Finkle v. Ryan et al

Filing 5

ORDER (Service Packet) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2 ) is granted. As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee. Defendants Ryan, Hetmer, Evans, Brown, and French are dismissed without prejudice. Defendants Fizer, Norris, Parker, and Smith must answer the Complaint. The Clerk of Court must send Plaintiff a service packet including th e Complaint (Doc. 1 ), this Order, and both summons and request for waiver forms for Defendants Fizer, Norris, Parker, and Smith. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of thi s Order. This matter is referred to Magistrate Judge Michelle H. Burns 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 David G Campbell on 7/8/2014. (KMG)

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1 2 ASH WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Hunter Alan Finkle, 10 11 12 No. CV 14-1343-PHX-DGC (MHB) Plaintiff, vs. ORDER Charles L. Ryan, et al., 13 Defendants. 14 15 Plaintiff Hunter Alan Finkle, who is confined in the Arizona State Prison 16 Complex-Florence ("ASPC-Florence") in Florence, Arizona, has filed a pro se civil rights 17 Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In 18 Forma Pauperis (Doc. 2). The Court will order Defendants Fizer, Norris, Parker and 19 Smith to answer the Complaint and will dismiss the remaining claims and Defendants 20 without prejudice. 21 I. Application to Proceed In Forma Pauperis and Filing Fee 22 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 23 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 24 The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be 25 collected monthly in payments of 20% of the previous month’s income credited to 26 Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 27 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 28 agency to collect and forward the fees according to the statutory formula. TERMPSREF 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 6 which relief may be granted, or that seek monetary relief from a defendant who is 7 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 10 does not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable 18 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 19 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 20 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 21 specific factual allegations may be consistent with a constitutional claim, a court must 22 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 23 at 681. 24 But as the United States Court of Appeals for the Ninth Circuit has instructed, 25 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 26 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 27 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 28 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). TERMPSREF -2- 1 III. Complaint 2 In his Complaint, Plaintiff names as Defendants: Charles L. Ryan, Director of the 3 Arizona Department of Corrections (“ADOC”); Fizer, Deputy Warden at ASPC- 4 Florence; Hetmer, Warden at ASPC-Florence; Keith Smith, a security administrator with 5 the ADOC; Evans, a Lieutenant at ASPC-Florence; Brown, a Sergeant at ASPC- 6 Florence; Norris, a Sergeant at ASPC-Florence; Parker; a Sergeant at ASPC-Florence; 7 and French, a mental health doctor at ASPC-Florence. 8 Plaintiff alleges that Defendants violated his Eighth Amendment rights by failing 9 to place him in protective custody. According to Plaintiff, between May and June of 10 2007, Plaintiff was housed in the Yavapai County Jail. While there, Plaintiff observed 11 another inmate kill a bird and spit its carcass at a jail officer. The next day, Plaintiff was 12 questioned by a jail supervisor about the incident. Plaintiff answered the supervisor’s 13 questions, and his statements aided in the prosecution of the other inmate for charges 14 related to animal cruelty. As a result of his cooperation with the Yavapai County Jail 15 officers, Plaintiff was labeled a “snitch” by other inmates. 16 Between June and July of 2007, two of Plaintiff’s cellmates were ordered – by a 17 third inmate named Sean Patrick Kyle – to assault Plaintiff because he was a “snitch.” 18 Officers at the Yavapai County Jail realized that Plaintiff was in danger, and placed him 19 in protective custody. 20 Later in 2007, Plaintiff was transferred from the Yavapai County Jail to ASPC- 21 Florence and was housed in the Cook Unit. In June of 2008, Plaintiff was approached by 22 an inmate named Ty Randell. Randell threatened to tell the Aryan Brotherhood – a 23 violent prison gang – that Plaintiff was a “snitch” unless Plaintiff paid Randell $20 every 24 two weeks. Plaintiff agreed to pay Randell protection money, until, a week later, he 25 requested that he be placed in protective custody due to Randell’s extortion scheme and 26 his fear of the Aryan Brotherhood. Plaintiff was put through the 805 process – which is 27 the ADOC’s process for determining whether protective custody is necessary and 28 appropriate – but protective custody was denied. However, Randell was placed on TERMPSREF -3- 1 Plaintiff’s “Do Not House” list.1 Plaintiff asserts that the Aryan Brotherhood has a 2 standing rule to harass, assault, and, if possible, kill any inmate known to be a “snitch.” 3 Plaintiff also asserts that the Aryan Brotherhood has an identical rule for those known to 4 have requested protective custody. 5 On November 25, 2010, Randell was able to gain access to Plaintiff’s cell block 6 due to Randell’s job as a porter. Randell informed all of the other inmates in the cell 7 block that Plaintiff was a “snitch” and that Plaintiff had requested protective custody. As 8 a result, on December 3, 2010, Plaintiff informed Defendants Fizer and Brown via a letter 9 that he was in danger, was receiving threats, felt he would be assaulted, and needed 10 protective custody. Fizer and Brown advised Plaintiff that they would put his letter in the 11 report box. On December 15, 2010, after receiving no response to his letter, Plaintiff 12 asked Defendant Brown if he would be receiving a response. 13 responded that he was going home in 20 minutes, and that it was not his problem. Defendant Brown 14 On December 24, 2010, Defendant Brown went to Plaintiff’s cell and informed 15 Plaintiff that Plaintiff would be switching cells with an inmate named Randolph in the 16 same cell block. While walking to his new cell, Plaintiff was assaulted by Randolph, 17 who was outside of his cell in violation of prison policy. Plaintiff asserts that Randolph’s 18 assault was prompted by Randell’s presence in the cell block on November 25, 2010. 19 After the assault, but still on December 24, 2010, Plaintiff again requested protective 20 custody from Defendant Brown. Defendant Brown began the 805 process for Plaintiff. 21 On January 3, 2011, while the 805 process was ongoing, Plaintiff was interviewed 22 by a “SSU J. McCune” about why Plaintiff was seeking protective custody. Plaintiff 23 recounted the issues he was having and why he was in danger, including his previous 24 cooperation with the Yavapai County Jail officers. McCune informed Plaintiff that he 25 had called Yavapai County and put all of the information he received from Yavapai 26 County into the Plaintiff’s 805 file. Nevertheless, Plaintiff was denied protective custody 27 28 TERMPSREF 1 The “Do Not House” lists are used by ADOC to keep inmates separated who have known problems with each other. -4- 1 on February 17, 2011. His appeal of that decision was denied on March 2, 2011. 2 Sometime later in 2012, Plaintiff’s family called ADOC’s central office asking that 3 Plaintiff’s protective custody request be reconsidered. Again, the protective custody 4 requests were denied. On June 19, 2012, Plaintiff again sought protective custody, and 5 was again denied. 6 On January 16, 2013, an inmate nicknamed “Dirt Bike” handed Plaintiff a note 7 while Plaintiff was walking to the shower. The note indicated that “Dirt Bike” knew of 8 Plaintiff’s “issues,” and stated that “Dirt Bike” could fix those issues if Plaintiff would 9 assault another inmate. “Dirt Bike” told Plaintiff that he (i.e., Plaintiff) was to stab a 10 particular inmate the next day during recreation, and gave Plaintiff a prison-made knife 11 with which to do so. “Dirt Bike” further told Plaintiff that if Plaintiff did not stab the 12 other inmate, then Plaintiff would be killed. 13 The next day, after refusing to go out to recreation, Plaintiff informed a jail officer 14 about the situation and requested protective custody. Shortly thereafter, another jail 15 officer came to Plaintiff’s cell asking what was going on. Plaintiff explained to the 16 officer about the threat against him, and told the officer where the knife and “Dirt Bike’s” 17 letter were in his cell. The Plaintiff was removed from his cell, and brought to the yard 18 office, where Defendant Evans filled out the 805 process paperwork. Defendant Fizer 19 was also present and told Plaintiff, “Thanks for doing the right thing.” 20 In February of 2013, Plaintiff’s protective custody request was denied. An appeal 21 of that decision was also denied. On May 23, 2013, Plaintiff again requested protective 22 custody, and was again denied. 23 On or about August 19, 2013, Plaintiff attempted suicide by hanging himself from 24 a light fixture in his cell. The attempt failed when the light fixture broke. As a result, 25 Plaintiff was moved to Kasson Unit 2-B-32. On August 24, 2013, Plaintiff notified 26 Control Officer Sauceda that he (i.e., Plaintiff) was in danger in Kasson Unit. Plaintiff 27 told Sauceda that the inmate in cell 2-B-19, Ronald Doty, was telling an inmate known as 28 “Mike” in cell 2-B-31 to shoot Plaintiff with a prison-made dart gun. Plaintiff asked TERMPSREF -5- 1 Sauceda to ask Lieutenant Hernandez to move Plaintiff out of Kasson Unit and into a unit 2 with solid doors on the cells. Plaintiff was removed from Kasson Unit on August 28, 3 2013. 4 On September 27, 2013, a Control Officer named Castro removed Plaintiff from 5 his cell because Castro had received information that Plaintiff was going to be assaulted. 6 Castro took Plaintiff to the yard office and told the Lieutenant on duty what she (i.e., 7 Castro) had learned. The Lieutenant told Castro and Plaintiff that he had received the 8 same information on September 24, 2013 and had filed an incident report. Plaintiff told 9 the Lieutenant that he (i.e., Plaintiff) was on a list to be assaulted or killed by the Aryan 10 Brotherhood. Plaintiff asked the Lieutenant why he had not been moved off the yard 11 when the Lieutenant learned of the threat to Plaintiff. 12 Lieutenant responded that “stuff like that happened in prison.” This caused Plaintiff 13 extreme emotional distress, and he stated that he could not go through the 805 process 14 again and that he wanted to kill himself. As a result, Plaintiff was returned to Kasson 15 Unit and placed on suicide watch. According to Plaintiff, the 16 On September 30, 2013, Plaintiff was approved to come off of suicide watch. 17 That same day, Plaintiff requested to see Defendant Norris, a Sergeant at ASPC-Florence. 18 The Plaintiff met with Defendant Norris, and was asked by Defendant Norris why he had 19 been placed on suicide watch. Plaintiff recounted to Defendant Norris the events on 20 September 27, and asked Defendant Norris to look up the incident report the Lieutenant 21 had referred to, and for Defendant Norris to begin the 805 process for Plaintiff. 22 Defendant Norris refused to initiate the 805 process himself, but gave Plaintiff the 805 23 form to fill out on his own. Plaintiff filled out the form, noting the threats against him 24 and the reasons behind them. Defendant Norris took the form and left, but returned 25 several minutes later with Defendant Parker. 26 informed Plaintiff that they would not grant him the 805 process because there was no 27 evidence of a threat on his life. Plaintiff again asked for Defendant Norris to look up the 28 Lieutenant’s incident report from September 24, but Defendant Norris refused. TERMPSREF -6- Defendants Norris and Parker then 1 After denying Plaintiff the 805 process, Defendants Norris and Parker told 2 Plaintiff that he was being placed in unit 2-B-19. Plaintiff reminded Defendant Norris 3 that Norris had approved Plaintiff’s removal from that unit on August 28 due to threats to 4 Plaintiff’s safety, and asked Defendants Norris and Parker not to house him in that unit. 5 Nevertheless, Plaintiff was returned to unit 2-B-19. 6 On November 27, 2013, while walking to the showers in the 2-B unit, Plaintiff 7 was assaulted by another inmate with a prison-made dart. Video was made of the dart 8 and Plaintiff’s wound for ADOC’s file. As a result of the attack, Plaintiff had to receive 9 HIV and Hepatitis vaccinations and medications, which caused him 30 days of intense 10 pain and sickness. 11 As a result of the assault, Plaintiff was again put through the 805 process. 12 However, as before, he was denied protective custody. Plaintiff was, however, moved to 13 unit CB4, where he again requested protective custody. That request, and a subsequent 14 appeal, was denied. 15 On April 15, 2014, Plaintiff was notified by prison medical staff that he had 16 contracted Hepatitis C. On April 17, 2014, Plaintiff reviewed his medical file. The file 17 included blood tests both before and after he was assaulted with the dart on 18 November 27, 2013. Plaintiff avows that the tests show he was negative for Hepatitis C 19 before the dart attack, and positive for Hepatitis C after the dart attack. 20 On May 30, 2014, Plaintiff was informed by a prison officer that the Aryan 21 Brotherhood had put a hit out on Plaintiff’s life. Plaintiff requested protective custody, 22 and is currently going through the 805 process. 23 Additionally, Plaintiff asserts that the repeated denials of protective custody have 24 caused him stress and have affected his mental health to the point that he wants to harm 25 himself. Plaintiff alleges that he has made Defendant French, a mental health doctor at 26 ASPC-Florence, aware of his mental health issues, but that Defendant French has told 27 Plaintiff there is nothing he (i.e., Defendant French) can do to help Plaintiff obtain 28 protective custody. TERMPSREF -7- 1 Finally, Plaintiff asserts that Defendant Smith’s job is to review and decide all 2 requests for protective custody and 805 appeals. Plaintiff asserts that Defendant Smith’s 3 name appears on all letters stating why each 805 appeal is denied. 4 IV. Failure to State a Claim 5 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 6 (2) under color of state law (3) deprived him of federal rights, privileges or immunities 7 and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 8 Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 9 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific 10 injury as a result of the conduct of a particular defendant and he must allege an 11 affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 12 423 U.S. 362, 371-72, 377 (1976). 13 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 14 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 15 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 16 liberal interpretation of a civil rights complaint may not supply essential elements of the 17 claim that were not initially pled. Id. 18 An Eighth Amendment claim requires a sufficiently culpable state of mind by the 19 Defendants, known as “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 20 (1994). Deliberate indifference is a higher standard than negligence or lack of ordinary 21 due care for the prisoner’s safety. Id. at 835. To state a claim of deliberate indifference, 22 plaintiffs must meet a two-part test. “First, the alleged constitutional deprivation must be, 23 objectively, sufficiently serious”; and the “official’s act or omission must result in the 24 denial of the minimal civilized measure of life’s necessities.” 25 quotations omitted). Second, the prison official must have a “sufficiently culpable state 26 of mind,” i.e., he must act with “deliberate indifference to inmate health or safety.” Id. 27 (internal quotations omitted). In defining “deliberate indifference” in this context, the 28 Supreme Court has imposed a subjective test: “the official must both be aware of facts TERMPSREF -8- Id. at 834 (internal 1 from which the inference could be drawn that a substantial risk of serious harm exists, 2 and he must also draw the inference.” Id. at 837 (emphasis added). 3 A. 4 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 5 specific injury as a result of specific conduct of a defendant and show an affirmative link 6 between the injury and the conduct of that defendant. See Rizzo, 423 U.S. at 371-72, 377. 7 Further, there is no respondeat superior liability under § 1983, so a defendant’s position 8 as the supervisor of someone else who allegedly violated a plaintiff’s constitutional rights 9 does not make the supervisor liable. Monell v. Dep’t of Soc. Svcs. of New York, 436 U.S. 10 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his 11 individual capacity “is only liable for constitutional violations of his subordinates if the 12 supervisor participated in or directed the violations, or knew of the violations and failed 13 to act to prevent them.” Taylor, 880 F.2d at 1045. Defendants Ryan and Hetmer 14 Plaintiff has not alleged that Defendants Ryan or Hetmer personally participated in 15 a deprivation of Plaintiff’s constitutional rights, were aware of a deprivation and failed to 16 act, or formed policies that resulted in Plaintiff’s injuries. Thus, the Court will dismiss 17 without prejudice Defendants Ryan and Hetmer. 18 B. 19 Plaintiff has failed to state a claim against Defendant Evans for which relief could 20 be granted. The only reference to Defendant Evans within Plaintiff’s Complaint is that 21 Defendant Evans filled out the 805 process paperwork on Plaintiff’s behalf after Plaintiff 22 was threatened by inmate “Dirt Bike.” These facts do not support an allegation that 23 Defendant Evans was “deliberately indifferent” to Plaintiff’s safety. 24 Defendant Evans will be dismissed without prejudice. Defendant Evans Accordingly, 25 C. 26 Plaintiff makes two allegations against Defendant Brown. First, that Defendant 27 Brown was deliberately indifferent when he told Plaintiff that it was “not his problem” 28 that Plaintiff had not received a response to his request for protective custody. Second, TERMPSREF Defendant Brown -9- 1 Plaintiff alleges that Defendant Brown failed to follow security protocol when Plaintiff 2 was assaulted by inmate Randolph. Neither allegation sufficiently states a claim against 3 Defendant Brown for which relief could be granted. 4 With regard to Plaintiff’s first allegation, Plaintiff has not alleged that Defendant 5 Brown could have done anything about Plaintiff’s request for protective custody. 6 Plaintiff’s Complaint alleges that it was Defendant Smith, not Defendant Brown, who 7 was responsible for approving or denying requests for protective custody. Accordingly, 8 while Defendant Brown may have been, as Plaintiff puts it, “deliberate[ly] indiffer[ent] 9 toward the Plaintiff’s request,” he was not deliberately indifferent toward Plaintiff’s 10 safety. 11 With regard to Plaintiff’s second allegation, Plaintiff has not alleged that 12 Defendant Brown let inmate Randolph out of his cell, that Defendant Brown knew that 13 inmate Randolph was out of his cell, or, even had he known, that inmate Randolph posed 14 a substantial risk to Plaintiff’s safety. Accordingly, Plaintiff has failed to state a claim 15 against Defendant Brown for which relief could be granted, and he will be dismissed 16 without prejudice. 17 D. 18 Plaintiff has failed to state a claim against Defendant French for which relief could 19 be granted. The only allegation against Defendant French in Plaintiff’s Complaint is that 20 Defendant French told Plaintiff “there is nothing he can do to help Plaintiff [with the] 21 protective custody issue.” However, Plaintiff does not allege that Defendant French had 22 any authority to assist or approve Plaintiff’s requests for protective custody. While 23 Plaintiff does allege he suffered from mental health issues and that Defendant French was 24 aware of those issues, he does not allege that Defendant French failed to treat those 25 issues. Accordingly, Plaintiff has failed to allege facts sufficient to support an allegation 26 that Defendant French was “deliberately indifferent” to Plaintiff’s health and safety, and 27 he will be dismissed without prejudice. Defendant French 28 TERMPSREF - 10 - 1 V. 2 Claims for Which an Answer Will be Required Liberally construed, Plaintiff has adequately stated Eighth Amendment claims 3 against Defendants Fizer, Norris, Parker, and Smith. 4 Defendants to answer the Complaint. 5 VI. The Court will require these Warnings 6 A. 7 If released from custody, Plaintiff must pay the unpaid balance of the filing fee 8 within 120 days of his release. Also, within 30 days of his release, he must either (1) 9 notify the Court that he intends to pay the balance or (2) show good cause, in writing, 10 Release why he cannot. Failure to comply may result in dismissal of this action. 11 B. 12 If Plaintiff’s address changes, Plaintiff must file and serve a notice of a change of 13 address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff 14 must not include a motion for other relief with a notice of change of address. Failure to 15 comply may result in dismissal of this action. Address Changes 16 C. 17 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 18 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 19 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, 20 Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 21 5.4. Failure to comply may result in the filing being stricken without further notice to 22 Plaintiff. 23 D. 24 If Plaintiff fails to timely comply with every provision of this Order, including 25 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 26 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 27 for failure to comply with any order of the Court). Copies Possible Dismissal 28 TERMPSREF - 11 - 1 IT IS ORDERED: 2 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 3 (2) As required by the accompanying Order to the appropriate government 4 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial 5 filing fee. 6 (3) 7 without prejudice. 8 (4) Defendants Fizer, Norris, Parker, and Smith must answer the Complaint. 9 (5) The Clerk of Court must send Plaintiff a service packet including the Defendants Ryan, Hetmer, Evans, Brown, and French are dismissed 10 Complaint (Doc. 1), this Order, and both summons and request for waiver forms for 11 Defendants Fizer, Norris, Parker, and Smith. 12 (6) Plaintiff must complete1 and return the service packet to the Clerk of Court 13 within 21 days of the date of filing of this Order. The United States Marshal will not 14 provide service of process if Plaintiff fails to comply with this Order. 15 (7) If Plaintiff does not either obtain a waiver of service of the summons or 16 complete service of the Summons and Complaint on a Defendant within 120 days of the 17 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, 18 the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 19 LRCiv 16.2(b)(2)(B)(i). 20 21 22 (8) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. (9) The United States Marshal must notify Defendants of the commencement 23 of this action and request waiver of service of the summons pursuant to Rule 4(d) of the 24 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 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. - 12 - 1 Order. 2 summons. If a waiver of service of summons is returned as undeliverable or is not 3 returned by a Defendant within 30 days from the date the request for waiver was 4 sent by the Marshal, the Marshal must: The Marshal must immediately file signed waivers of service of the 5 (a) personally serve copies of the Summons, Complaint, and this Order 6 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 7 and 8 (b) within 10 days after personal service is effected, file the return of 9 service for Defendant, along with evidence of the attempt to secure a waiver of 10 service of the summons and of the costs subsequently incurred in effecting service 11 upon Defendant. The costs of service must be enumerated on the return of service 12 form (USM-285) and must include the costs incurred by the Marshal for 13 photocopying additional copies of the Summons, Complaint, or this Order and for 14 preparing new process receipt and return forms (USM-285), if required. Costs of 15 service will be taxed against the personally served Defendant pursuant to Rule 16 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 17 Court. 18 (10) A Defendant who agrees to waive service of the Summons and 19 Complaint must return the signed waiver forms to the United States Marshal, not 20 the Plaintiff. 21 (11) Defendants must answer the Complaint or otherwise respond by 22 appropriate motion within the time provided by the applicable provisions of Rule 12(a) of 23 the Federal Rules of Civil Procedure. 24 (12) Any answer or response must state the specific Defendant by name on 25 whose behalf it is filed. The Court may strike any answer, response, or other motion or 26 paper that does not identify the specific Defendant by name on whose behalf it is filed. 27 28 TERMPSREF - 13 - 1 (13) This matter is referred to Magistrate Judge Michelle H. Burns pursuant to 2 Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 3 authorized under 28 U.S.C. § 636(b)(1). 4 Dated this 8th day of July, 2014. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF - 14 -

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