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