Dodakian v. Butters ( 2021 )

1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Erick John Dodakian, No. CV 21-01184-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Tempe Police Department, et al., 13 Defendants. 14 15 Plaintiff Erick John Dodakian filed a pro se Civil Rights Complaint (Doc. 1),1 an 16 Application to Proceed In District Court Without Prepaying Fees or Costs (Doc. 2), and a 17 Motion to Allow Electronic Filing by a Party Appearing Without an Attorney (Doc. 4). 18 Plaintiff sues the City of Tempe Police Department, Tempe Police Officer Andrew Butters 19 and his spouse, and various fictitiously identified persons and entities. Plaintiff brings this 20 case under 42 U.S.C. § 1983 and alleges claims for negligence, violation of the Eighth 21 Amendment, excessive force, violation of due process under the Fourteenth Amendment, 22 negligent infliction of emotional distress, and denial of constitutionally adequate medical 23 24 1 This action was opened as a “prisoner” civil rights case and referred to the Court’s staff for review pursuant to LRCiv 72.1(b). A “prisoner” is statutorily defined as “any 25 person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of 26 parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); 42 U.S.C. § 1997e(h). That is, a “prisoner” is a person who is “currently detained as a result 27 of accusation, conviction, or sentence for a criminal offense.” Agyeman v. INS, 296 F.3d 871, 885, 886 (9th Cir. 2002) (citing Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 28 2000)). Because Plaintiff was not a “prisoner” under the PLRA when he commenced this case, he is not required to incrementally pay the filing fee and his Complaint is not subject to screening. 1 care under the Fourteenth Amendment. Plaintiff seeks damages. 2 The Court will grant the Application and the Motion and refer this case to Magistrate 3 Judge Eileen S. Willett for pretrial proceedings. 4 Warnings 5 A. Address Changes 6 Plaintiff must file and serve a notice of a change of address in accordance with Rule 7 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 8 relief with a notice of change of address. Failure to comply may result in dismissal of this 9 action. 10 B. Possible Dismissal 11 If Plaintiff fails to timely comply with every provision of this Order, including these 12 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 13 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 14 to comply with any order of the Court). 15 IT IS ORDERED: 16 (1) Plaintiff’s Application to Proceed In District Court Without Prepaying Fees 17 or Costs (Doc. 2) is granted. 18 (2) Plaintiff’s Motion to Allow Electronic Filing by a Party Appearing Without 19 an Attorney (Doc. 4) is granted. 20 (3) Plaintiff must either serve each Defendant or obtain a waiver of service for 21 each Defendant. 22 (4) If Plaintiff does not either obtain a waiver of service of the summons or 23 complete service of the Summons and Complaint on a Defendant within 90 days of the 24 date of this Order, the action may be dismissed as to each Defendant not served. Fed. R. 25 Civ. P. 4(m). 26 (5) Defendants must answer the Complaint or otherwise respond by appropriate 27 motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 28 Rules of Civil Procedure. 1 (6) | Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed. 4 (7) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). 7 (8) | This matter is assigned to the standard track pursuant to Rule 16.2(b)(3) 8 | of the Local Rules of Civil Procedure. 9 Dated this 13th day of July, 2021. 10 Wichak T. Fiburdle Michael T. Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28