Delacruz v. Ryan et al

Filing 12

ORDER (Service Packet): The Clerk of Court must send Plaintiff a service packet including the First Amended Complaint (Doc. 9), this Order, and both summons and request for waiver forms for Defendant Ryan. This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorizedunder 28 U.S.C. § 636(b)(1). Signed by Judge G Murray Snow on 1/13/12. (LAD)

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1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Juan F. Delacruz, Plaintiff, 10 11 vs. 12 Charles L. Ryan, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-1745-PHX-GMS (MEA) ORDER 15 16 On September 2, 2011, Plaintiff Juan F. Delacruz, who is confined in the Arizona 17 State Prison Complex-Florence, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 18 § 1983 and an Application to Proceed In Forma Pauperis. In a October 12, 2011 Order, the 19 Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had 20 failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that 21 cured the deficiencies identified in the Order. On November 3, 2011, Plaintiff filed his First Amended Complaint (Doc. 9). The 22 23 Court will order Defendant Ryan to answer the First Amended Complaint. 24 I. Statutory Screening of Prisoner Complaints 25 The Court is required to screen complaints brought by prisoners seeking relief against 26 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised TERMPSREF 28 1 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 2 be granted, or that seek monetary relief from a defendant who is immune from such relief. 3 28 U.S.C. § 1915A(b)(1), (2). 4 A pleading must contain a “short and plain statement of the claim showing that the 5 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 6 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 7 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 8 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements, do not suffice.” Id. 10 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 11 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 12 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 13 that allows the court to draw the reasonable inference that the defendant is liable for the 14 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 15 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 17 allegations may be consistent with a constitutional claim, a court must assess whether there 18 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 19 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 20 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 21 Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards 22 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 23 94 (2007) (per curiam)). 24 II. First Amended Complaint 25 26 Corrections Director Charles L. Ryan. Plaintiff alleges that his Eighth Amendment rights 27 were violated when Defendant Ryan was deliberately indifferent to inmates’ serious medical 28 TERMPSREF In his one-count First Amended Complaint, Plaintiff sues Arizona Department of needs by allowing contracts with outside medical providers to expire. Plaintiff suffered a -2- 1 broken hand and “went a significant amount of time with a make shift splint before an actual 2 doctor’s visit.” Plaintiff claims that the delay in treatment caused permanent nerve damage 3 to his hand. In the attached exhibits, it appears that Plaintiff waited more than 10 days to 4 receive treatment for his injury and waited several months to receive prescribed treatment 5 from an orthopedic specialist. Plaintiff seeks money damages. 6 Liberally construed, Plaintiff’s allegations adequately state an Eighth Amendment 7 medical claim against Defendant Ryan. The Court will require Defendant Ryan to answer 8 the Amended Complaint. 9 III. Warnings 10 A. Release 11 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 12 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 13 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 14 in dismissal of this action. 15 B. Address Changes 16 Plaintiff must file and serve a notice of a change of address in accordance with Rule 17 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 18 relief with a notice of change of address. Failure to comply may result in dismissal of this 19 action. 20 C. Copies 21 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy 22 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 23 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit 24 an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply 25 may result in the filing being stricken without further notice to Plaintiff. 26 27 If Plaintiff fails to timely comply with every provision of this Order, including these 28 TERMPSREF D. Possible Dismissal warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, -3- 1 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 2 comply with any order of the Court). 3 IT IS ORDERED: 4 (1) Defendant Ryan must answer the First Amended Complaint. 5 (2) The Clerk of Court must send Plaintiff a service packet including the First 6 Amended Complaint (Doc. 9), this Order, and both summons and request for waiver forms 7 for Defendant Ryan. 8 9 10 11 (3) Plaintiff must complete1 and return the service packet to the Clerk of Court within 21 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. (4) If Plaintiff does not either obtain a waiver of service of the summons or 12 complete service of the Summons and First Amended Complaint on Defendant within 120 13 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 14 is later, the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i). 15 16 17 (5) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (6) The United States Marshal must notify Defendant of the commencement of this 18 action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal 19 Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. The 20 Marshal must immediately file signed waivers of service of the summons. If a waiver 21 of service of summons is returned as undeliverable or is not returned by Defendant 22 within 30 days from the date the request for waiver was sent by the Marshal, the 23 Marshal must: 24 25 26 1 27 28 TERMPSREF If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. -4- 1 (a) personally serve copies of the Summons, First Amended Complaint, and 2 this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil 3 Procedure; and 4 (b) within 10 days after personal service is effected, file the return of service 5 for Defendant, along with evidence of the attempt to secure a waiver of service of the 6 summons and of the costs subsequently incurred in effecting service upon Defendant. 7 The costs of service must be enumerated on the return of service form (USM-285) and 8 must include the costs incurred by the Marshal for photocopying additional copies of 9 the Summons, First Amended Complaint, or this Order and for preparing new process 10 receipt and return forms (USM-285), if required. Costs of service will be taxed 11 against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules 12 of Civil Procedure, unless otherwise ordered by the Court. 13 (7) If Defendant agrees to waive service of the Summons and First Amended 14 Complaint, Defendant must return the signed waiver forms to the United States 15 Marshal, not the Plaintiff. 16 (8) Defendant must answer the First Amended Complaint or otherwise respond by 17 appropriate motion within the time provided by the applicable provisions of Rule 12(a) of 18 the Federal Rules of Civil Procedure. 19 (9) This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 20 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized 21 under 28 U.S.C. § 636(b)(1). 22 DATED this 13th day of January, 2012. 23 24 25 26 27 28 TERMPSREF -5-

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