Sullivan v. Arizona Department of Corrections ( 2021 )

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Antonio Raye Sullivan, No. CV 21-00367-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Department of Correction, et al., 13 14 Defendants. 15 16 On March 2, 2021, Plaintiff Antonio Raye Sullivan, who is confined in the Arizona 17 State Prison Complex-Phoenix in Phoenix, Arizona filed a pro se Complaint. Plaintiff did 18 not pay the $350.00 civil action filing fee and $52.00 administrative fee or file an 19 Application to Proceed In Forma Pauperis. The Court will dismiss the Complaint with 20 leave to amend and will give Plaintiff thirty days to (1) pay the filing and administrative 21 fees or file a complete Application to Proceed In Forma Pauperis and (2) file an amended 22 complaint on a court-approved form. 23 I. Payment of Filing Fee 24 When bringing an action, a prisoner must either pay the $350.00 filing fee and a 25 $52.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma 26 pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). 27 An application to proceed in forma pauperis requires an affidavit of indigence and a 28 certified copy of the inmate’s trust account statement for the six months preceding the filing 1 of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit statements from each 2 institution where he was confined during the six-month period. Id. To assist prisoners in 3 meeting these requirements, the Court requires use of a form application. LRCiv 3.4. 4 If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an 5 initial partial filing fee of 20% of either the average monthly deposits or the average 6 monthly balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An 7 initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). 8 The balance of the $350.00 filing fee will be collected in monthly payments of 20% of the 9 preceding month’s income credited to an inmate’s account, each time the amount in the 10 account exceeds $10.00. 28 U.S.C. § 1915(b)(2). 11 Because Plaintiff has not paid the $402.00 filing and administrative fees or filed an 12 Application to Proceed In Forma Pauperis, Plaintiff will be permitted thirty days from the 13 filing date of this Order to submit a properly executed and certified Application to Proceed 14 In Forma Pauperis, using the form included with this Order, or pay the $402.00 filing and 15 administrative fees. 16 II. Statutory Screening of Prisoner Complaints 17 The Court is required to screen complaints brought by prisoners seeking relief 18 against a governmental entity or an officer or an employee of a governmental entity. 28 19 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 20 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 21 relief may be granted, or that seek monetary relief from a defendant who is immune from 22 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 23 Local Rule of Civil Procedure 3.4 requires in part that “[a]ll complaints and 24 applications to proceed in forma pauperis by incarcerated persons shall be signed and 25 legibly written or typewritten on forms approved by the Court and in accordance with the 26 instructions provided with the forms.” Plaintiff’s Complaint is not on a court-approved 27 form as required by Local Rule of Civil Procedure 3.4. Plaintiff’s Complaint will therefore 28 1 be dismissed without prejudice, with leave to amend, in order for Plaintiff to file an 2 amended complaint on a court-approved form. 3 III. Leave to Amend 4 Within thirty days, Plaintiff may submit a first amended complaint on a court- 5 approved form. The Clerk of Court will mail Plaintiff a court-approved form to use for 6 filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court 7 may strike the amended complaint and dismiss this action without further notice to 8 Plaintiff. 9 Plaintiff must clearly designate on the face of the document that it is the “First 10 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 11 entirety on the court-approved form and may not incorporate any part of the original 12 Complaint by reference. Plaintiff may include only one claim per count. 13 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 14 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 15 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 16 as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 17 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 18 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 19 F.3d 896, 928 (9th Cir. 2012) (en banc). 20 If Plaintiff files an amended complaint, he should be aware that the applicable 21 statute of limitations in an action under 42 U.S.C. § 1983 is the forum state’s statute of 22 limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276 (1985). The 23 Arizona statute of limitations for personal injury actions is two years. See Ariz. Rev. 24 Stat. § 12-542(1). Accrual of § 1983 claims is governed by federal law. Wallace v. Kato, 25 549 U.S. 384, 388 (2007). Under federal law, a claim accrues when the plaintiff “knows 26 or has reason to know of the injury that is the basis of the action.” Pouncil v. Tilton, 704 27 F.3d 568, 574 (9th Cir. 2012); Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th 28 1 Cir. 1998). Thus, to be timely, Plaintiff’s claims must have accrued no more than two 2 years before his Complaint was filed on March 2, 2021. 3 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 4 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 5 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 6 do; (4) how the action or inaction of that Defendant is connected to the violation of 7 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 8 that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 9 Plaintiff must repeat this process for each person he names as a Defendant. If 10 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 11 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 12 failure to state a claim. Conclusory allegations that a Defendant or group of 13 Defendants has violated a constitutional right are not acceptable and will be 14 dismissed. 15 Plaintiff should take note that under the Eleventh Amendment to the Constitution of 16 the United States, a state or state agency may not be sued in federal court without its 17 consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. 18 List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, “a state is not a ‘person’ for 19 purposes of section 1983. Likewise ‘arms of the State’ such as the Arizona Department of 20 Corrections are not ‘persons’ under section 1983.” Gilbreath v. Cutter Biological, Inc., 21 931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted). 22 Plaintiff should also be aware that to state a claim under § 1983 against a private 23 entity performing a traditional public function, such as providing medical care to prisoners, 24 a plaintiff must allege facts to support that his constitutional rights were violated as a result 25 of a policy, decision, or custom promulgated or endorsed by the private entity. See Tsao 26 v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 27 450, 452 (11th Cir. 1997) (per curiam). A plaintiff must allege the specific policy or 28 custom and how it violated his constitutional rights. A private entity is not liable merely 1 because it employs persons who allegedly violated a plaintiff’s constitutional rights. See 2 Tsao, 698 F.3d at 1139; Buckner, 116 F.3d at 452. 3 Finally, Plaintiff should take note that not every claim by a prisoner relating to 4 inadequate medical treatment states a violation of the Eighth Amendment. To state a 5 § 1983 medical claim, a plaintiff must show (1) a “serious medical need” by demonstrating 6 that failure to treat the condition could result in further significant injury or the unnecessary 7 and wanton infliction of pain and (2) the defendant’s response was deliberately indifferent. 8 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 9 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 10 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 11 know of and disregard an excessive risk to inmate health; “the official must both be aware 12 of facts from which the inference could be drawn that a substantial risk of serious harm 13 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 14 Deliberate indifference in the medical context may be shown by a purposeful act or failure 15 to respond to a prisoner’s pain or possible medical need and harm caused by the 16 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 17 prison official intentionally denies, delays, or interferes with medical treatment or by the 18 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 19 97, 104-05 (1976); Jett, 439 F.3d at 1096. 20 Deliberate indifference is a higher standard than negligence or lack of ordinary due 21 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 22 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 23 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 24 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 25 do not support a claim under § 1983). “A difference of opinion does not amount to 26 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 27 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 28 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 1 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 2 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 3 Estelle, 429 U.S. at 105. 4 IV. 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) Within 30 days of the date this Order is filed, Plaintiff must either pay the 17 $350.00 filing fee and $50.00 administrative fee or file a complete Application to Proceed 18 In Forma Pauperis and a certified six-month trust account statement. 19 (2) If Plaintiff fails to either pay the $350.00 filing fee and $50.00 administrative 20 fee or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk 21 of Court must enter a judgment of dismissal of this action without prejudice and without 22 further notice to Plaintiff and deny any pending unrelated motions as moot. 23 (3) The Complaint (Doc. 1) is dismissed for failure to comply with Local Rule 24 of Civil Procedure 3.4. Plaintiff has 30 days from the date this Order is filed to file a first 25 amended complaint in compliance with this Order. 26 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 27 Court must, without further notice, enter a judgment of dismissal of this action without 28 prejudice and deny any pending unrelated motions as moot. 1 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner and a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas). 4 Dated this 10th day of March, 2021. 5 WM clacl T. Hburde Michael T. Liburdi 8 United States District Judge 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 Instructions for Prisoners Applying for Leave to Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal Court You must pay the $350.00 filing fee plus the $52.00 administrative fees for a civil action. If you later file an appeal, you will be obligated to pay the $505.00 filing fee for the appeal. If you have enough money to pay the full $402.00 filing and administrative fees, you should send a cashier=s check or money order payable to the Clerk of the Court with your complaint. If you do not have enough money to pay the full $402.00 filing and administrative fees, you can file the action without prepaying the fees. However, the Court will assess an initial partial filing fee. The initial partial filing fee will be the greater of 20% of the average monthly deposits or 20% of the average monthly balance in your prison or jail account for the six months immediately preceding the filing of the lawsuit. The Court will order the agency that has custody of you to withdraw the initial partial filing fee from your prison or jail account as soon as funds are available and to forward the money to the Court. After the initial partial filing fee has been paid, you will owe the balance of the $350.00 filing fee (you will not be required to pay the $52.00 administrative fee). Until the filing fee is paid in full, each month you will owe 20% of your preceding month’s income. The agency that holds you in custody will collect that money and forward it to the Court any time the amount in your account exceeds $10.00. These installment fees are calculated on a per-case basis. This means that you will be required to pay 20% of your preceding month=s income for each civil non-habeas corpus case in which you have an outstanding filing fee balance. For example, if you are making payments toward filing fee balances in two civil non-habeas corpus cases, 40% of your preceding month=s income will be collected each month. The balance of the filing fee may be collected even if the action is later dismissed, summary judgment is granted against you, or you fail to prevail at trial. To file an action without prepaying the filing fee, and to proceed with an action in forma pauperis, you must complete the attached form and return it to the Court with your complaint. You must have a prison or jail official complete the certificate on the bottom of the form and attach a certified copy of your prison or jail account statement for the last six months. If you were incarcerated in a different institution during any part of the past six months, you must attach a certificate and a certified copy of your account statement from each institution at which you were confined. If you submit an incomplete form or do not submit a prison or jail account statement with the form, your request to proceed in forma pauperis will be denied. Even if some or all of the filing fee has been paid, the Court is required to dismiss your action if: (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) your complaint does not state a claim upon which relief can be granted; or (4) your complaint makes a claim against a defendant for money damages and that defendant is immune from liability for money damages. If you file more than three actions or appeals which are dismissed as frivolous or malicious or for failure to state a claim on which relief can be granted, you will be prohibited from filing any other action in forma pauperis unless you are in imminent danger of serious physical injury. ___________________________________________ Name and Prisoner/Booking Number ___________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________ , CASE NO. __________________________________ Plaintiff, APPLICATION TO PROCEED v. IN FORMA PAUPERIS BY A PRISONER _____________________________________ , CIVIL (NON-HABEAS) Defendant(s). I, , declare, in support of my request to proceed in the above entitled case without prepayment of fees under 28 U.S.C. § 1915, that I am unable to pay the fees for these proceedings or to give security therefor and that I believe I am entitled to relief. In support of this application, I answer the following questions under penalty of perjury: 1. Have you ever before brought an action or appeal in a federal court while you were incarcerated or detained? GYes GNo If “Yes,” how many have you filed? . Were any of the actions or appeals dismissed because they were frivolous, malicious, or failed to state a claim upon which relief may be granted? GYes GNo If “Yes,” how many of them? . 2. Are you currently employed at the institution where you are confined? GYes GNo If “Yes,” state the amount of your pay and where you work. 3. Do you receive any other payments from the institution where you are confined? GYes GNo If “Yes,” state the source and amount of the payments. 1 4. Do you have any other sources of income, savings, or assets either inside or outside of the institution where you are confined? GYes GNo If “Yes,” state the sources and amounts of the income, savings, or assets. I declare under penalty of perjury that the above information is true and correct. ________________________________ ____________________________________________ DATE SIGNATURE OF APPLICANT ACKNOWLEDGEMENT OF COLLECTION OF FILING FEES FROM TRUST ACCOUNT I, , acknowledge that upon granting this Application, the Court will order designated correctional officials at this institution, or any other correctional institution to which I am transferred, to withdraw money from my trust account for payment of the filing fee, as required by 28 U.S.C. § 1915(b). The Court will require correctional officials to withdraw an initial partial payment equal to 20% of the greater of: (A) the average monthly deposits to my account for the six-month period preceding my filing of this action, or (B) the average monthly balance in my account for the six-month period preceding my filing of this action. After the initial payment, if the amount in my account is at least $10.00, the Court will require correctional officials to withdraw from my account 20% of each month’s income and forward it to the Court until the required filing fee is paid in full. I understand that I am required to pay the entire fee, even if my case is dismissed by the Court before the fee is fully paid. I further understand that if I file more than one action, correctional officials will be ordered to withdraw 20% of each month’s income, for each action, simultaneously. Accordingly, if I have filed two actions, correctional officials will withdraw 40% of my income each month; three actions will require 60% of my income each month, etc. ________________________________ ____________________________________________ DATE SIGNATURE OF APPLICANT CERTIFICATE OF CORRECTIONAL OFFICIAL AS TO STATUS OF APPLICANT=S TRUST ACCOUNT I, , certify that as of the date applicant signed this application: (Printed name of official) The applicant=s trust account balance at this institution is: $ The applicant=s average monthly deposits during the prior six months is: $ The applicant=s average monthly balance during the prior six months is: $ The attached certified account statement accurately reflects the status of the applicant=s account. DATE AUTHORIZED SIGNATURE TITLE/ID NUMBER INSTITUTION