Stewart v. Central Arizona Correction Facility et al

Filing 5

ORDER (Service Packet), Plaintiff's Application to Proceed In Forma Pauperis 3 is granted. Count Six and Defendant Central Arizona Detention Facility are dismissed without prejudice. Defendants Breezy, Boughter, Hernandez, Hamadi, and Phan m ust answer Counts One through Five. The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. #1), this Order, and both summons and request for waiver forms for Defendants Breezy, Boughter, Hernandez, Hamadi, and Phan. P laintiff must complete and return the service packet to the Clerk of Court within 20 days of the date of filing of this Order. This matter is referred to Magistrate Judge Edward C. Voss for all pretrial proceedings as authorized under 28 U.S.C. § ; 636(b)(1). Magistrate Judge Edward C Voss added. Magistrate Judge Edward C Voss (PS) no longer assigned to case. Central Arizona Correction Facility terminated. Service Packet due by 5/11/2009. Signed by Judge Mary H Murguia on 4/17/09. (DMT, )

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 TERMPSREF 28 WO MDR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Plaintiff, ) ) vs. ) ) Central Arizona Correction Facility, et al.,) ) ) Defendants. ) ) Jenghiz K. Stewart, No. CV 09-674-PHX-MHM (ECV) ORDER Plaintiff Jenghiz K. Stewart, who is confined in the Arizona State Prison ComplexEyman in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. 1983 (Doc. #1), an Application to Proceed In Forma Pauperis (Doc. #3), and a certified copy of his inmate trust account for the last six months (Doc. #4). The Court will order Defendants Breezy, Boughter, Hernandez, Hamadi, and Phan to answer Counts One through Five of the Complaint and will dismiss Count Six and Defendant Central Arizona Detention Facility without prejudice. I. Application to Proceed In Forma Pauperis and Filing Fee Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 1915(b)(1). The Court will not assess an initial partial filing fee. 28 U.S.C. 1915(b)(1). The statutory fee will be collected monthly in payments of 20% of the previous month's income each time 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF the amount in the account exceeds $10.00. 28 U.S.C. 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula. II. Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A(b)(1), (2). III. Complaint In his Complaint, Plaintiff sues the following Defendants: Central Arizona Detention Facility, Warden Breezy, Registered Nurse Jackie Boughter, Lieutenant Hernandez, Dr. Hamadi, and Dr. Phan. Plaintiff asserts that he has Tourette's Syndrome and sensitivity to sound, heat, and bright lights. He alleges that Defendants' conduct subjected him to loud noises, bright lights, and heat, all of which exacerbated his Tourette's tics. In his Request for Relief, Plaintiff seeks monetary damages and injunctive relief. Plaintiff alleges six counts in his Complaint. Each count is directed against a different Defendant--Count One against Defendant Breezy, Count Two against Defendant Boughter, Count Three against Defendant Hernandez, Count Four Against Defendant Hamadi, Count Five against Defendant Phan, and Count Six against Defendant Central Arizona Detention Facility. A. Count Six and Defendant Central Arizona Detention Center Defendant Central Arizona Detention Facility is not a proper Defendant to this action. Section 1983 imposes liability on any "person" who violates an individual's federal rights while acting under color of state law. A "person" under 1983 includes municipalities, other local government units, and other "bodies politic and corporate." Monell v. New York City -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF Department of Social Services, 436 U.S. 658, 688-90 (1978). The Central Arizona Detention Facility is a building, not a person or legally created entity capable of being sued. Accordingly, the Central Arizona Detention Facility and Count Six will be dismissed. B. Counts One through Five Counts One through Five each contain four subparts--Subparts A through D. The allegations in a particular subpart are substantially similar across Counts--for example, the allegations in Subpart A of Count One against Defendant Breezy are substantially similar to the allegations in Subpart A of Counts Two through Four against Defendants Broughton, Hernandez, Hamadi, and Phan. If Plaintiff does not allege that a Defendant personally engaged in the conduct, he alleges that the Defendant allowed or sanctioned the conduct. In the Subpart A sections, Plaintiff alleges that each Defendant acted with deliberate indifference in violation of the Eighth Amendment by, among other things, failing to provide reasonable care for Plaintiff after being informed of Plaintiff's medical disabilities and failing to treat Plaintiff's symptoms despite a doctor's orders to do so. In the Subpart B sections, Plaintiff contends that each Defendant violated the Eighth Amendment prohibition against cruel and unusual punishment by, among other things, keeping Plaintiff in medical observation and detention for an excessive amount of time and by treating Plaintiff with "malice and disdain," experimenting on Plaintiff and transporting him repeatedly to a doctor's office despite knowledge of Plaintiff's disorders, or failing to renew Plaintiff's prescribed medication. In the Subpart C sections, Plaintiff alleges that each Defendant violated the Fourteenth Amendment's Equal Protection Clause because, among other things, they denied Plaintiff equal protections enjoyed by other disabled and nondisabled inmates because he was placed in medical observation and detention for three months and, therefore, was denied daily showers, hot lunches, daily recreation, and access to hobby crafts, the library, and the courts. He also asserts that each Defendant treated him unequally by failing to provide Plaintiff with facilities compatible with his disabilities, unlike other inmates who did receive facilities compatible with their disabilities. In the Subpart D sections, Plaintiff claims that each -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF Defendant violated the Americans with Disabilities Act by, among other things, placing Plaintiff in medical observation or detention for three months because of Plaintiff's disabilities, treating Plaintiff differently from other inmates who do not suffer from Plaintiff's disabilities, and failing to provide medical treatment or facilities compatible with Plaintiff's disabilities. Liberally construed, Plaintiff has stated claims against Defendants Breezy, Boughter, Hernandez, Hamadi, and Phan in Subparts A, B, C, and D. The Court will require these Defendants to answer those Counts One through Five. IV. Warnings A. Release Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action. B. Address Changes Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. C. Copies Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff. D. Possible Dismissal If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). IT IS ORDERED: (1) (2) Plaintiff's Application to Proceed In Forma Pauperis (Doc. #3) is granted. As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee. (3) Count Six and Defendant Central Arizona Detention Facility are dismissed without prejudice. (4) Defendants Breezy, Boughter, Hernandez, Hamadi, and Phan must answer Counts One through Five. (5) The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. #1), this Order, and both summons and request for waiver forms for Defendants Breezy, Boughter, Hernandez, Hamadi, and Phan. (6) Plaintiff must complete and return the service packet to the Clerk of Court within 20 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (7) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 120 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i). (8) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. (9) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. The Marshal must immediately file requests for waivers that were returned as undeliverable and waivers of service of the summons. If a waiver of service of summons is not returned by a -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: (a) personally serve copies of the Summons, Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and (b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (10) A Defendant who agrees to waive service of the Summons and Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff. (11) Defendants must answer the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (12) 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. .... .... .... .... .... .... .... -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF (13) This matter is referred to Magistrate Judge Edward C. Voss 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). DATED this 17th day of April, 2009. -7-

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