Lopez 269685 v. Starns ( 2021 )

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angel Lopez, No. CV 21-00613-PHX-JAT (MTM) 10 Plaintiff, 11 v. ORDER 12 Sergeant Starnes, et al., 13 Defendants. 14 15 On April 8, 2021, Plaintiff Angel Lopez, who is confined in the Arizona State Prison 16 Complex-Eyman in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 17 U.S.C. § 1983 (Doc. 1). In an April 15, 2021 Order, the Court gave Plaintiff thirty days to 18 either pay the administrative and filing fees or file a complete Application to Proceed In 19 Forma Pauperis. 20 On May 21, 2021, Plaintiff filed an Application to Proceed In Forma Pauperis. In 21 a June 3, 2021 Order, the Court denied the deficient Application to Proceed and gave 22 Plaintiff thirty days to either pay the administrative and filing fees or file a complete 23 Application to Proceed In Forma Pauperis. 24 On July 1, 2021, Plaintiff filed a second Application to Proceed In Forma 25 Pauperis (Doc. 9). The Court will grant the second Application to Proceed and will dismiss 26 the Complaint with leave to amend. 27 . . . . 28 . . . . 1 I. Second Application to Proceed In Forma Pauperis and Filing Fee 2 The Court will grant Plaintiff’s second Application to Proceed In Forma Pauperis. 3 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 4 § 1915(b)(1). The Court will assess an initial partial filing fee of $68.81. The remainder 5 of the fee will be collected monthly in payments of 20% of the previous month’s income 6 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 7 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 8 government agency to collect and forward the fees according to the statutory formula. 9 II. Statutory Screening of Prisoner Complaints 10 The Court is required to screen complaints brought by prisoners seeking relief 11 against a governmental entity or an officer or an employee of a governmental entity. 28 12 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 13 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 14 relief may be granted, or that seek monetary relief from a defendant who is immune from 15 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 16 A pleading must contain a “short and plain statement of the claim showing that the 17 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 18 not demand detailed factual allegations, “it demands more than an unadorned, the- 19 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 20 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Id. 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 23 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 24 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 25 that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 27 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 1 allegations may be consistent with a constitutional claim, a court must assess whether there 2 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 3 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 4 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 5 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 6 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 7 U.S. 89, 94 (2007) (per curiam)). 8 If the Court determines that a pleading could be cured by the allegation of other 9 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 10 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 11 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 12 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 13 III. Complaint 14 In his one-count Complaint, Plaintiff seeks monetary damages from Defendants 15 Sergeant Starns, Nurse Practitioner Avant-Ortiz, Corrections Officer Levine, and 16 “W[h]i[]t[e] Shirt” Vernagase. 17 Plaintiff alleges he was subjected to retaliation, in violation of his First, Eighth, and 18 Fourteenth Amendment rights. He contends that on April 13, 2019, he was working in the 19 kitchen and was responsible for getting “another pan full of food and bring[ing] it to the 20 line” when “the line ran out of food.” Plaintiff asserts that when Defendant Vernagase 21 turned to tell him to get another pan of food, the pan she was holding, which contained 22 liquid, fell to the floor. Plaintiff claims he started to grab a mop, but Defendant Vernagase 23 told him that she would clean up the spill and that Plaintiff should get another pan of food. 24 However, when Plaintiff returned, he slipped and fell in the spill Defendant Vernagase had 25 created. Plaintiff asserts Defendant Vernagase yelled, “oh[,] I’m so sorry! I forgot to clean 26 that mess up.” 27 Plaintiff claims he was laying on floor, in pain, and told Defendant Vernagase that 28 he needed to “see medical.” He asserts Defendant Vernagase hurriedly left, returned with 1 Defendant Starns, and told Defendant Starnes that “it was her fault and she did not wish to 2 be in trouble for this.” Plaintiff contends Defendants Starns and Levine helped him up off 3 the floor and sat him down, but when he requested to see medical personnel, Defendant 4 Starnes told him to “sit there and let’s see how you feel in a little while.” 5 Plaintiff alleges that forty-five minutes later, Defendant Levine told him not to 6 worry about the remainder of his shift. He claims he told Defendant Levine that he was 7 “still in bad pain.” Defendant Levine allegedly told him, “Don’t lose your job because of 8 whining.” Plaintiff contends Defendant Levine then got Defendant Starns, who said that 9 Defendant Vernagase “was a good woman, and that he will not stand by[] and allow 10 [Plaintiff] to jeopardize her.” 11 Plaintiff asserts that after he pursued the grievance and medical, and did not “stop[] 12 when told to by” Defendants Starns and Levine, he was “fired and then harassed and 13 retaliated against.” He also claims he suffered a back, knee, and hip injury. 14 IV. Failure to State a Claim 15 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 16 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 17 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 18 civil rights complaint may not supply essential elements of the claim that were not initially 19 pled. Id. 20 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 21 specific injury as a result of specific conduct of a defendant and show an affirmative link 22 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 23 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, 24 a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s 25 constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 26 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 27 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and 28 1 § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 2 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 3 A. Retaliation 4 A viable claim of First Amendment retaliation contains five basic elements: (1) an 5 assertion that a state actor took some adverse action against an inmate (2) because of 6 (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise 7 of his First Amendment rights (or that the inmate suffered more than minimal harm) and 8 (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 9 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 10 1997) (retaliation claim requires an inmate to show (1) that the prison official acted in 11 retaliation for the exercise of a constitutionally protected right, and (2) that the action 12 “advanced no legitimate penological interest”). The plaintiff has the burden of 13 demonstrating that his exercise of his First Amendment rights was a substantial or 14 motivating factor behind the defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. 15 v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 16 (9th Cir. 1989). 17 Although Plaintiff alleges he was fired, retaliated against, and harassed, he does not 18 indicate how he was retaliated against or harassed and does not indicate who fired him, 19 retaliated against him, or harassed him. It is unclear what any particular Defendant did or 20 failed to do. This is insufficient. See Marcilis v. Twp. of Redford, 693 F.3d 589, 596 (6th 21 Cir. 2012) (upholding dismissal of Bivens complaint that referred to all defendants 22 “generally and categorically” because the plaintiff had failed to “‘allege, with particularity, 23 facts that demonstrate what each defendant did to violate the asserted constitutional right.’” 24 (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))); Robbins v. Oklahoma, 25 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s use of either the collective 26 term ‘Defendants’ or a list of the defendants named individually but with no distinction as 27 to what acts are attributable to whom, it is impossible for any of these individuals to 28 1 ascertain what particular unconstitutional acts they are alleged to have committed.”). Thus, 2 the Court will dismiss without prejudice the retaliation claim. 3 B. Defendant Avant-Ortiz 4 Plaintiff has not alleged that Defendant Avant-Ortiz personally participated in a 5 deprivation of Plaintiff’s constitutional rights, was aware of a deprivation and failed to act, 6 or formed policies that resulted in Plaintiff’s injuries. Indeed, Plaintiff has made no 7 allegations at all against Defendant Avant-Ortiz. Thus, the Court will dismiss without 8 prejudice Defendant Avant-Ortiz. 9 C. Defendant Vernagase 10 To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must 11 meet a two-part test. “First, the alleged constitutional deprivation must be, objectively, 12 sufficiently serious” such that the “official’s act or omission must result in the denial of the 13 minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 14 (1994) (internal quotations omitted). Second, the prison official must have a “sufficiently 15 culpable state of mind,” i.e., he must act with “deliberate indifference to inmate health or 16 safety.” Id. (internal quotations omitted). Deliberate indifference is a higher standard than 17 negligence or lack of ordinary due care for the prisoner’s safety. Id. at 835. In defining 18 “deliberate indifference” in this context, the Supreme Court has imposed a subjective test: 19 “the official must both be aware of facts from which the inference could be drawn that a 20 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 21 (emphasis added). 22 Generally, courts have concluded that plaintiffs have failed to state claims when 23 they have fallen in prison. Daniels v. Williams, 474 U.S. 327, 332-33 (1986) (rejecting due 24 process claim by pretrial detainee who slipped and fell when a pillow was negligently left 25 on the stairs by a deputy); LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (“slippery 26 prison floors . . . do not state even an arguable claim for cruel and unusual punishment”) 27 (quoting Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989)); see also Wallace v. 28 Haythorne, 2007 WL 3010755, *4 (E.D. Cal., Oct. 15, 2007) (no triable issue as to 1 deliberate indifference when an inmate fell after tripping on a hole in a kitchen floor; 2 “[e]ven assuming that defendants were aware that a non-prisoner employee had previously 3 tripped,” holes caused by missing tiles did not constitute an excessive risk), adopted by 4 2007 WL 4358230 (E.D. Cal., Dec. 11, 2007), aff’d, 328 Fed. App’x, 467 (9th Cir., June 5 16, 2009). 6 In Osolinski v. Kane, 92 F.3d 934, 935 (9th Cir. 1996), a prisoner alleged an Eighth 7 Amendment violation because maintenance requests had been submitted and prison 8 officials had failed to repair an oven door that ultimately fell off its hinges and burned 9 plaintiff’s arm. The Ninth Circuit Court of Appeals concluded that defendants were 10 entitled to qualified immunity, citing several cases which held that minor safety hazards 11 did not violate the Eighth Amendment. Id. at 938. The Ninth Circuit stated that no case in 12 this circuit established that “a single defective device, without other conditions contributing 13 to the threat to the inmate’s safety, created an objectively insufficiently humane condition 14 violative of the Eighth Amendment.” Id. The Ninth Circuit noted that the plaintiff had 15 “not pled any conditions which rendered him unable to ‘provide for [his] own safety’ in 16 the sense that they precluded him from avoiding the faulty oven door or rendered him 17 unable to perceive its defective condition.” Id. (quoting Hoptowit v. Spellman, 753 F.2d 18 779, 784 (9th Cir. 1985)); cf. Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998) (finding 19 that slippery floors could establish a constitutional claim based on the fact that the plaintiff 20 used crutches and suffered repeated injuries, of which prison officials were aware, caused 21 by a slippery bathroom floor in a bathroom without adequate handicapped shower 22 facilities). 23 Plaintiff’s allegations do not support a conclusion that he was unable to provide for 24 his own safety. And, at best, his allegations suggest Defendant Vernagase may have been 25 negligent. However, deliberate indifference is a higher standard than negligence or lack of 26 ordinary due care for prisoner safety. Farmer, 511 U.S. at 835. Thus, the Court will 27 dismiss without prejudice Defendant Vernagase. 28 . . . . 1 D. Defendants Starns and Levine 2 Not every claim by a prisoner relating to inadequate medical treatment states a 3 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 4 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 5 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 6 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 7 Cir. 2006). 8 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 9 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 10 know of and disregard an excessive risk to inmate health; “the official must both be aware 11 of facts from which the inference could be drawn that a substantial risk of serious harm 12 exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate 13 indifference in the medical context may be shown by a purposeful act or failure to respond 14 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 15 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official 16 intentionally denies, delays, or interferes with medical treatment or by the way prison 17 doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 18 (1976); Jett, 439 F.3d at 1096. 19 Deliberate indifference is a higher standard than negligence or lack of ordinary due 20 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 21 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 22 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 23 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 24 do not support a claim under § 1983). “A difference of opinion does not amount to 25 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 26 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 27 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 28 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 1 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 2 Estelle, 429 U.S. at 105. 3 Plaintiff’s allegation that Defendant Starns told him to “sit there and let’s see how 4 you feel in a little while,” does not support a conclusion that Defendant Starns acted with 5 deliberate indifference to Plaintiff’s health or safety. In addition, Plaintiff alleges that he 6 “pursu[ed] . . . medical,” which suggests that any delay caused by Defendants Starns and 7 Levine was minimal. Moreover, Plaintiff does not allege that the delay caused or 8 exacerbated his injury. Absent more, Plaintiff’s allegations are too vague and conclusory 9 to state a medical care claim against Defendants Starns and Levine. Thus, the Court will 10 dismiss without prejudice Defendants Starns and Levine. 11 V. 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 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 16 to use the court-approved form, the Court may strike the amended complaint and dismiss 17 this action without further notice to Plaintiff. 18 Plaintiff must clearly designate on the face of the document that it is the “First 19 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 20 entirety on the court-approved form and may not incorporate any part of the original 21 Complaint by reference. Plaintiff may include only one claim per count. 22 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 23 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 24 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 25 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 26 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 27 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 28 F.3d 896, 928 (9th Cir. 2012) (en banc). 1 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 2 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 3 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 4 do; (4) how the action or inaction of that Defendant is connected to the violation of 5 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 6 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 7 Plaintiff must repeat this process for each person he names as a Defendant. If 8 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 9 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 10 failure to state a claim. Conclusory allegations that a Defendant or group of 11 Defendants has violated a constitutional right are not acceptable and will be 12 dismissed. 13 VI. Warnings 14 A. Release 15 If Plaintiff is released while this case remains pending, and the filing fee has not 16 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 17 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 18 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 19 result in dismissal of this action. 20 B. Address Changes 21 Plaintiff must file and serve a notice of a change of address in accordance with Rule 22 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 23 relief with a notice of change of address. Failure to comply may result in dismissal of this 24 action. 25 C. Possible “Strike” 26 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 27 fails to file an amended complaint correcting the deficiencies identified in this Order, the 28 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 1 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 2 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 3 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 4 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 5 or fails to state a claim upon which relief may be granted, unless the prisoner is under 6 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 7 D. Possible Dismissal 8 If Plaintiff fails to timely comply with every provision of this Order, including these 9 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 10 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 11 the Court). 12 IT IS ORDERED: 13 (1) Plaintiff’s second Application to Proceed In Forma Pauperis (Doc. 9) is 14 granted. 15 (2) As required by the accompanying Order to the appropriate government 16 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 17 of $68.81. 18 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 19 has 30 days from the date this Order is filed to file a first amended complaint in compliance 20 with this Order. 21 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 22 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 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 3 Dated this 9th day of July, 2021. 4 ' ° = James A, CO 7 Senior 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 tc 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