Almendarez v. Imdorf et al

Filing 7

ORDER : Plaintiffs Motion for Leave to File an Amended Complaint 4 is granted insofar as the Amended Complaint supersedes the original Complaint in its entirety and the Clerk of Court must file the lodged Amended Complaint (lodged at Doc. 5) as Pl aintiff's First Amended Complaint. The First Amended Complaint (lodged at Doc. 5) is dismissed for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order. If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice. Defendants' Motio n to Dismiss for Failure to State a Claim 3 and Motion for a Stay or in the Alternative, Motion for Screening 6 are denied as moot. The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Signed by Senior Judge Robert C Broomfield on 12/4/2013. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tony Ray Almendarez,

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No. CV 13-1995-PHX-RCB (SPL)

Plaintiff,
vs.

ORDER

John Imdorf, et al.,
Defendants.

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Maricopa County Fourth Avenue Jail, filed a Complaint in Maricopa County Superior

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Court, Matter No. CV 2013-010195. In his Complaint, Plaintiff asserted claims of

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unlawful arrest, malicious prosecution, defamation, illegal search and seizure and due

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process violations. (Doc. 1, Ex. A.) Plaintiff named two individuals in his Complaint:

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Phoenix Police Officer John Imdorf and Phoenix Police Detective James Ferree. On

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October 2, 2013, Defendants Imdorf and Ferree removed the case to federal court based

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on federal question subject matter jurisdiction, stating that Defendant Imdorf first

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received a copy of the Complaint on September 11, 2013.

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Defendants filed a Motion to Dismiss for Failure to State a Claim (Doc. 3). On October

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28, 2013, Plaintiff filed a Motion for Leave to File an Amended Complaint (Doc. 4)

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along with a lodged proposed Amended Complaint (lodged at Doc. 5). On November 14,

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2013, Defendants filed a Response to Plaintiff’s Motion for Leave to File an Amended

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JDDL-K

On August 5, 2013, Plaintiff Tony Ray Almendarez, who is confined in the

Complaint and a Motion for a Stay or in the Alternative, Motion for Screening (Doc. 6).

On October 9, 2013,

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The Complaint facially supports that subject matter jurisdiction is proper in federal

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court and that the case was timely removed. 28 U.S.C. 1446(b). Plaintiff’s Motion will

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be granted insofar as the Amended Complaint supersedes the original Complaint in its

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entirety. The Court will Order the filing of the lodged Amended Complaint as Plaintiff’s

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“First Amended Complaint” and will dismiss the First Amended Complaint with leave to

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amend using the court-approved form complaint in compliance with the Instructions and

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Rule 8 of the Federal Rules of Civil Procedure. The Court will deny Defendants’

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motions as moot.1

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I.

Removal to Federal Court Was Proper

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A defendant may remove any civil action brought in state court over which the

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federal court would have original jurisdiction. 28 U.S.C. § 1441(a). That is, a civil

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action that could have originally been brought in federal court may be removed from state

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to federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal court

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has original jurisdiction “of all civil actions arising under the Constitution, laws, or

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treaties of the United States.” 28 U.S.C. § 1331.

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The Complaint in this case facially supports that subject matter jurisdiction exists

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in federal court because Plaintiff alleges violations of his federal constitutional rights. 28

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U.S.C. § 1441. Further, the case was timely removed. 28 U.S.C. § 1446(b) (requiring

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that a case be removed within 30 days after receipt by the defendant). Plaintiff has not

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objected to removal. Accordingly, the case was properly removed.

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II.

Statutory Screening

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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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Because the Prison Litigation Reform Act (PLRA) requires the Court to screen
and dismiss a prisoner complaint that fails to state a claim, Defendants’ motions will be
denied as moot. Because Plaintiff may be able to amend his Complaint to state a federal
claim, Plaintiff will be afforded an opportunity to amend. See Lopez v. Smith, 203 F.3d
1122, 1127-29 (9th Cir. 2000) (en banc).

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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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Rule 8(a) of the Federal Rules of Civil Procedure requires a “short and plain

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statement of the claim.”

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allegation must be simple, concise, and direct.” A complaint having the factual elements

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of a cause of action scattered throughout the complaint and not organized into a “short

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and plain statement of the claim” may be dismissed for failure to satisfy Rule 8(a). See

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Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry v.

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Renne, 84 F.3d 1172 (9th Cir. 1996). It is not the responsibility of the Court to review a

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rambling narrative in an attempt to determine the number and nature of a plaintiff’s

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claims.

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III.

Fed. R. Civ. P. 8(a)(2).

Rule 8(d)(1) states that “[e]ach

Failure to Comply with Rule 8 of the Federal Rules of Civil Procedure

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The Court has reviewed Plaintiff’s First Amended Complaint and concludes that it

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fails to comply with Rule 8 of the Federal Rules of Civil Procedure. Plaintiff’s First

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Amended Complaint contains seven single-spaced pages of “Facts” followed by three

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single-spaced pages of “Legal Claims.” Further, each separately numbered paragraph

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under “Legal Claims” appears to contain multiple claims and it is not clear which facts

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apply to each claim. Thus, the Court cannot meaningfully review the First Amended

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Complaint, as required by 28 U.S.C. § 1915A(a).

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IV.

Leave to Amend

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for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Within 30

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days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined

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above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a

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second amended complaint. If Plaintiff fails to use the court-approved form, the Court

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may strike the second amended complaint and dismiss this action without further notice

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JDDL-K

For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed

to Plaintiff.

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

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

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

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Complaint or First Amended Complaint by reference. Plaintiff may include only one

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claim per count.

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A second amended complaint supersedes the original Complaint and First

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Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal

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Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After

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amendment, the Court will treat the original Complaint and First Amended Complaint as

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

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original complaint or first amended complaint and that was voluntarily dismissed or was

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dismissed without prejudice is waived if it is not alleged in a second amended complaint.

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

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V.

Warnings

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A.

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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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B.

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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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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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JDDL-K

C.

order of the Court).

Possible Dismissal

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IT IS ORDERED:

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(1)

Plaintiff’s Motion for Leave to File an Amended Complaint (Doc. 4) is

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granted insofar as the Amended Complaint supersedes the original Complaint in its

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entirety and the Clerk of Court must file the lodged Amended Complaint (lodged at Doc.

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5) as Plaintiff’s First Amended Complaint.

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(2)

The First Amended Complaint (lodged at Doc. 5) is dismissed for failure to

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comply with Rule 8 of the Federal Rules of Civil Procedure. Plaintiff has 30 days from

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the date this Order is filed to file a second amended complaint in compliance with this

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Order.

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(3)

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 without

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prejudice.

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(4)

Defendants’ Motion to Dismiss for Failure to State a Claim (Doc. 3) and

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Motion for a Stay or in the Alternative, Motion for Screening (Doc. 6) are denied as

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moot.

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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.
DATED this 4th day of December, 2013.

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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 Fee. The filing fee for this action is $350.00. If you are unable to immediately
pay the filing fee, you may request leave to proceed in forma pauperis. Please review the
“Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in
Federal Court In Forma Pauperis Pursuant to 28 U.S.C. § 1915” for additional instructions.
5. Original and Judge’s Copy. You must send an original plus one copy of your complaint and
of any other documents submitted to the Court. You must send one additional copy to the Court
if you wish to have a file-stamped copy of the document returned to you. All copies must be
identical to the original. Copies may be legibly handwritten.
6. Where to File. You should file your complaint in the division where you were confined
when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined
in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were
confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott
Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file
in the Tucson Division. Mail the original and one copy of the complaint with the $350 filing
fee or the application to proceed in forma pauperis to:

Revised 3/9/07

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

Tucson Division:
U.S. District Court Clerk
U.S. Courthouse, Suite 1500
405 West Congress Street
Tucson, Arizona 85701-5010

7. Change of Address. You must immediately notify the Court and the defendants in writing
of any change in your mailing address. Failure to notify the Court of any change in your
mailing address may result in the dismissal of your case.
8. Certificate of Service. You must furnish the defendants with a copy of any document you
submit to the Court (except the initial complaint and application to proceed in forma pauperis).
Each original document (except the initial complaint and application to proceed in forma
pauperis) must include a certificate of service on the last page of the document stating the date
a copy of the document was mailed to the defendants and the address to which it was mailed.
See Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a
certificate of service may be stricken. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed
this
(month, day, year) to:
Name:
Address:
Attorney for Defendant(s)
(Signature)
9. Amended Complaint. If you need to change any of the information in the initial complaint,
you must file an amended complaint. The amended complaint must be written on the courtapproved civil rights complaint form. You may file one amended complaint without leave
(permission) of Court before any defendant has answered your original complaint. See Fed. R.
Civ. P. 15(a). After any defendant has filed an answer, you must file a motion for leave to
amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an
amended complaint may not incorporate by reference any part of your prior complaint. LRCiv
15.1(a)(2). Any allegations or defendants not included in the amended complaint are
considered dismissed. All amended complaints are subject to screening under the Prison
Litigation Reform Act; screening your amendment will take additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint.
Instead, the relevant information should be paraphrased. You should keep the exhibits to use
to support or oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff
of any judge. The only appropriate way to communicate with the Court is by filing a written
pleading or motion.
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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 “1A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED”
in the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do
so may result in the loss of the right to a jury trial. A jury trial is not available if you are
seeking only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C.
§ 1983 for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics
Agents” for federal defendants; or “other.” If you mark “other,” identify the source of
that authority.
2. Location. Identify the institution and city where the alleged violation of your rights
occurred.
3. Defendants. Print all of the requested information about each of the defendants in the
spaces provided. If you are naming more than four defendants, you must provide the
necessary information about each additional defendant on separate pages labeled “2-A,”
“2-B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in either state or federal court while
you were a prisoner. Print all of the requested information about each lawsuit in the spaces
provided. If you have filed more than three lawsuits, you must provide the necessary
information about each additional lawsuit on a separate page. Label the page(s) as “2-A,” “2B,” etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION:
You must identify what rights each defendant violated. The form provides space to
allege three separate counts (one violation per count). If you are alleging more than three
counts, you must provide the necessary information about each additional count on a separate
page. Number the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page
5. Remember that you are limited to a total of fifteen additional pages.
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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.

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Name and Prisoner/Booking Number

Place of Confinement

Mailing Address

City, State, Zip Code

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

(Full Name of Plaintiff)

Plaintiff,
vs.

(1)
(Full Name of Defendant)

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

G

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

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

A. JURISDICTION
1.

2.

This Court has jurisdiction over this action pursuant to:
G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983
G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
G Other:

.

Institution/city where violation occurred:

.

Revised 3/9/07

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550/555

B. DEFENDANTS
1.

Name of first Defendant:
at

. The first Defendant is employed as:
.

(Position and Title)

2.

(Institution)

Name of second Defendant:
at

. The second Defendant is employed as:
.

(Position and Title)

3.

(Institution)

Name of third Defendant:
at

. The third Defendant is employed as:
.

(Position and Title)

4.

(Institution)

Name of fourth Defendant:
at

. The fourth Defendant is employed as:
.

(Position and Title)

(Institution)

If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.

C. PREVIOUS LAWSUITS
1.

Have you filed any other lawsuits while you were a prisoner?

2.

If yes, how many lawsuits have you filed?

G Yes

G No

. Describe the previous lawsuits:

a. First prior lawsuit:
1. Parties:
v.
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

b. Second prior lawsuit:
v.
1. Parties:
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

c. Third prior lawsuit:
1. Parties:
v.
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page.

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D. CAUSE OF ACTION

1.

COUNT I
State the constitutional or other federal civil right that was violated:
.

2.

Count I. Identify the issue involved. Check only one. State additional issues in separate counts.
G Basic necessities
G Mail
G Access to the court
G Medical care
G Disciplinary proceedings
G Property
G Exercise of religion
G Retaliation
G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what
each Defendant did or did not do that violated your rights. State the facts clearly in your own words without
citing legal authority or arguments.

.
4.

Injury. State how you were injured by the actions or inactions of the Defendant(s).

.
5.

Administrative Remedies:
a. Are there any administrative remedies (grievance procedures or administrative appeals) available
G Yes G No
at your institution?
b. Did you submit a request for administrative relief on Count I?
G Yes G No
c. Did you appeal your request for relief on Count I to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why
you did not.
.
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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.
.
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1.

COUNT III
State the constitutional or other federal civil right that was violated:
.

2.

Count III. Identify the issue involved. Check only one. State additional issues in separate counts.
G Basic necessities
G Mail
G Access to the court
G Medical care
G Disciplinary proceedings
G Property
G Exercise of religion
G Retaliation
G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what
each Defendant did or did not do that violated your rights. State the facts clearly in your own words without
citing legal authority or arguments.

.
4.

Injury. State how you were injured by the actions or inactions of the Defendant(s).

.
5.

Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available
G Yes G No
at your institution?
b. Did you submit a request for administrative relief on Count III?
G Yes G No
c. Did you appeal your request for relief on Count III to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why
you did not.
.

If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page.

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

.

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

SIGNATURE OF PLAINTIFF

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

(Signature of attorney, if any)

(Attorney’s address & telephone number)

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

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