Scales v. Arpaio

Filing 3

ORDER that within 30 days of the date this Order is filed, Plaintiff must either pay the $400.00 filing and administrative fees or file a complete Application to Proceed In Forma Pauperis and a certified six-month trust account statement. Pla intiff's 1 Complaint is dismissed without prejudice for failure to file on a court-approved form. 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 comply, the Clerk of Court must enter a judgment of dismissal of this action without prejudice. The Clerk must mail Plaintiff a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas) and a court-approved form for filing a civil rights complaint by a prisoner. Signed by Judge Steven P Logan on 10/31/2014. (Attachments: # 1 IFP-NH Form, # 2 PCR Form)(LFIG)

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1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John M. Scales, 10 11 12 No. CV 14-02325-PHX-SPL (MHB) Plaintiff, vs. ORDER Joseph A. Arpaio, Jr., 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL On October 20, 2014, Plaintiff John M. Scales, who is confined in the Maricopa County Lower Buckeye Jail, filed a “Motion: for Relief – Due to[] Civil Rights Violations” that the Court will construe as a Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). I. Payment of Filing Fee When bringing an action, a prisoner must either pay the $350.00 filing fee and a $50.00 administrative fee in a lump sum or, if granted the privilege of proceeding in forma pauperis, pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires an affidavit of indigence and a certified copy of the inmate’s trust account statement for the six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit statements from each institution where he was confined during the six-month period. Id. To assist prisoners in meeting these requirements, the Court requires use of a form application. LRCiv 3.4. 1 If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an 2 initial partial filing fee of 20% of either the average monthly deposits or the average 3 monthly balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An 4 initial partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). 5 The balance of the $350.00 filing fee will be collected in monthly payments of 20% of 6 the preceding month’s income credited to an inmate’s account, each time the amount in 7 the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). 8 Because Plaintiff has not paid the $400.00 filing and administrative fees or filed an 9 Application to Proceed In Forma Pauperis, Plaintiff will be permitted 30 days from the 10 filing date of this Order to submit a properly executed and certified Application to 11 Proceed In Forma Pauperis, using the form included with this Order, or pay the $400.00 12 filing and administrative fees. 13 II. Complaint not on Court-Approved Form 14 Local Rule of Civil Procedure 3.4 requires in part that “[a]ll complaints and 15 applications to proceed in forma pauperis by incarcerated persons shall be signed and 16 legibly written or typewritten on forms approved by the Court and in accordance with the 17 instructions provided with the forms.” Plaintiff’s Complaint is not on a court-approved 18 form as required by Local Rule of Civil Procedure 3.4. 19 therefore be dismissed without prejudice, with leave to amend, in order for Plaintiff to 20 file an amended complaint on a court-approved form. Plaintiff’s Complaint will 21 Within 30 days, Plaintiff may submit a first amended complaint on a court- 22 approved form. The Clerk of Court will mail Plaintiff a court-approved form to use for 23 filing a first amended complaint. If Plaintiff fails to use the court-approved form, the 24 Court may strike the amended complaint and dismiss this action without further notice to 25 Plaintiff. 26 Plaintiff must clearly designate on the face of the document that it is the “First 27 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 28 JDDL -2- 1 entirety on the court-approved form and may not incorporate any part of the original 2 Complaint by reference. Plaintiff may include only one claim per count. 3 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 4 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 5 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original 6 Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 7 in the original complaint and that was voluntarily dismissed or was dismissed without 8 prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa 9 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 10 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 11 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 12 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 13 do; (4) how the action or inaction of that Defendant is connected to the violation of 14 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 15 that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 16 Plaintiff must repeat this process for each person he names as a Defendant. If 17 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 18 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 19 failure to state a claim. 20 Defendants has violated a constitutional right are not acceptable and will be 21 dismissed. Conclusory allegations that a Defendant or group of 22 23 § 1983 provides a cause of action against persons acting under color of state law who 24 have violated rights guaranteed by the United States Constitution and federal law. 42 25 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). A 26 pretrial detainee’s claim for unconstitutional conditions of confinement arises from the 27 Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment 28 JDDL In addition, if Plaintiff files an amended complaint, he should take note that prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 and -3- 1 n.16 (1979). Nevertheless, the same standards are applied, requiring proof that the 2 defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 3 (9th Cir. 1998). 4 Deliberate indifference is a higher standard than negligence or lack of ordinary 5 due care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To 6 state a claim of deliberate indifference, plaintiffs must meet a two-part test. “First, the 7 alleged constitutional deprivation must be, objectively, sufficiently serious”; and the 8 “official’s act or omission must result in the denial of the minimal civilized measure of 9 life’s necessities.” Id. at 834 (internal quotations omitted). Second, the prison official 10 must have a “sufficiently culpable state of mind,” i.e., he must act with “deliberate 11 indifference to inmate health or safety.” Id. (internal quotations omitted). In defining 12 “deliberate indifference” in this context, the Supreme Court has imposed a subjective 13 test: “the official must both be aware of facts from which the inference could be drawn 14 that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 15 837 (emphasis added). 16 The specific inquiry with respect to pretrial detainees is whether the prison 17 conditions amount to “punishment” without due process in violation of the Fourteenth 18 Amendment. Bell, 441 U.S. at 535. A jail or prison must provide prisoners with 19 “adequate food, clothing, shelter, sanitation, medical care, and personal safety.” 20 Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). However, this does not mean that 21 federal courts can, or should, interfere whenever prisoners are inconvenienced or suffer 22 de minimis injuries. See Bell, 441 U.S. at 539 n.21 (noting that a de minimis level of 23 imposition does not rise to a constitutional violation). 24 III. Warnings 25 A. 26 Plaintiff must file and serve a notice of a change of address in accordance with 27 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion Address Changes 28 JDDL -4- 1 for other relief with a notice of change of address. Failure to comply may result in 2 dismissal of this action. 3 B. 4 Plaintiff must submit an additional copy of every filing for use by the Court. See 5 LRCiv 5.4. Failure to comply may result in the filing being stricken without further 6 notice to Plaintiff. Copies 7 C. 8 If Plaintiff fails to timely comply with every provision of this Order, including 9 these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 10 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any 11 order of the Court). 12 IT IS ORDERED: 13 (1) Possible Dismissal Within 30 days of the date this Order is filed, Plaintiff must either pay the 14 $400.00 filing and administrative fees or file a complete Application to Proceed In 15 Forma Pauperis and a certified six-month trust account statement. 16 (2) If Plaintiff fails to either pay the $400.00 filing and administrative fees or 17 file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of 18 Court must enter a judgment of dismissal of this action without prejudice and without 19 further notice to Plaintiff. 20 (3) Plaintiff’s Complaint (Doc. 1) is dismissed without prejudice for failure 21 to file on a court-approved form. Plaintiff has 30 days from the date this Order is filed to 22 file a first amended complaint in compliance with this Order. 23 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 24 25 prejudice and without further notice to Plaintiff. 26 .... 27 .... 28 JDDL Court must, without further notice, enter a judgment of dismissal of this action without .... -5- 1 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing an 2 Application to Proceed In Forma Pauperis (Non-Habeas) and a court-approved form for 3 filing a civil rights complaint by a prisoner. 4 Dated this 31st day of October, 2014. 5 6 Honorable Steven P. Logan United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL -6-

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