Walker v. Babeu et al

Filing 6

ORDER granting 2 Motion for Leave to Proceed In Forma Pauperis; granting in part and denying in part 5 Motion. The motion is granted insofar as this Order requires the Clerk of Court to provide Plaintiff with a court-approved form for filing a civil rights complaint by a prisoner. The Motion is denied in all other respects. The Complaint 1 is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint. If Plaintiff fai ls to comply, the Clerk of Court must enter a judgment of dismissal with prejudice that staes 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. Signed by Judge G Murray Snow on 10/21/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ryan E. Walker,

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No. CV 13-1835-PHX-GMS (BSB)
Plaintiff,

vs.

ORDER

Pinal County Jail Sheriff, et al.,

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Defendants.

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Plaintiff Ryan E. Walker, who is confined in the Pinal County Jail in Florence,

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Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1)

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and an Application to Proceed In Forma Pauperis (Doc. 2). Plaintiff has also filed a

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Motion requesting an amended civil rights complaint form, writing materials, legal

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envelopes, and an order allowing access to a law library (Doc. 5). The Court will dismiss

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the Complaint with leave to amend.

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I.

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. 28 U.S.C. § 1915(b)(1). The

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statutory fee will be collected monthly in payments of 20% of the previous month’s

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income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2).

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The Court will enter a separate Order requiring the appropriate government agency to

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JDDL-K

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

collect and forward the 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). The Court

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will dismiss Plaintiff’s Complaint for failure to state a claim, but because the Complaint

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may possibly be saved by amendment, will dismiss the Complaint with leave to amend.

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III.

Complaint

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In his three-count Complaint, Plaintiff alleges claims for denial of medical care,

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denial of access to the courts, and denial of basic necessities. Plaintiff appears to sue the

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following Defendants1: Pinal County Sheriff Paul Babeu; Pinal County Adult Detention

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Facility (“PCADF”) and all PCADF Staff (although Plaintiff asserts this “do[es] not

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p[er]tain to all but is not limited to one”); Detention Officer K. Roderguz (sic); “Medical

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Staff/Provider” at PCADF; Detention Officer/Paralegal at PCADF; All Pinal County

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Correctional Health Services Healthcare Staff (although Plaintiff asserts this “do[es] not

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p[er]tain to all but is not limited to one”); and “Provider Health Care” “before the present

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provider of Health Care services but is not limited one (sic).”

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following relief: medical treatment and rehabilitation, and compensation for all present

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and future medical treatment, pain and suffering, stress, and treatment while grieving for

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his wife.

Plaintiff seeks the

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Although Plaintiff’s facts are disjointed, he appears to allege the following in

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Count I: Plaintiff was working in the kitchen of the PCADF when his feet slipped out

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from under him. He fell back against a table and then to the floor. He was not taken to

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medical for two hours and it was closed when he arrived. Plaintiff saw a nurse who gave

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Plaintiff attached a second, handwritten page of Defendants but did not number
each additional Defendant, and it is not clear whether Plaintiff has listed the same
Defendant more than once using different appellations.
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him 400 milligrams of ibuprofen. Plaintiff returned to work the following day. Three

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days later Plaintiff saw a medical office provider, who gave him ibuprofen for ten days.

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Plaintiff states that he had a three-inch by ten-inch bruise and after two months his skin

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was still discolored and he had a knot inside his skin. Plaintiff requested an x-ray “and

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picture” but his request was denied. He states that he likely had a cracked rib and

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“maybe a cracked coll[a]r bone too.” Plaintiff did not say when these events occurred but

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states that he has had problems from the fall “going on 6 month[s]” and is now having

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pinched nerve and shoulder problems.

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Plaintiff also asserts that on August 25, 2013 he lost his wife and was taken to a

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hospital where he was given a half-hour to be with her and then “pull the plug.” When

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Plaintiff returned to the jail he asked to be put in lockdown so he could grieve. He

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apparently put this request in writing and thanked the medical staff and staff at the jail.

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Plaintiff alleges that “they took it wrong,” and stripped him naked and put him in a

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rubber room for four days. Plaintiff asserts, “At no time did I say I want or was

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think[ing] of hurting myself.” Plaintiff alleges that after four days a mental health doctor

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released him and said “sorry for being held.”

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In Count II, Plaintiff alleges that a paralegal denied: “any and all assistance in

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preparing forms, including but not limited to this form”; “questions as to legal codes,

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procedures, proper information places, category”; “assistance in mailing forms and

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motions”; “a[c]quiring copies and notary serv[ic]es”; and “a[c]quiring names[,] tit[]les,

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address[e]s to courts.”

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In Count III, Plaintiff asserts that the water boiler supplying the jail failed on May

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8, 2013 and was fixed on May 20, 2013. He alleges that he did not have hot water for

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bathing, clothing or bedding and that the lack of hot water was unsanitary for eating and

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living conditions.

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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 supporting that (1) the
conduct about which he complains was committed by a person acting under the color of

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

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Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also allege that

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he suffered a specific injury as a result of the conduct of a particular defendant and he

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must allege an affirmative link between the injury and the conduct of that defendant.

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

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A.

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Plaintiff sues Pinal County Sheriff Babeu.

Sheriff Babeu
While Babeu may be sued for

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constitutional violations, Plaintiff fails to state a claim against him. “A plaintiff must

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allege facts, not simply conclusions, that show that an individual was personally involved

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

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

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

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

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

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

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

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1045 (9th Cir. 1989).

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

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the violations, or knew of the violations and failed to act to prevent them.” Taylor, 880

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F.2d at 1045.

A supervisor in his individual capacity “is only liable for

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support that Babeu enacted or enforced a policy, custom, or practice that resulted in the

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denial of Plaintiff’s constitutional rights. Plaintiff also has not alleged facts to support

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that Babeu directly violated his constitutional rights or that Babeu was aware that

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Plaintiff’s rights were being violated but failed to act. For that reason, Plaintiff fails to

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state a claim against Babeu and he will be dismissed.

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....

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JDDL-K

Plaintiff fails to allege any facts against Babeu. Plaintiff has not alleged facts to

....

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B.

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Plaintiff sues PCADF; however, PCADF is not a proper defendant. Claims under

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§ 1983 are directed at “bodies politic and corporate.” Monell, 436 U.S. at 688-89. Under

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the Civil Rights Act of 1871, Congress intended municipalities and other local

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government units to be included among those persons to whom § 1983 applies. Id. at

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689-690. In Arizona, the responsibility for operating jails and caring for prisoners is

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placed by law upon the sheriff and the County. See Ariz. Rev. Stat. §§ 11-251(8), 11-

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291(A), 11-441(A)(5), 31-101.

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sheriff to allow him to carry out his statutory duties; it is not a “person” amenable to suit

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pursuant to § 1983. See, e.g., Petaway v. City of New Haven Police Dep’t, 541 F.Supp.2d

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504 (D. Conn. 2008); Pahle v. Colebrookdale Twp., 227 F. Supp. 2d 361 (E.D. Pa. 2002).

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Accordingly, PCADF will be dismissed from this action.

Pinal County Adult Detention Facility

PCADF is simply an administrative creation of the

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C.

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Plaintiff purports to sue unspecified and unenumerated staff of PCADF and its

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healthcare provider without alleging how any particular unidentified defendant allegedly

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violated his federal constitutional or statutory rights.

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appellations to identify defendants is generally disfavored. Rule 10(a) of the Federal

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Rules of Civil Procedure requires the plaintiff to include the names of the parties in the

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action. As a practical matter, it is impossible in most instances for the United States

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Marshal or his designee to serve a summons and complaint or amended complaint upon

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an anonymous defendant.

Unnamed or Fictitiously Identified Defendants

The use of anonymous type

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complaint, the plaintiff should be given an opportunity through discovery to identify the

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unknown defendants, unless it is clear that discovery would not uncover the identities, or

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that the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177

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F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

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1980)). Further, where the names of individual defendants are unknown at the time a

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JDDL-K

The Ninth Circuit has held that where identity is unknown prior to the filing of a

complaint is filed, a plaintiff may refer to the individual unknown defendants as

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Defendant John Doe 1, John Doe 2, John Doe 3, and so on, and allege facts to support

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how each particular Doe defendant violated the plaintiff’s constitutional rights. The

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plaintiff may thereafter use the discovery processes to obtain the names of fictitiously-

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named defendants whom he believes violated his constitutional rights and seek leave to

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amend to name those defendants. Accordingly, in any amended complaint, Plaintiff

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should set forth how each fictitiously named Defendant allegedly violated his rights.

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Plaintiff should also identify different fictitious Defendants by different fictitious names,

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e.g., John Doe 1, John Doe 2, etc.

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D.

Detention Officer K. Roderguz

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Plaintiff sues Detention Officer K. Roderguz; however, Plaintiff fails to allege

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how Roderguz violated his constitutional rights, including when, where, and how. At no

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point in the Complaint does Plaintiff allege any conduct by Roderguz. Accordingly,

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Plaintiff fails to state a claim against Roderguz and he or she will be dismissed.

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E.

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While Arizona places responsibility for operating county jails by law upon the

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sheriff, see Ariz. Rev. Stat. §§ 11-141(A)(5), 31-101, Pinal County is responsible for the

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provision of medical care to inmates. Pinal County Correctional Health Services is an

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administrative creation of the County and is not a “person” amenable to suit under

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§ 1983. Accordingly, Pinal County Correctional Health Services will be dismissed.

Pinal County Correctional Health Services

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F.

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Plaintiff sues “Medical Staff/Provider”; however, it is not clear if “Medical

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Staff/Provider” denotes an unnamed individual, an unnamed group of defendants, or is

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another way of denoting Pinal County Correctional Health Services. Moreover, Plaintiff

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fails to allege how Medical Staff/Provider violated his constitutional rights, including

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when, where, and how. Accordingly, Plaintiff fails to state a claim against Medical

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Staff/Provider and that person(s) or entity will be dismissed.

Medical Staff/Provider

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G.

Plaintiff designates Count I as a claim for the denial of constitutionally adequate

Medical Care

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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)). A plaintiff must show (1) a “serious

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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. Id. at 1096 (quotations omitted).

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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.

Deliberate indifference in the medical context may be shown by a

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

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, 439 F.3d at 1096

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(quotations omitted).

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In addition to failing to identify any individuals responsible for the acts in Count I,

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Plaintiff fails to allege facts to support that any Defendant was deliberately indifferent to

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a serious medical need. Accordingly, Count I will be dismissed.

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H.

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Plaintiff alleges in Count II that he has been denied access to the courts. The right

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of meaningful access to the courts prohibits officials from actively interfering with

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inmates’ attempts to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350

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(1996). The right of access to the courts is only a right to bring petitions or complaints to

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federal court and not a right to discover such claims or even to ligate them effectively

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once filed with a court. Id. at 354. The right “guarantees no particular methodology but

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rather the conferral of a capability—the capability of bringing contemplated challenges to

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sentences or conditions of confinement before the courts.” Id. at 356. Further, the denial

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of access to a paralegal or use of a law library is not actionable if there is no claim of

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prejudice to an existing or future legal action. Id. at 351-53. That is, as a matter of

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standing, for an access-to-courts claim, a plaintiff must show that he suffered an “actual

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injury” with respect to contemplated litigation. Id. at 349. To show actual injury with

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respect to contemplated litigation, the plaintiff must demonstrate that the defendants’

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conduct frustrated or impeded him from bringing to court a non-frivolous claim that he

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wished to present. Id. at 352-53. A plaintiff “must identify a non-frivolous, arguable

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underlying claim,” and this underlying claim “must be described in the complaint.”

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Christopher v. Harbury, 536 U.S. 403, 414-15 (2002).

Access to Courts

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access, including when and how he believes he was denied such access. Moreover,

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Plaintiff generally fails to allege specific facts regarding any alleged denial of

Plaintiff fails to allege facts to support that he has been actually injured with respect to

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any pending or prospective litigation. Clearly, Plaintiff was able to file this action. Nor

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has he identified a non-frivolous, arguable underlying claim. For these reasons, Plaintiff

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fails to state a claim in Count II for denial of access to the court and it and Defendant

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Detention Officer/Paralegal will be dismissed.

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I.

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Plaintiff alleges in Count III that he was denied basic necessities in the form of hot

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water to cleanse and sanitize his body, clothing and bedding, apparently from May 8

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through May 20, 2013. A claim for unconstitutional conditions of confinement arises

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under the Eighth Amendment’s prohibition against cruel and unusual punishment. Bell v.

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Wolfish, 441 U.S. 520, 535 and n.16 (1979). To state a claim for unconstitutional

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Denial of Basic Necessities

conditions, a plaintiff must allege an objectively “sufficiently serious” deprivation that
results in the denial of “the minimal civilized measure of life’s necessities.” Farmer, 511
U.S. at 834; see Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994); Estate of Ford v.
Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). That is, a plaintiff must allege
facts supporting that he is incarcerated under conditions posing a substantial risk of harm.
Farmer, 511 U.S. at 834. Further, only deprivations denying the minimal civilized
measure of life’s necessities are sufficiently grave to violate the Eighth Amendment.
Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). These are “deprivations of essential
food, medical care, or sanitation” or “other conditions intolerable for prison
confinement.” Rhodes v. Chapman, 452 U.S. 337, 348 (1981). Whether a condition of
confinement rises to the level of a constitutional violation may depend, in part, on the
duration of an inmate’s exposure to that condition. Keenan v. Hall, 83 F.3d 1083, 1089
(9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). “The more basic

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the need, the shorter the time it can be withheld.” Hoptowit v. Ray, 682 F.2d 1287, 1259

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(9th Cir. 1982).

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A plaintiff must also allege facts to support that a defendant had a “sufficiently
culpable state of mind,” i.e., that the official acted with deliberate indifference to inmate

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health or safety. See Farmer, 511 U.S. at 837. In defining “deliberate indifference” in

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the prison context, the Supreme Court has imposed a subjective test: “the official must

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

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of serious harm exists, and he must also draw the inference.” Id. A plaintiff must also

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allege how he was injured by the alleged unconstitutional conditions. See, e.g., Lewis,

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518 U.S. at 349 (doctrine of standing requires that claimant have suffered or will

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imminently suffer actual harm).

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Plaintiff’s claim fails for several reasons. First, Plaintiff fails to allege facts to

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connect any named Defendant to the alleged violations or to support that any named

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Defendant acted with deliberate indifference to an excessive risk to Plaintiff’s health

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posed by those conditions. Plaintiff also fails to set forth facts to support that the alleged

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lack of hot water posed a substantial risk of harm to him. Finally, Plaintiff fails to allege

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how he was injured by the alleged violation or that he was imminent danger of injury.

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For these reasons, Plaintiff fails to state a claim for denial of basic necessities, and Count

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II will be dismissed.

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V.

Motion

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In his Motion, Plaintiff requests (1) an amended civil rights complaint form, (2)

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writing materials, (3) legal envelopes, and (4) an order allowing access to a law library.

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Plaintiff states that he needs these items to conduct research and to prepare legal

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documents because county inmates do not get law library time, the paralegal will not

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provide independent research, and his requests for items 2, 3 and 4 have not been

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fulfilled.

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Plaintiff’s Motion insofar as the Clerk of Court will provide a civil rights complaint form

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along with this Order. The Court will deny Plaintiff’s other requests. Plaintiff clearly

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has access to writing materials and was able to write and submit his Complaint in this

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action, and he does not allege that he has been unable to communicate with the Court.

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Plaintiff’s Motion is granted in part and denied in part. The Court will grant

Also, as noted above, there is no actionable claim from denial of access to a law library if

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there is no claim of prejudice to an existing or future legal action, that is, an actual injury.

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See Lewis, 518 U.S. at 351-53. Plaintiff has not made a claim of actual injury.

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VI.

Leave to Amend

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

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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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complaint and dismiss this action without further notice to Plaintiff.

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If Plaintiff files an amended complaint, Plaintiff must write short, plain statements

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telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name

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of the Defendant who violated the right; (3) exactly what that Defendant did or failed to

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do; (4) how the action or inaction of that Defendant is connected to the violation of

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Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of

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that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377.

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Plaintiff must repeat this process for each person he names as a Defendant. If

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Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific

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injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for

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failure to state a claim.

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Defendants has violated a constitutional right are not acceptable and will be

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dismissed.

Conclusory allegations that a Defendant or group of

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

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JDDL-K

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

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 is waived if it is not raised in a first amended complaint. King v.

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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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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

17

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

18

notice to Plaintiff.

Copies

19
20

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

21

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

22

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

23

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

24

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

25

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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JDDL-K

D.

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

Possible “Strike”

- 13 -

1

E.

2

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

3

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

4

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

5

order of the Court).

Possible Dismissal

6

IT IS ORDERED:

7

(1)

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

8

(2)

As required by the accompanying Order to the appropriate government

9

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

10

filing fee.

11

(3)

Plaintiff’s Motion (Doc. 5) is granted in part and denied in part. The

12

Motion is granted insofar as this Order requires the Clerk of Court to provide Plaintiff

13

with a court-approved form for filing a civil rights complaint by a prisoner. The Motion

14

is denied in all other respects.

15

(4)

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

16

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

17

compliance with this Order.

18

(5)

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

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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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....

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....

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....

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....

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....

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....

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....

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JDDL-K

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

....

- 14 -

1
2
3

(6)

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

civil rights complaint by a prisoner.
Dated this 21st day of October, 2013.

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JDDL-K

- 15 -

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.
2

12. Completing the Civil Rights Complaint Form.
HEADING:
1. Your Name. Print your name, prison or inmate number, and institutional mailing address
on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name
more than four defendants, print the name of the first defendant on the first line, write the
words “and others” on the second line, and attach an additional page listing the names of all
of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in
the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may
result in the loss of the right to a jury trial. A jury trial is not available if you are seeking
only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983
for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for
federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights
occurred.
3. Defendants. Print all of the requested information about each of the defendants in the
spaces provided. If you are naming more than four defendants, you must provide the
necessary information about each additional defendant on separate pages labeled “2-A,” “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