Garcia v. Ryan et al

Filing 6

ORDER, Plaintiff's Application to Proceed In Forma Pauperis 2 is granted; the Complaint 1 is dismissed for failure to state a claim; Plaintiff has 30 days to file a first amended complaint in compliance with this Order; if Plaintiff fails to comply with this order, the Clerk must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g); Plaintiff's motion for appointment of counsel 5 is denied. Signed by Judge David G Campbell on 1/15/14. (REW)

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SC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David M. Garcia,

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No. CV 13-1591-PHX-DGC (MEA)
Plaintiff,

vs.

ORDER

Charles L. Ryan, et al.,

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Defendants.

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Plaintiff David M. Garcia, who is confined in the Arizona State Prison Complex,

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Bachman Unit, in Buckeye, Arizona, has filed a pro se civil rights complaint pursuant to

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42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis.

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Plaintiff also filed a motion for appointment of counsel. (Doc. 5.) The Court will

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dismiss the Complaint with leave to amend and deny the motion.

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I.

(Doc. 1, 2.)

Application to Proceed In Forma Pauperis and Filing Fee

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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. Id. The statutory filing fee will be

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

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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

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

fees 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

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 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

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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

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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

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

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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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

Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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

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facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

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

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Court should not, however, advise the litigant how to cure the defects. This type of

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advice “would undermine district judges’ role as impartial decisionmakers.” Pliler v.

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Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to

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decide whether the court was required to inform a litigant of deficiencies). Plaintiff’s

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Complaint will be dismissed failure to state a claim, but because it may possibly be

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amended to state a claim, the Court will dismiss it with leave to amend.

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III.

Complaint

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Plaintiff alleges two claims for threat to safety and denial of constitutionally-

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adequate medical care. Plaintiff sues the following current or former employees of the

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Arizona Department of Corrections (ADC): Director Charles L. Ryan; Tucson Complex

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Warden Therese Schroeder; Santa Rita Unit Deputy Warden (DW) Fey; Captain

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Childree: Director of Health Services Richard Pratt; and John Does 1-4. Plaintiff also

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sues Corizon Health Services, a private entity that has contracted with ADC to provide

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medical care to inmates and Corizon Site Manager Cameron Lewis. Finally, Plaintiff

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also sues Inmate Richard Johnson.

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Plaintiff alleges the following facts. On September 20, 2012, Johnson and other

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unknown inmates attacked Plaintiff and beat him into unconsciousness, resulting in

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severe and traumatic brain injury, as well as other bodily injuries. Johnson was able to

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attack Plaintiff because Does 1-4 failed to keep the yard fence for Building 3 closed so

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that rioting inmates could not reach Plaintiff, who was in the Building 4 yard. Johnson is

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being prosecuted in Pima County Superior Court for the attack on Plaintiff, case

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#CR20131188, and also received prison disciplinary charges.

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how long he was hospitalized or the reason for surgery. Since that time, Plaintiff has not

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Plaintiff was hospitalized and had surgery for his injuries, but he does not allege

received follow-up treatment for his severe, traumatic, and permanent brain and head

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injuries, which include vision and speech problems, headaches, loss of balance, and

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difficulties in thinking.

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“Defendants” have failed to act, allegedly because of costs.

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IV.

Plaintiff has repeatedly requested medical follow-up, but

Failure to State a Claim

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To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

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(2) under color of state law (3) deprived him of federal rights, privileges or immunities

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and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th

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Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d

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1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific

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injury as a result of the conduct of a particular defendant and he must allege an

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affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode,

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423 U.S. 362, 371-72, 377 (1976).

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simply conclusions, that show that an individual was personally involved in the

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

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1998). For an individual to be liable in his official capacity, a plaintiff must allege that

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the official acted as a result of a policy, practice, or custom. See Cortez v. County of Los

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Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). Further, there is no respondeat superior

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liability under §1983, so a defendant’s position as the supervisor of someone who

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allegedly violated a plaintiff’s constitutional rights does not make him liable. Monell v.

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Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989). A supervisor in his individual capacity “is only liable for constitutional

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violations of his subordinates if the supervisor participated in or directed the violations,

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or knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. In

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addition, where a defendant’s only involvement in allegedly unconstitutional conduct is

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the denial of administrative grievances, the failure to intervene on a prisoner’s behalf to

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remedy the alleged unconstitutional behavior does not amount to active unconstitutional

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Further, to state a claim against a defendant, “[a] plaintiff must allege facts, not

behavior for purposes of § 1983. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.

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1999); accord Proctor v. Applegate, 661 F.Supp.2d 743, 765 (W.D. Mich. 2009); Stocker

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v. Warden, No. 1:07-CV-00589, 2009 WL 981323, at *10 (E.D. Cal. Apr. 13, 2009);

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Mintun v. Blades, No. CV-06-139, 2008 WL 711636, at *7 (D. Idaho Mar. 14, 2008); see

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also Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (a plaintiff must

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allege that a supervisor defendant did more than play a passive role in an alleged

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violation or mere tacit approval thereof; a plaintiff must allege that the supervisor

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defendant somehow encouraged or condoned the actions of their subordinates).

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A.

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Plaintiff sues Defendants Ryan, Schroeder, Fey, Pratt, and Childree in their

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supervisory capacities. Plaintiff has not alleged that any of them personally participated

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in a violation of Plaintiff’s constitutional rights. Plaintiff also has not alleged facts to

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support that any of them promulgated or endorsed a policy, practice, or custom resulting

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in a violation of his constitutional rights. Accordingly, Plaintiff fails to state a claim

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against any of them and they will be dismissed.

Ryan, Schroeder, Fey, Pratt, and Childree

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Plaintiff also sues Corizon, a private entity. Claims under § 1983 may be directed

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at persons and “bodies politic and corporate.” Monell v. Dep’t of Soc. Servs., 436 U.S.

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658, 688-89 (1978). Under the Civil Rights Act of 1871, Congress intended municipal

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corporations and other local government units to be included among those persons to

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whom § 1983 applies. Id. at 689-90. That proposition has been extended to corporations

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that act under color of state law. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139

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(9th Cir. 2012) (requirements of Monell apply to suits against private entities under

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§ 1983); Sable Commc’s of Cal. Inc. v. Pacific Tel. & Tel Co., 890 F.2d 184, 189 (9th

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Cir. 1989) (willful joint participation of private corporation in joint activity with state or

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its agent taken under color of state law). Under Monell, however, liability cannot be

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based solely on the existence of an employer-employee relationship with a tortfeasor.

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Tsao, 698 F.3d at 1139. Thus, to state a claim against a private entity under Monell, a

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B.

plaintiff must allege that the entity acted under color of state law, and that the claimed

Corizon

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constitutional violation was caused by an official policy or custom of the entity.1 Id.; see

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Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997); Street v. Corrections Corp. of Am.,

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102 F.3d 810, 814 (6th Cir. 1996); Wall v. Dion, 257 F. Supp.2d 316, 319 (D. Me 2003);

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see also Austin v. Paramount Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999); Rojas v.

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Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990); Lux by Lux v. Hansen,

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886 F.2d 1064, 1067 (8th Cir. 1989).

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Plaintiff fails to allege facts to support when, where, and how Corizon allegedly

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violated his constitutional rights. Moreover, Plaintiff has not alleged facts to support that

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his constitutional rights were violated as a result of a policy or custom of Corizon. For

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both reasons, Plaintiff fails to state a claim against Corizon and it will be dismissed.

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C.

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Plaintiff also sues a Corizon site manager. Plaintiff fails to allege any facts to

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support when, where, and how Lewis allegedly violated Plaintiff’s constitutional rights.

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Indeed, Plaintiff fails to include any factual allegations against Lewis. For that reason, he

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fails to state a claim against Lewis and he will be dismissed.

Cameron Lewis

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D.

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Plaintiff also sues Inmate Johnson, who attacked and injured him. Plaintiff may

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not seek relief against Johnson under § 1983 absent the allegation of facts to support that

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Johnson acted under color of state law. “[U]nder color of state law” is the equivalent of

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the “state action” requirement under the Constitution. Lugar v. Edmondson Oil Co, Inc.,

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457 U.S. 922, 928 (1982); Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000)

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(citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); West v. Atkins, 487 U.S. 42, 49

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(1988)). That is, “[a]cting under color of state law is ‘a jurisdictional requisite for a

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§ 1983 action.’” Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (quoting West,

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487 U.S. at 46 (1988)). A private party generally does not act under color of state law,

Johnson

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There are four ways to find state action by a private entity for purposes of
§ 1983: (1) the private actor performs a public function, (2) the private actor engages in
joint activity with a state actor, (3) a private actor is subject to governmental compulsion
or coercion, or (4) there is a governmental nexus with the private actor. Tsao, 698 F.3d at
1140; Kirtley v. Rainey, 326 F.3d 1088, 1093 (9th Cir. 2003).
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and is properly dismissed from a § 1983 action, unless a plaintiff makes more than

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merely conclusory allegations that the private party somehow acted under color of state

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law. Price v. State of Hawaii, 939 F.2d 701, 707-08 (9th Cir. 1991). Nevertheless,

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“[w]hile generally not applicable to private parties, a § 1983 action can lie against a

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private party when ‘he is a willful participant in joint action with the State or its agents.’”

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Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003) (quoting Dennis v. Sparks, 449

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U.S. 24, 27 (1980)). “‘The ultimate issue in determining whether a person is subject to

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suit under § 1983 is the same question posed in cases arising under the Fourteenth

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Amendment:

is the alleged infringement of federal rights fairly attributable to the

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[government]?’” Id. (quoting Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826,

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835 (9th Cir.1999)); see Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006).

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Plaintiff has alleged no facts to support that Johnson’s acts were in any way

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attributable to the government.

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Johnson under § 1983 and he will be dismissed.

Accordingly, Plaintiff fails to state a claim against

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E.

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In Count I, Plaintiff sues for threat to safety based on the failure of Does 1-4 to

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prevent access to Plaintiff by rioting inmates. To state a claim under § 1983 for threats to

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safety, an inmate must allege facts to support that he was incarcerated under conditions

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posing a substantial risk of harm and that officials were “deliberately indifferent” to those

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risks. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To adequately allege deliberate

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indifference, a plaintiff must allege facts to support that a defendant knew of, but

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disregarded, an excessive risk to inmate safety. Id. at 837. That is, “the official must

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both [have been] aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference.”

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Id.

Threat to Safety or Failure to Protect

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allege facts to support that these Defendants knew, or should have known, that the failure

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Plaintiff alleges that Does 1-4 failed to keep a yard fence closed. Plaintiff does not

to do so posed an excessive risk to Plaintiff’s safety. Nor does Plaintiff allege facts to

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support that Does 1-4 could have kept the yard fence closed. For example, Plaintiff does

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not contend that the gate was operable and could have been closed by Does 1-4 despite

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the rioting inmates. It is unclear from Plaintiff’s allegations whether the gate was open

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when the rioting began or whether it was opened after rioting began, which would be

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relevant to whether the Does may have acted with deliberate indifference. For these

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reasons, Plaintiff fails to state a claim for threat to safety and Count I will be dismissed.

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F.

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Plaintiff designates Count II as a claim for denial of constitutionally-adequate

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medical care. Not every claim by a prisoner relating to inadequate medical treatment

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states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical

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claim, a plaintiff must show that the defendants acted with “deliberate indifference to

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serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting

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Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

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medical need” by demonstrating that failure to treat the condition could result in further

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significant injury or the unnecessary and wanton infliction of pain and (2) the defendant’s

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response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).

Medical Care

A plaintiff must show (1) a “serious

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must

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both know of and disregard an excessive risk to inmate health; “the official must both be

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aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,

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837 (1994).

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purposeful act or failure to respond to a prisoner’s pain or possible medical need and

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harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may

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also be shown when a prison official intentionally denies, delays, or interferes with

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medical treatment or by the way prison doctors respond to the prisoner’s medical needs.

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Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

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Deliberate indifference in the medical context may be shown by a

Deliberate indifference is a higher standard than negligence or lack of ordinary

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due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor

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gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of

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Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs.,

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622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or

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“medical malpractice” do not support a claim under § 1983). “A difference of opinion

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does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.”

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care,

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without more, is insufficient to state a claim against prison officials for deliberate

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indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407

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(9th Cir. 1985). The indifference must be substantial. The action must rise to a level of

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“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

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Plaintiff acknowledges that he was hospitalized after he was assaulted and

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received surgery. Plaintiff asserts that he received no follow-up care after he returned to

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prison. Plaintiff does not allege when, where, how, or from whom he requested medical

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care or the medical care requested. Plaintiff does not allege what he informed any

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medical care provider about his symptoms and their severity or the response to his

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requests for care. Plaintiff also does not allege that any medical care was prescribed that

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one or more Defendants refused to provide, including supporting circumstances. Indeed,

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in Count II, Plaintiff fails to allege facts to support how each Defendant allegedly acted

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with deliberate indifference to his serious medical needs. For all of these reasons,

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Plaintiff fails to state a claim in Count II and it will be dismissed.

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V.

Leave to Amend

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state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a

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first amended complaint to cure the deficiencies outlined above. The Clerk of Court will

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mail Plaintiff a court-approved form to use for filing a first amended complaint. If

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Plaintiff fails to use the court-approved form, the Court may strike the amended

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For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to

complaint and dismiss this action without further notice to Plaintiff.

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Plaintiff must clearly designate on the face of the document that it is the “First

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Amended Complaint.” The first amended complaint must be retyped or rewritten in its

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entirety on the court-approved form and may not incorporate any part of the original

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Complaint by reference. Plaintiff may include only one claim per count.

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A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet,

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

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F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original

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complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised

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in the original complaint and that was voluntarily dismissed or was dismissed without

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prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa

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County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

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VI.

Motion for Appointment of Counsel

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As noted above, Plaintiff has filed a motion for appointment of counsel. Plaintiff

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seeks the appointment of counsel based on his incarceration, lack of legal resources, and

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indigence. Plaintiff also asserts that he is seriously mentally ill (SMI) and suffers from

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paranoid schizophrenia for which he receives various anti-psychotic medications and

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mood stabilizers and that his brain injury makes it difficult for him to manage day to day

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functions. He indicates that other inmates have assisted him in preparing his filings.

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Ivey, 673 F.2d at 269. In proceedings in forma pauperis, the court may request an

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attorney to represent any person unable to afford one.

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Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when “exceptional

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circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A

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determination with respect to exceptional circumstances requires an evaluation of the

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likelihood of success on the merits as well as the ability of Plaintiff to articulate his

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claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these

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factors is dispositive and both must be viewed together before reaching a decision.” Id.

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There is no constitutional right to the appointment of counsel in a civil case. See

(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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28 U.S.C. § 1915(e)(1).

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At this juncture, Plaintiff appears able to articulate his claims in light of the

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complexity of the issues involved despite his medical conditions. The Court will deny

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Plaintiff’s motion, having considered the elements above, without prejudice.

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VII.

Warnings

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A.

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

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

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intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to

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comply may result in dismissal of this action.

Release

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B.

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

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

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

Address Changes

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C.

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

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

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notice to Plaintiff.

Copies

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

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

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

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

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

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

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

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

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D.

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

Possible “Strike”

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E.

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

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these warnings, the Court may dismiss this action without further notice. See Ferdik, 963

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F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any

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order of the Court).

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IT IS ORDERED:

Possible Dismissal

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(1)

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

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(2)

As required by the accompanying Order to the appropriate government

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agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial

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filing fee.

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(3)

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

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

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compliance with this Order.

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(4)

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

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

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

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(5)

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

civil rights complaint by a prisoner.

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(6)

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Dated this 15th day of January, 2014.

Plaintiff’s motion for appointment of counsel is denied. (Doc. 5.)

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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 and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing fee
plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may request
leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave
to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28
U.S.C. § 1915” for additional instructions.
5. Original and Judge’s Copy. You must send an original plus one copy of your complaint and of
any other documents submitted to the Court. You must send one additional copy to the Court if you
wish to have a file-stamped copy of the document returned to you. All copies must be identical to
the original. Copies may be legibly handwritten.
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 $400 filing and
administrative fees or the application to proceed in forma pauperis to:

Revised 5/1/2013

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 court-approved
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.
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12. Completing the Civil Rights Complaint Form.
HEADING:
1. Your Name. Print your name, prison or inmate number, and institutional mailing address
on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name
more than four defendants, print the name of the first defendant on the first line, write the
words “and others” on the second line, and attach an additional page listing the names of all
of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in
the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may
result in the loss of the right to a jury trial. A jury trial is not available if you are seeking
only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983
for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for
federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights
occurred.
3. Defendants. Print all of the requested information about each of the defendants in the
spaces provided. If you are naming more than four defendants, you must provide the
necessary information about each additional defendant on separate pages labeled “2-A,” “2B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in either state or federal court while you
were a prisoner. Print all of the requested information about each lawsuit in the spaces provided.
If you have filed more than three lawsuits, you must provide the necessary information about each
additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the
page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION:
You must identify what rights each defendant violated. The form provides space to allege
three separate counts (one violation per count). If you are alleging more than three counts, you
must provide the necessary information about each additional count on a separate page. Number
the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that
you are limited to a total of fifteen additional pages.

3

1. Counts. You must identify which civil right was violated. You may allege the violation
of only one civil right per count.
2. Issue Involved. Check the box that most closely identifies the issue involved in your
claim. You may check only one box per count. If you check the box marked “Other,” you
must identify the specific issue involved.
3. Supporting Facts. After you have identified which civil right was violated, you must state
the supporting facts. Be as specific as possible. You must state what each individual
defendant did to violate your rights. If there is more than one defendant, you must identify
which defendant did what act. You also should state the date(s) on which the act(s)
occurred, if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.
5. Administrative Remedies. You must exhaust any available administrative remedies
before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should
disclose whether you have exhausted the inmate grievance procedures or administrative
appeals for each count in your complaint. If the grievance procedures were not available for
any of your counts, fully explain why on the lines provided.
Part D. REQUEST FOR RELIEF:
Print the relief you are seeking in the space provided.
SIGNATURE:
You must sign your name and print the date you signed the complaint. Failure to sign the
complaint will delay the processing of your action. Unless you are an attorney, you may not bring
an action on behalf of anyone but yourself.

FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your complaint
being stricken or dismissed. All questions must be answered concisely in the proper space on the
form. If you need more space, you may attach no more than fifteen additional pages. But the form
must be completely filled in to the extent applicable. If you attach additional pages, be sure to
identify which section of the complaint is being continued and number the pages.

4

Name and Prisoner/Booking Number

Place of Confinement

Mailing Address

City, State, Zip Code

(Failure to notify the Court of your change of address may result in dismissal of this action.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

(Full Name of Plaintiff)

Plaintiff,
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 5/1/2013

1

550/555

B. DEFENDANTS
1.

Name of first Defendant:

. The first Defendant is employed as:
at

.

(Position and Title)
2.

(Institution)
. The second Defendant is employed as:

Name of second Defendant:
at

.

(Position and Title)
3.

(Institution)

Name of third Defendant:

. The third Defendant is employed as:
at

.

(Position and Title)
4.

(Institution)

Name of fourth Defendant:
at
(Position and Title)

. The fourth Defendant is employed as:
.
(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 at your
G Yes G No
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 at your
G Yes G No
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.

5

E. REQUEST FOR RELIEF
State the relief you are seeking:

.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on
DATE

SIGNATURE OF PLAINTIFF

(Name and title of paralegal, legal assistant, or
other person who helped prepare this complaint)

(Signature of attorney, if any)

(Attorney’s address & telephone number)

ADDITIONAL PAGES
All questions must be answered concisely in the proper space on the form. If you need more space, you may attach
no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you
attach additional pages, be sure to identify which section of the complaint is being continued and number all pages.

6