DeRoche #147875 v. Smith et al

Filing 11

ORDER (Service Packet): Plaintiff's Application to Proceed In Forma Pauperis 2 is granted; Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee; Plaintiffs 10 Motion to correct the Complaint is granted to the extent that "April Elliott" is substituted for "Mary Wisdom"; Count II is dismissed without prejudice; Defendants Voyles, Elliott, Smith, Doe, and unknown Committee members are dismissed without prejudice; De fendants Goodale and Costello must answer Count I; The Clerk of Court must send Plaintiff this Order, and a copy of the Marshal's Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver of Service of Summons form for Defendants Goodale and Costello; Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order; Plaintiffs 7 Motion for injunctive relief is denied; This matter is referred to Mag istrate Judge James F. Metcalf pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge Steven P Logan on 7/21/2014. (Attachments: # 1 Service Packet Letter, # 2 Service Packet Sample, # 3 Service Packet, # 4 Service Packet, # 5 Rule 4) (See Order for details)(ALS)

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1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joshua DeRoche, 10 11 12 No. CV 14-01274-PHX-SPL (JFM) Plaintiff, vs. ORDER Keith Smith, et al., 13 Defendants. 14 15 Plaintiff Joshua DeRoche, who is confined in the Arizona State Prison Complex, 16 Special Management Unit, in Florence, Arizona, has filed a pro se civil rights Complaint 17 pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 18 1, 2.) Plaintiff has since filed a motion for injunctive relief and a motion to amend his 19 Complaint to identify the name of one Defendant. The Court will order Defendants 20 Goodale and Costello to answer Count I of the Complaint and will dismiss the remaining 21 claims and Defendants without prejudice. The Court will deny Plaintiff’s motion for 22 injunctive relief. 23 I. Application to Proceed In Forma Pauperis and Filing Fee 24 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 25 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 26 The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be 27 collected monthly in payments of 20% of the previous month’s income credited to 28 Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. TERMPSREF 1 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 2 agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 8 which relief may be granted, or that seek monetary relief from a defendant who is 9 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 12 does not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable 20 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 21 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 22 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 23 specific factual allegations may be consistent with a constitutional claim, a court must 24 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 25 at 681. 26 But as the United States Court of Appeals for the Ninth Circuit has instructed, 27 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 28 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less TERMPSREF -2- 1 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 2 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 3 III. 4 Complaint Plaintiff alleges two counts for threat to safety. Plaintiff sues the following current 5 or former employees of the Arizona Department of Corrections (ADC): 6 Operations Administrator Keith Smith; Protective Custody (PC) Administrator John Doe; 7 unknown PC Committee members; Corrections Officers II (CO IIs) Special Security Unit 8 Goodale and Costello. Plaintiff also sues Pinal County Attorney Michael L. Voyles and 9 Pinal County Public Defender Mary Wisdom. Plaintiff has filed a motion to correct his 10 Complaint to substitute April Elliott for Mary Wisdom with his allegations against 11 Wisdom to be considered made against Elliott. The Court will grant that motion and 12 substitute Elliott for Wisdom. Security 13 In Count I, Plaintiff alleges the following facts: in early 2011, three convicted sex 14 offenders assaulted a female correctional officer in the Rynning Unit, which is in the 15 Eyman Complex. The Pinal County Attorney prosecuted charges against the inmates. 16 One of the assailants, Kenneth Vickers, was transferred to SMU, also in the Eyman 17 Complex.1 18 In November 2011, Plaintiff was housed in the same pod as Vickers. Plaintiff sent 19 a letter to the Pinal County Attorney’s Office expressing his desire to see Vickers 20 prosecuted and he offered to cooperate with the Pinal County Attorney by providing 21 information from Vickers about the assault. 22 In January 2012, Plaintiff gave a recorded interview to investigator Kathy Ingulli 23 of the ASPC-Florence Criminal Investigation Unit (CIU) about the assault. Vickers and 24 25 26 27 28 TERMPSREF 1 According to information available online, the offense occurred on August 21, 2010. See minutes.aspx, case# CR201101812, Minute Entry of Feb. 25, 2013 (last visited July 18, 2014). On February 25, 2013, Kenneth Vickers pleaded guilty to aggravated assault pursuant to a plea agreement in that case. Id. The same day, co-defendant Luis Gutierrez-Valencia pleaded guilty to aggravated assault pursuant to a plea agreement in case CR201101810. Id. On August 12, 2012, co-defendant Richard White pleaded guilty to aggravated assault pursuant to a plea agreement, case CR201101811. Id. -3- 1 his co-defendants obtained discovery from the Pinal County Attorney’s Office, including 2 a witness list with Plaintiff’s name on it, a copy of the letter Plaintiff sent to the office, 3 and a copy of Plaintiff’s CIU interview. Vickers and his co-defendants made copies of 4 the paperwork and distributed it to other inmates. According to Plaintiff, at each location 5 he was thereafter housed, at least one inmate had copies or access to copies of that 6 paperwork and inmates were otherwise generally aware of Plaintiff’s role. Plaintiff was 7 considered a “snitch” and he was repeatedly verbally threatened. 8 serious injury only because he was held in a single occupancy maximum security cell. Plaintiff avoided 9 In September 2012, Eyman Complex staff attempted to house Plaintiff in the 10 Rynning Unit. Plaintiff informed staff of the potential threat to his safety. Nevertheless, 11 SSU officer Goodale refused to initiate the protective segregation process under 12 Director’s Order (DO) 805. Goodale told Plaintiff that Plaintiff could not have problems 13 on a yard he never been to. Plaintiff told Goodale that inmates with whom he had 14 previously had issues were held in the Rynning Unit and he identified those inmates and 15 their locations in the Rynning Unit. Goodale still refused to initiate the DO 805 process, 16 to contact CIU or interview inmates who would have substantiated Plaintiff’s 17 information. Plaintiff refused to house for which he was sanctioned. Plaintiff contends 18 that Goodale acted with deliberate indifference to a threat to his safety. 19 In June 2013, Plaintiff was housed in ASPC-Phoenix, when he again sought to 20 initiate the DO 805 process. Plaintiff submitted a written statement setting out incidents 21 to support the existence of a threat to his safety. The PC Administrator and the PC 22 Committee denied Plaintiff’s request for protective custody. On June 25, 2013, Security 23 Operations Administrator Smith denied Plaintiff’s appeal from the denial of PC. Plaintiff 24 claims that Doe, the PC Committee, and Smith failed to contact Investigator Ingulli to 25 verify Plaintiff’s recorded interview or the Pinal County Attorney’s Office to confirm the 26 release of the witness list containing Plaintiff’s name, and failed to interview inmates 27 about the asserted threat to safety. 28 deliberate indifference to a threat to his safety. TERMPSREF Plaintiff contends that they thereby acted with -4- 1 In January 2014, Plaintiff was being held in SMU, when three inmates called him 2 a “rat” and told him that he would “get smashed” if he went to outside recreation. One of 3 the inmates threatened to sharpen chicken bones to stab Plaintiff. Plaintiff submitted a 4 letter to Defendant Costello with a summary of threats to his safety and again sought 5 initiation of the DO 805 process, but received no response. Two days later, the inmate 6 who had threatened Plaintiff was moved. Nevertheless, Plaintiff did not go to outside 7 recreation because of threats from other inmates. Costello did not initiate the DO 805 8 process or update Plaintiff’s “Do Not House With” (DNHW) list. Plaintiff contends that 9 Costello thereby acted with deliberate indifference to a threat to his safety. 10 On April 16, 2014, Plaintiff was moved from a single inmate cell to a double 11 inmate cell and Inmate Stephen Hall was celled with Plaintiff. Within a week, inmates in 12 adjacent cells began yelling that Plaintiff was an informant. Plaintiff told Hall about the 13 situation with Vickers and his name appearing on a witness list. Hall stated that he did 14 not wish to get involved because he was due to be released in three months. 15 On April 25, 2014, Plaintiff and Hall were moved to the Rynning Complex 16 Detention Unit (CDU) for reasons that are not explained. On April 28, 2014, an inmate 17 came to their cell door and told Plaintiff that he was in a lot of trouble. He showed Hall 18 the Pinal County Attorney’s witness list and told Hall that he needed to attack Plaintiff. 19 Hall refused. The inmate noted Hall’s name and told him that he was on a hit list for not 20 attacking Plaintiff. The same day, Plaintiff submitted a letter to the Caseload Manager, 21 CO III Donaldson describing the incident. Plaintiff and Hall were returned to SMU that 22 day. 23 referring to Plaintiff and saying “he snitched on GoGo, Happy, and A.R.” (Doc. 1 at 3F.) 24 An inmate told Hall that the witness list was in the pod next door and that he would send 25 it to Hall as soon as he received it. Another inmate tried to persuade Hall to attack 26 Plaintiff, but Hall refused. When they entered their living area, inmates began saying “There’s Roach” 27 Plaintiff contends that since 2011, the only safe option for him has been to remain 28 in a lockdown unit by violating rules to keep him in maximum custody, but where he TERMPSREF -5- 1 does not have outside recreation or involvement with other inmates. He contends that 2 prison officials are well aware of the dangers to inmates posed by court paperwork 3 circulating among inmates that reflects that an inmate is an informant. Plaintiff fears that 4 the next inmate celled with him will be more likely to assault Plaintiff in response to 5 pressure to do so. 6 In Count II, Plaintiff sues “Lando” Voyles in his official capacity for failing to 7 implement an administrative policy to ensure the identity of individuals providing 8 confidential information, such as Plaintiff, from being included in disclosures to defense 9 counsel. 10 As a result, Plaintiff’s name was included on a witness list, which was circulated in prison and Plaintiff has been repeatedly threatened by other inmates. 11 Plaintiff also sues April Elliott in her official capacity for failing to exercise 12 discretion concerning his identity. 13 Defender’s Officer released Plaintiff’s identity to the criminal defendants against whom 14 Plaintiff had provided information and agreed to testify. He contends that the public 15 defender reasonably should have known of the risk to Plaintiff’s safety by doing so. 16 IV. According to Plaintiff, the Pinal County Public Failure to State a Claim 17 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 18 (2) under color of state law (3) deprived him of federal rights, privileges or immunities 19 and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 20 Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 21 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific 22 injury as a result of the conduct of a particular defendant and he must allege an 23 affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 24 423 U.S. 362, 371-72, 377 (1976). 25 In both counts, Plaintiff asserts a claim for threat to safety. An Eighth 26 Amendment claim for threat to safety requires a sufficiently culpable state of mind by the 27 defendants, known as “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 28 (1994). Deliberate indifference is a higher standard than negligence or lack of ordinary TERMPSREF -6- 1 due care for the prisoner’s safety. Id. at 835. To state a claim of deliberate indifference, 2 plaintiffs must satisfy a two-part test. First, the alleged constitutional deprivation must 3 be, objectively, “sufficiently serious”; and the official’s act or omission must result in the 4 denial of “the minimal civilized measure of life’s necessities.” Id. at 834. Second, the 5 prison official must have a “sufficiently culpable state of mind,” i.e., he must act with 6 deliberate indifference to inmate health or safety. 7 indifference” in this context, the Supreme Court has imposed a subjective test: “the 8 official must both be aware of facts from which the inference could be drawn that a 9 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 10 Id. In defining “deliberate (emphasis added). 11 “[A] prison official may be held liable under the Eighth Amendment for denying 12 humane conditions of confinement only if he knows that inmates face a substantial risk of 13 serious harm and disregards that risk by failing to take reasonable measures to abate it.” 14 Id. at 847. A plaintiff “may demonstrate deliberate indifference by showing that the risk 15 of harm was ‘longstanding, pervasive, well-documented, or expressly noted by prison 16 officials in the past’ such that the defendants ‘must have known’ about the risk.” Betts v. 17 New Castle Youth Dev. Ctr., 621 F.3d 249, 259 (3rd Cir. 2010) (quoting Farmer, 511 18 U.S. at 842). 19 In addition to the above, to state a claim against a defendant, “[a] plaintiff must 20 allege facts, not simply conclusions, that show that an individual was personally involved 21 in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th 22 Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege 23 that the official acted as a result of a policy, practice, or custom. See Cortez v. County of 24 Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). Further, there is no respondeat 25 superior liability under §1983, so a defendant’s position as the supervisor of someone 26 who allegedly violated a plaintiff’s constitutional rights does not make him liable. 27 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 28 1045 (9th Cir. 1989). TERMPSREF A supervisor in his individual capacity, “is only liable for -7- 1 constitutional violations of his subordinates if the supervisor participated in or directed 2 the violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 3 F.2d at 1045. 4 unconstitutional conduct is the denial of administrative grievances, the failure to 5 intervene on a prisoner’s behalf to remedy the alleged unconstitutional behavior does not 6 amount to active unconstitutional behavior for purposes of § 1983. 7 Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); accord Proctor v. Applegate, 661 F.Supp.2d 8 743, 765 (W.D. Mich. 2009); Stocker v. Warden, No. 1:07-CV-00589, 2009 WL 981323, 9 at *10 (E.D. Cal. Apr. 13, 2009); Mintun v. Blades, No. CV-06-139, 2008 WL 711636, at 10 *7 (D. Idaho Mar. 14, 2008); see also Gregory v. City of Louisville, 444 F.3d 725, 751 11 (6th Cir. 2006) (a plaintiff must allege that a supervisor defendant did more than play a 12 passive role in an alleged violation or mere tacit approval thereof; a plaintiff must allege 13 that the supervisor defendant somehow encouraged or condoned the actions of their 14 subordinates). 15 A. In addition, where a defendant’s only involvement in allegedly See Shehee v. Unnamed and Fictitiously Named Defendants 16 Plaintiff sues the PC Administrator, referred to as John Doe, and the unnamed PC 17 Committee members as Defendants. Rule 10(a) of the Federal Rules of Civil Procedure 18 requires the plaintiff to include the names of the parties in the action. As a practical 19 matter, it is impossible in most instances for the United States Marshal or his designee to 20 serve a summons and complaint or amended complaint upon an anonymous defendant. 21 The Ninth Circuit has held that where identity is unknown prior to the filing of a 22 complaint, the plaintiff should be given an opportunity through discovery to identify the 23 unknown defendants, unless it is clear that discovery would not uncover the identities, or 24 that the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 25 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 26 27 28 TERMPSREF 1980)). Where the names of individual defendants are unknown at the time a complaint is filed, a plaintiff may refer to the individual unknown defendants as Defendant John (or Jane) Doe 1, John Doe 2, and so on, and allege facts to support how each particular Doe -8- 1 defendant violated the plaintiff’s constitutional rights. A plaintiff may thereafter use the 2 discovery process to obtain the names of fictitiously-named defendants whom he believes 3 violated his constitutional rights and seek leave to amend to name those defendants. 4 Plaintiff alleges that while he was held in ASPC-Phoenix, in June 2013, he sought 5 to initiate the DO 805 process, but the PC Administrator and the PC Committee denied 6 his request for PC. Plaintiff does not allege facts to support the existence of a substantial 7 threat to his safety while he was at ASPC-Phoenix, or facts to support that either Doe or 8 the Committee acted with deliberate indifference to a substantial threat to his safety while 9 he was there. The Court will dismiss Doe and the Committee members without prejudice 10 to Plaintiff seeking leave to amend to name these Defendants and to allege facts to 11 support when and how each violated his constitutional rights. 12 B. 13 Plaintiff alleges that after Doe and the PC Committee denied Plaintiff’s request for 14 PC, Security Operations Administrator Smith denied Plaintiff’s appeal. Absent more, 15 Smith’s mere denial of Plaintiff’s appeal from the denial of PC is not sufficient to state a 16 claim against him and he will be dismissed. 17 C. Smith Count II 18 In Count II, Plaintiff sues the Pinal County Attorney, Lando Voyles, and the Pinal 19 County Public Defender, in their official capacities. Plaintiff sues Voyles for allegedly 20 failing to implement an administrative policy to ensure that the identity of an informant, 21 such as Plaintiff, is not disclosed to defense counsel. However, Plaintiff alleges that he 22 was listed as a witness. Rule 15.1(b) of the Arizona Rules of Criminal Procedure 23 requires prosecutors to disclose the names of witnesses to defense counsel. Further, a 24 prosecutor is obligated to disclose statements made by a defendant that may be 25 introduced by the prosecutor against a defendant. See e.g. State v. Alvarado, 591 P.2d 26 973, 976 (Ariz. 1979). For both reasons, Plaintiff fails to state a claim against Voyles for 27 allegedly failing to implement an administrative policy to prevent disclosure of the 28 identity of an informant who is a witness to defense counsel. TERMPSREF -9- 1 Plaintiff also fails to state a claim against Elliott. A prerequisite for any relief 2 under § 1983 are allegations to support that a defendant acted under the color of state 3 law. The “under color of state law” component is the equivalent of the “state action” 4 requirement under the Constitution. Luger v. Edmundston Oil Co, Inc., 457 U.S. 922, 5 928 (1982); Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000) (citing Rendell- 6 Baker v. John, 457 U.S. 830, 838 (1982); West v. Atkins, 487 U.S. 42, 49 (1988)). 7 “Acting under color of state law is ‘a jurisdictional requisite for a § 1983 action.’” 8 Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (quoting West, 487 U.S. at 46). 9 Whether an attorney representing a criminal defendant is privately retained, a public 10 defender, or court-appointed, he does not act under color of state law. See Polk County v. 11 Dodson, 454 U.S. 312, 317-18 (1981); Miranda v. Clark County, Nevada, 319 F.3d 465, 12 468 (9th Cir. 2003) (en banc). For that reason, Plaintiff may not seek relief under § 1983 13 against Elliott and she will be dismissed. 14 V. Claim for Which an Answer Will Be Required 15 In Count I, Plaintiff alleges that Defendants Goodale and Costello acted with 16 deliberate indifference to a substantial threat to his safety by failing to initiate the 17 protective segregation process where Plaintiff had cooperated with the Pinal County 18 prosecutor, such cooperation was being circulated amongst other inmates, and Plaintiff 19 had been repeatedly threatened by other inmates in different complexes based on his 20 cooperation. These Defendants will be required to respond to Count I of the Complaint. 21 VI. Motion for Injunctive Relief 22 As noted above, Plaintiff has filed a motion for injunctive relief. (Doc. 7.) To 23 obtain injunctive relief, the moving party must show “that he is likely to succeed on the 24 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 25 the balance of equities tips in his favor, and that an injunction is in the public interest.” 26 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Am. Trucking Assoc., 27 Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). In addition, the “serious 28 questions” version of the sliding scale test for preliminary injunctions remains viable TERMPSREF - 10 - 1 after the Supreme Court’s decision in Winter. Alliance for the Wild Rockies v. Cottrell, 2 632 F. 3d 1127, 1134-35 (9th Cir. 2011). Under that test, a preliminary injunction is 3 appropriate when a plaintiff demonstrates that "serious questions going to the merits were 4 raised and the balance of hardships tips sharply in [plaintiff’s] favor.” Id. (citing Lands 5 Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)). That approach requires 6 that the elements of the preliminary injunction test be balanced, so that a stronger 7 showing of one element may offset a weaker showing of another. “For example, a 8 stronger showing of irreparable harm to plaintiff might offset a lesser showing of 9 likelihood of success on the merits.” Alliance for the Wild Rockies, 632 F.3d at 1135. A 10 plaintiff must also satisfy the other Winter factors, including the likelihood of irreparable 11 harm. Id. The moving party has the burden of proof on each element of the test. 12 Environmental Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 13 2000). 14 In addition, a temporary restraining order without notice may be granted only if 15 “specific facts in an affidavit or verified complaint clearly show that immediate and 16 irreparable injury, loss, or damage will result to the movant before the adverse party can 17 be heard” and the movant certifies to the court in writing any efforts made to give notice 18 and the reasons that notice should not be required. Fed. R. Civ. P. 65(b). Further, “[t]he 19 court may only issue a preliminary injunction on notice to the adverse party.” Fed. R. 20 Civ. P. 65(a)(1). 21 Plaintiff alleges the following in his motion: on June 15, 2014, Plaintiff was 22 attacked by his cellmate, Stephen Hall, following an argument. During the argument, 23 Hall told Plaintiff that he was gaining a bad name for not attacking Plaintiff as a snitch. 24 Hall also told Plaintiff that an inmate had offered him payment for attacking Plaintiff. 25 Plaintiff suffered cuts and bruises and his eye was gouged during the incident. Hall was 26 assigned to a different housing unit. Plaintiff contends that he is likely to be attacked by 27 any future cellmate based on Plaintiff’s reputation as an informant. Plaintiff seeks an 28 order requiring prison officials to segregate him and “conduct a meaningful protective TERMPSREF - 11 - 1 custody review.” 2 Although Plaintiff indicates that he attempted to provide notice to Defendants, he 3 appears to acknowledge that he has not done so. While Plaintiff fears that he may be 4 attacked by a future cellmate, it does not appear that any other inmate has been assigned 5 to Plaintiff’s cell. Further, no Defendant has yet been served or appeared in this case. 6 Under these circumstances, the Court will deny Plaintiff’s motion without prejudice to 7 filing a new motion. 8 VII. 9 Warnings A. Release 10 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his 11 release. Also, within 30 days of his release, he must either (1) notify the Court that he 12 intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to 13 comply may result in dismissal of this action. 14 B. 15 Plaintiff must file and serve a notice of a change of address in accordance with 16 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 17 for other relief with a notice of change of address. Failure to comply may result in 18 dismissal of this action. Address Changes 19 C. 20 Because Plaintiff is currently confined in ASPC-Eyman and this case is subject to 21 General Order 14-08, Plaintiff is not required to serve Defendants with a copy of every 22 document he files or to submit an additional copy of every filing for use by the Court, as 23 would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule of 24 Civil Procedure 5.4. If Plaintiff is transferred to a prison other than ASPC-Eyman, he 25 will be notified of the requirements for service and copies for the Court that are required 26 for inmates whose cases are not subject to General Order 14-08. Copies 27 D. 28 If Plaintiff fails to timely comply with every provision of this Order, including TERMPSREF Possible Dismissal - 12 - 1 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 2 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 3 for failure to comply with any order of the Court). 4 IT IS ORDERED: 5 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 6 (2) As required by the accompanying Order to the appropriate government 7 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial 8 filing fee. 9 (3) 10 Plaintiff’s motion to correct the Complaint is granted to the extent that “April Elliott” is substituted for “Mary Wisdom”. (Doc. 10.) 11 (4) Count II is dismissed without prejudice. 12 (5) Defendants Voyles, Elliott, Smith, Doe, and unknown Committee members 13 are dismissed without prejudice. 14 (6) Defendants Goodale and Costello must answer Count I. 15 (7) The Clerk of Court must send Plaintiff this Order, and a copy of the 16 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 17 for Waiver of Service of Summons form for Defendants Goodale and Costello. 18 (8) Plaintiff must complete1 and return the service packet to the Clerk of Court 19 within 21 days of the date of filing of this Order. The United States Marshal will not 20 provide service of process if Plaintiff fails to comply with this Order. 21 (9) If Plaintiff does not either obtain a waiver of service of the summons or 22 complete service of the Summons and Complaint on a Defendant within 120 days of the 23 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, 24 the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 25 1 26 27 28 TERMPSREF If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. - 13 - 1 LRCiv 16.2(b)(2)(B)(i). 2 3 (10) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. 4 (11) The United States Marshal must notify Defendants of the commencement 5 of this action and request waiver of service of the summons pursuant to Rule 4(d) of the 6 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 7 Order. 8 summons. If a waiver of service of summons is returned as undeliverable or is not 9 returned by a Defendant within 30 days from the date the request for waiver was 10 The Marshal must immediately file signed waivers of service of the sent by the Marshal, the Marshal must: 11 (a) 12 Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and 13 (b) 14 for Defendant, along with evidence of the attempt to secure a waiver of service of 15 the summons and of the costs subsequently incurred in effecting service upon 16 Defendant. The costs of service must be enumerated on the return of service form 17 (USM-285) and must include the costs incurred by the Marshal for photocopying 18 additional copies of the Summons, Complaint, or this Order and for preparing new 19 process receipt and return forms (USM-285), if required. Costs of service will be 20 taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the 21 Federal Rules of Civil Procedure, unless otherwise ordered by the Court. 22 (12) personally serve copies of the Summons, Complaint, and this Order upon within 10 days after personal service is effected, file the return of service A Defendant who agrees to waive service of the Summons and 23 Complaint must return the signed waiver forms to the United States Marshal, not 24 the Plaintiff. 25 (13) Defendant must answer the Complaint or otherwise respond by appropriate 26 motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 27 Rules of Civil Procedure. 28 TERMPSREF (14) Any answer or response must state the specific Defendant by name on - 14 - 1 whose behalf it is filed. The Court may strike any answer, response, or other motion or 2 paper that does not identify the specific Defendant by name on whose behalf it is filed. 3 (15) Plaintiff’s motion for injunctive relief is denied. (Doc. 7.) 4 (16) This matter is referred to Magistrate Judge James F. Metcalf pursuant to 5 Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 6 authorized under 28 U.S.C. § 636(b)(1). 7 Dated this 21st day of July, 2014. 8 9 Honorable Steven P. Logan United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF - 15 -

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