Cleveland v. Arpaio et al

Filing 21

ORDER granting 2 Plaintiff's Motion for Leave to Proceed In Forma Pauperis. The Complaint is dismissed for failure to state a claim 1 . Plaintiff has 30 days from the date this Order is filed to file a first amended complaint. If Plaintiff fa ils to comply, the Clerk of Court must enter a judgment of dismissal with prejudice that states that the dismissal may count as a strike under 28:1915(g). The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Plaintiff's other filings, including motions, notices, statements, letters, and requests are denied to the extent that any relief is sought therein [5-20]. Signed by Judge David G Campbell on 5/29/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christopher Lamar Cleveland,
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Plaintiff,
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vs.
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Joseph M. Arpaio, et al.,
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Defendants.
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No. CV 12-2605-PHX-DGC (SPL)
ORDER

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Plaintiff Christopher Lamar Cleveland, who is confined in the Pinal County Jail in

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Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an

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Application to Proceed In Forma Pauperis.1 Plaintiff also filed a motion requesting federal

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intervention, notices, and a brief. (Doc. 5-10). Plaintiff has also filed a document captioned

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“Submitting Documentation to Evidence Burden of Proof” in which he seeks injunctive relief

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and to which he has attached copies of California records concerning his conviction there.

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(Doc. 11.) He has also filed a request to produce documents, a motion to produce a copy of

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plea agreement in a 1993 California case, and several notices. (Doc. 12-20.) The Court will

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Plaintiff has filed several civil rights and habeas cases in this District concerning his
pending prosecutions in Pinal County for failure to register as a sex offender and whether he
was actually convicted of a sex offense in California in 1993 and is obligated to register as
a sex offender under Arizona Revised Statute § 13-3821. See Cleveland v. Pinal Co.
Superior Court, No. CV12-1942-PHX-DGC (§ 1983); Cleveland v. Arizona Dep’t of Public
Safety, No. CV12-2323-PHX-DGC (§ 1983); Cleveland v. Babeu, No. CV12-2685-PHXDGC (§ 2254 habeas); Cleveland v. Babeu, No. CV13-0045-PHX-DGC (§ 2241 habeas);
Cleveland v. Voyles, No. CV13-0265-PHX-DGC (§ 1983 civil rights); and Cleveland v.
Babeu, No. CV13-0328-PHX-DGC (§ 2254 habeas).

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dismiss the Complaint with leave to amend, deny the motion, the notices, and the brief to the

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extent that any relief is sought therein.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

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§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

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The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory

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fee will be collected monthly in payments of 20% of the previous month’s income each time

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the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a

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separate Order requiring the appropriate government agency to collect and forward the fees

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according to the statutory formula.

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II.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for
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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other facts,

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a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the

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action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court

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should not, however, advise the litigant how to cure the defects. This type of advice “would

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undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225,

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231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was

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required to inform a litigant of deficiencies). The Court will dismiss Plaintiff’s Complaint

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for failure to state a claim, but because the Complaint may possibly be saved by amendment,

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the Court will dismiss the Complaint with leave to amend.

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III.

Complaint

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Plaintiff alleges three counts for threat to safety, slander or defamation, and wrongful

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imprisonment. Plaintiff sues Maricopa County Sheriff Joseph Arpaio; Arizona Governor Jan

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Brewer; the National Crime Information Center (NCIC); and the Maricopa County Sheriff’s

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Office (MCSO). Plaintiff seeks declaratory, injunctive, compensatory, and punitive relief.

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In this and other cases, Plaintiff disputes whether he was convicted in 1993 of a

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sexually-based offense in California and whether he is required to comply with Arizona’s sex

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offender registration statute, Arizona Revised Statute § 13-3281. Unofficial information

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JDDL-K

Background

from the Administrative Office of the Courts for Los Angeles County, which is available on
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Westlaw, reflects that a person named “Christopher Lamar Cleveland” was charged with a

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“P 288.A” offense in Los Angeles County Court, case #SA013565, on May 13, 1993.2

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California Penal Code § 288a penalizes oral copulation with a person under 18 years of age

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and/or with a person against the person’s will, among other circumstances. See West’s Ann.

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Cal. Penal Code § 288a.

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Documents submitted by Plaintiff in this case from his California case reflect that:

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Plaintiff was convicted in 1993 of a “288.A” offense in California for which the California

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court sentenced him to 365 days in jail, less good time credit resulting in actual incarceration

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for 257 days, and three years on probation; the court ordered that Plaintiff have no further

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contact with the victim or his co-defendant and that he register as a sex offender within 30

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days; the court stated that it had no objection to Plaintiff’s probation supervision being

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transferred to Arizona; and the court ordered Plaintiff to report to probation within 48 hours

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of release from jail, unless he was extradited to Arizona. (Doc. 11 at 11.) Plaintiff asserts

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that these documents reflect that he was released on November 30, 1993, but he contends

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there is no evidence that he received a sentence rather than the mere dismissal of the

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California charge.3

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According to Plaintiff, after serving time in California, he was convicted in Arizona

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of armed robbery in Maricopa County Superior Court, case #CR9310362. Prior to his release

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from that sentence, however, a Corrections Officer III told him that he was required to

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register as a sex offender based on the California conviction. (Doc. 10 at 7-8.)

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Between October 31, 1994 and April 23, 2001, Plaintiff was incarcerated in Arizona

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for an armed robbery conviction imposed by the Maricopa County Superior Court,

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case#9310362. Shortly before his release from the armed robbery conviction, Plaintiff was

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See https://web2.westlaw.com, criminal arrest & infractions records-California
(CRIM-CA), record date May 13, 1993, case# SA013565 (last visited May 22, 2013).
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In his “Open Brief,” Plaintiff sets forth additional information, including a time-line.
(Doc. 10.) He states that documents discovered by the “NAACP” reflect that he served 257
days in jail, from March 13, 1993 until November 30, 1993, in California, but he denies that
he was sentenced to probation in California.
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required to register as a sex offender based upon his conviction in California case SA013565,

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which was reflected on the National Crime Information Center (NCIC) database.4 Plaintiff

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apparently did register and did not then contend that he had never been convicted of the

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offense in California. Plaintiff was released from ADC custody.

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On September 30, 2003, Plaintiff was sentenced to 2.5 years in prison after he pleaded

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guilty to failing to register as a sex offender based upon California case SA013565, in

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Maricopa County Superior Court case #CR2003-037149.5 On December 18, 2007, Plaintiff

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was sentenced to three years in prison after he again pleaded guilty to failing to register as

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a sex offender with one prior felony in Maricopa County Superior Court case #CR2007-

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030890, again based on California case SA013565.6 Plaintiff does not explain why he

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pleaded guilty in these cases if he had not been convicted in the California case.

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Plaintiff is currently charged in two cases in Pinal County Superior Court. In case

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According to the NCIC website, data contained in NCIC is provided by the FBI,
federal, state, local and foreign criminal justice agencies, and authorized courts. The FBI is
authorized to acquire, collect, classify and preserve identification, criminal identification,
crime, and other records and to exchange such information with authorized entities. The
purpose for maintaining the NCIC system of record is to provide a computerized data base
for ready access by a criminal justice agency making an inquiry and for prompt disclosure
of information in the system from other criminal justice agencies about crimes and criminals.
This information assists authorized agencies in criminal justice objectives, such as
apprehending fugitives, locating missing persons, locating and returning stolen property, as
well as in the protection of the law enforcement officers encountering the individuals
described in the system. An individual with a criminal record supported by fingerprints
entered in the NCIC III file, criminal history record information, is available to that
individual for review upon presentation of appropriate identification and in accordance with
applicable State and Federal administrative and statutory regulations. Appropriate
identification includes being fingerprinted for the purpose of insuring that the individual is
who the individual purports to be. The record on file will then be verified through
comparison of fingerprints. See http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm (last
visited May 22, 2013).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/102003/m1159258.pdf
(last visited May 22, 2013).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/122007/m2979475.pdf
(last visited May 22, 2013). In the minute entry, Plaintiff’s last name is spelled “Cleaveland”
but the referenced prior felony was CR2003-037149. Id.
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#CR201200144, he is charged with one count of failure as a sex offender to file a notice of

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address or name charge, and in case #CR201202592, he is charged with one count each of

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failure as a sex offender to file a notice of moving out of the county and failure to register

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with the sheriff’s department.7

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CR201200144, the court set a hearing on a state motion to dismiss, which was scheduled to

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be held on January 8, 2013.8 Based on the scheduled hearing in that case, the court reset the

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pretrial conference in CR201202592 to be held the same day.9 Both hearings have since been

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continued for reasons, and to a date, not reflected in records currently available on-line.10

In a minute entry issued December 20, 2012 in

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In his Complaint in this case, Plaintiff alleges the following: NCIC falsely reported

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that Plaintiff was convicted in Los Angeles Superior Court in Santa Monica, California, of

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lewd acts with a minor for which he was incarcerated for one year, case #SA01356501. On

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April 23, 2001, MCSO, under Joseph Arpaio, falsified and unlawfully used unauthorized

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information to charge Plaintiff with failure to comply with Arizona Revised Statute § 13-

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3821(A), i.e., failure to register as a sex offender.11 According to Plaintiff, MCSO relied on

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invalid information absent proof from the California court to substantiate that he had been

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convicted or served a sentence for a sex offense and that he has been wrongfully prosecuted

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for failure to comply with § 13-3821(A). Plaintiff also contends that Arpaio, MCSO, NCIC,

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and Brewer lacked valid grounds to enforce § 13-3821 against him and that he has been, and

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is, wrongfully incarcerated for failure to comply with § 13-3821(A). Plaintiff also asserts

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See http://apps.supremecourt.az.gov/publicaccess/minutes.aspx (last visited May
22, 2013).
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See http://apps.supremecourt.az.gov/publicaccess/minutes.aspx, minute entry dated
Dec. 20, 2012 (last visited May 22, 2013).
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See http://apps.supremecourt.az.gov/publicaccess/minutes.aspx, minute entry dated
Dec. 20, 2012 (last visited May 22, 2013).
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See http://apps.supremecourt.az.gov/publicaccess/caselookup.aspx, case## CR2012
00144 and CR201202592 (last visited May 22, 2013).

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Plaintiff asserts that Arpaio has supervisory liability for the erroneous reporting.
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that the Clerk of Court for Los Angeles County has indicated that case SA01356501 was

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dismissed, but that Plaintiff has nevertheless been repeatedly charged with failure to comply

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with § 13-3821.

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IV.

Failure to State a Claim

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To state a claim under § 1983, a plaintiff must allege facts to support that (1) the

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conduct about which he complains was committed by a person acting under the color of state

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law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v.

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Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid constitutional

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claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of

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a particular defendant, and he must allege an affirmative link between the injury and the

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conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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A.

NCIC

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Plaintiff sues the NCIC, which is maintained by the Federal Bureau of Investigation

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(FBI).12 As described above, a plaintiff may bring an action against a person acting under

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color of state law under § 1983. Because NCIC operates under color of federal law, it may

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not be sued under § 1983. Therefore, it appears that Plaintiff is attempting to seek relief

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against the NCIC under Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388 (1971). A Bivens claim is analogous to one brought pursuant to

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§ 1983, except for the replacement of a state actor under § 1983 by a federal actor under

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Bivens. Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (citing Van Strum v. Lawn, 940

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F.2d 406, 409 (9th Cir. 1991)). However, a Bivens claim may only be maintained against

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officials acting under color of federal law in their individual capacities; neither the United

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States, nor an agency, is a proper defendant under Bivens. See FDIC v. Meyer, 510 U.S.

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471, 486 (1994) (federal agencies are not proper defendants in a Bivens action); Myers v.

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United States Marshals Serv., No. CV10-2662, 2011 WL 671998, at *2 (S.D. Cal. Feb. 15,

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2011). Because NCIC is a federal entity or agency and not an official, it may not be sued

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See http://www.fbi.gov/about-us/cjis/ncic (last visited May 22, 2013).
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under Bivens. Accordingly, the NCIC will be dismissed as a Defendant.

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B.

MCSO

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Plaintiff also sues MCSO. “Government entities have no inherent power and possess

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only those powers and duties delegated to them by their enabling statutes. Thus, a

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governmental entity may be sued only if the legislature has so provided.” Braillard v.

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Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) (citations omitted). Although

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Arizona counties have been granted the power to sue and be sued through their boards of

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supervisors, see A.R. S. § 11–201(A)(1), “no Arizona statute confers such power on MCSO

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as a separate legal entity.” Id. MCSO, therefore, is a non-jural entity without the capacity

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to be sued. See id.; Lovejoy v. Arpaio, No. CV 09–1912–PHX–NVW, 2010 WL 466010,

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at * 16 (D.Ariz. Feb.10, 2010). The claims asserted against MCSO will be dismissed.

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C.

Brewer and Arpaio

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Plaintiff also sues Arizona Governor Brewer and Maricopa County Sheriff Arpaio.

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While Brewer and Arpaio may be sued under § 1983, Plaintiff fails to state a claim against

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either.

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To state a claim against an individual Defendant, a “plaintiff must allege facts, not

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simply conclusions, that show that [the] individual was personally involved in the deprivation

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of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an

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individual to be liable in his official capacity, a plaintiff must allege that the official acted

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as a result of a policy, practice, or custom. See Cortez, 294 F.3d at 1188. In addition, there

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is no respondeat superior liability under § 1983, so a defendant’s position as the supervisor

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of someone who allegedly violated a plaintiff’s constitutional rights does not make him

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liable. Monell, 436 U.S. at 691; Taylor, 880 F.2d at 1045. A supervisor in his individual

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capacity, “is only liable for constitutional violations of his subordinates if the supervisor

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participated in or directed the violations, or knew of the violations and failed to act to prevent

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them.” Taylor, 880 F.2d at 1045.

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Plaintiff asserts that since 2001, he has been charged and incarcerated repeatedly
based upon allegedly inaccurate information on NCIC that reflected that he had been
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convicted of a sexual offense in California. (Doc. 1 at 5.) Plaintiff asserts that he was

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wrongfully convicted in 2003 and 2007 Maricopa County cases, although he fails to explain

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why he pleaded guilty in those cases, and that Brewer and Arpaio failed to prove that he had

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actually ever been convicted in California.13

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Plaintiff’s allegations against Brewer and Arpaio are vague and conclusory. Although

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pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972),

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conclusory and vague allegations will not support a cause of action. Ivey v. Board of

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Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal

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interpretation of a civil rights complaint may not supply essential elements of the claim that

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were not initially pled. Id. Plaintiff fails to allege specific facts to support that either Brewer

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or Arpaio were directly involved in any claimed violation of Plaintiff’s constitutional rights

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or that either promulgated, endorsed, or enforced a policy or practice resulting in a violation

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of Plaintiff’s constitutional rights. Accordingly, Plaintiff fails to state a claim against Brewer

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or Arpaio and they will be dismissed.

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D.

Count I

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Plaintiff designates Count I as a claim for threat to safety in violation of his Thirteenth

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Amendment rights.14 A claim for threat to safety arises under the Fourteenth Amendment

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as to pretrial detainees and under the Eighth Amendment as to convicted inmates, but the

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standard is the same. To state a claim under § 1983 for threats to safety, an inmate must

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JDDL-K

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However, as described above, Plaintiff has since filed copies of documents from
his California case that reflect that he was in fact convicted of a sex offense in California for
which he served time in jail and was ordered to register in California as a sex offender.
(Doc. 11 at 11.)
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“The Thirteenth Amendment declares that ‘[n]either slavery nor involuntary
servitude, except as punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their jurisdiction.’” United States
v. Kozminski, 487 U.S. 931, 942 (1988) (quoting Amendment XIII). “By its terms [the
Thirteenth] Amendment excludes involuntary servitude imposed as legal punishment for a
crime.” Id. at 943. To the extent that Plaintiff seeks relief for his detention or incarceration
in connection with criminal charges or convictions, he fails to state a Thirteenth Amendment
claim.
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allege facts to support that he was incarcerated under conditions posing a substantial risk of

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harm and that officials were “deliberately indifferent” to those risks. Farmer v. Brennan, 511

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U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff must allege

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facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety.

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Id. at 837. That is, “the official must both [have been] aware of facts from which the

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inference could be drawn that a substantial risk of serious harm exist[ed], and he must also

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[have] draw[n] the inference.” Id.

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Plaintiff has not alleged facts to support he has been or is being incarcerated under

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conditions posing a substantial risk of harm to him.15 Nor has Plaintiff alleged facts to

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support that any Defendant has acted with deliberate indifference to a substantial threat to

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his safety. Accordingly, Plaintiff fails to state a claim for threat to safety in Count I.

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E.

Count II

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Plaintiff designates Count II as a claim for defamation or slander and violation of

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double jeopardy. He asserts that NCIC is falsely attributing a California conviction for a

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sexual offense to him for which he served a year in jail; MCSO has no copy of the case file

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in SA01356501; records from Culver City Municipal Court case SA01356501 reflect the

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case was dismissed, which was affirmed by Superior Court Clerk John A. Clarke; MCSO

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charged Plaintiff based on case SA01356501, although that case was dismissed; and Plaintiff

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has been subject to years of harassment, false arrests, wrongful incarceration, etc., as a

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consequence. He further contends that Arpaio, Brewer, NCIC, and MCSO violated double

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jeopardy by using an acquittal in SA01356501 in Culver City Municipal Court as a

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conviction in Los Angeles Superior Court to prosecute him for failure to register as a sex

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offender. He contends that Arpaio and Brewer failed to validate the information relied upon

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in prosecuting him for failure to register as a sex offender, which he contends rises to the

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JDDL-K

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Plaintiff appears to be seeking release or exoneration from pending charges or relief
as to prior convictions. Challenges to pretrial incarceration must be brought in a petition for
writ of habeas corpus under 28 U.S.C. § 2241. Challenges to state convictions should be
brought in a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Plaintiff may not
obtain such relief in an action under 42 U.S.C. § 1983.
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level of defamation and slander.

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To the extent that Plaintiff asserts claims against MCSO or NCIC, he fails to state a

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claim because neither are proper defendants under § 1983 or Bivens. Accordingly, Count

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II will be dismissed as to them.

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Plaintiff also fails to state a claim for violation of double jeopardy. “The Double

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Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same

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offense after acquittal; (2) a second prosecution for the same offense after conviction; and

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(3) multiple punishments for the same offense.” United States v. Chick, 61 F.3d 682, 686

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(9th Cir. 1995) (quoting United States v. Halper, 490 U.S. 435, 440 (1989)). The Double

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Jeopardy Clause guarantees not only protection from multiple convictions and punishment,

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but also the right not to be “twice put to trial for the same offense.” Abney v. United States,

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431 U.S. 651, 660 (1977).

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Plaintiff does not allege facts to support that he has twice been prosecuted for the

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same offense. Rather, he alleges that he has been prosecuted for multiple failures to register

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as a sex offender occurring on different dates. That is not sufficient to state a claim for

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double jeopardy. Further, a double jeopardy claim is also subject to dismissal as not having

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yet accrued under Heck v. Humphrey, 512 U.S. 477, 489 (1994). A civil rights claim

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brought pursuant to § 1983 that, if successful, would necessarily undermine the validity of

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a conviction or the duration of a sentence may not be brought before the prisoner has

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obtained a “favorable termination” of the underlying conviction; a prisoner’s sole federal

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remedy to challenge the validity or duration of his confinement is a petition for a writ of

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habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Docken v. Chase, 393 F.3d

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1024, 1031 (9th Cir. 2004). That is, a civil rights claim under § 1983 does not accrue unless

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or until the prisoner has obtained a “favorable termination” of the underlying conviction. See

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Heck, 512 U.S. at 489; Docken, 393 F.3d at 1031. Under the “favorable termination” rule:

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In order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by action whose unlawfulness would
render a conviction of sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal . . . or called into question
by a federal court’s issuance of a writ of habeas corpus . . .

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Heck, 512 U.S. at 486-87. Without such a showing of a “favorable termination,” a person’s
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cause of action under § 1983 has not yet accrued. Id. at 489. Thus, success on any claim
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pursuant to § 1983 that would necessarily imply the invalidity of confinement, or its duration,
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does not accrue “and may not be brought” unless and until the underlying conviction,
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sentence or parole decision is reversed. Only then may a plaintiff properly seek relief
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pursuant to 42 U.S.C. § 1983.
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Success on a civil claim of double jeopardy would necessarily imply the invalidity of
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the resulting conviction. Plaintiff has not alleged facts to support a violation of the Double
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Jeopardy Clause or facts to support that any conviction in violation of double jeopardy has
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been invalidated. Accordingly, the portion of Count II asserting a double jeopardy claim will
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not accrue unless and until the underlying conviction has been invalidated.
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Plaintiff also asserts a claim for slander and defamation. An action for damage to
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reputation ordinarily “lies . . . in the tort of defamation, not in [42 U.S.C. §] 1983.” Fleming
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v. Dep’t of Public Safety, 837 F.2d 401, 409 (9th Cir. 1988). “To recover damages for
15
defamation under § 1983, a plaintiff must satisfy the ‘stigma-plus test.’” American
16
Consumer Pub. Ass’n, Inc. v. Margosian, 349 F.3d 1122, 1125-26 (9th Cir. 2003) (quoting
17
Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991), rev’d on other grounds, 963 F.2d
18
1220, 1235 n.6 (9th Cir. 1992) (en banc)). “Under that test, ‘a plaintiff must allege loss of
19
a recognizable property or liberty interest in conjunction with the allegation of injury to
20
reputation.’” Id. at 1126 (quoting Cooper, 924 F.2d at 1532). The injury must be to a
21
“previously recognized right or status.” WMX Tech., Inc. v. Miller, 80 F.3d 1315, 1319 (9th
22
Cir. 1996) (citing Paul v. Davis, 424 U.S. 693, 711 (1976)). Further, “the ‘stigma-plus test’
23
requires that the defamation be accompanied by an injury directly caused by the
24
Government, rather than an injury caused by the act of some third party [in reaction to the
25
Government’s defamatory statements].” Id. at 1320 (injuries caused by third party’s response
26
to government statements not cognizable under § 1983). “There are two ways to state a
27
cognizable § 1983 claim for defamation-plus: (1) allege that the injury to reputation was
28
inflicted in connection with a federally protected right, or (2) allege that the injury to
JDDL-K

- 12 -

1

reputation caused the denial of a federally protected right.” Herb Hallman Chevrolet, Inc.

2

v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999); see Paul, 424 U.S. at 703.

3

Plaintiff alleges an injury to his reputation based on the actions of others in reaction

4

to allegedly defamatory statements by governmental statements.16 He does not allege facts

5

to support that any injury to reputation was inflicted in connection with a federally protected

6

right. Nor does he allege facts to support that the injury to his reputation caused the denial

7

of a federally protected right. Further, Plaintiff’s allegations against Arpaio and Brewer in

8

Count II are vague and conclusory. Plaintiff fails to allege facts to support that either directly

9

violated Plaintiff’s constitutional rights or facts to support that either promulgated or

10

endorsed a policy or practice resulting in the violation of Plaintiff’s constitutional rights. For

11

these reasons, Plaintiff fails to state a defamation claim.

12

F.

Count III

13

Plaintiff designates Count III as a claim for violation of the Ninth Amendment,

14

wrongful imprisonment, and constructive fraud as to records concerning his having been

15

convicted of a sex offense in California. He alleges that SA01356501 was dismissed in

16

Culver City Municipal Court and that no further record of that case should be found in other

17

California jurisdictions; NCIC provided false information in judicial proceedings, which is

18

fraud; since April 23, 2001, Plaintiff has been “held from fighting” this fraud to prove that

19

he was never convicted; Plaintiff has served seven years as a result of MCSO negligently

20

failing to obtain proof that he was actually convicted of a sex offense; and state and federal

21

agencies and officials failed to produce proof that Plaintiff had been convicted of a sex

22

offense or to disclose their own fraudulent conduct.

23

The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain

24

rights, shall not be construed to deny or disparage others retained by the people.” Const.,

25

Amend. IX. The Ninth Amendment “has never been recognized as independently securing

26
27
28
JDDL-K

16

As noted herein, records submitted by Plaintiff appear to substantiate that he was
in fact convicted of a sex offense in California. If Plaintiff was convicted of a sex offense
in California, then statements to that effect are true and not defamatory.
- 13 -

1

any constitutional right, for purposes of pursuing a civil rights claim.” Strandberg v. City of

2

Helena, 791 F.2d 744, 748 (9th Cir. 1986); see Froehlich v. Wisconsin Dep’t of Corr., 196

3

F.3d 800, 801 (7th Cir. 1999); Johnson v. Texas Bd. of Crim. Just., 281 Fed. Appx. 319, 320

4

(5th Cir. 2008). Accordingly, Plaintiff fails to state a claim under the Ninth Amendment.

5

Plaintiff otherwise appears to be attempting to challenge one or more prior Arizona

6

convictions and/or the underlying basis for pending prosecutions. To the extent that Plaintiff

7

is attempting to challenge prior convictions, he may not do so under § 1983 or Bivens.

8

Rather, he must do so by filing a habeas petition under 28 U.S.C. § 2254.17

9

To the extent that Plaintiff seeks intervention by this Court in connection with

10

currently pending criminal cases, the Younger abstention doctrine bars consideration of his

11

claim. The abstention doctrine under Younger v. Harris, 401 U.S. 37 (1971), prevents a

12

federal court in most circumstances from directly interceding in ongoing state criminal

13

proceedings. The Younger abstention doctrine also applies while a case works its way

14

through the state appellate process, if a prisoner is convicted. New Orleans Pub. Serv., Inc.

15

v. Council of City of New Orleans, 491 U.S. 350, 369 (1989). Only in limited, extraordinary

16

circumstances will the Younger doctrine not bar federal interference with ongoing (non-final)

17

state criminal proceedings. Such circumstances include when a prisoner alleges that he is

18

being subjected to double jeopardy. See Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.

19

1992). Speedy trial claims may also be reviewed if a detainee is seeking to compel the state

20

to bring him to trial, rather than seeking dismissal of the charges, and the detainee has

21

exhausted all of his state court remedies. Braden v. 30th Judicial Circuit Court of Kentucky,

22
23
24
25
26
27
28
JDDL-K

17

Before a federal court may grant habeas relief, however, a prisoner must first have
exhausted remedies available in the state courts. See 28 U.S.C. § 2254(b)(1); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). The federal court will not entertain a petition for writ
of habeas corpus unless each and every issue has been exhausted. Rose v. Lundy, 455 U.S.
509, 521-22 (1982); Olvera v. Guirbino, 371 F.3d 569, 572 (9th Cir. 2004) (district court may
not consider a claim until petitioner has properly exhausted all available remedies). When
seeking habeas relief, the burden is on the habeas petitioner to show that he has properly
exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per
curiam).
- 14 -

1

410 U.S. 484, 489-90 (1973); see In re Justices of Superior Court Dep’t of Mass. Trial Court,

2

218 F.3d 11, 18 & n.5 (1st Cir. 2000).

3

In this case, Plaintiff is not seeking to compel the state to bring him to trial, rather than

4

seeking dismissal, nor does he allege the exhaustion of all of his state court remedies.

5

Further, while Plaintiff elsewhere asserts that his pending prosecutions violate double

6

jeopardy, he does not allege, nor does it otherwise appear, that he is being re-prosecuted for

7

identical failures to register. Any challenges to Plaintiff’s current prosecutions for failure to

8

register, including that he has never been convicted of a sex offense, should be presented in

9

state court. The Court will dismiss Count III for failure to state a constitutional claim under

10

the Ninth Amendment and based on the Younger abstention doctrine.18

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 this

17

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, 963

23

F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,

24

1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as

25
26
27
28
JDDL-K

18

The Court will also deny Plaintiff’s motion to intercede in his pending state court
prosecutions based on the Younger doctrine. Further, while Plaintiff is currently being
prosecuted in two cases in Pinal County Superior Court by the same prosecutor, the cases
were filed many months apart and appear to concern different violations of Arizona’s sex
offender registration statute.
- 15 -

1

nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original

2

complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d

3

565, 567 (9th Cir. 1987).

4

VI.

Plaintiff’s Motions and Requests

5

Plaintiff in part requests injunctive relief. (Doc. 11.) He contends that documents

6

reflect that charges against him were dismissed by the California court and/or that the records

7

are inconsistent. He seeks an injunction to “ensure he [is] properly provided fairness due to

8

the merits.”

9

intervention by this Court in pending state criminal cases. Accordingly, to the extent that

10

(Id. at 4.)

As discussed herein, the Younger abstention doctrine bars

Plaintiff seeks injunctive relief, his request will be denied.

11

Plaintiff has also filed a motion to produce a “written plea in SA1356501.” (Doc. 14.)

12

To the extent that Plaintiff seeks discovery, this motion is premature prior to service of any

13

amended complaint on any Defendant. For analogous reasons, the Court will deny Plaintiff’s

14

request production of documents and “Statement of Facts.” (Doc. 13, 15.)
Finally, Plaintiff has filed numerous notices. (Doc. 12, 16-20.) To the extent that he

15
16

seeks any relief in his notices, such relief will be denied. (Id.)

17

VII.

Warnings

18

A.

Release

19

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

20

Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

21

the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

22

in dismissal of this action.

23

B.

Address Changes

24

Plaintiff must file and serve a notice of a change of address in accordance with Rule

25

83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

26

relief with a notice of change of address. Failure to comply may result in dismissal of this

27

action.

28
JDDL-K

- 16 -

1

C.

Copies

2

Plaintiff must submit an additional copy of every filing for use by the Court. See

3

LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

4

to Plaintiff.

5

D.

Possible “Strike”

6

Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails

7

to file an amended complaint correcting the deficiencies identified in this Order, the

8

dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

9

Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil

10

judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior

11

occasions, while incarcerated or detained in any facility, brought an action or appeal in a

12

court of the United States that was dismissed on the grounds that it is frivolous, malicious,

13

or fails to state a claim upon which relief may be granted, unless the prisoner is under

14

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

15

E.

Possible Dismissal

16

If Plaintiff fails to timely comply with every provision of this Order, including these

17

warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at

18

1260-61 (a district court may dismiss an action for failure to comply with any order of the

19

Court).

20

IT IS ORDERED:

21

(1)

Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 2.)

22

(2)

As required by the accompanying Order to the appropriate government agency,

23
24

Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3)

The Complaint is dismissed for failure to state a claim. (Doc. 1.) Plaintiff has

25

30 days from the date this Order is filed to file a first amended complaint in compliance with

26

this Order.

27
28
JDDL-K

(4)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

Court must, without further notice, enter a judgment of dismissal of this action with prejudice
- 17 -

1
2
3
4
5
6

that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).
(5)

The Clerk of Court must mail Plaintiff a court-approved form for filing a civil

rights complaint by a prisoner.
(6)

Plaintiff’s other filings, including motions, notices, statements, letters, and

requests are denied to the extent that any relief is sought therein. (Doc. 5-20.)
DATED this 29th day of May, 2013.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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JDDL-K

- 18 -

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(a) 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 Fee. The filing fee for this action is $350.00. If you are unable to immediately
pay the filing fee, 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.
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 $350 filing
fee or the application to proceed in forma pauperis to:

Revised 3/9/07

1

Phoenix & Prescott Divisions:
OR
U.S. District Court Clerk
U.S. Courthouse, Suite 130
401 West Washington Street, SPC 10
Phoenix, Arizona 85003-2119

Tucson Division:
U.S. District Court Clerk
U.S. Courthouse, Suite 1500
405 West Congress Street
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. 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 courtapproved civil rights complaint form. You may file one amended complaint without leave
(permission) of Court before any defendant has answered your original complaint. See Fed. R.
Civ. P. 15(a). After any defendant has filed an answer, 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 “1A” 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,” “2B,” 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,
vs.

(1)
(Full Name of Defendant)

(2)
(3)
(4)
Defendant(s).

G

Check if there are additional Defendants and attach page 1-A listing them.

)
, )
)
)
) CASE NO.
)
(To be supplied by the Clerk)
, )
)
, )
CIVIL RIGHTS COMPLAINT
)
, )
BY A PRISONER
)
, )
G Original Complaint
G First Amended Complaint
)
)
G Second Amended Complaint

A. JURISDICTION
1.

2.

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:

.

Institution/city where violation occurred:

.

Revised 3/9/07

1

550/555

B. DEFENDANTS
1.

Name of first Defendant:
at

. The first Defendant is employed as:
.

(Position and Title)

2.

(Institution)

Name of second Defendant:
at

. The second Defendant is employed as:
.

(Position and Title)

3.

(Institution)

Name of third Defendant:
at

. The third Defendant is employed as:
.

(Position and Title)

4.

(Institution)

Name of fourth Defendant:
at

. The fourth Defendant is employed as:
.

(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?

2.

If yes, how many lawsuits have you filed?

G Yes

G No

. 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:
v.
1. Parties:
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

1.

COUNT I
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
G Yes G No
at your institution?
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

1.

COUNT II
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

1.

COUNT III
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
G Yes G No
at your institution?
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.

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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.

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