Herrera v. Arpaio et al

Filing 5

ORDER: Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2 ) is granted. The Complaint (Doc. 1 ) is dismissed for failure to state a claim. Plaintiffhas 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order. If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). Signed by Judge David G Campbell on 08/19/2015. (REK)

1
2

SC
WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11

Carlos Herrera,

12
13
14

No. CV 15-1285-PHX-DGC (JZB)
Plaintiff,

v.

ORDER

Joseph M. Arpaio, et al.,

15

Defendants.

16
Plaintiff Carlos Herrera, who is confined in the Durango Jail in Phoenix, Arizona,

17
18

has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an

19

Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the

20

Complaint for failure to state a claim with leave to amend.

21

I.

22

Application to Proceed In Forma Pauperis and Filing Fee
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 assess an initial partial filing fee of $13.14. The remainder of the fee will

25

be 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.
JDDL-K

1

II.

2

Statutory Screening of Prisoner Complaints
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
9

A pleading must contain a “short and plain statement of the claim showing that the
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678

12

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

13

conclusory statements, do not suffice.” Id.

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)).
JDDL-K

-2-

1

If the Court determines that a pleading could be cured by the allegation of other

2

facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal

3

of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).

4

Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may

5

possibly be amended to state a claim, the Court will dismiss it with leave to amend.

6

III.

7

Complaint
Plaintiff asserts five counts for the denial of basic necessities. Plaintiff sues

8

Maricopa County Sheriff Joseph M. Arpaio, unspecified Maricopa County Sheriff’s

9

Office (MCSO) officers, and Maricopa County. Plaintiff seeks compensatory relief.

10

Plaintiff alleges the following in his Complaint: Defendants have housed Plaintiff

11

in buildings containing or exposing him to toxic materials, including asbestos, which he

12

contends is flaking and friable (Count I). Defendants placed Plaintiff in a holding cell at

13

an intake facility with so many other inmates that he could not sit down without touching

14

other inmates (Count II). Defendants failed to provide a proper diet for Plaintiff’s

15

medical condition, diverticulitis, on several occasions, which resulted in him receiving

16

antibiotics (Count III). Defendants placed him in a pod containing fifteen cells designed

17

to hold two inmates each, but sixty inmates were confined in the pod or approximately

18

double the intended number, which prevented Plaintiff from being able to sit and eat

19

meals (Count IV). Defendants housed Plaintiff in a pod with only two showers and two

20

toilets for sixty inmates, which impeded Plaintiff’s ability to use the restroom when

21

needed.

22

IV.

23

Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

24

(2) under color of state law (3) deprived him of federal rights, privileges or immunities

25

and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th

26

Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d

27

1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific

28

injury as a result of the conduct of a particular defendant and he must allege an
JDDL-K

-3-

1

affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode,

2

423 U.S. 362, 371-72, 377 (1976).

3

Further, to state a claim against a defendant, “[a] plaintiff must allege facts, not

4

simply conclusions [to] show that an individual was personally involved in the

5

deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

6

1998). For an individual to be liable in his official capacity, a plaintiff must allege

7

injuries resulting from a policy, practice, or custom of the agency over which that

8

individual has final policy-making authority. See Cortez v. County of Los Angeles, 294

9

F.3d 1186, 1188 (9th Cir. 2002). Further, there is no respondeat superior liability under

10

§1983, so a defendant’s position as the supervisor of someone who allegedly violated a

11

plaintiff’s constitutional rights, absent more, does not make him liable. Monell v. Dep’t

12

of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

13

1989). A supervisor in his personal capacity “is only liable for constitutional violations

14

of his subordinates if the supervisor participated in or directed the violations, or knew of

15

the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. In addition,

16

where a defendant’s only involvement in allegedly unconstitutional conduct is the denial

17

of administrative grievances, the failure to intervene on a prisoner’s behalf to remedy the

18

alleged unconstitutional behavior does not amount to active unconstitutional behavior for

19

purposes of § 1983. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); accord

20

Proctor v. Applegate, 661 F.Supp.2d 743, 765 (W.D. Mich. 2009); Stocker v. Warden,

21

No. 1:07-CV-00589, 2009 WL 981323, at *10 (E.D. Cal. Apr. 13, 2009); Mintun v.

22

Blades, No. CV-06-139, 2008 WL 711636, at *7 (D. Idaho Mar. 14, 2008); see also

23

Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (a plaintiff must allege

24

that a supervisor defendant did more than play a passive role in an alleged violation or

25

mere tacit approval thereof; a plaintiff must allege that the supervisor defendant somehow

26

encouraged or condoned the actions of their subordinates).

27

A.

28

Plaintiff asserts that, in addition to 42 U.S.C. § 1983, this Court has jurisdiction

Graves v. Arpaio

JDDL-K

-4-

1

pursuant to Graves v. Arpaio, CV 77-00479-PHX-NVW, formerly Hart v. Hill (D. Ariz.).

2

However, Plaintiff may not enforce the decrees entered in Graves in a separate civil

3

rights action. See Cagle v. Sutherland, 334 F.3d 980, 986 (11th Cir. 2003); Klein v.

4

Zavaras, 80 F.3d 432, 435 (10th Cir. 1996); DeGidio v. Pung, 920 F.2d 525, 534 (8th

5

Cir.1990); Green v. McKaskle, 788 F.2d 1116, 1122-23 (5th Cir. 1986). Moreover,

6

standing alone, remedial orders, such as those entered in Graves, cannot serve as a

7

substantive basis for a § 1983 claim for damages because such orders do not create

8

“rights, privileges, or immunities secured by the Constitution and laws.” Green, 788 F.3d

9

at 1123-24. Rather, remedial decrees are the means by which unconstitutional conditions

10

are corrected. Id. at 1123. Accordingly, to the extent that Plaintiff seeks relief pursuant

11

to Graves in this action, Plaintiff fails to state a claim.

12

B.

Unspecified MCSO Officers

13

Plaintiff purports to sue unspecified MCSO officers. Rule 10(a) of the Federal Rules

14

of Civil Procedure requires the plaintiff to include the names of the parties in the action.

15

As a practical matter, it is impossible in most instances for the United States Marshal or

16

his designee to serve a summons and complaint or amended complaint upon an

17

anonymous defendant.

18

The Ninth Circuit has held that where identity is unknown prior to the filing of a

19

complaint, the plaintiff should be given an opportunity through discovery to identify the

20

unknown defendants, unless it is clear that discovery would not uncover the identities, or

21

that the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177

22

F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

23

1980)). Where the names of individual defendants are unknown at the time a complaint

24

is filed, a plaintiff may refer to the individual unknown defendants as Defendant John (or

25

Jane) Doe 1, John Doe 2, and so on, and allege facts to support how each particular Doe

26

defendant violated the plaintiff’s constitutional rights. A plaintiff may thereafter use the

27

discovery process to obtain the names of fictitiously-named defendants whom he believes

28

violated his constitutional rights and seek leave to amend to name those defendants.
JDDL-K

-5-

1

As discussed herein, Plaintiff will be granted leave to file an amended complaint

2

in which he should name as Defendants the person(s) who allegedly violated his

3

constitutional rights. If Plaintiff does not know the names of those person(s), Plaintiff

4

may refer to each such person by a fictitious name, e.g., John Doe 1, John Doe 2, and so

5

on and allege facts to support how each defendant violated his constitutional rights. That

6

is, Plaintiff must allege when, where, and how any Doe defendant violated his

7

constitutional rights.

8

C.

9

Plaintiff sues Maricopa County. A municipality is a “person” for purposes of

Maricopa County

10

§ 1983, which may be sued under § 1983. See Leatherman v. Tarrant County Narcotics

11

Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); Monell, 436 U.S. at 694.

12

To state a claim against a municipality under § 1983, a plaintiff must allege facts to

13

support that his constitutional rights were violated pursuant to a policy or custom of the

14

municipality. Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001)

15

(citing Monell, 436 U.S. at 690-91); Thompson v. City of Los Angeles, 885 F.2d 1439,

16

1443 (9th Cir. 1989)). Thus, a municipality may not be sued solely because an injury

17

was inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d

18

1178, 1185 (9th Cir. 2006). Therefore, a § 1983 claim against a municipal defendant

19

“cannot succeed as a matter of law” unless a plaintiff: (1) contends that the municipal

20

defendant maintains a policy or custom pertinent to the plaintiff’s alleged injury; and (2)

21

explains how such policy or custom caused the plaintiff’s injury. Sadoski v. Mosley, 435

22

F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant

23

to Fed. R. Civ. P. 12(b)(6)).

24

Plaintiff fails to allege facts to support that Maricopa County maintained a policy

25

or custom that resulted in the violation of Plaintiff’s federal constitutional rights or to

26

explain how his injuries were caused by any County policy or custom. Accordingly,

27

Plaintiff fails to state a claim against Maricopa County and it will be dismissed.

28

/

/

/

JDDL-K

-6-

1

D.

2

Plaintiff’s claims concern conditions of confinement at the Durango Jail. Plaintiff

Conditions of Confinement/Basic Necessities

3

does not allege when or for how long he was confined in the Durango Jail or whether he

4

was a pretrial detainee, convicted inmate, or both at relevant times.

5

A pretrial detainee’s claim for unconstitutional conditions of confinement arises

6

from the Fourteenth Amendment Due Process Clause while a convicted inmate’s claim

7

arises under the Eighth Amendment prohibition against cruel and unusual punishment.

8

Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Nevertheless, the same standards are

9

applied. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (citation omitted). To

10

state a claim for unconstitutional conditions, a plaintiff must allege an objectively

11

“sufficiently serious” deprivation that results in the denial of “the minimal civilized

12

measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v.

13

Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994); see Estate of Ford v. Ramirez-Palmer, 301

14

F.3d 1043, 1049-50 (9th Cir. 2002). That is, a plaintiff must allege facts supporting that

15

he is incarcerated under conditions posing a substantial risk of harm. Farmer, 511 U.S.

16

at 834. “The circumstances, nature, and duration of a deprivation of [ ] necessities must

17

be considered in determining whether a constitutional violation has occurred.” Hearns v.

18

Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726,

19

731 (9th Cir. 2000)). Further, whether a condition of confinement rises to the level of a

20

constitutional violation may depend, in part, on the duration of an inmate’s exposure to

21

that condition. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Hutto v.

22

Finney, 437 U.S. 678, 686-87 (1978)). In addition, allegations of overcrowding, alone,

23

are insufficient to state a claim. See Rhodes v. Chapman, 452 U.S. 337, 348 (1981).

24

When, however, overcrowding causes an increase in violence or reduces the provision of

25

other constitutionally required services, or reaches a level where the institution is no

26

longer fit for human habitation, the inmate’s right against cruel and unusual punishment

27

may be violated. See Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir.

28

1989); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984).
JDDL-K

-7-

1

A plaintiff must also allege facts to support that a defendant acted with deliberate

2

indifference. Deliberate indifference is a higher standard than negligence or lack of

3

ordinary due care for the prisoner’s safety. Farmer, 511 U.S. at 835. To state a claim of

4

deliberate indifference, a plaintiff must meet a two-part test. First, the alleged

5

constitutional deprivation must be, objectively, “sufficiently serious”; the official’s act or

6

omission must result in the denial of “the minimal civilized measure of life’s necessities.”

7

Id. at 834 (citations omitted). Second, the prison official must have a “sufficiently

8

culpable state of mind,” i.e., he must act with deliberate indifference to inmate health or

9

safety. Id. (citations omitted). In defining “deliberate indifference” in this context, the

10

Supreme Court has imposed a subjective test: “the official must both be aware of facts

11

from which the inference could be drawn that a substantial risk of serious harm exists,

12

and he must also draw the inference.” Id. at 837 (emphasis added).

13

Plaintiff does not allege for how long he was confined in the Durango Jail or the

14

frequency or duration of his exposure to the complained of conditions. Instead, he recites

15

the standard to state a claim for unconstitutional conditions, i.e., deliberate indifference to

16

an excessive risk, without alleging facts to connect any Defendant to those conditions or

17

Plaintiff’s exposure to those conditions. For example, Plaintiff alleges that he suffered

18

bouts of diverticulitis, which he attributes to sometimes not receiving the proper medical

19

diet, but he fails to allege facts to support when and how any Defendant allegedly caused

20

him not to receive the proper meal. Indeed, such errors appear to have been nothing more

21

than inadvertent or negligent. Negligence is not sufficient to state a claim. Moreover,

22

Plaintiff acknowledges that he received medical treatment for diverticulitis. In short,

23

while Plaintiff recites the standard in each count, he fails to allege facts to support that

24

any Defendant acted with deliberate indifference to those conditions. Accordingly,

25

Plaintiff fails to state a claim for unconstitutional conditions.

26

V.

27
28

Leave to Amend
For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to

state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a
JDDL-K

-8-

1

first amended complaint to cure the deficiencies outlined above. The Clerk of Court will

2

mail Plaintiff a court-approved form to use for filing a first amended complaint. If

3

Plaintiff fails to use the court-approved form, the Court may strike the amended

4

complaint and dismiss this action without further notice to Plaintiff.

5

Plaintiff must clearly designate on the face of the document that it is the “First

6

Amended Complaint.” The first amended complaint must be retyped or rewritten in its

7

entirety on the court-approved form and may not incorporate any part of the original

8

Complaint by reference. Plaintiff may include only one claim per count.

9

A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet,

10

963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896

11

F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original

12

complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised

13

in the original complaint and that was voluntarily dismissed or was dismissed without

14

prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa

15

County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

16

VI.

Warnings

17

A.

18

If Plaintiff is released while this case remains pending, and the filing fee has not

Release

19

been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court

20

that he intends to pay the unpaid balance of his filing fee within 120 days of his release or

21

(2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may

22

result in dismissal of this action.

23

B.

24

Plaintiff must file and serve a notice of a change of address in accordance with

Address Changes

25

Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion

26

for other relief with a notice of change of address. Failure to comply may result in

27

dismissal of this action.

28

/

/

/

JDDL-K

-9-

1

C.

2

Plaintiff must submit an additional copy of every filing for use by the Court. See

Copies

3

LRCiv 5.4. Failure to comply may result in the filing being stricken without further

4

notice to Plaintiff.

5

D.

6

Because the Complaint has been dismissed for failure to state a claim, if Plaintiff

Possible “Strike”

7

fails to file an amended complaint correcting the deficiencies identified in this Order, the

8

dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

9

Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil

10

judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more

11

prior occasions, while incarcerated or detained in any facility, brought an action or appeal

12

in a court of the United States that was dismissed on the grounds that it is frivolous,

13

malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

14

is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

15

E.

16

If Plaintiff fails to timely comply with every provision of this Order, including

Possible Dismissal

17

these warnings, the Court may dismiss this action without further notice. See Ferdik, 963

18

F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any

19

order of the Court).

20

IT IS ORDERED:

21

(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

22

(2)

As required by the accompanying Order to the appropriate government

23

agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing

24

fee of $13.14.

25

(3)

The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff

26

has 30 days from the date this Order is filed to file a first amended complaint in

27

compliance with this Order.

28

(4)

If Plaintiff fails to file an amended complaint within 30 days, the Clerk of

JDDL-K

- 10 -

1

Court must, without further notice, enter a judgment of dismissal of this action with

2

prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).

3
4
5

(5)

The Clerk of Court must mail Plaintiff a court-approved form for filing a

civil rights complaint by a prisoner.
Dated this 19th day of August, 2015.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JDDL-K

- 11 -

Instructions for a Prisoner Filing a Civil Rights Complaint
in the United States District Court for the District of Arizona
1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated
persons prepare a complaint seeking relief for a violation of their federal civil rights. These
complaints typically concern, but are not limited to, conditions of confinement. This form should
not be used to challenge your conviction or sentence. If you want to challenge a state conviction
or sentence, you should file a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a
person in state custody. If you want to challenge a federal conviction or sentence, you should file
a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.

2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by
incarcerated persons must be filed on the court-approved form. The form must be typed or
neatly handwritten. The form must be completely filled in to the extent applicable. All questions
must be answered clearly and concisely in the appropriate space on the form. If needed, you may
attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper.
You must identify which part of the complaint is being continued and number all pages. If you do
not fill out the form properly, you will be asked to submit additional or corrected information, which
may delay the processing of your action. You do not need to cite law.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a
material fact, you may be prosecuted for perjury.
4. The Filing and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing fee
plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may request
leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave
to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28
U.S.C. § 1915” for additional instructions.
5. Original and Judge’s Copy. You must send an original plus one copy of your complaint and of
any other documents submitted to the Court. You must send one additional copy to the Court if you
wish to have a file-stamped copy of the document returned to you. All copies must be identical to
the original. Copies may be legibly handwritten.
6. Where to File. You should file your complaint in the division where you were confined when
your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in
Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined
in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you
were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson
Division. Mail the original and one copy of the complaint with the $400 filing and
administrative fees or the application to proceed in forma pauperis to:

Revised 5/1/2013

1

Phoenix & Prescott Divisions:
OR
U.S. District Court Clerk
U.S. Courthouse, Suite 130
401 West Washington Street, SPC 10
Phoenix, Arizona 85003-2119

Tucson Division:
U.S. District Court Clerk
U.S. Courthouse, Suite 1500
405 West Congress Street
Tucson, Arizona 85701-5010

7. Change of Address. You must immediately notify the Court and the defendants in writing of any
change in your mailing address. Failure to notify the Court of any change in your mailing
address may result in the dismissal of your case.
8. Certificate of Service. You must furnish the defendants with a copy of any document you submit
to the Court (except the initial complaint and application to proceed in forma pauperis). Each
original document (except the initial complaint and application to proceed in forma pauperis) must
include a certificate of service on the last page of the document stating the date a copy of the
document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ.
P. 5(a), (d). Any document received by the Court that does not include a certificate of service may
be stricken. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed
this
(month, day, year) to:
Name:
Address:
Attorney for Defendant(s)
(Signature)
9. Amended Complaint. If you need to change any of the information in the initial complaint, you
must file an amended complaint. The amended complaint must be written on the court-approved
civil rights complaint form. You may file one amended complaint without leave (permission) of
Court before any defendant has answered your original complaint. See Fed. R. Civ. P. 15(a). After
any defendant has filed an answer, you must file a motion for leave to amend and lodge (submit) a
proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate
by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants
not included in the amended complaint are considered dismissed. All amended complaints are
subject to screening under the Prison Litigation Reform Act; screening your amendment will take
additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead,
the relevant information should be paraphrased. You should keep the exhibits to use to support or
oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of
any judge. The only appropriate way to communicate with the Court is by filing a written pleading
or motion.
2

12. Completing the Civil Rights Complaint Form.
HEADING:
1. Your Name. Print your name, prison or inmate number, and institutional mailing address
on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name
more than four defendants, print the name of the first defendant on the first line, write the
words “and others” on the second line, and attach an additional page listing the names of all
of the defendants. Insert the additional page after page 1 and number it “1-A” at the bottom.
3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED” in
the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so may
result in the loss of the right to a jury trial. A jury trial is not available if you are seeking
only injunctive relief.
Part A. JURISDICTION:
1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983
for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents” for
federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights
occurred.
3. Defendants. Print all of the requested information about each of the defendants in the
spaces provided. If you are naming more than four defendants, you must provide the
necessary information about each additional defendant on separate pages labeled “2-A,” “2B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in either state or federal court while you
were a prisoner. Print all of the requested information about each lawsuit in the spaces provided.
If you have filed more than three lawsuits, you must provide the necessary information about each
additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the
page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION:
You must identify what rights each defendant violated. The form provides space to allege
three separate counts (one violation per count). If you are alleging more than three counts, you
must provide the necessary information about each additional count on a separate page. Number
the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that
you are limited to a total of fifteen additional pages.

3

1. Counts. You must identify which civil right was violated. You may allege the violation
of only one civil right per count.
2. Issue Involved. Check the box that most closely identifies the issue involved in your
claim. You may check only one box per count. If you check the box marked “Other,” you
must identify the specific issue involved.
3. Supporting Facts. After you have identified which civil right was violated, you must state
the supporting facts. Be as specific as possible. You must state what each individual
defendant did to violate your rights. If there is more than one defendant, you must identify
which defendant did what act. You also should state the date(s) on which the act(s)
occurred, if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.
5. Administrative Remedies. You must exhaust any available administrative remedies
before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you should
disclose whether you have exhausted the inmate grievance procedures or administrative
appeals for each count in your complaint. If the grievance procedures were not available for
any of your counts, fully explain why on the lines provided.
Part D. REQUEST FOR RELIEF:
Print the relief you are seeking in the space provided.
SIGNATURE:
You must sign your name and print the date you signed the complaint. Failure to sign the
complaint will delay the processing of your action. Unless you are an attorney, you may not bring
an action on behalf of anyone but yourself.

FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your complaint
being stricken or dismissed. All questions must be answered concisely in the proper space on the
form. If you need more space, you may attach no more than fifteen additional pages. But the form
must be completely filled in to the extent applicable. If you attach additional pages, be sure to
identify which section of the complaint is being continued and number the pages.

4

Name and Prisoner/Booking Number

Place of Confinement

Mailing Address

City, State, Zip Code

(Failure to notify the Court of your change of address may result in dismissal of this action.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

(Full Name of Plaintiff)

Plaintiff,
vs.

(1)
(Full Name of Defendant)

(2)
(3)
(4)
Defendant(s).

G

Check if there are additional Defendants and attach page 1-A listing them.

)
, )
)
)
) CASE NO.
)
(To be supplied by the Clerk)
, )
)
, )
)
CIVIL RIGHTS COMPLAINT
, )
BY A PRISONER
)
, )
G Original Complaint
G First Amended Complaint
)
)
G Second Amended Complaint

A. JURISDICTION
1.

2.

This Court has jurisdiction over this action pursuant to:
G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983
G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
G Other:

.

Institution/city where violation occurred:

.

Revised 5/1/2013

1

550/555

B. DEFENDANTS
1.

Name of first Defendant:

. The first Defendant is employed as:
at

.

(Position and Title)
2.

(Institution)
. The second Defendant is employed as:

Name of second Defendant:
at

.

(Position and Title)
3.

(Institution)

Name of third Defendant:

. The third Defendant is employed as:
at

.

(Position and Title)
4.

(Institution)

Name of fourth Defendant:
at
(Position and Title)

. The fourth Defendant is employed as:
.
(Institution)

If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.

C. PREVIOUS LAWSUITS
1.

Have you filed any other lawsuits while you were a prisoner?

2.

If yes, how many lawsuits have you filed?

G Yes

G No

. Describe the previous lawsuits:

a. First prior lawsuit:
1. Parties:
v.
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

b. Second prior lawsuit:
v.
1. Parties:
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

c. Third prior lawsuit:
1. Parties:
v.
2. Court and case number:
3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

.
.

If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page.

2

D. CAUSE OF ACTION

1.

COUNT I
State the constitutional or other federal civil right that was violated:
.

2.

Count I. Identify the issue involved. Check only one. State additional issues in separate counts.
G Basic necessities
G Mail
G Access to the court
G Medical care
G Disciplinary proceedings
G Property
G Exercise of religion
G Retaliation
G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what each
Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal
authority or arguments.

.
4.

Injury. State how you were injured by the actions or inactions of the Defendant(s).

.
5.

Administrative Remedies:
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your
G Yes G No
institution?
b. Did you submit a request for administrative relief on Count I?
G Yes G No
c. Did you appeal your request for relief on Count I to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.
3

1.

COUNT II
State the constitutional or other federal civil right that was violated:
.

2.

Count II. Identify the issue involved. Check only one. State additional issues in separate counts.
G Basic necessities
G Mail
G Access to the court
G Medical care
G Disciplinary proceedings
G Property
G Exercise of religion
G Retaliation
G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each
Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal
authority or arguments.

.
4.

Injury. State how you were injured by the actions or inactions of the Defendant(s).

.
5.

Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your
institution?
G Yes G No
b. Did you submit a request for administrative relief on Count II?
G Yes G No
c. Did you appeal your request for relief on Count II to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.
4

1.

COUNT III
State the constitutional or other federal civil right that was violated:
.

2.

Count III. Identify the issue involved. Check only one. State additional issues in separate counts.
G Basic necessities
G Mail
G Access to the court
G Medical care
G Disciplinary proceedings
G Property
G Exercise of religion
G Retaliation
G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what each
Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal
authority or arguments.

.
4.

Injury. State how you were injured by the actions or inactions of the Defendant(s).

.
5.

Administrative Remedies.
a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your
G Yes G No
institution?
b. Did you submit a request for administrative relief on Count III?
G Yes G No
c. Did you appeal your request for relief on Count III to the highest level?
G Yes G No
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.

If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page.

5

E. REQUEST FOR RELIEF
State the relief you are seeking:

.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on
DATE

SIGNATURE OF PLAINTIFF

(Name and title of paralegal, legal assistant, or
other person who helped prepare this complaint)

(Signature of attorney, if any)

(Attorney’s address & telephone number)

ADDITIONAL PAGES
All questions must be answered concisely in the proper space on the form. If you need more space, you may attach
no more than fifteen additional pages. But the form must be completely filled in to the extent applicable. If you
attach additional pages, be sure to identify which section of the complaint is being continued and number all pages.

6