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 filed a non-prisoner Application to Proceed in District Court Without 12 Prepaying Fees or Costs, which was granted. The Court dismissed the Complaint with 13 leave to amend. Plaintiff has filed a First Amended Complaint (Doc. 13). The Court will 14 dismiss the First Amended Complaint with leave to amend. 15 I. Statutory Screening of In Forma Pauperis Complaints 16 Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted 17 in forma pauperis status, the Court shall dismiss the case “if the court determines that . . . 18 (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may 19 be granted; or (iii) seeks monetary relief against a defendant who is immune from such 20 relief.” 21 A pleading must contain a “short and plain statement of the claim showing that the 22 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 23 not demand detailed factual allegations, “it demands more than an unadorned, the- 24 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 25 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 26 conclusory statements, do not suffice.” Id. 27 28 2 As discussed below, Plaintiff was subsequently charged again in Mohave County Superior Court but is not currently in custody. 1 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 2 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 3 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 4 that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 6 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 8 allegations may be consistent with a constitutional claim, a court must assess whether there 9 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 10 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 11 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 12 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 13 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 14 U.S. 89, 94 (2007) (per curiam)). 15 If the Court determines that a pleading could be cured by the allegation of other 16 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 17 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 18 Plaintiff’s First Amended Complaint will be dismissed for failure to state a claim, but 19 because it may possibly be amended to state a claim, the Court will dismiss it with leave 20 to amend. 21 II. First Amended Complaint 22 In his one-count First Amended Complaint, Plaintiff alleges a violation of due 23 process. Plaintiff sues Kingman Police Detective Heath Mosby and Deputy Mohave 24 County Attorney Jacob Cote. Plaintiff seeks compensatory and punitive relief. 25 The following background is relevant to Plaintiff’s claim: 26 From April 16, 2014 until June 2016, Plaintiff was a federal pretrial detainee 27 confined in the Southern Nevada Detention Center in Pahrump, Nevada. See United States 28 1 v. Smith, CR 14-00052 (D. Nev. Apr. 17, 2014), Docs. 21, 26, 27.3 On March 24, 2015, 2 Kingman Police Detective Heath Mosby interviewed Plaintiff in Pahrump in connection 3 with a criminal investigation of an offense committed in Mohave County, Arizona. 4 Plaintiff was not contacted further about that investigation or offense during the pendency 5 of his federal criminal case. On June 1, 2016, Plaintiff was sentenced in his federal criminal 6 case to a 70-month term of imprisonment followed by lifetime supervised release. Smith, 7 CR 14-00052, Doc. 73. On July 2, 2018, Plaintiff’s supervised release terms were modified 8 to transfer supervision to the Middle District of Florida, where Plaintiff had family. Id., 9 Doc. 80. 10 On May 6, 2019, shortly before the expiration of Plaintiff’s federal criminal 11 sentence, Plaintiff received a “Detainer Action Letter” informing him that a detainer had 12 been lodged against him by the Mohave County Sheriff’s Office (MCSO) concerning 13 Mohave County Superior Court case# CR 2015-761.4 On May 14, 2019, upon Plaintiff’s 14 release from a federal prison in California, Long Beach Police arrested him on a Mohave 15 County felony fugitive warrant.5 Plaintiff was extradited to Arizona and booked into the 16 Mohave County jail on May 22, 2019. The next day, May 23, 2019, Plaintiff was arraigned 17 in the Mohave County case. Plaintiff was detained until August 2020, when Deputy 18 County Attorney Cote dismissed CR 2015-761, without prejudice, after having failed to 19 timely seek admission of Rule 404(c)6 evidence, specifically, evidence of Plaintiff’s federal 20 offense and conviction. See Smith, CV 20-08125, Doc. 14 at 4-5. Plaintiff does not 21 indicate whether he sought dismissal of the case with prejudice or appealed the dismissal 22 without prejudice. 23 24 3 Plaintiff entered into a plea agreement, which was filed on October 19, 2015. Id., Doc. 51. 25 4 Plaintiff had been indicted on July 2, 2015. As noted above, a detainer was not 26 lodged until shortly before Plaintiff’s 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 Plaintiff was released from the Mohave County Jail. Forty-five days later, Deputy 2 Mohave County Attorney filed a new case against Plaintiff, CR 2020-924, charging him 3 with the same offense as in the dismissed 2015 case.7 Plaintiff was served with a summons 4 and arraigned in the case on September 24, 2020. See id., Doc. 14 at 1. Although not 5 detained, Plaintiff was ordered to remain in Mohave County until the Mohave County case 6 is resolved. On October 30, 2020, Plaintiff’s criminal defense counsel filed a special action 7 in the Arizona Court of Appeals, case# 1 CA-SA 2020-0228; the Arizona Court of Appeals 8 stayed further proceedings in Plaintiff’s Mohave County criminal case pending resolution 9 of the special action.8 The Arizona Court of Appeals set a briefing schedule and invited 10 participation by amicus curiae; the case is under advisement.9 11 Plaintiff alleges that Mosby failed to inform him of charges pending in Mohave 12 County against him. Plaintiff further claims that Mosby’s failure to inform him of the 13 charges prevented Plaintiff from submitting an Interstate Agreement on Detainers Act 14 (IADA) demand. Plaintiff claims that both Mosby and the Mohave County Attorney’s 15 Office chose to await the outcome of Plaintiff’s federal proceedings so that if he was 16 convicted in his federal case, the federal conviction could be used as Rule 404(c) evidence 17 in Plaintiff’s Mohave County case. Plaintiff contends that Defendant Cote’s dismissal of 18 Mohave County Superior Court case, CR 2015-0761, without prejudice, after the Mohave 19 County Superior Court denied Cote’s motion for extension of time to seek admission of 20 Rule 404(c) evidence, and the subsequent filing of a new case, CR 2020-0924, on the same 21 charge as in the 2015 case, allowed Cote to seek admission of Rule 404(c) evidence in the 22 new case. Plaintiff contends Mosby and Cote violated his due process rights. 23 Plaintiff seemingly claims the delay in lodging the Mohave County detainer until 24 shortly before his release from federal prison violated his due process rights. Plaintiff 25 26 7 The docket for this, and the earlier 2015 case, are not available online. 27 8 See http://apps.supremecourt.az.gov/aacc/appella/1CA/SA/SA200228.pdf (last accessed Apr. 27, 2021). 28 9 See n.8, infra. 1 contends that but for the delay in informing him of the Mohave County charge, evidence 2 could have been obtained by a physician from the alleged victim, which would have 3 exonerated Plaintiff. 4 III. Failure to State a Claim 5 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 6 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 7 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 8 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 9 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 10 as a result of the conduct of a particular defendant and he must allege an affirmative link 11 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 12 72, 377 (1976). 13 A. Defendant Mosby 14 Plaintiff alleges that Mosby failed to inform him that charges had been filed against 15 him when Mosby interviewed Plaintiff while he was in federal pretrial custody in Nevada. 16 Plaintiff fails to allege facts to support that Mosby in any way violated his constitutional 17 rights. Accordingly, Mosby will be dismissed. 18 B. Defendant Cote 19 Plaintiff also sues Deputy Mohave County Attorney Cote in connection with 20 Plaintiff’s prosecution in the 2015 and the 2020 cases. Prosecutors are absolutely immune 21 from liability under § 1983 for their conduct in “initiating a prosecution and in presenting 22 the State’s case” insofar as that conduct is “intimately associated with the judicial phase of 23 the criminal process.” Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (citing Imbler v. 24 Pachtman, 424 U.S. 409, 430 (1976)); Burns v. Reed, 500 U.S. 478, 486 (1991); Ashelman 25 v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986). Immunity extends to prosecutors for 26 “eliciting false or defamatory testimony from witnesses or for making false or defamatory 27 statements during, and related to judicial proceedings.” Buckley, 509 U.S. at 270 (citations 28 omitted); Broam v. Bogan, 320 F.3d 1023, 1029-30 (9th Cir. 2003) (prosecutor absolutely 1 immune from liability for failing to investigate accusations before filing charges and for 2 knowing use of false testimony at trial). 3 Plaintiff’s allegations against Cote are solely based on his actions in prosecuting 4 Plaintiff. As described above, Cote is entitled to absolute prosecutorial immunity for such 5 acts. Accordingly, Cote will be dismissed. 6 C. Interstate Agreement on Detainers Act 7 Plaintiff alleges that the failure of Mosby or other Mohave County officials to notify 8 him of the pendency of the Mohave County charges until shortly before Plaintiff’s release 9 from federal prison prevented him from submitting a demand for speedy trial on the 10 charges under the IADA. The IADA is “an interstate compact entered into by 48 states, 11 the United States, and the District of Columbia” that “creates uniform procedures for 12 lodging and executing a detainer by one State against a prisoner held in another.” United 13 States v. Lualemaga, 280 F.3d 1260, 1262 (9th Cir. 2002). The United States and Arizona 14 are parties to the IADA. See 18 U.S.C. App. 2; State v. Galvez, 150 P.3d 241, 242 (Ariz. 15 Ct. App. 2006). 16 Under Article III(a) of the IADA, when a criminal justice agency in one party-state 17 lodges a detainer concerning an indictment, information, or criminal complaint pending 18 against a prisoner serving a sentence in a different party-state, the prisoner must be brought 19 to trial within 180 days after the prisoner “shall have caused to be delivered to the 20 prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction 21 written notice” of where the prisoner is incarcerated and the prisoner’s request for a final 22 disposition of the pending indictment, information, or criminal complaint. Id., Art. III(a). 23 Thus, before a prisoner can invoke Article III(a) to request a final disposition of a pending 24 indictment, information, or criminal complaint, the prosecuting officer in the state where 25 the indictment, information, or complaint is pending must first have lodged a detainer 26 against the prisoner in a different party-state where the prisoner is serving a sentence. As 27 the Court previously informed Plaintiff, the IADA does not require a criminal justice 28 agency or prosecutor in one party-state to lodge a detainer concerning a pending 1 indictment, information or complaint against a prisoner serving a sentence in a different 2 party-state.10 In short, Mohave County officials were not required to lodge a detainer 3 against Plaintiff and, unless or until a detainer was lodged against Plaintiff, he could not 4 invoke the provisions of Article III(a) to request a final disposition of the pending Mohave 5 County charge. Therefore, Plaintiff fails to state a claim for violation of the IADA. 6 D. Due Process 7 Plaintiff also asserts the denial of due process. Generally, statutes of limitation are 8 the primary guarantee against the bringing of overly stale criminal charges. United States 9 v. Lovasco, 431 U.S. 783, 788-89 (1977) (internal citation and punctuation omitted). Proof 10 of prejudice to the defendant is a necessary, but not alone a sufficient element of a due 11 process claim. Id. at 790. Due process is only implicated when compelling a defendant to 12 stand trial after the government delayed indictment violates “‘fundamental conceptions of 13 justice which lie at the base of our civil and political institutions’ and which define ‘the 14 community’s sense of fair play and decency.’” Id. (citations omitted). As described in 15 Pena v. Paramo, No. CV 16-2076, 2017 WL 2676539, at *5 (C.D. Cal. May 31, 2017) 16 (Report & Recommendation), 17 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 18 showing that “the delay, when balanced against the prosecution’s reasons for 19 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 20 1349, 1353-54 (9th Cir. 1989) (citing Lovasco, 431 U.S. at 789). 21 “Generalized assertions of the loss of memory, witnesses, or evidence are 22 insufficient to establish actual prejudice.” United States v. Corona-Verbera, 509 F.3d 23 1105, 1112 (9th Cir. 2007) (citation omitted). A defendant must show both that lost 24 testimony, witnesses, or evidence “meaningfully has impaired his ability to defend 25 26 10 Plaintiff did not begin serving his federal sentence until June 2016. Thus, even 27 if 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 himself” and “[t]he proof must demonstrate by definite and non-speculative evidence how 2 the loss of a witness or evidence is prejudicial to [his] case.” Id. (quoting United States v. 3 Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992)). 4 Moreover, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 5 (1971), prevents a federal court in most circumstances from directly interfering with 6 ongoing criminal proceedings in state court and applies while the case works its way 7 through the state appellate process. New Orleans Pub. Serv., Inc. v. Council of City of New 8 Orleans, 491 U.S. 350, 369 (1989) (“[f]or Younger purposes, the State’s trial-and-appeals 9 process is treated as a unitary system”); Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) 10 (“Virtually all of the evils at which Younger is directed would inhere in federal intervention 11 prior to completion of state appellate proceedings, just as surely as they would if such 12 intervention occurred at or before trial.”). “[O]nly in the most unusual circumstances is a 13 defendant entitled to have federal interposition by way of injunction or habeas corpus until 14 after the jury comes in, judgment has been appealed from and the case concluded in the 15 state courts.” Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (per curiam). Special 16 circumstances occur “[o]nly in cases of proven harassment or prosecutions undertaken by 17 state officials in bad faith without hope of obtaining a valid conviction and perhaps in other 18 extraordinary circumstances where irreparable injury can be shown.” Carden v. Montana, 19 626 F.2d 82, 84 (9th Cir. 1980) (quoting Perez v. Ledesma, 401 U.S. 82, 85 20 (1971)).Assuming that damages may be sought for violation of due process stemming from 21 pre-indictment delay, Plaintiff fails to allege facts to support that any such delay prior to 22 his indictment in 2015 or reindictment in 2020 actually prejudiced him and violated 23 fundamental conceptions of justice and the community’s sense of fair play and decency. 24 Accordingly, Plaintiff fails to allege facts to state a claim for violation of due process. 25 E. Speedy Trial 26 Plaintiff may also be attempting to assert a violation of the Speedy Trial Clause. 27 The Speedy Trial Clause of the Sixth Amendment guarantees that “[i]n all criminal 28 prosecutions, the accused shall enjoy the right to a speedy . . . trial,” U.S. Const. amend 1 VI. “[I]t is either formal indictment or information or else the actual restraints imposed by 2 arrest and holding to answer a criminal charge that engage the particular protections of the 3 speedy trial provision of the Sixth Amendment.” United States v. Marion, 404 U.S. 307, 4 320 (1971); see United States v. MacDonald, 456 U.S. 1, 6 (1982). The Speedy Trial 5 Clause does not apply when “no charges are outstanding” against the defendant, including 6 any period during which charges are dismissed by the prosecution before later reinstating 7 them. See MacDonald, 456 U.S. at 7-9. “[T]he Speedy Trial Clause has no application 8 after the Government, acting in good faith, formally drops charges. Any undue delay after 9 charges are dismissed, like any delay before charges are filed, must be scrutinized under 10 the Due Process Clause, not the Speedy Trial Clause.” Id. at 7. 11 Plaintiff complains of the delay between his indictment in 2015 and his arrest on the 12 charge, or notice of the charge, which he alleges prejudiced his defense. As discussed 13 above, the prosecutor was not required to lodge a detainer against Plaintiff or otherwise 14 notify him of the pendency of the charge.11 To the extent that Plaintiff may be attempting 15 to assert a violation of speedy trial rights as to the 2015 case, Plaintiff fails to state a claim 16 because that case has been dismissed.12 To the extent that Plaintiff may be attempting to 17 assert a violation of speedy trial rights as to the 2020 case, Plaintiff must present that claim 18 to the state court, and if unsuccessful, seek review in state appellate courts. 19 IV. Leave to Amend 20 For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed 21 for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may 22 submit a second amended complaint to cure the deficiencies outlined above. The Clerk of 23 Court will mail Plaintiff a court-approved form to use for filing a second amended 24 11 Further, the provisions of the IADA would only have applied if a detainer had 25 been lodged after Plaintiff began serving his federal sentence. 26 12 Further, Plaintiff does not allege that he either objected to the dismissal of that case without prejudice or appealed the dismissal without prejudice to the Arizona Court of 27 Appeals. Cf. Huntsman v. Blades, No. 1:15cv00057, 2016 WL 755610, at *1 (D. Ida. Feb. 25, 2016) (state court of appeals held it lacked jurisdiction to review speedy trial claim 28 based on dismissal and re-filing of charges where petitioner failed to appeal the dismissal without prejudice). 1 complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second 2 amended complaint and dismiss this action without further notice to Plaintiff. 3 Plaintiff must clearly designate on the face of the document that it is the “Second 4 Amended Complaint.” The second amended complaint must be retyped or rewritten in its 5 entirety on the court-approved form and may not incorporate any part of the original 6 Complaint or First Amended Complaint by reference. Plaintiff may include only one claim 7 per count. 8 A second amended complaint supersedes the original Complaint and First Amended 9 Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. 10 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court 11 will treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 12 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or First 13 Amended Complaint and that was voluntarily dismissed or was dismissed without 14 prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa 15 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 16 V. Warnings 17 A. Release 18 If Plaintiff is released while this case remains pending, and the filing fee has not 19 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 20 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 21 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 22 result in dismissal of this action. 23 B. Address Changes 24 Plaintiff must file and serve a notice of a change of address in accordance with Rule 25 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 26 relief with a notice of change of address. Failure to comply may result in dismissal of this 27 action. 28 . . . . 1 C. Possible “Strike” 2 Because the First Amended Complaint has been dismissed for failure to state a 3 claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies 4 identified in this Order, the dismissal may count as a “strike” under the “3-strikes” 5 provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring 6 a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the 7 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 8 brought an action or appeal in a court of the United States that was dismissed on the 9 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be 10 granted, unless the prisoner is under imminent danger of serious physical injury.” 28 11 U.S.C. § 1915(g). 12 D. Possible Dismissal 13 If Plaintiff fails to timely comply with every provision of this Order, including these 14 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 15 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 16 the Court). 17 IT IS ORDERED: 18 (1) The First Amended Complaint (Doc. 13) is dismissed for failure to state a 19 claim. Plaintiff has 30 days from the date this Order is filed to file a second amended 20 complaint in compliance with this Order. 21 (2) If Plaintiff fails to file a second amended complaint within 30 days, the Clerk 22 of Court must, without further notice, enter a judgment of dismissal of this action with 23 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) 24 and deny any pending unrelated motions as moot. 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 (3) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 3 Dated this 29th day of April, 2021. 4 ° Wichal T. Fburde 6 Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 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 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 $402.00 ($350.00 filing fee plus $52.00 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 $402 filing and administrative fees or the application to proceed in forma pauperis to: 1 Revised 12/1/20 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. 2 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. 3 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. . 3 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. . 4 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. 5 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. 6