Barrientes v. Kramer et al

Filing 7

ORDER - Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2 ) is granted. The Complaint (Doc. 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 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 with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). Plaintiff's Motion for Appointment of Counsel (Doc. 5 ) is denied without prejudice. (See document for further details). Signed by Judge David G Campbell on 4/28/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeremy Keith Barrientes,

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No. CV 13-2626-PHX-DGC (MEA)

Plaintiff,
vs.

ORDER

Tara L. Kramer, et al.,

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Defendants.

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Plaintiff Jeremy Keith Barrientes, who is confined in the Arizona State Prison-

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Kingman, 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 for Appointment of Counsel (Doc. 5). The Court will deny the Motion and will

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dismiss 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. Id. The statutory filing fee will be

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collected monthly in payments of 20% of the previous month’s income credited to

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Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C.

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§ 1915(b)(2). The Court will enter a separate Order requiring the appropriate government

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agency to collect and forward the fees according to the statutory formula.

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

....

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II.

Statutory Screening of Prisoner Complaints

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

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

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

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

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

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immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

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

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defendant-unlawfully-harmed-me accusation.”

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

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conclusory statements, do not suffice.” Id.

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

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

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

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

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

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

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

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

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

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

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at 681.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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III.

Complaint

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A.

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In his two-count Complaint, Plaintiff sues the following Defendants: Tara L.

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Kramer, Certified Reporter #50439 in the Superior Court; Steven C. Tucker, Legal

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Advocate in the Office of the Legal Advocate; Utiki Spurling-Lainge, Public Defender;

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and Carolyn J. Robinson, Prosecutor/Deputy Maricopa County Attorney. Plaintiff seeks

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a declaratory judgment, damages and court costs.

Allegations

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by a “conspiracy.” He alleges the following: Defendant Kramer “edited and/or falsified

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the transcript of proceeding of 11/09/2012 and filed the falsified transcript on 02/02/2013

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in CR2010-138881-003 and CR2003-036001-001.”

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additions to a plea agreement that I signed without my knowledge. She then filed the

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plea agreement in CR2010-138881-003 and CR2003-036001-001 on 02/18/2011.”

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Defendant Robinson “has ignored and/or not answered a Brady Request that I sent her.”

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Also, Defendant Robinson “had a duty to file for dismissal in CR2010-138881-003 and

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CR2003-036001-00. She ignored that duty.” Plaintiff alleges that he has been “denied

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the right to a fair and impartial hearing and/or the proper evidence.” He has been

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sentenced to 21 years’ imprisonment “based on a plea agreement [he] did not agree to

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In Count I, Plaintiff alleges that his Fourteenth Amendment rights were violated

because it was altered without [his] knowledge before it was filed.”

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Defendant Robinson “made

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In Count II, Plaintiff alleges that this “conspiracy” violated his Sixth Amendment

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rights by the following: Defendant Tucker “gave testimony against” Plaintiff in a hearing

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to change counsel on September 28, 2010. After requesting a competency determination,

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Tucker filed a stipulation for competency after Plaintiff told him he “would do anything

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to get out of Maricopa County Jail,” and “no competency determination was made,” to

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Plaintiff’s knowledge.

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Defendant Tucker: did not investigate Plaintiff’s alibis; did not request a Deseralt

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hearing; would not defend Plaintiff; did not file a motion for dismissal, despite his duty to

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do so; represented “conflicting interests” in Plaintiff’s case; and advised Plaintiff that his

In cases CR2010-138881-003 and CR2003-036001-001,

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only option was to sign a plea.

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communication before resentencing”; did not file a motion “to withdraw guilty plea” as

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Plaintiff requested; and did not file a notice of post-conviction relief as Plaintiff

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requested.

Defendant Spurling-Lainge “attended ex parte

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B.

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According to records available on-line, on February 2, 2011, Plaintiff pled guilty

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in Maricopa County Superior Court case #CR2010-138881-003 to two counts of armed

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robbery, and one count of misconduct involving weapons.1 Plaintiff was sentenced on

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March 21, 2011 to a total term of imprisonment of 21 years, which was to run

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concurrently with the sentence in CR2003-036001-001.2 On April 8, 2011, the trial court

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received Plaintiff’s Notice of Post-Conviction Relief and ordered the Office of the Public

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Defender to represent Plaintiff.3 On May 27, 2012, the court received counsel’s notice of

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completion of post-conviction review and granted Plaintiff 45 days to file a pro per

Additional Background

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See http://www.courtminutes.maricopa.gov/docs/Criminal/022011/m4604460.pdf
and http://www.courtminutes.maricopa.gov/docs/Criminal/042011/m4660782.pdf (last
visited April 10, 2014).
2

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See http://www.courtminutes.maricopa.gov/docs/Criminal/032011/m4649192.pdf
(last visited April 10, 2014).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/042011/m4674166.pdf
(last visited April 10, 2014).
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Petition for Post-Conviction Relief (“PCR Petition).4 On July 2, 2012, Plaintiff filed his

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PCR Petition.5 The court denied Plaintiff’s PCR Petition on October 16, 2012 as to all

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issues raised except for a sentencing error “relating to omitting to state the aggravating

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factors on the record that supported the imposition of the stipulated aggravated

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sentence.”6 The error was corrected at a re-sentencing on November 9, 2012.7 The Court

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denied Petitioner’s second PCR Petition on January 14, 2014.8

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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

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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 her 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 Tucker and Spurling-Lainge, who both appear to be public

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defenders. A prerequisite for any relief under § 1983 are allegations to support that a

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defendant acted under the color of state law. The “under color of state law” component is

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the equivalent of the “state action” requirement under the Constitution.

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Edmondson Oil Co, Inc., 457 U.S. 922, 928 (1982); Jensen v. Lane County, 222 F.3d

Tucker and Spurling-Lainge

Lugar v.

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See http://www.courtminutes.maricopa.gov/docs/Criminal/052012/m5247473.pdf
(last visited April 10, 2014).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/072012/m5317875.pd
f(last visited April 10, 2014).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/102012/m5472471.pdf
(last visited April 10, 2014).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/112012/m5506123.pdf
(last visited April 10, 2014).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/012014/m6121955.pdf
(last visited April 10, 2014).
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570, 574 (9th Cir. 2000) (citing West v. Atkins, 487 U.S. 42, 49 (1988); Rendell-Baker v.

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Kohn, 457 U.S. 830, 838 (1982)). “Acting under color of state law is ‘a jurisdictional

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

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(quoting West, 487 U.S. at 46). Whether an attorney representing a criminal defendant is

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privately retained, a public defender, or court-appointed counsel, he or she does not act

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under color of state law. See Polk County v. Dodson, 454 U.S. 312, 317-18 (1981);

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Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) (en banc). Because

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Defendants Tucker and Spurling-Lainge were not acting under color of state law,

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Plaintiff fails to state a claim against them, and Tucker and Spurling-Lainge will be

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dismissed.

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B.

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Plaintiff sues Deputy County Attorney Robinson. A prosecutor is absolutely

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immune from liability under § 1983 for conduct in “‘initiating a prosecution and in

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presenting the State’s case’” insofar as that conduct is “‘intimately associated with the

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judicial phase of the criminal process.’” Buckley v. Fitzsimmons, 509 U.S. 259, 270

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(1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also Burns v. Reed,

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500 U.S. 478, 486 (1991); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986). That

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is, “[a] prosecutor is protected by absolute immunity from liability for damages under

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§ 1983 ‘when performing the traditional functions of an advocate.’”

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Longanbach, 410 F.3d 630, 636 (9th Cir. 2005) (quoting Kalina v. Fletcher, 522 U.S.

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118, 131 (1997)).

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defamatory testimony from witnesses” or for making false or defamatory statements

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during, and related to judicial proceedings. Buckley, 509 U.S. at 270 (citations omitted).

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“However, ‘the actions of a prosecutor are not absolutely immune merely because they

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are performed by a prosecutor.’” Genzler, 410 F.3d at 636 (quoting Buckley, 509 U.S. at

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273). Rather, prosecutorial immunity depends on “the nature of the function performed,

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not the identity of the actor who performed it.” Id. (quoting Kalina, 522 U.S. at 127). A

Robinson

Absolute immunity extends to a prosecutor “eliciting false or

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Genzler v.

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prosecutor is only entitled to qualified immunity, rather than absolute immunity, when he

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performs administrative or investigative functions. Id.

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Plaintiff alleges in Count I that Defendant Robinson “made additions to a plea

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agreement” and filed the agreement. He also alleges that Robinson has not answered a

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“Brady Request” he sent her and had a duty to file for dismissal of the cases against him.

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Plaintiff fails to state what additions Robinson allegedly made to the plea agreement that

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he signed, why Robinson was under a duty to file for dismissal of the cases against him,

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or why she was required to respond to his “Brady Request,” or any other facts to support

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that any act of Robinson fell outside the scope of absolute prosecutorial immunity.

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Defendant Robinson is immune from the claims Plaintiff attempts to allege and will be

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dismissed.

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C.

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Plaintiff makes one allegation against Defendant Kramer—that she “edited and/or

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falsified the transcript of proceeding of 11/09/2012 and filed the falsified transcript on

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02/02/2013.” Plaintiff fails to allege any facts against Kramer such as what in the

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transcript was “edited and/or falsified,” how he was harmed by Kramer’s alleged acts, or

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any other facts to support an alleged conspiracy or Fourteenth Amendment violation.

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Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-

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21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v.

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

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

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claim that were not initially pled. Id. Plaintiff’s claims against Kramer are vague and

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conclusory and, therefore, fail to state a claim. Accordingly, Kramer will be dismissed.

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V.

Kramer

Leave to Amend

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Defendant, Plaintiff’s Complaint will be dismissed for failure to state a claim upon which

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relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to

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Because Plaintiff has failed to state a claim against any properly named

cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-

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approved form to use for filing a first amended complaint. If Plaintiff fails to use the

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court-approved form, the Court may strike the amended complaint and dismiss this action

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without further notice to Plaintiff.9

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

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

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

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

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

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

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

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

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

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

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

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To the extent Plaintiff is attempting to challenge his state court conviction, he
must seek federal habeas relief under 28 U.S.C. § 2254; he cannot challenge his
conviction or sentence under 42 U.S.C. § 1983. See Muhammad v. Close, 540 U.S. 749,
750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its
duration are the province of habeas corpus . . . ; requests for relief turning on the
circumstances of confinement may be presented in a § 1983 action.”); Badea v. Cox, 931
F.2d 573, 574 (9th Cir. 1994) (citing Preiser v. Rodrigeuz, 411 U.S. 475, 484 (1973) and
holding that a civil rights action is the proper method to challenge conditions of
confinement)).
Under 28 U.S.C. § 2254, a federal court “shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). Before an inmate may seek habeas
relief pursuant to § 2254, he must first have exhausted available state remedies. 28
U.S.C. § 2254(c), (e). Exhaustion requires that a petitioner’s claims be fairly presented to
the highest state court within a state’s standard review process in order to provide the
state with an opportunity to rule on the merits of his federal claims. See Swoopes v.
Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see McQuown v. McCartney, 795 F.2d 807,
809 (9th Cir. 1986); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). An
Arizona petitioner sentenced to less than life in prison or the death penalty may exhaust
his federal claims by presenting them in a procedurally proper way to the Arizona Court
of Appeals, either on direct appeal or in post-conviction proceedings, without seeking
discretionary review in the Arizona Supreme Court. Swoopes, 196 F.3d at 1010; accord
Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005).
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VI.

Motion for Appointment of Counsel

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In his Motion, Plaintiff states that he is unable to afford counsel, his imprisonment

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will greatly limit his ability to litigate, the issues involved are complex, and counsel

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would be better able to present evidence and cross examine witnesses.

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

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Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In

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proceedings in forma pauperis, the court may request an attorney to represent any person

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unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C.

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§ 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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exceptional circumstances requires an evaluation of the likelihood of success on the

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merits as well as the ability of Plaintiff to articulate his claims pro se in light of the

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complexity of the legal issue involved. Id. “Neither of these factors is dispositive and

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both must be viewed together before reaching a decision.” Id. (quoting Wilborn v.

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

A determination with respect to

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Having considered both factors, it does not appear at this time that exceptional

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circumstances are present that would require the appointment of counsel in this case.

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Plaintiff’s Complaint has been dismissed. Moreover, Plaintiff is in no different position

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than many pro se prisoner litigants.

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Plaintiff’s Motion for Appointment of Counsel.

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VII.

Thus, the Court will deny without prejudice

Warnings

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A.

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

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

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

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comply may result in dismissal of this action.

Release

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B.

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

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

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

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dismissal of this action.

Address Changes

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C.

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

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

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notice to Plaintiff.

Copies

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D.

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

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

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

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

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

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

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

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

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

Possible “Strike”

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E.

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

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

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

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order of the Court).

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IT IS ORDERED:

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(1)

Possible Dismissal

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

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(2)

As required by the accompanying Order to the appropriate government

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

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filing fee.

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(3)

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

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

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compliance with this Order.

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(4)

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

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

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

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(5)

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prejudice.

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(6)

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Plaintiff’s Motion for Appointment of Counsel (Doc. 5) is denied without

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

civil rights complaint by a prisoner.
Dated this 28th day of April, 2014.

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Instructions for a Prisoner Filing a Civil Rights Complaint
in the United States District Court for the District of Arizona
1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated
persons prepare a complaint seeking relief for a violation of their federal civil rights. These
complaints typically concern, but are not limited to, conditions of confinement. This form should
not be used to challenge your conviction or sentence. If you want to challenge a state conviction
or sentence, you should file a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a
person in state custody. If you want to challenge a federal conviction or sentence, you should file
a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.

2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by
incarcerated persons must be filed on the court-approved form. The form must be typed or
neatly handwritten. The form must be completely filled in to the extent applicable. All questions
must be answered clearly and concisely in the appropriate space on the form. If needed, you may
attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper.
You must identify which part of the complaint is being continued and number all pages. If you do
not fill out the form properly, you will be asked to submit additional or corrected information, which
may delay the processing of your action. You do not need to cite law.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a
material fact, you may be prosecuted for perjury.
4. The Filing and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing fee
plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may request
leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave
to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28
U.S.C. § 1915” for additional instructions.
5. Original and Judge’s Copy. You must send an original plus one copy of your complaint and of
any other documents submitted to the Court. You must send one additional copy to the Court if you
wish to have a file-stamped copy of the document returned to you. All copies must be identical to
the original. Copies may be legibly handwritten.
6. Where to File. You should file your complaint in the division where you were confined when
your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in
Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined
in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you
were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson
Division. Mail the original and one copy of the complaint with the $400 filing and
administrative fees or the application to proceed in forma pauperis to:

Revised 5/1/2013

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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 court-approved
civil rights complaint form. You may file one amended complaint without leave (permission) of
Court before any defendant has answered your original complaint. See Fed. R. Civ. P. 15(a). After
any defendant has filed an answer, you must file a motion for leave to amend and lodge (submit) a
proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate
by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants
not included in the amended complaint are considered dismissed. All amended complaints are
subject to screening under the Prison Litigation Reform Act; screening your amendment will take
additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead,
the relevant information should be paraphrased. You should keep the exhibits to use to support or
oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of
any judge. The only appropriate way to communicate with the Court is by filing a written pleading
or motion.
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12. Completing the Civil Rights Complaint Form.
HEADING:
1. Your Name. Print your name, prison or inmate number, and institutional mailing address
on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name
more than four defendants, print the name of the first defendant on the first line, write the
words “and others” on the second line, and attach an additional page listing the names of all
of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in
the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may
result in the loss of the right to a jury trial. A jury trial is not available if you are seeking
only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983
for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for
federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights
occurred.
3. Defendants. Print all of the requested information about each of the defendants in the
spaces provided. If you are naming more than four defendants, you must provide the
necessary information about each additional defendant on separate pages labeled “2-A,” “2B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in either state or federal court while you
were a prisoner. Print all of the requested information about each lawsuit in the spaces provided.
If you have filed more than three lawsuits, you must provide the necessary information about each
additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the
page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION:
You must identify what rights each defendant violated. The form provides space to allege
three separate counts (one violation per count). If you are alleging more than three counts, you
must provide the necessary information about each additional count on a separate page. Number
the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that
you are limited to a total of fifteen additional pages.

3

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

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

4

Name and Prisoner/Booking Number

Place of Confinement

Mailing Address

City, State, Zip Code

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

(Full Name of Plaintiff)

Plaintiff,
vs.

(1)
(Full Name of Defendant)

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

G

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

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

A. JURISDICTION
1.

2.

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

.

Institution/city where violation occurred:

.

Revised 5/1/2013

1

550/555

B. DEFENDANTS
1.

Name of first Defendant:

. The first Defendant is employed as:
at

.

(Position and Title)
2.

(Institution)
. The second Defendant is employed as:

Name of second Defendant:
at

.

(Position and Title)
3.

(Institution)

Name of third Defendant:

. The third Defendant is employed as:
at

.

(Position and Title)
4.

(Institution)

Name of fourth Defendant:
at
(Position and Title)

. The fourth Defendant is employed as:
.
(Institution)

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

C. PREVIOUS LAWSUITS
1.

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

2.

If yes, how many lawsuits have you filed?

G Yes

G No

. Describe the previous lawsuits:

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

.
.

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

.
.

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

.
.

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

2

D. CAUSE OF ACTION

1.

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

2.

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

.

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

.
4.

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

.
5.

Administrative Remedies:
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your
G Yes G No
institution?
b. Did you submit a request for administrative relief on Count I?
G Yes G No
c. Did you appeal your request for relief on Count I to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.
3

1.

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

2.

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

.

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

.
4.

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

.
5.

Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your
institution?
G Yes G No
b. Did you submit a request for administrative relief on Count II?
G Yes G No
c. Did you appeal your request for relief on Count II to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.
4

1.

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

2.

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

.

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

.
4.

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

.
5.

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

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

5

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

.

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

SIGNATURE OF PLAINTIFF

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

(Signature of attorney, if any)

(Attorney’s address & telephone number)

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

6