Bracken v. Duran, et al.,

Filing 15

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 06/19/2017. (Attachments: # 1 Amended Complaint Form, # 2 1983 Complaint Form)(Flores, E)

Instructions for a Prisoner Filing a Civil Rights Complaint in the
United States District Court for the Eastern District of California
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. Incarcerated persons are encouraged to file their complaints using the courtapproved form attached to these instructions. The form must be typed or neatly handwritten
and 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 are strongly encouraged to limit your complaint to 25 pages of standard letter-sized paper.
[Note, if filing electronically under the CDCR pilot program, your complaint, including exhibits,
cannot exceed 25 pages, absent permission from the Court.] 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 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. The $50.00 administrative fee does not apply to
persons granted in forma pauperis status.
5. Original. You must send your complaint to the Court. If you wish to have a file-stamped copy
of the complaint returned to you must include a copy of the complaint along with a stamped, selfaddressed envelope for that copy to be 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. If you were confined in Alpine, Amador, Butte, Colusa,
El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin,
Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, or Yuba County, file in the
Sacramento Division. If you were confined in Fresno, Calaveras, Inyo, Kern, Kings, Madera,
Mariposa, Merced, Stanislaus, Tulare, or Tuolumne County, file in the Fresno Division. Mail the
original with the $400 filing and administrative fees or a completed application to proceed in
forma pauperis to:
1
Revised March 2016

Sacramento Division:
Clerk of the U.S. District Court
for the Eastern District of California
501 I Street, Room 4-200
Sacramento, California 95814

OR

Fresno Division:
Clerk of the U.S. District Court
for the Eastern District of California
2500 Tulare Street
Fresno, California 93721

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. 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. L.R. 137(c). In addition, an amended complaint may not incorporate
by reference any part of your prior complaint. L.R.220. Any allegations or defendants not
included in the amended complaint are considered abandoned. All amended complaints are
subject to screening under the Prison Litigation Reform Act; screening your amendment will take
additional processing time.
9. 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.
10. 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.
11. 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.
2
Revised March 2016

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 claims (one violation per claim). If you are alleging more than three claims, you
must provide the necessary information about each additional claim on a separate page. Number
the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember that
you are strongly encouraged to limit your complaint to twenty-five pages.
1. Claims. You must identify which civil right was violated. You may allege the violation
of only one civil right per claim.
2. Issue Involved. Check the box that most closely identifies the issue involved in your
claim. You may check only one box per claim. 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 or did not do which you allege violated 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.
3
Revised March 2016

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 claim in your complaint. If the grievance procedures were not available for
any of your claims, 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. You are strongly encouraged to file a complaint that is no longer than twenty-five 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. Remember, there is no need to attach exhibits to your complaint.

4
Revised March 2016

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 EASTERN DISTRICT OF CALIFORNIA

(Full Name of Plaintiff)

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

Plaintiff,
v.

(1)
(Full Name of Defendant)

(2)
(3)
(4)
Defendant(s).
☐Check if there are additional Defendants and attach page 1-A listing them.

)

☐Second Amended Complaint

A. JURISDICTION
1.

This Court has jurisdiction over this action pursuant to:
☐ 28 U.S.C. § 1343(a); 42 U.S.C. § 1983

☐ 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
☐ Other:
2.

Institution/city where violation occurred:

Revised 3/15/2016

.
.

1

B. DEFENDANTS
1.

Name of first Defendant:

. The first Defendant is employed as:
at

.

(Position and Title)
2.

(Institution)

Name of second Defendant:

. The second Defendant is employed as:
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?

☐ Yes

☐ 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:
1. Parties:
v.
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.

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

2.

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

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Claim 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
institution?
☐ Yes ☐ No
b.

Did you submit a request for administrative relief on Claim I?

☐ Yes ☐ No
☐ Yes ☐ No

c. Did you appeal your request for relief on Claim I to the highest level?
d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.
3

1.

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

2.

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

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Claim 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?
☐ Yes ☐ No

☐ Yes ☐ No
☐ Yes ☐ No

b.

Did you submit a request for administrative relief on Claim II?

c.
d.

Did you appeal your request for relief on Claim II to the highest level?
If you did not submit or appeal a request for administrative relief at any level, briefly explain why you
did not.
.
4

1.

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

2.

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

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Claim 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
institution?
☐ Yes ☐ No

☐ Yes ☐ No
☐ Yes ☐ No

b.

Did you submit a request for administrative relief on Claim III?

c.
d.

Did you appeal your request for relief on Claim III to the highest level?
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 Claims, answer the questions listed above for each additional Claim 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
more pages, but you are strongly encouraged to limit your complaint to twenty-five pages. If you attach
additional pages, be sure to identify which section of the complaint is being continued and number all pages.
Remember, there is no need to attach exhibits to your complaint.

6

INFORMATION TO PRISONERS SEEKING LEAVE TO
PROCEED WITH A CIVIL ACTION IN FEDERAL
COURT IN FORMA PAUPERIS PURSUANT TO
28 U.S.C. § 1915
In accordance with 1996 amendments to the in forma pauperis statute, AS A
PRISONER YOU WILL BE OBLIGATED TO PAY THE FULL FILING FEE OF
$350.00 FOR A CIVIL RIGHTS ACTION, $5.00 FOR A HABEAS CORPUS
PETITION, OR $505.00 FOR AN APPEAL. If you are not afforded in forma pauperis
status in a Civil Rights Action, you will be required to pay the $350.00 filing fee plus a
$50.00 administrative fee for a total of $400.00.
If you have the money to pay the full filing fee, send a cashier’s check or money order
made payable to the U.S. District Court with your complaint, petition, or notice of appeal.
If you do not have enough money to pay the full filing fee when your action is filed, you
can file the action without prepaying the filing fee. The court will order the facility where you are
held in custody to collect the filing fee from your prison or jail trust account. EACH MONTH
YOU WILL OWE 20 PERCENT OF YOUR PRECEDING MONTH’S INCOME TOWARD
THE BALANCE UNTIL THE FILING FEE IS PAID IN FULL. The facility will forward
payments to the court any time the amount in the account exceeds $10.00. The balance of the
filing fee will be collected even if the action is later dismissed, summary judgment is granted
against you, or you fail to prevail at trial.
In order to proceed with an action in forma pauperis, you must complete the attached
form and return it to the court with your complaint, habeas corpus petition, or appeal. You must
attach to the form a certified copy of your prison or jail account statement for the last six months.
If you submit an incomplete form or do not submit a prison or jail account statement with the
form, your request to proceed in forma pauperis will be denied.
The court is required to screen your complaint regardless of the amount of filing fee
paid and will dismiss the complaint if:
1.
2.
3.
4.

Your allegation of poverty is untrue;
The action is frivolous or malicious;
Your complaint does not state a claim on which relief can be granted, or
You sue a defendant for money damages and that defendant is immune from
liability for money damages.

If you file more than three actions or appeals while incarcerated that are dismissed as
frivolous, malicious, or for failure to state a claim on which relief can be granted, you will be
prohibited from bringing any other actions in forma pauperis unless you are in imminent danger
of serious physical injury.

(Revised 03/2016)

Name:
CDC No:
Address:

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

CASE NUMBER:
Plaintiff/Petitioner,
v.

APPLICATION TO PROCEED
IN FORMA PAUPERIS
BY A PRISONER
Defendants/Respondent.
/

I,
, declare that I am the plaintiff in the above-entitled proceeding;
that, in support of my request to proceed without prepayment of fees under 28 U.S.C. section 1915, I declare
that I am unable to pay the fees for these proceedings or give security therefor and that I am entitled to the
relief sought in the complaint.
In support of this application, I answer the following questions under penalty of perjury:
1.

Are you currently incarcerated?

Yes

No (If “no” DO NOT USE THIS FORM)

State the place of your incarceration.
2.

Are you currently employed (includes prison employment)?

Yes

No

a.
b.

3.

If the answer is “yes” state the amount of your pay.
If the answer is “no” state the date of your last employment, the amount of your take-home
salary or wages and pay period, and the name and address of your last employer.

Have you received any money from the following sources over the last twelve months?
a.

Business, profession, or other self-employment:

Yes

No

b.

Rent payments, interest or dividends:

Yes

No

c.

Pensions, annuities or life insurance payments:

Yes

No

d.

Disability or workers compensation payments:

Yes

No

e.

Gifts or inheritances:

Yes

No

f.

Any other sources:

Yes

No

If the answer to any of the above is “yes,” describe by that item each source of money, state the
amount received, as well as what you expect you will continue to receive (attach an additional sheet if
necessary).
4.

Do you have cash (includes balance of checking or savings accounts)?

Yes

No

If “yes” state the total amount:
5.

Do you own any real estate, stocks, bonds, securities, other financial instruments, automobiles or
other valuable property?
Yes
No
If “yes” describe the property and state its value:

6.

Do you have any other assets?

Yes

No

If “yes,” list the asset(s) and state the value of each asset listed:__________________________
7.

List all persons dependent on you for support, stating your relationship to each person listed and
how much you contribute to their support.
_____________________________________________________________________________
_____________________________________________________________________________
This form must be dated and signed below for the court to consider your application.
I hereby authorize the agency having custody of me to collect from my trust account and forward to the
Clerk of the United States District Court payments in accordance with 28 U.S.C. § 1915(b)(2).

DATE

SIGNATURE OF APPLICANT
CERTIFICATE
(To be completed by the institution of incarceration)

I certify that the applicant named herein has the sum of $_________ on account to his/her credit at
__________________________ (name of institution). I further certify that during the past six months the
applicant’s average monthly balance was $___________. I further certify that during the past six months the
average monthly deposits to the applicants account was $________.
(Please attach a certified copy of the applicant’s trust account statement showing transactions for the past six
months.)
______________
DATE

____________________________________
SIGNATURE OF AUTHORIZED OFFICER