Harrison # 078167 v. Ryan, et al.

Filing 36

ORDER granting Plaintiff's "Motion Requesting Clarification..." (Doc. 12 ) and "Motion Requesting Clarification and Document #10 to be Re-Sent to Plaintiff" (Doc. 15 ). ORDERED directing the Clerk of Court to mail Plaint iff a copy of the Court's Order (Doc. 10 ). ORDERED granting Defendants' "Motion for Enlargement of Time to File Response" (Doc. 14 ). Defendants' Response (Doc. 22 ) filed on April 18, 2016 is deemed timely. ORDERE D construing Plaintiff's request for Court intervention that is contained in Plaintiff's "Notice of Change of Address and Request Court Intervention" (Doc. 16 ) as a motion for injunctive relief. The request is referred to the District Court Judge for consideration. ORDERED construing Plaintiff's request for Court intervention that is contained in Plaintiff's "Notice of Change of Address and Request Court Intervention" (Doc. 16 ) as a motion for injunctive relief. The request is referred to the District Court Judge for consideration. ORDERED directing the Clerk of Court to issue and forward to Plaintiff a Subpoena in a Civil Case form and a U.S. Marshal 285 form. FURTHER ORDERED gr anting Plaintiff's "Motion Requesting Permission to File Witness and Exhibit List Late for the Following Reasons" (Doc. 35 ). Plaintiff's list of exhibits and witnesses docketed on May 25, 2016 (Doc. 33 ) is deemed timely disclosed. Signed by Magistrate Judge Eileen S Willett on 5/26/16. (Attachments: # 1 Document10, # 2 Subpoena, # 3 285 form)(EJA)

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Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 1 of 13 1 KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Chad Lucas Harrison, 10 11 12 No. CV 16-00345-PHX-DLR (ESW) Plaintiff, v. ORDER Charles L. Ryan, et al., 13 Defendants. 14 15 Plaintiff Chad Lucas Harrison, who is confined in the Arizona State Prison 16 Complex-Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1), and an Application to Proceed In Forma Pauperis (Doc. 2). The Court 18 will order Defendants Malachinski, Corizon CEO, Johnson, and McKamey to answer the 19 Complaint and will dismiss Defendant Ryan without prejudice. Plaintiff also filed a 20 Motion Requesting Emergency TRO and Emergency Injunction (Doc. 4) and a 21 Declaration in support of the Motion. The Court will deny the request for a temporary 22 restraining order and will require Defendants Malachinski, Corizon CEO, Johnson, and 23 McKamey to respond to the request for a preliminary injunction. 24 I. Application to Proceed In Forma Pauperis and Filing Fee 25 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 26 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 27 The Court will assess an initial partial filing fee of $43.04. The remainder of the fee will 28 be collected monthly in payments of 20% of the previous month’s income credited to TERMPSREF Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 2 of 13 1 Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 2 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 3 agency to collect and forward the fees according to the statutory formula. 4 II. Statutory Screening of Prisoner Complaints 5 The Court is required to screen complaints brought by prisoners seeking relief 6 against a governmental entity or an officer or an employee of a governmental entity. 28 7 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 8 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 9 which relief may be granted, or that seek monetary relief from a defendant who is 10 immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 11 A pleading must contain a “short and plain statement of the claim showing that the 12 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 13 does not demand detailed factual allegations, “it demands more than an unadorned, the- 14 defendant-unlawfully-harmed-me accusation.” 15 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 17 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 18 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 19 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable 21 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 22 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 23 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 24 specific factual allegations may be consistent with a constitutional claim, a court must 25 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 26 at 681. 27 But as the United States Court of Appeals for the Ninth Circuit has instructed, 28 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, TERMPSREF -2- Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 3 of 13 1 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 2 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 3 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 4 III. Complaint 5 Plaintiff names the following Defendants in his eight-count Complaint: Arizona 6 Department of Corrections (ADC) Director Charles L. Ryan; Medical Doctor Leon 7 Malachinski; Chief Executive Officer of Corizon Healthcare John Doe #1; Corizon On- 8 Site Manager Nurse Erica Johnson; and Nurse Practitioner Arlene McKamey. Plaintiff 9 seeks injunctive relief and monetary damages. 10 In Count One, Plaintiff alleges his Eighth Amendment rights were violated when 11 he was denied continuous medications for treatment of his epilepsy. Plaintiff claims 12 there have been repeated failures to reorder his epilepsy medications, which have resulted 13 in Plaintiff having to go days or weeks without the medications; Plaintiff claims this has 14 happened 50 times in two years. (Doc. 1 at 5.)1 Plaintiff claims that as a result of not 15 receiving his medication, on December 15, 2015, he suffered a grand mal seizure, fell, 16 and severely injured his face, neck, right shoulder, right eye, and spine. (Id.) Plaintiff 17 claims Corizon continued to allow Plaintiff’s medications to run out or expire, or “just 18 not get delivered.” 19 Plaintiff claims Defendant Ryan is responsible for inmate healthcare and 20 contracted with Corizon to provide healthcare to inmates. Plaintiff further alleges that 21 Defendant Ryan “ha[s] a written order to Corizon never to allow Plaintiff’s meds to 22 expire or not be delivered over a year ago during the last stage of Plaintiff’s grievance 23 process but never followed up to make sure they did so.” 24 Defendant Ryan “has an obligation to properly oversee inmates (Plaintiff’s) healthcare 25 and once aware of a problem to correct that problem regarding Plaintiff’s serious needs (Id.) Plaintiff claims 26 27 28 TERMPSREF 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. -3- Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 4 of 13 1 for medical care.” (Id. at 6.) Plaintiff claims Defendant Ryan has repeatedly failed to 2 correct the problem. 3 In Count Two, Plaintiff claims Defendant Malachinski violated his Eighth 4 Amendment rights when he “repeatedly refused to provide the appropriate healthcare 5 ordered by Plaintiff’s neurologist specialist . . . to only provide Plaintiff 2700mg of 6 Gabapentin per day and 1000 mg of Kepra per day to control Plaintiff’s epilepsy.” (Id. at 7 7.) Plaintiff alleges that no other medication works to control his seizures. Plaintiff 8 further claims that the specialist ordered Corizon and ADC to “never allow the Plaintiff 9 to go without those seizure medications or it will cause debilitating side effects, 10 withdrawal seizures, and cause Plaintiff’s seizures to increase.” (Id.) Plaintiff alleges 11 that he wrote to Defendant Malachinski “days prior to his meds expiring on 12-9-15 12 begging Doctor Malachinski to hurry and re-order them so Plaintiff doesn’t have to again 13 go without and suffer these brutal seizure episodes,” but that Defendant Malachinski 14 “refused to re-order the medications and as a direct result the Plaintiff suffered a massive 15 seizure episode on 12-15-15.” (Id.) Plaintiff further claims that instead of ordering the 16 medications that work for Plaintiff, Defendant Malachinski “has decided to go off on his 17 own journey to see if maybe he can find another combination of drugs that may work.” 18 (Id. at 9.) Plaintiff claims he has tried two different drug or dosage combinations and 19 both resulted in severe side effects for which he was not immediately treated. Plaintiff 20 claims he described his side effects to Defendant Malachinski, which included a swollen 21 tongue, trouble breathing, tightness in his chest, confusion, hostility, and violent 22 outbursts, and Defendant Malachinski told him to “just deal with it.” (Id.) 23 Plaintiff also claims he suffers seizures “because Corizon, DOC, and Charles Ryan 24 along with Doctor Malachinski refuse to provide the treatment that works.” Plaintiff 25 alleges “Corizon Health Services Inc. has repeated shown to this court that they are 26 [i]ncapable of providing adequate proper health care to the Plaintiff over the time they 27 have had the Arizona Department of Corrections Contract.” (Id. at 10.) 28 .... TERMPSREF -4- Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 5 of 13 1 In Count Three, Plaintiff alleges Defendant Corizon CEO (Doe #1) violated his 2 Eighth Amendment rights by providing Plaintiff with inadequate healthcare. Plaintiff 3 claims “Corizon has had orders from Charles Ryan to get Plaintiff’s healthcare in order, 4 they have had orders from Plaintiff’s neurologist specialist doctor requiring to never stop 5 Plaintiff’s seizure meds or reduce dosages.” (Id. at 11.) Plaintiff claims “Corizon CEO 6 has repeatedly stopped the meds altogether or tried numerous times to reduce the dosage 7 simply because Plaintiff’s meds were ordered by the specialist 3 times per day and 8 Corizon only wants to deliver meds twice per day to save money.” (Id.) 9 In Count Four, Plaintiff claims Defendant Johnson denied Plaintiff’s emergency 10 grievance regarding the lack of epilepsy medication and stated that “this is not an 11 emergency, proceed with regular grievance procedures.” Plaintiff claims this caused him 12 to suffer for three months without medications. Plaintiff alleges Defendant Johnson 13 “refused to provide adequate medical care contrary to physician specialist written orders 14 in violation of the Eighth Amendment, causing serious physical injury to the Plaintiff and 15 extended pain and suffering.” (Id. at 12.) 16 In Count Five, Plaintiff claims Defendant McKamey violated his Eighth 17 Amendment rights when she refused to properly re-test an ongoing staph infection on 18 Plaintiff’s penis. Plaintiff claims intravenous antibiotics were recommended, but denied 19 “by Corizon director.” (Id. at 14.) Plaintiff claims he was instead “given 10 days of 20 intermuscular injections [that were] extremely painful.” (Id.) Plaintiff alleges that the 21 antibiotics did not work and that he “has been begging for further testing and treatment 22 since but has been refused proper follow-up treatment for this very serious infection . . . 23 for over 1 year now.” (Id.) 24 In Count Six, Plaintiff alleges his Eighth Amendment rights were violated when 25 Defendant Malachinski failed to properly treat staph infections on Plaintiff’s penis and 26 back. Plaintiff claims Defendant Malachinski “refused to do a proper culture swab test to 27 determine the proper course of antibiotics for the infections instead Doctor Malachinski 28 just ordered Keflex for 2 weeks which didn’t do anything to stop the infections.” (Id. at TERMPSREF -5- Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 6 of 13 1 15.) Plaintiff contends Defendant Malachinski is deliberately indifferent “to Plaintiff’s 2 severe sta[ph] infections and refusal to do proper follow-up.” (Id.) Plaintiff claims this 3 has caused him severe pain and the infection to worsen. 4 In Count Seven, Plaintiff alleges Defendant McKamey violated his Eighth 5 Amendment rights when, in September 2014, she failed “to provide medications without 6 stopping contrary to physician neurologist specialist direct written orders for treatment of 7 Plaintiff, causing Plaintiff to suffer grand mal seizure in the shower at SMU-1 after going 8 without his seizure medication.” (Id. at 17.) 9 In Count Eight, Plaintiff claims Defendant Johnson violated his Eighth 10 Amendment rights by “failing to provide emergency relief when Plaintiff filed an 11 emergency grievance to her on 1-29-16.” (Id. at 18.) Plaintiff’s grievance concerned his 12 staph infection and Defendant Johnson told him the issue was not an emergency. 13 IV. Failure to State a Claim 14 A. 15 To state a § 1983 medical claim against Defendant Ryan in his individual capacity, 16 Plaintiff must show (1) a “serious medical need” by demonstrating that failure to treat the 17 condition could result in further significant injury or the unnecessary and wanton 18 infliction of pain and (2) that Defendant Ryan’s response was deliberately indifferent. 19 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Defendant Ryan 20 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 21 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must 22 both know of and disregard an excessive risk to inmate health; “the official must both be 23 aware of facts from which the inference could be drawn that a substantial risk of serious 24 harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 25 837 (1994). 26 purposeful act or failure to respond to a prisoner’s pain or possible medical need and 27 harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may 28 also be shown when a prison official intentionally denies, delays, or interferes with TERMPSREF Deliberate indifference in the medical context may be shown by a -6- Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 7 of 13 1 medical treatment or by the way prison doctors respond to the prisoner’s medical needs. 2 Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 3 Deliberate indifference is a higher standard than negligence or lack of ordinary 4 due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor 5 gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of 6 Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 7 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 8 “medical malpractice” do not support a claim under § 1983). “A difference of opinion 9 does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” 10 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, 11 without more, is insufficient to state a claim against prison officials for deliberate 12 indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 13 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of 14 “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 15 Plaintiff has not alleged facts in Counts One or Two demonstrating that Defendant 16 Ryan was deliberately indifferent to his serious medical needs. To the contrary, Plaintiff 17 alleges in Count One that as a result of Plaintiff’s medical grievances, Defendant Ryan 18 issued a written order to Corizon requiring it to provide a continuous supply of 19 medication to Plaintiff. Although Plaintiff claims Defendant Ryan failed to follow-up on 20 the order, this allegation demonstrates, at best, that Defendant Ryan was negligent in 21 failing to follow up on the order. 22 In Count Two, Plaintiff states generally that Defendant Ryan “refused to provide 23 the treatment that works” (Doc. 1 at 10), but makes no further allegations regarding 24 Defendant Ryan. 25 new or alternate medications to Defendant Ryan’s attention and when or what action, if 26 any, Defendant Ryan took in response. Plaintiff has therefore failed to state a claim 27 against Ryan in his individual capacity. 28 .... TERMPSREF Accordingly, it is unclear whether Plaintiff brought the issue of the -7- Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 8 of 13 1 To the extent Plaintiff sues Defendant Ryan in his official capacity, an official 2 capacity claim requires a showing that “the entity itself is a moving force behind the 3 deprivation.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, the policy or 4 custom of the agency must have played a part in the violation. Graham, 473 U.S. at 166. 5 Plaintiff has not alleged that Defendant Ryan or the Arizona Department of 6 Corrections implemented policies or practices that resulted in Plaintiff’s injuries. 7 Accordingly, Plaintiff has failed to state an official capacity claim against Defendant 8 Ryan. The Court will dismiss without prejudice Defendant Ryan. 9 B. Corizon CEO-Individual Capacity 10 In Count Three, Plaintiff alleges Defendant Corizon CEO has failed to provide 11 Plaintiff with adequate health care. As noted above, to state a medical claim against an a 12 defendant in his or her individual capacity, Plaintiff must allege facts showing the 13 individual was deliberately indifferent to Plaintiff’s serious medical needs. Plaintiff has 14 not alleged facts demonstrating the Corizon CEO was actually, personally aware of 15 Plaintiff’s serious medical needs, but failed to respond. Plaintiff has therefore failed to 16 state an individual capacity claim against Defendant Corizon CEO. 17 V. Claims for Which an Answer Will be Required 18 Liberally construed, Plaintiff has adequately stated Eighth Amendment medical 19 claims against: Defendant Corizon CEO (official capacity) in Counts One, Two, Three, 20 Five; Defendant Malachinski in Counts Two and Six; Defendant Johnson in Counts Four 21 and Eight; and Defendant McKamey in Counts Five and Seven. 22 The Court will require Defendants Corizon CEO, Malachinski, Johnson, and 23 McKamey to answer these claims, respectively. 24 VI. Motion for TRO and Preliminary Injunction 25 In his Motion for TRO and Preliminary Injunction, Plaintiff he seeks an order 26 requiring Defendants to: comply with the neurologist’s instructions that Plaintiff receive 27 2700mg Gabapentin and 1000mg Kepra per day; allow Plaintiff to receive medical 28 TERMPSREF -8- Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 9 of 13 1 treatment at a hospital; and move Plaintiff to a maximum custody single man cell until 2 this case is resolved. 3 Temporary restraining orders are governed by Rule 65(b) of the Federal Rules of 4 Civil Procedure. The mailing certificate on Plaintiff=s motion for a temporary restraining 5 order does not indicate that the motion was served on Defendants. As a result, Plaintiff 6 appears to seek a temporary restraining order without notice under Rule 65(b) of the 7 Federal Rules of Civil Procedure. The Court may not grant a temporary restraining order 8 without notice unless the applicant certifies to the court in writing the efforts, if any, 9 which have been made to give notice and the reasons that notice should not be required. 10 Fed. R. Civ. P. 65(b). Plaintiff has not satisfied this requirement. No reason has been 11 offered by Plaintiff to forgo notice to the adverse party. Accordingly, Plaintiff’s motion 12 for temporary restraining without notice will be denied. 13 The Court will require Defendants to file a response to Plaintiff’s request for a 14 preliminary injunction. 15 VII. Warnings 16 A. 17 If Plaintiff is released while this case remains pending, and the filing fee has not 18 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 19 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 20 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 21 result in dismissal of this action. Release 22 B. 23 Plaintiff must file and serve a notice of a change of address in accordance with 24 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 25 for other relief with a notice of change of address. Failure to comply may result in 26 dismissal of this action. 27 .... 28 .... TERMPSREF Address Changes -9- Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 10 of 13 1 C. 2 Because Plaintiff is currently confined in an Arizona Department of Corrections 3 unit subject to General Order 14-17, Plaintiff is not required to serve Defendants with a 4 copy of every document he files or to submit an additional copy of every filing for use by 5 the Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and 6 Local Rule of Civil Procedure 5.4. Copies 7 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, 8 he will be required to: (a) serve Defendants, or counsel if an appearance has been entered, 9 a copy of every document that he files, and include a certificate stating that a copy of the 10 filing was served; and (b) submit an additional copy of every filing for use by the Court. 11 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 12 being stricken without further notice to Plaintiff. 13 D. 14 If Plaintiff fails to timely comply with every provision of this Order, including 15 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 16 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 17 for failure to comply with any order of the Court). 18 IT IS ORDERED: Possible Dismissal 19 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 20 (2) As required by the accompanying Order to the appropriate government 21 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing 22 fee of $43.04. 23 (3) Defendant Ryan is dismissed without prejudice. 24 (4) Defendants Malachinski, Corizon CEO, Johnson, and McKamey must 25 26 answer the Complaint as described in section V, above. (5) Plaintiff’s Motion Requesting Emergency TRO and Emergency 27 Injunction (Doc. 4) is denied in part as to his request for a temporary restraining order. 28 The Court will not rule at this time on Plaintiff’s request for a preliminary injunction. TERMPSREF - 10 - Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 11 of 13 1 (6) Defendants must respond to the portion of Plaintiff=s Motion Requesting 2 Emergency TRO and Emergency Injunction seeking a preliminary injunction, within 21 3 days from the date of service. 4 (7) The Clerk of Court must send Plaintiff this Order, and a copy of the 5 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 6 for Waiver of Service of Summons form for Defendants Malachinski, Corizon CEO, 7 Johnson, and McKamey. 8 9 10 (8) Plaintiff must complete2 and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. 11 (9) If Plaintiff does not either obtain a waiver of service of the summons or 12 complete service of the Summons and Complaint on a Defendant within 90 days of the 13 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, 14 the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 15 LRCiv 16.2(b)(2)(B)(ii). 16 (10) The United States Marshal must retain the Summons, a copy of the 17 Complaint, a copy of the Motion for Preliminary Injunction, a copy of the Declaration, 18 and a copy of this Order for future use. 19 (11) The United States Marshal must notify Defendants of the commencement 20 of this action and request waiver of service of the summons pursuant to Rule 4(d) of the 21 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 22 Order. 23 summons. If a waiver of service of summons is returned as undeliverable or is not 24 returned by a Defendant within 30 days from the date the request for waiver was 25 sent by the Marshal, the Marshal must: The Marshal must immediately file signed waivers of service of the 26 2 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. - 11 - Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 12 of 13 1 (a) personally serve copies of the Summons, Complaint, Motion for 2 Preliminary Injunction, Declaration, and this Order upon Defendant pursuant to 3 Rule 4(e)(2) of the Federal Rules of Civil Procedure; and 4 (b) within 10 days after personal service is effected, file the return of 5 service for Defendant, along with evidence of the attempt to secure a waiver of 6 service of the summons and of the costs subsequently incurred in effecting service 7 upon Defendant. The costs of service must be enumerated on the return of service 8 form (USM-285) and must include the costs incurred by the Marshal for 9 photocopying additional copies of the Summons, Complaint, Motion for 10 Preliminary Injunction, Declaration, or this Order and for preparing new process 11 receipt and return forms (USM-285), if required. Costs of service will be taxed 12 against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal 13 Rules of Civil Procedure, unless otherwise ordered by the Court. 14 (12) A Defendant who agrees to waive service of the Summons and 15 Complaint must return the signed waiver forms to the United States Marshal, not 16 the Plaintiff. 17 (13) Defendants must answer the Complaint or otherwise respond by 18 appropriate motion within the time provided by the applicable provisions of Rule 12(a) of 19 the Federal Rules of Civil Procedure. 20 (14) Any answer or response must state the specific Defendant by name on 21 whose behalf it is filed. The Court may strike any answer, response, or other motion or 22 paper that does not identify the specific Defendant by name on whose behalf it is filed. 23 .... 24 .... 25 .... 26 .... 27 .... 28 .... TERMPSREF - 12 - Case 2:16-cv-00345-DLR-ESW Document 10 Filed 02/29/16 Page 13 of 13 1 (15) This matter is referred to Magistrate Judge Eileen S. Willett 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 29th day of February, 2016. 5 6 7 8 9 Douglas L. Rayes United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF - 13 -

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