Ballestero v. Ryan et al

Filing 6

ORDER: Plaintiff's Application to Proceed In Forma Pauperis 2 is granted; Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $1.63; The Complaint 1 is dismissed for failure to state a clai m. 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 ju dgment 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 Emergency Preliminary Injunction 4 is denied without prejudice; 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 4/3/2014. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Hezekiah Ballestero, Jr.,

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Plaintiff,

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No. CV 14-324-PHX-RCB (SPL)

vs.

ORDER

Charles L. Ryan, et al.,

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Defendants.

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Plaintiff Brian Hezekiah Ballestero, Jr., who is confined in the Arizona State

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Prison Complex-Florence, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 (Doc. 1), an Application to Proceed In Forma Pauperis (Doc. 2), and a Motion for

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Emergency Preliminary Injunction (Doc. 4). The Court will grant the Application to

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Proceed, dismiss the Complaint with leave to amend, and deny the Motion for

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Emergency Preliminary Injunction without prejudice.

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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 assess an initial partial filing fee of $1.63. The remainder of the fee will

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

agency to 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). While Rule 8 does not demand

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

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

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

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conclusory statements, do not suffice.” Id. (citation omitted).

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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. (citation omitted). A claim is plausible

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“when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

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“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

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specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. at 679 (citation omitted). Thus, although a plaintiff’s specific

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

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whether there are other “more likely explanations” for a defendant’s conduct. Id. 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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Pardus, 551 U.S. 89, 94 (2007) (per curiam)). If the Court determines that a pleading

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

could be cured by the allegation of other facts, a pro se litigant is entitled to an

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opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203

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F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Here, Plaintiff fails to state a claim upon

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which relief can be granted in his Complaint, but it appears that the Complaint could be

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cured by allegations of other facts. Accordingly, Plaintiff’s Complaint will be dismissed

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without prejudice and Plaintiff will be given an opportunity to amend.

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III.

Complaint

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In his Complaint, Plaintiff alleges four counts against the following Defendants:

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Charles Ryan, “Director of Arizona State Prisons at the Arizona Department of

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Corrections”; Richard Pratt, “Interim Division Director of Health Services Division at the

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Arizona Department of Corrections”; Robert Parkinson, “Facili[ta]tor Health

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Administrator at Florence-Complex Health administration”; and “Corizon-John Doe,”

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“Healthcare provider administrator at the Arizona State Department of Corrections.”

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Plaintiff asserts Count One against Defendant Ryan and alleges as follows: As the

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Director of the Arizona Department of Corrections (“ADOC”), Defendant Ryan is

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responsible for establishing, monitoring, and enforcing overall operations, policies and

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practices of the ADOC, including the provision of constitutionally adequate medical,

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mental health, and dental care for all prisoners in the custody of the ADOC. Through his

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written policies, Defendant Ryan promised prisoners to provide resources sufficient to

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ensure that ADOC prisoners are given the community standard of healthcare, but those

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policies are “more honored in the breach than in the observance.”

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experience multiple interruptions in his care, including delays in responses to his Health

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Needs Requests (“HNRs”), delays in receiving medications, abrupt changes to

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medications, improper medication, inadequate monitoring and follow-up visits, and a

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lack of psychological services for mental health deterioration. Plaintiff has not received

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the adequate treatment for Plaintiff’s pain and hernia. Plaintiff has not been provided

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with adequate and timely medical care, causing him harm and permanent injury. Plaintiff

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Defendant Ryan has established and approved policies that caused Plaintiff to

experiences frequent diarrhea, nausea, exhaustion, weight loss, pain, and “other alarming

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symptoms.” Plaintiff faces “lengthy and dangerous” delays in receiving healthcare and

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outright denial of healthcare because Defendants have a policy and practice of failing to

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provide timely access to healthcare and are deliberately indifferent to the risk of harm and

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injury to Plaintiff. In addition to restricting Plaintiff’s ability to request health care,

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Defendants fail to provide care after receiving notice of Plaintiff’s need and are

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deliberately indifferent to the harm that results. Plaintiff has to file multiple HNRs and

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faces delays of many weeks and often months before receiving exams or medicine.

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The harm from the delays in care is aggravated by “Defendants’ policies and

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practices of having AD[O]C clinicians make treatment decision[s] without examining

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Plaintiffs, instead relying on brief notes or descriptions from lower level medical

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assistants [and] correctional officers who have no medical training.” The lower level

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staff refuse to acknowledge patients’ symptoms until the condition has become life

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threatening or results in permanent injury.

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“Defendant Ryan also has a policy and practice of relying on unqualified

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personnel to perform medical procedures for which they are unqualified with horrific

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results.” Plaintiff requested emergency medical treatment and he was delayed for a few

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days, “which is a pattern of Defendant[]s not providing Plaintiff[]s with timely

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emergency medical treatment.” Defendant Ryan does not have an adequate medical

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system for responding to healthcare emergencies and there is not an adequate number of

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staff to respond to many possible emergencies. Defendants do not have adequately

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trained security and healthcare staff in handling emergencies. Defendants are aware of

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all the deprivations complained of in the Complaint.

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Defendant Pratt is responsible for establishing, monitoring, and enforcing Department of

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Corrections’ system-wide healthcare policies and practices, and for supervising the

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provision of adequate medical, mental, and dental care for all prisoners. Through written

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policies, Defendant Pratt promised prisoners that he would provide sufficient resources to

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Plaintiff asserts Count Two against Defendant Pratt and alleges as follows:

provide the community standard of healthcare, but the written policies are “more honored

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in the breach th[a]n in the observance.” Defendant Pratt is aware of the system-wide

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deficiencies that caused and continue to cause harm to Plaintiff and has failed to take

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measures to establish reasonable healthcare. Defendants have a policy and practice of

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providing medicine “listed on a very limited formulary of approved medication.”

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Medical staff frequently substitute doctor-approved drug regimens with drugs on the

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ADOC’s “approved formulary” and, thus, Plaintiff has been denied adequate pain

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medicine for his serious medical condition. Many of the deficiencies in the ADOC’s

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healthcare system are caused by Defendants’ failure to employ sufficient health care staff

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positions or to provide adequate healthcare to Plaintiff. An ADOC doctor testified in

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September 2011 that the ADOC health system is chronically and consistently

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understaffed. Defendant Pratt has not tried to fix inadequate staffing levels.

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Defendant’s failure to provide adequate medical care for Plaintiff’s serious

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medical condition has resulted in Plaintiff experiencing prolonged and unnecessary pain

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and suffering and continued deterioration.

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rupture. Plaintiff needs medical treatment. Because of Defendant’s inaction, Plaintiff

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experiences frequent diarrhea, nausea, exhaustion, weight loss, pain, and “other alarming

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symptoms.”

Plaintiff’s life-threatening hernia could

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As the Facilitator Health administrator, Defendant Parkinson is responsible for

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establishing, monitoring, and enforcing ADOC system-wide healthcare policies and

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practices and for supervising the provision of adequate medical, mental health, and dental

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care for all prisoners. Through written policies, Defendant Parkinson promised prisoners

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that he would provide sufficient resources to provide the community standard of

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healthcare, but his actions have left Plaintiff at the mercy of de facto policies that have

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put Plaintiff’s life in danger. Defendant Parkinson is well aware of the system-wide

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deficiencies that have caused and continue to cause harm to Plaintiff.

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Parkinson knows that Corizon has a policy and practice of only providing medicine listed

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Plaintiff asserts Count Three against Defendant Parkinson and alleges as follows:

on a limited formulary of approved medication and medical staff routinely substitute

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Defendant

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doctor-approved drug regimens with drugs on the ADOC formulary and Plaintiff has thus

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been denied adequate pain medicine for his serious medical condition. Plaintiff has a

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life-threatening lower hernia that could rupture at any moment. Plaintiff has filed several

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HNRs complaining of extreme pain in his abdomen, which is causing him diarrhea,

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nausea, exhaustion, weight loss, constant pain, and lack of sleep. Plaintiff is suffering

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extreme anxiety and mental and emotional stress that have caused him to “seek mental

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health.”

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Plaintiff asserts Count Four against Defendant John Doe and alleges as follows:

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John Doe is the chief executive officer of Corizon Health Services and is responsible for

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establishing, monitoring, and enforcing overall operations, policies or practices of

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Corizon health source services, which includes the provision of constitutionally adequate

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medical, mental health, and dental care for all prisoners in the custody of the ADOC.

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John Doe is responsible for all decisions concerning staff hiring, supervision,

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deployment, and training, which affects prisoners’ ability to obtain adequate and

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necessary health services. John Doe is responsible for providing constitutional conditions

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of confinement in all units, including, but not limited to, the isolation unit. Through

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Corizon’s written policies, John Doe promised to provide the community standard of

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healthcare, but the care that Corizon is providing “falls far below that measure.”

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healthcare and is indifferent to the fact that failure to do so results in substantial risk of

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serious harm to Plaintiff. John Doe has a policy and practice of failing to provide care

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after receiving notice of Plaintiff’s needs and is deliberately indifferent to the harm that

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results from that failure. This harm is aggravated by John Doe’s policy and practice of

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having ADOC clinicians make treatment decisions without examining Plaintiff and

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instead relying on brief notes or descriptions from lower-level medical assistants or

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correctional officers who have no medical training. Plaintiff filed multiple HNRS about

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his pain and injury concerning his hernia and was not seen by a doctor concerning his

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John Doe has a policy and practice of failing to provide prisoners with adequate

medical condition for three months. This failure to timely respond to Plaintiff’s HNRs is

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compounded by Defendant’s failure to create a tracking and scheduling system for

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healthcare appointments.

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John Doe also has a policy and practice of relying on unqualified personnel to

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perform medical procedures for which they are unqualified “with horrific results.” John

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Doe has not provided Plaintiff with timely emergency treatment responses and Corizon

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did not have an adequate system for responding to healthcare emergencies. Defendants

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do not have adequately trained security and healthcare staff in handling healthcare

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emergencies. John Doe has a policy and practice of failing to prescribe, provide, and

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properly manage medication and medical devices for inmates with special medical

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conditions. John Doe has a policy and practice of only providing medicine listed on a

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limited formulary of approved medication and routinely substituting doctor-approved

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drug regimens with drugs on the ADOC-approved formulary. Corizon fails to employ

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sufficient healthcare staff positions to provide adequate healthcare to Plaintiff. There is

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not enough staff to timely respond to Plaintiff’s request for healthcare and to provide

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uninterrupted medication to adequately screen, monitor, and provide follow-up care to

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prisoners in ADOC with serious and chronic illnesses. The policies described in the

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Complaint have subjected Plaintiff to serious risk, harm, and injury.

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Plaintiff seeks compensatory and punitive damages and injunctive relief.
IV.

Failure to State a Claim

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

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

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

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

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

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

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

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

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Moreover, not every claim by a prisoner relating to inadequate medical treatment

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states a violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff

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must show that the defendants acted with “deliberate indifference to serious medical

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

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429 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need” by

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demonstrating that failure to treat the condition could result in further significant injury

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or the unnecessary and wanton infliction of pain and (2) the defendant’s response was

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deliberately indifferent. Jett, 439 F.3d 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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Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs.,

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

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

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

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

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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.

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In this case, Plaintiff fails to plead facts supporting that any Defendants have

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promulgated any of the policies and practices alleged by Plaintiff. Moreover, Plaintiff

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fails to plead facts linking any injury suffered by Plaintiff to any policy and practice of a

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named Defendant. For instance, Plaintiff alleges that Defendants have a policy and

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practice of having “lower level staff” examine prisoners and recommend treatment to

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clinicians, but Plaintiff has failed to plead facts linking such a policy and practice to any

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injury suffered by Plaintiff. Moreover, although Plaintiff pleads that he has a hernia and

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that he filed HNRs that were not responded to, Plaintiff does not plead facts regarding

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when he filed HNRs, who he filed HNRs with, the content of the HNRs, whether there

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was a response to the HNRs, and if so, the content of the response or any other facts

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demonstrating that any Defendant was deliberately indifferent to Plaintiff’s serious

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medical needs. Moreover, Plaintiff makes the conclusory allegation that Defendants

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“knew” about the policies and his injury and failed to act to obtain treatment for Plaintiff,

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but Plaintiff fails to plead facts demonstrating that any Defendant knew of an excessive

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risk to Plaintiff’s health. Although pro se pleadings are liberally construed, Haines v.

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Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a

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cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.

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1982). Accordingly, Plaintiff has failed to state a claim upon which relief can be granted

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against any Defendant in his Complaint.

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V.

Leave to Amend

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

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

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

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

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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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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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 Defendant1 with the

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

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dismissed for failure to state a claim. Conclusory allegations that a Defendant or

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group of Defendants has violated a constitutional right are not acceptable and will

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be dismissed.

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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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If Plaintiff does not know the names of the individual Defendants, Plaintiff must
list the individual unknown defendants as Defendant John (or Jane) Doe 1, John Doe 2,
and so on in the caption of his complaint, and, in the body of the complaint, Plaintiff
must allege facts to support how each particular Doe defendant violated Plaintiff’s rights.
See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (where identity is
unknown prior to the filing of a complaint, the plaintiff should be given an opportunity
through discovery to identify the unknown defendants, unless it is clear that discovery
would not uncover the identities, or that the complaint would be dismissed on other
grounds.) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
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in the original complaint and that was voluntarily dismissed or was dismissed without

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

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

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VI.

Motion for Emergency Preliminary Injunction

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Plaintiff requests an order from the Court ordering Defendants to give Plaintiff

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surgery for his hernia. A preliminary injunction is an extraordinary and drastic remedy

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and will not be granted absent a clear showing of likely success on the merits of the

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underlying claim and possible irreparable injury. See Mazurek v. Armstrong, 520 U.S.

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968, 972 (1997) (per curiam); Independent Training and Apprenticeship Program v. Cal.

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Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013).

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preliminary injunctive relief “must necessarily establish a relationship between the injury

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claimed in the party’s motion and the conduct asserted in the complaint.” Devose v.

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Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam) (citation omitted). In other

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words, Plaintiff must seek injunctive relief related to the merits of his underlying claim.

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Because Plaintiff’s Complaint has been dismissed, there are currently no claims pending

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before this Court.

A party seeking

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In addition, a temporary restraining order without notice may be granted only if

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“specific facts in an affidavit or verified complaint clearly show that immediate and

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irreparable injury, loss, or damage will result to the movant before the adverse party can

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be heard” and the movant certifies to the court in writing any efforts made to give notice

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and the reasons that notice should not be required. Fed. R. Civ. P. 65(b)(1). A “court

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may only issue a preliminary injunction on notice to the adverse party.” Fed. R. Civ. P.

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65(a)(1). Plaintiff has not provided notice nor does he explain why notice should not be

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required. Based on the foregoing, Plaintiff’s Motion will be denied without prejudice.

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VII.

Warnings

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

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A.

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

Release

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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.

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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 assessed an initial partial filing

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fee of $1.63.

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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)

Plaintiff’s Motion for Emergency Preliminary Injunction (Doc. 4) is denied

without prejudice.
(6)

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

civil rights complaint by a prisoner.
DATED this 3rd 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 Fee. The filing fee for this action is $350.00. If you are unable to immediately
pay the filing fee, you may request leave to proceed in forma pauperis. Please review the
“Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in
Federal Court In Forma Pauperis Pursuant to 28 U.S.C. § 1915” for additional instructions.
5. Original and Judge’s Copy. You must send an original plus one copy of your complaint and
of any other documents submitted to the Court. You must send one additional copy to the Court
if you wish to have a file-stamped copy of the document returned to you. All copies must be
identical to the original. Copies may be legibly handwritten.
6. Where to File. You should file your complaint in the division where you were confined
when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined
in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were
confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott
Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file
in the Tucson Division. Mail the original and one copy of the complaint with the $350 filing
fee or the application to proceed in forma pauperis to:

Revised 3/9/07

1

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

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

7. Change of Address. You must immediately notify the Court and the defendants in writing
of any change in your mailing address. Failure to notify the Court of any change in your
mailing address may result in the dismissal of your case.
8. Certificate of Service. You must furnish the defendants with a copy of any document you
submit to the Court (except the initial complaint and application to proceed in forma pauperis).
Each original document (except the initial complaint and application to proceed in forma
pauperis) must include a certificate of service on the last page of the document stating the date
a copy of the document was mailed to the defendants and the address to which it was mailed.
See Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a
certificate of service may be stricken. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed
this
(month, day, year) to:
Name:
Address:
Attorney for Defendant(s)
(Signature)
9. Amended Complaint. If you need to change any of the information in the initial complaint,
you must file an amended complaint. The amended complaint must be written on the courtapproved civil rights complaint form. You may file one amended complaint without leave
(permission) of Court before any defendant has answered your original complaint. See Fed. R.
Civ. P. 15(a). After any defendant has filed an answer, you must file a motion for leave to
amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an
amended complaint may not incorporate by reference any part of your prior complaint. LRCiv
15.1(a)(2). Any allegations or defendants not included in the amended complaint are
considered dismissed. All amended complaints are subject to screening under the Prison
Litigation Reform Act; screening your amendment will take additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint.
Instead, the relevant information should be paraphrased. You should keep the exhibits to use
to support or oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff
of any judge. The only appropriate way to communicate with the Court is by filing a written
pleading or motion.
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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.
3

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

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

4

Name and Prisoner/Booking Number

Place of Confinement

Mailing Address

City, State, Zip Code

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

(Full Name of Plaintiff)

Plaintiff,
vs.

(1)
(Full Name of Defendant)

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

G

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

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

A. JURISDICTION
1.

2.

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

.

Institution/city where violation occurred:

.

Revised 3/9/07

1

550/555

B. DEFENDANTS
1.

Name of first Defendant:
at

. The first Defendant is employed as:
.

(Position and Title)

2.

(Institution)

Name of second Defendant:
at

. The second Defendant is employed as:
.

(Position and Title)

3.

(Institution)

Name of third Defendant:
at

. The third Defendant is employed as:
.

(Position and Title)

4.

(Institution)

Name of fourth Defendant:
at

. The fourth Defendant is employed as:
.

(Position and Title)

(Institution)

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

C. PREVIOUS LAWSUITS
1.

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

2.

If yes, how many lawsuits have you filed?

G Yes

G No

. Describe the previous lawsuits:

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

.
.

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

.
.

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

.
.

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

2

D. CAUSE OF ACTION

1.

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

2.

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

.

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

.
4.

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

.
5.

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

1.

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

2.

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

.

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

.
4.

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

.
5.

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

1.

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

2.

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

.

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

.
4.

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

.
5.

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

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

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