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)

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 -