A pleading must contain a “short and plain statement of the claim showing that the 21 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 22 not demand detailed factual allegations, “it demands more than an unadorned, the- 23 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 24 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 25 conclusory statements, do not suffice.” Id. 26 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 27 28 2 As discussed below, Plaintiff was subsequently charged again in Mohave County Superior Court but is not currently in custody. 1 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 3 that allows the court to draw the reasonable inference that the defendant is liable for the 4 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 5 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 6 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 7 allegations may be consistent with a constitutional claim, a court must assess whether there 8 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 9 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 10 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 11 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 12 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 13 U.S. 89, 94 (2007) (per curiam)). 14 If the Court determines that a pleading could be cured by the allegation of other 15 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 16 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 17 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 18 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 19 II. Complaint 20 In his two-count Complaint, Plaintiff alleges a violation of due process and that he 21 has been subjected to cruel and unusual punishment. Plaintiff sues Mohave County Sheriff 22 Doug Schuster; Deputy Mohave County Attorney Gregory McPhillips; Kingman Police 23 Detective Heath Mosby; and “Sheriff, Co. Atty., Det., Ispd, et all,” whom he describes as 24 working “at the Board of Supervisors.” Plaintiff seeks compensatory and punitive relief. 25 Except as otherwise indicated, Plaintiff alleges the following: 26 From April 16, 2014 until June 2016, Plaintiff was a pretrial detainee confined in 27 the Southern Nevada Detention Center in Pahrump, Nevada. See United States v. Smith, 28 1 CR 14-00052 (D. Nev. Apr. 17, 2014), Docs. 21, 26, 27.3 On March 24, 2015, Kingman 2 Police Detective Heath Mosby interviewed Plaintiff in Pahrump in connection with a 3 criminal investigation of an offense committed in Mohave County, Arizona. Plaintiff 4 denied any involvement in that offense and Mosby told Plaintiff that he (Mosby) lacked 5 jurisdiction in Nevada—presumably to arrest Plaintiff—and that Plaintiff could not be 6 transferred to Arizona. Plaintiff was not contacted further about that investigation or 7 offense. 8 On June 1, 2016, Plaintiff was sentenced in his federal criminal case to a 70-month 9 term of imprisonment followed by lifetime supervised release. Smith, CR 14-00052, Doc. 10 73. On July 2, 2018, Plaintiff’s supervised release terms were modified to transfer 11 supervision to the Middle District of Florida, where some of Plaintiff’s family resided. Id., 12 Doc. 80. 13 On May 6, 2019 Plaintiff was informed via a “Detainer Action Letter” that a detainer 14 had been lodged against him by the Mohave County Sheriff’s Office (MCSO) concerning 15 Mohave County Superior Court case# CR 2015-761.4 On May 14, 2019, upon Plaintiff’s 16 release from a federal prison in California, Long Beach Police arrested him on a Mohave 17 County felony fugitive warrant.5 Plaintiff was extradited to Arizona and booked into the 18 Mohave County jail on May 22, 2019. The next day, May 23, 2019, Plaintiff was arraigned 19 in the Mohave County case. Plaintiff was detained until August 2020, when the State 20 dismissed CR 2015-761, without prejudice, after the prosecutor failed to timely seek 21 admission of Rule 404(c)6 evidence, specifically, evidence of Plaintiff’s federal offense 22 and conviction. See Smith, CV 20-08125, Doc. 14 at 4-5. Plaintiff does not indicate 23 3 Plaintiff entered into a plea agreement, which was filed on October 19, 2015. Id., 24 Doc. 51. 25 4 Plaintiff had been indicted on July 2, 2015. Plaintiff states that he was not served with a summons in the case and, as noted above, a detainer was not lodged until shortly 26 before his release from federal incarceration. 27 5 See https://www.bop.gov/inmateloc/, search First Name Joshua, Middle Name Daniel, and Last Name Smith (last accessed Feb. 5, 2021). 28 6 Arizona Rules of Evidence. 1 whether he sought dismissal of the case with prejudice or appealed the dismissal without 2 prejudice. 3 Plaintiff was released from the Mohave County Jail. Forty-five days later, Mohave 4 County prosecutors filed a new case against Plaintiff, CR 2020-924, charging him with the 5 same offense as in the dismissed 2015 case.7 Plaintiff was served with a summons and 6 arraigned in the case on September 24, 2020. See id., Doc. 14 at 1. Although not detained, 7 Plaintiff must remain in Mohave County until the Mohave County case is resolved. 8 Plaintiff indicates that the charge in CR2020-924 remains pending against him and 9 that he faces a possible life sentence. Id., Doc. 14 at 1-2. Plaintiff maintains that he is 10 innocent of the charge. Plaintiff alleges that he is unable to find work as a welder in 11 Mohave County and that having to remain in Mohave County while the case is pending 12 has financially burdened him and members of his family in Florida. 13 In Count I, Plaintiff claims the delay in lodging the Mohave County detainer until 14 shortly before his release from federal prison violated his due process rights. He alleges 15 that “all [the job] certifications [he] obtained in [federal] prison expired as a result.”8 He 16 also asserts the delay in lodging the detainer has impeded his ability to obtain “time- 17 sensitive, exonerating evidence[.]” 18 In Count II, Plaintiff alleges that but for the delay in lodging the Mohave County 19 detainer, cited in Count I, a physician could have obtained exculpatory physical evidence 20 that would have shown Plaintiff’s innocence, which is unavailable now. He further notes 21 that he was convicted in his federal case one year after the date of the charged offense in 22 Mohave County. He claims that the evidence against him in the current Mohave County 23 case is based solely on his federal conviction and hearsay. Plaintiff claims that if the parties 24 involved had “followed proper protocol and the law,” he would not have been subject to 25 pretrial detention for a year in the Mohave County Jail or, presumably, forced to remain in 26 7 The docket for this, and the earlier 2015 case, are not available online. 27 8 Plaintiff appears to refer to certifications he received in federal prison in 28 preparation to seek employment upon his release. Plaintiff states that he will have to pay to renew the certifications because of the delay in resolving his Mohave County case. 1 Mohave County pending resolution of the 2020 case. He notes that COVID-19 has further 2 delayed resolution of the Mohave County case and, according to Plaintiff, he will be 3 prejudiced by having to wear a mask during the trial and by being tried virtually or via 4 video. 5 III. Failure to State a Claim 6 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 7 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 8 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 9 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 10 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 11 as a result of the conduct of a particular defendant and he must allege an affirmative link 12 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 13 72, 377 (1976). 14 There is no respondeat superior liability under § 1983 and, therefore, a defendant’s 15 position as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights 16 does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Hamilton 17 v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th 18 Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a 19 plaintiff must plead that each Government-official defendant, through the official’s own 20 individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 21 A. Defendants Mosby and Schuster 22 Plaintiff names Kingman Police Detective Mosby and Mohave County Sheriff 23 Schuster as Defendants. As to Mosby, Plaintiff merely alleges that Mosby interviewed him 24 while he was in federal pretrial custody in Nevada. Plaintiff fails to allege facts to support 25 that Mosby in any way violated his constitutional rights. Accordingly, Mosby will be 26 dismissed. 27 Plaintiff fails to allege any facts against Defendant Schuster to support that he 28 violated Plaintiff’s constitutional rights, including when and how. Plaintiff has not alleged 1 facts to support that Defendant Schuster personally violated Plaintiff’s constitutional or 2 federal statutory rights, was aware of such violations and failed to act, or formed policies 3 that resulted in such violations. Accordingly, Plaintiff fails to state a claim against 4 Schuster, and he will also be dismissed. 5 B. Defendant McPhillips 6 Plaintiff also sues Deputy Mohave County Attorney McPhillips in connection with 7 Plaintiff’s prosecution in the 2015 and the 2020 cases. Prosecutors are absolutely immune 8 from liability under § 1983 for their conduct in “initiating a prosecution and in presenting 9 the State’s case” insofar as that conduct is “intimately associated with the judicial phase of 10 the criminal process.” Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (citing Imbler v. 11 Pachtman, 424 U.S. 409, 430 (1976)); Burns v. Reed, 500 U.S. 478, 486 (1991); Ashelman 12 v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986). Immunity extends to prosecutors for 13 “eliciting false or defamatory testimony from witnesses or for making false or defamatory 14 statements during, and related to judicial proceedings.” Buckley, 509 U.S. at 270 (citations 15 omitted); Broam v. Bogan, 320 F.3d 1023, 1029-30 (9th Cir. 2003) (prosecutor absolutely 16 immune from liability for failing to investigate accusations before filing charges and for 17 knowing use of false testimony at trial). 18 Plaintiff’s allegations against McPhillips are solely based on his actions in 19 prosecuting Plaintiff. As stated above, McPhillips is entitled to absolute prosecutorial 20 immunity for such acts. Accordingly, McPhillips will be dismissed. 21 C. Defendant “Sheriff, Co. Atty., Det., Ispd, et all” 22 Plaintiff names as a defendant, “Sheriff, Co. Atty., Det., Ispd, et all,” whom Plaintiff 23 describes as working “at the Board of Supervisors.” Although unclear, it appears that 24 Plaintiff is attempting to sue the Mohave County Board of Supervisors. 25 Municipalities and other local governing bodies are included among those “persons” 26 who may be sued under § 1983. Monell, 436 U.S. at 690-91. Likewise, an Arizona county 27 can be sued through its board of supervisors. Ariz. Rev. Stat. § 11-201(a)(1). However, a 28 municipality may not be sued solely because an injury was inflicted by its employees or 1 agents. Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). The actions of 2 individuals may support municipal liability only if the employees were acting pursuant to 3 an official policy or custom of the municipality. Botello v. Gammick, 413 F.3d 971, 978- 4 79 (9th Cir. 2005). Thus, a § 1983 claim against a municipal defendant “cannot succeed 5 as a matter of law” unless a plaintiff: (1) alleges the municipal defendant maintains a policy 6 or custom pertinent to the plaintiff’s alleged injury; and (2) explains how such policy or 7 custom caused the plaintiff’s injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 8 2006) (affirming dismissal of a municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)). 9 Plaintiff has failed to allege facts to support that Defendant Mohave County Board 10 of Supervisors maintained a specific policy or custom that resulted in a violation of his 11 federal constitutional or statutory rights and has failed to explain how his injuries were 12 caused by any municipal policy or custom. Accordingly, this Defendant will be dismissed. 13 D. Interstate Agreement on Detainers Act 14 It appears that Plaintiff may be attempting assert a violation of the Interstate 15 Agreement on Detainers Act (IADA). The IADA is “an interstate compact entered into by 16 48 states, the United States, and the District of Columbia” that “creates uniform procedures 17 for lodging and executing a detainer by one State against a prisoner held in another.” 18 United States v. Lualemaga, 280 F.3d 1260, 1262 (9th Cir. 2002). The United States and 19 Arizona are parties to the IADA. See 18 U.S.C. App. 2; State v. Galvez, 150 P.3d 241, 242 20 (Ariz. Ct. App. 2006). 21 Under Article III(a) of the IADA, when a criminal justice agency in one party-state 22 lodges a detainer concerning an indictment, information, or criminal complaint pending 23 against a prisoner serving a sentence in a different party-state, the prisoner must be brought 24 to trial within 180 days after the prisoner “shall have caused to be delivered to the 25 prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction 26 written notice” of where the prisoner is incarcerated and the prisoner’s request for a final 27 disposition of the pending indictment, information, or criminal complaint. Id., Art. III(a). 28 Thus, before a prisoner can invoke Article III(a) to request a final disposition of a pending 1 indictment, information, or criminal complaint, the prosecuting officer in the state where 2 the indictment, information, or complaint is pending must first have lodged a detainer 3 against the prisoner in a different party-state where the prisoner is serving a sentence. 4 However, the IADA does not require a criminal justice agency or prosecutor in one party- 5 state to lodge a detainer concerning a pending indictment, information or complaint against 6 a prisoner serving a sentence in a different party-state.9 For that reason, Plaintiff fails to 7 state a claim for violation of the IADA. 8 E. Due Process 9 Plaintiff also asserts the denial of due process. Generally, statutes of limitation are 10 the primary guarantee against the bringing of overly stale criminal charges. United States 11 v. Lovasco, 431 U.S. 783, 788-89 (1977) (internal citation and punctuation omitted). Proof 12 of prejudice to the defendant is a necessary, but not alone a sufficient element of a due 13 process claim. Id. at 790. Due process is only implicated when compelling a defendant to 14 stand trial after the government delayed indictment violates “‘fundamental conceptions of 15 justice which lie at the base of our civil and political institutions’ and which define ‘the 16 community’s sense of fair play and decency.’” Id. (citations omitted). As described in 17 Pena v. Paramo, No. CV 16-2076, 2017 WL 2676539, at *5 (C.D. Cal. May 31, 2017) 18 (Report & Recommendation), 19 The Ninth Circuit has articulated the standard as a two-prong test requiring (1) a showing of actual, non-speculative prejudice from the delay; and (2) a 20 showing that “the delay, when balanced against the prosecution’s reasons for 21 it, offends those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions.’” United States v. Sherlock, 962 F.2d 22 1349, 1353-54 (9th Cir. 1989) (citing Lovasco, 431 U.S. at 789). 23 “Generalized assertions of the loss of memory, witnesses, or evidence are 24 insufficient to establish actual prejudice.” United States v. Corona-Verbera, 509 F.3d 25 26 9 Plaintiff did not begin serving his federal sentence until June 2016. Thus, even if 27 a detainer had been lodged prior to June 2016, Plaintiff could not have invoked the IADA before June 2016 because he was not serving a sentence in another party-state until then. 28 Nor is it clear from Plaintiff’s allegations whether exculpatory evidence would have then been obtainable. Plaintiff fails to describe the evidence. 1 1105, 1112 (9th Cir. 2007) (citation omitted). A defendant must show both that lost 2 testimony, witnesses, or evidence “meaningfully has impaired his ability to defend 3 himself” and “[t]he proof must demonstrate by definite and non-speculative evidence how 4 the loss of a witness or evidence is prejudicial to [his] case.” Id. (quoting United States v. 5 Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992)). 6 Assuming that damages may be sought for violation of due process stemming from 7 pre-indictment delay, Plaintiff fails to allege facts to support that any such delay prior to 8 his indictment in 2015 or reindicting him in 2020 actually prejudiced him and violated 9 fundamental conceptions of justice and the community’s sense of fair play and decency. 10 Accordingly, Plaintiff fails to allege facts to state a claim for violation of due process. 11 F. Speedy Trial 12 Plaintiff may also be attempting to assert a violation of the Speedy Trial Clause. 13 The Speedy Trial Clause of the Sixth Amendment guarantees that “[i]n all criminal 14 prosecutions, the accused shall enjoy the right to a speedy . . . trial,” U.S. Const. amend 15 VI. “[I]t is either formal indictment or information or else the actual restraints imposed by 16 arrest and holding to answer a criminal charge that engage the particular protections of the 17 speedy trial provision of the Sixth Amendment.” United States v. Marion, 404 U.S. 307, 18 320 (1971); see United States v. MacDonald, 456 U.S. 1, 6 (1982). The Speedy Trial 19 Clause does not apply when “no charges are outstanding” against the defendant, including 20 any period during which charges are dismissed by the prosecution before later reinstating 21 them. See MacDonald, 456 U.S. at 7-9. “[T]he Speedy Trial Clause has no application 22 after the Government, acting in good faith, formally drops charges. Any undue delay after 23 charges are dismissed, like any delay before charges are filed, must be scrutinized under 24 the Due Process Clause, not the Speedy Trial Clause.” Id. at 7. 25 Plaintiff complains of the delay between his indictment in 2015 and his arrest on the 26 charge, or notice of the charge, which he alleges prejudiced his defense. As discussed 27 above, the prosecutor was not required to lodge a detainer against Plaintiff or otherwise 28 1 notify him of the pendency of the charge.10 To the extent that Plaintiff may be attempting 2 to assert a violation of speedy trial rights as to the 2015 case, Plaintiff fails to state a claim 3 because that case has been dismissed.11 To the extent that Plaintiff may be attempting to 4 assert a violation of speedy trial rights as to the 2020 case, Plaintiff must first present that 5 claim in state court, and if unsuccessful, then seek review in state appellate courts.12 6 Plaintiff also complains that his trial in the 2020 case is being delayed due to the 7 COVID-19 pandemic and that when he eventually goes to trial, he will be forced to wear a 8 mask, which will prejudice him. At this juncture, Plaintiff’s concerns are speculative. In 9 any event, Plaintiff should raise these issues in the state trial court if he believes he will be 10 prejudiced. For the reasons discussed, Plaintiff fails to state a speedy trial claim. 11 IV. Leave to Amend 12 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 13 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 14 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 15 16 10 Further, the provisions of the IADA would only have applied if a detainer had been lodged after Plaintiff began serving his federal sentence. 17 11 Further, Plaintiff does not allege that he either objected to the dismissal of that 18 case without prejudice or appealed the dismissal without prejudice to the Arizona Court of Appeals. Cf. Huntsman v. Blades, No. 1:15cv00057, 2016 WL 755610, at *1 (D. Ida. Feb. 19 25, 2016) (state court of appeals held it lacked jurisdiction to review speedy trial claim based on dismissal and re-filing of charges where petitioner failed to appeal the dismissal 20 without prejudice). 21 12 The abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents a federal court in most circumstances from directly interfering with ongoing 22 criminal proceedings in state court and applies while the case works its way through the state appellate process. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 23 491 U.S. 350, 369 (1989) (“[f]or Younger purposes, the State’s trial-and-appeals process is treated as a unitary system”); Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) 24 (“Virtually all of the evils at which Younger is directed would inhere in federal intervention prior to completion of state appellate proceedings, just as surely as they would if such 25 intervention occurred at or before trial.”). “[O]nly in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until 26 after the jury comes in, judgment has been appealed from and the case concluded in the state courts.” Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (per curiam). Special 27 circumstances occur “[o]nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other 28 extraordinary circumstances where irreparable injury can be shown.” Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980) (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)). 1 Plaintiff a court-approved form to use for filing a first amended complaint. Although 2 Plaintiff is not in custody, the Court recommends that he use the court-approved form to 3 assist him in coherently presenting his claims. 4 Plaintiff must clearly designate on the face of the document that it is the “First 5 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 6 entirety on the court-approved form and may not incorporate any part of the original 7 Complaint by reference. Plaintiff may include only one claim per count. 8 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 9 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 10 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 11 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 12 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 13 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 14 F.3d 896, 928 (9th Cir. 2012) (en banc). 15 V. Warnings 16 A. Address Changes 17 Plaintiff must file and serve a notice of a change of address in accordance with Rule 18 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 19 relief with a notice of change of address. Failure to comply may result in dismissal of this 20 action. 21 B. Possible Dismissal 22 If Plaintiff fails to timely comply with every provision of this Order, including these 23 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 24 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 25 the Court). 26 IT IS ORDERED: 27 (1) Plaintiff’s non-prisoner Application to Proceed in District Court Without 28 Prepaying Fees or Costs is (Doc. 11) is granted. 1 (2) |The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 2| has 30 days from the date this Order is filed to file a first amended complaint in compliance 3| with this Order. 4 (3) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 5 | Court must, without further notice, enter a judgment of dismissal of this action without 6| prejudice and deny any pending unrelated motions as moot. 7 (4) The Clerk of Court must mail Plaintiff a court-approved form for filing a 8 | civil rights complaint by a prisoner. 9 Dated this 25th day of February, 2021. 10 Wicked T. diburde Michael T. Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Instructions for a Prisoner Filing a Civil Rights Complaint in the United States District Court for the District of Arizona 1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated persons prepare a complaint seeking relief for a violation of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement. This form should not be used to challenge your conviction or sentence. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. ' 2254 for a writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment. 2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law. 3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury. 4. The Filing and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing fee plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may request leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. ' 1915” for additional instructions. 5. Original and Judge=s Copy. You must send an original plus one copy of your complaint and of any other documents submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing. 6. Where to File. You should file your complaint in the division where you were confined when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson Division. Mail the original and one copy of the complaint with the $400 filing and administrative fees or the application to proceed in forma pauperis to: Revised 3/11/16 1 Phoenix & Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010 7. Change of Address. You must immediately notify the Court and the defendants in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case. 8. Certificate of Service. You must furnish the defendants with a copy of any document you submit to the Court (except the initial complaint and application to proceed in forma pauperis). Each original document (except the initial complaint and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing. A certificate of service should be in the following form: I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: Attorney for Defendant(s) (Signature) 9. Amended Complaint. If you need to change any of the information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the court-approved civil rights complaint form. You may file one amended complaint without leave (permission) of Court within 21 days after serving it or within 21 days after any defendant has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, you must file a motion for leave to amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants not included in the amended complaint are considered dismissed. All amended complaints are subject to screening under the Prison Litigation Reform Act; screening your amendment will take additional processing time. 10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead, the relevant information should be paraphrased. You should keep the exhibits to use to support or oppose a motion to dismiss, a motion for summary judgment, or at trial. 11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion. 12. Completing the Civil Rights Complaint Form. HEADING: 1. Your Name. Print your name, prison or inmate number, and institutional mailing address on the lines provided. 2. Defendants. If there are four or fewer defendants, print the name of each. If you name more than four defendants, print the name of the first defendant on the first line, write the words “and others” on the second line, and attach an additional page listing the names of all of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom. 3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may result in the loss of the right to a jury trial. A jury trial is not available if you are seeking only injunctive relief. Part A. JURISDICTION: 1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. ' 1983 for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for federal defendants; or “other.” If you mark “other,” identify the source of that authority. 2. Location. Identify the institution and city where the alleged violation of your rights occurred. 3. Defendants. Print all of the requested information about each of the defendants in the spaces provided. If you are naming more than four defendants, you must provide the necessary information about each additional defendant on separate pages labeled “2-A,” “2-B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2. Part B. PREVIOUS LAWSUITS: You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the page and insert the additional page(s) immediately behind page 2. Part C. CAUSE OF ACTION: You must identify what rights each defendant violated. The form provides space to allege three separate counts (one violation per count). If you are alleging more than three counts, you must provide the necessary information about each additional count on a separate page. Number the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that you are limited to a total of fifteen additional pages. 1. Counts. You must identify which civil right was violated. You may allege the violation of only one civil right per count. 2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. You may check only one box per count. If you check the box marked “Other,” you must identify the specific issue involved. 3. Supporting Facts. After you have identified which civil right was violated, you must state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you must identify which defendant did what act. You also should state the date(s) on which the act(s) occurred, if possible. 4. Injury. State precisely how you were injured by the alleged violation of your rights. 5. Administrative Remedies. You must exhaust any available administrative remedies before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should disclose whether you have exhausted the inmate grievance procedures or administrative appeals for each count in your complaint. If the grievance procedures were not available for any of your counts, fully explain why on the lines provided. Part D. REQUEST FOR RELIEF: Print the relief you are seeking in the space provided. SIGNATURE: You must sign your name and print the date you signed the complaint. Failure to sign the complaint will delay the processing of your action. Unless you are an attorney, you may not bring an action on behalf of anyone but yourself. FINAL NOTE You should follow these instructions carefully. Failure to do so may result in your complaint being stricken or dismissed. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number the pages. 4 ___________________________________________ Name and Prisoner/Booking Number ___________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code (Failure to notify the Court of your change of address may result in dismissal of this action.) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________________________________ , (Full Name of Plaintiff) ) Plaintiff, v. CASE NO. __________________________________ (To be supplied by the Clerk) (1) _______________________________________ , (Full Name of Defendant) CIVIL RIGHTS COMPLAINT (2) _______________________________________ , BY A PRISONER (3) _______________________________________ , G Original Complaint (4) _______________________________________ , G First Amended Complaint G Second Amended Complaint Defendant(s). G Check if there are additional Defendants and attach page 1-A listing them. A. JURISDICTION 1. This Court has jurisdiction over this action pursuant to: G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983 G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). G Other: . 2. Institution/city where violation occurred: . 550/555 B. DEFENDANTS 1. Name of first Defendant: . The first Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution) 2. Name of second Defendant: . The second Defendant is employed as: as: ______________________________________________ at_______________________________________. (Position and Title) (Institution) 3. Name of third Defendant: . The third Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution) 4. Name of fourth Defendant: . The fourth Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution) If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page. C. PREVIOUS LAWSUITS 1. Have you filed any other lawsuits while you were a prisoner? G Yes G No 2. If yes, how many lawsuits have you filed? . Describe the previous lawsuits: a. First prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . b. Second prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . c. Third prior lawsuit: 1. Parties: v. 2. Court and case number: . 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page. 2 D. CAUSE OF ACTION COUNT I 1. State the constitutional or other federal civil right that was violated: . 2. Count I. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: . 3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. . 4. Injury. State how you were injured by the actions or inactions of the Defendant(s). . 5. Administrative Remedies: a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count I? G Yes G No c. Did you appeal your request for relief on Count I to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . COUNT II 1. State the constitutional or other federal civil right that was violated: . 2. Count II. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: . 3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. . 4. Injury. State how you were injured by the actions or inactions of the Defendant(s). . 5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count II? G Yes G No c. Did you appeal your request for relief on Count II to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . COUNT III 1. State the constitutional or other federal civil right that was violated: . 2. Count III. Identify the issue involved. Check only one. State additional issues in separate counts. G Basic necessities G Mail G Access to the court G Medical care G Disciplinary proceedings G Property G Exercise of religion G Retaliation G Excessive force by an officer G Threat to safety G Other: . 3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. . 4. Injury. State how you were injured by the actions or inactions of the Defendant(s). . 5. Administrative Remedies. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? G Yes G No b. Did you submit a request for administrative relief on Count III? G Yes G No c. Did you appeal your request for relief on Count III to the highest level? G Yes G No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. . If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page. E. REQUEST FOR RELIEF State the relief you are seeking: . I declare under penalty of perjury that the foregoing is true and correct. Executed on DATE SIGNATURE OF PLAINTIFF ___________________________________________ (Name and title of paralegal, legal assistant, or other person who helped prepare this complaint) ___________________________________________ (Signature of attorney, if any) ___________________________________________ (Attorney=s address & telephone number) ADDITIONAL PAGES All questions must be answered concisely in the proper space on the form. If you need more space, you may attach no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the complaint is being continued and number all pages.