Wilkins v. Edmonson

1 WO MDR [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Cody Wilkins, No. CV 20-08032-PCT-JAT (ESW) 10 Plaintiff, 11 v. ORDER [12] Officer Edmonson, et al., [13] Defendants. [14] 15 On February 7, 2020, Plaintiff Cody Wilkins, who is confined in the Yavapai 16 County Detention Center, 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 will 18 dismiss the Complaint with leave to amend. 19 I. Application to Proceed In Forma Pauperis and Filing Fee 20 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 21 U.S.C. § 1915 (a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 22 § 1915(b)(1). The Court will assess an initial partial filing fee of $24.00. The remainder 23 of the fee will be collected monthly in payments of 20% of the previous month’s income 24 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. [25] 28 U.S.C. § 1915 (b)(2). The Court will enter a separate Order requiring the appropriate 26 government agency to collect and forward the fees according to the statutory formula. 27 . . . . 28 . . . . 1 II. Statutory Screening of Prisoner Complaints 2 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 which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the11 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 content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679 . Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681 . 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338 , 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 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. Complaint 7 In his four-count Complaint, Plaintiff names as Defendants Yavapai County Public 8 Defender Harvel Golden and Yavapai County Detention Officers Edmonson, Lamb, 9 Roberts, and Holdsworth. In his Request for Relief, Plaintiff seeks monetary damages, for 10 Defendants Edmonson and Lamb to be held accountable for tampering with his mail, and 11 for Defendants Roberts and Holdsworth to be fired and held responsible for their actions. 12 In Count One, Plaintiff raises a “tampering with mail” claim. He alleges that on 13 January 8, 2020, Defendant Edmondson brought him mail from the District Court, but the 14 envelope had been unsealed and taped shut and the Application to Proceed In Forma 15 Pauperis form that had been sent to Plaintiff was missing. Plaintiff asserts he contacted 16 Defendant Lamb and asked why his mail had been opened and the form was missing. 17 According to Plaintiff, Defendant Lamb told Plaintiff he had found other forms. Plaintiff 18 claims that as soon as he told Defendant Lamb “he had committed a federal crime,” 19 Defendant Lamb stated that no one wanted to handle Plaintiff’s mail or bring it to him and 20 that he was “kidding around [and] that it was a joke.” Plaintiff contends Defendant Lamb 21 “continued to lie.” Plaintiff alleges that when he requested to speak to a supervisor, his 22 request was denied. Plaintiff claims his access to the courts was hindered and his ability 23 to file a lawsuit was disrupted. 24 In Count Two, Plaintiff alleges he was placed in imminent harm. He claims that at 25 some point during his detention from June 1 to August 21, 2019, Defendant Roberts took 26 Plaintiff out of his housing unit, escorted him to the hallway, and threatened that he “was 27 going to have [Plaintiff’s] eyes blackened.” Plaintiff contends that after Defendant Roberts 28 threatened him, Defendant Roberts turned off the television for a week and the air 1 conditioning for two weeks “in an attempt to try and get other inmates to hurt [Plaintiff] 2 and ostracize [Plaintiff].” Plaintiff contends he was “psychologically damaged,” placed in 3 “imminent danger,” subjected to a “hostile atmosphere,” and “punished in a cruel way.” 4 In Count Three, Plaintiff alleges he was subjected to retaliation. He claims he 5 requested new sheets because his sheet had blood on it, but the new sheet he received had 6 strange stains on it and did not smell clean. Plaintiff contends he requested another sheet, 7 but it was “lockdown hours at night” and his request was denied. He alleges he wanted to 8 go to sleep, but could not, so he “kept pressing [the] call button to get new sheets and was 9 denied.” Plaintiff claims that soon after, three officers took Plaintiff and his cellmate to a 10 transfer cell, which did not have a bed, and left them in that cell for six hours. Plaintiff 11 asserts he and his cellmate were banging on the door, and Defendant Holdsworth came into 12 the cell, yelled at them to shut up, and threatened to taze them if they were not quiet. 13 Plaintiff asserts he and his cellmate were yelling that there was no water in the cell and 14 they were thirsty, but Defendant Holdsworth continued to threaten them and “did not meet 15 [their] basic needs.” Plaintiff contends this was retaliation for Plaintiff and his cellmate 16 “wanting basic things and detention officers not wanting to do it.” He asserts he was 17 dehydrated and did not have running water for six hours, which caused “psychological 18 abuse and physical torture.” 19 In Count Four, Plaintiff alleges he was denied his Sixth and Fourteenth 20 Amendment rights. He claims Defendant Golden waived Plaintiff’s right to a speedy trial 21 against Plaintiff’s wishes, tried to pressure Plaintiff into a plea agreement even though 22 Plaintiff repeatedly stated he was innocent, and tried to get Plaintiff to perjure himself in 23 court. Plaintiff asserts Defendant Golden caused “undue process of law” and seriously 24 injured Plaintiff’s case. 25 IV. Failure to State a Claim 26 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 , 27 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 28 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 1 liberal interpretation of a civil rights complaint may not supply essential elements of the 2 claim that were not initially pled. Id. 3 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 4 specific injury as a result of specific conduct of a defendant and show an affirmative link 5 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362 , 6 371-72, 377 (1976). “A plaintiff must allege facts, not simply conclusions, that show that 7 an individual was personally involved in the deprivation of his civil rights.” Barren v. 8 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 9 A. Count One 10 First, Plaintiff alleges Defendant Edmonson delivered the opened mail and 11 Defendant Lamb informed Plaintiff that other copies of the missing form were available 12 and that no one wanted to handle Plaintiff’s mail. Plaintiff does not, however, allege that 13 either Defendant Edmonson or Lamb tampered with his mail. 14 Second, although prisoners have a constitutional right to have their legal mail 15 delivered to them uncensored and unread, Lemon v. Dugger, 931 F.2d 1465 (11th Cir. 16 1991), mail from the courts is not legal mail and the “First Amendment does not prohibit 17 opening such mail outside the recipient’s presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 18 1204, 1211 (9th Cir. 2017). 19 Finally, as a matter of standing for an access-to-courts claim, a plaintiff must show 20 that he suffered an “actual injury”—i.e., “actual prejudice with respect to contemplated or 21 existing litigation, such as the inability to meet a filing deadline or to present a claim.” 22 Lewis v. Casey, 518 U.S. 343, 348 (1996) (citation omitted). A prisoner must demonstrate 23 that defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous 24 or arguable claim he wished to present. Id. at 353 and n.3. 25 Plaintiff has failed to demonstrate that he suffered an actual injury from the 26 Application to Proceed form being removed from the envelope. Plaintiff indicates 27 Defendant Lamb informed him that he had found other copies of the form. Moreover, 28 Plaintiff filed an Application to Proceed In Forma Pauperis with his Complaint. Thus, it 1 appears that, at most, he suffered a minor delay in filing his lawsuit. This is insufficient to 2 rise to the level of a constitutional violation. See Davis v. Goord, 320 F.3d 346, 352 (2d 3 Cir. 2003) (“Mere ‘delay in being able to work on one’s legal action or communicate with 4 the courts does not rise to the level of a constitutional violation.’”) (citations omitted); cf. 5 Silva v. DiVittorio, 658 F.3d 1090, 1104 (9th Cir. 2011) (actual injury alleged where 6 plaintiff claimed pending lawsuits had been dismissed as the result of defendants’ actions). 7 Thus, the Court will dismiss without prejudice Count One and Defendants 8 Edmonson and Lamb. 9 B. Count Two 10 As to Plaintiff’s allegation that Defendant Roberts threatened him, this does not rise 11 to the level of a constitutional violation. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 12 1987) (defendants’ threats of bodily harm to convince plaintiff not to pursue legal redress 13 were insufficient to state a claim under § 1983; “it trivializes the eighth amendment to 14 believe a threat constitutes a constitutional wrong”); Oltarzewski v. Ruggiero, 830 F.2d 15 136, 139 (9th Cir. 1987) (“‘[v]erbal harassment or abuse . . . is not sufficient to state a 16 constitutional deprivation under 42 U.S.C. § 1983’” (quoting Collins v. Cundy, 603 F.2d 17 825, 827 (10th Cir. 1979))); see also McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) 18 (“mere threatening language and gestures . . . do not, even if true, amount to constitutional 19 violations” (quoting Coyle v. Hughes, 436 F. Supp. 591, 593 (W.D. Okla. 1977))). 20 Regarding Plaintiff’s allegation that Defendant Roberts turned off the television and 21 air conditioning in an attempt to get other inmates to hurt and ostracize Plaintiff, a pretrial 22 detainee has a right under the Due Process Clause of the Fourteenth Amendment to be free 23 from punishment prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520 , 535 24 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, shelter, sanitation, 25 medical care, and personal safety.’” Alvarez-Machain v. United States, 107 F.3d 696 , 701 26 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). To state 27 a claim of unconstitutional conditions of confinement against an individual defendant, a 28 pretrial detainee must allege facts that show: 1 (i) the defendant made an intentional decision with respect to 2 the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of 3 suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a [4] reasonable official in the circumstances would have 5 appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by [6] not taking such measures, the defendant caused the plaintiff’s 7 injuries. 8 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 9 Whether the conditions and conduct rise to the level of a constitutional violation is 10 an objective assessment that turns on the facts and circumstances of each particular case. 11 Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 12 level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere lack 13 of due care by a state official’ does not deprive an individual of life, liberty, or property 14 under the Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060 , 1071 15 (9th Cir. 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a 16 plaintiff must “prove more than negligence but less than subjective intent—something akin 17 to reckless disregard.” Id. 18 A supported allegation that a correctional official made statements intending to 19 incite inmates to attack another inmate may state a claim under the Eighth or Fourteenth 20 Amendment. See, e.g., Northington v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992) 21 (allegation that officer intended to harm inmate by inciting inmates to beat him may 22 constitute an excessive force claim; if inmate is able to prove such intent, “it is as if the 23 guard himself inflicted the beating as punishment”); Valandingham v. Bojorquez, 866 F.2d 24 1135, 1139 (9th Cir. 1989) (defendant officers calling plaintiff a “snitch” in presence of 25 other inmates is material to § 1983 claim for denial of right not to be subjected to physical 26 harm). However, Plaintiff does not allege that Defendant Roberts made any statements 27 intending to incite the inmates to attack Plaintiff or that the inmates were aware that 28 Defendant Roberts turned off the television and air conditioning as a result of something 1 Plaintiff did or to incite them to attack Plaintiff. Moreover, it does not appear Plaintiff 2 suffered any harm from the inmates. Absent more, Plaintiff’s allegations are too vague 3 and conclusory to state a threat to safety claim against Defendant Roberts. 4 Thus, the Court will dismiss without prejudice Count Two and Defendant Roberts. 5 C. Count Three 6 A viable claim of First Amendment retaliation contains five basic elements: (1) an 7 assertion that a state actor took some adverse action against an inmate (2) because of 8 (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise 9 of his First Amendment rights (or that the inmate suffered more than minimal harm) and 10 (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 11 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 12 1997) (retaliation claims requires an inmate to show (1) that the prison official acted in 13 retaliation for the exercise of a constitutionally protected right, and (2) that the action 14 “advanced no legitimate penological interest”). The plaintiff has the burden of 15 demonstrating that his exercise of his First Amendment rights was a substantial or 16 motivating factor behind the defendants’ conduct. Mt. Healthy City School Dist. Bd. Of 17 Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 18 1310, 1314 (9th Cir. 1989). 19 Plaintiff alleges Defendant Holdsworth retaliated against him for “wanting basic 20 things” by yelling at Plaintiff, telling him to shut up, threatening to taze him if he did not 21 be quiet, and leaving Plaintiff in a cell without water for six hours after Plaintiff claimed 22 he was thirsty. As previously noted, mere threats do not rise to the level of a constitutional 23 violation. In addition, Plaintiff does not allege that Defendant Holdsworth’s actions did 24 not reasonably advance a legitimate penological goal. See Bell, 441 U.S. at 546 25 (“maintaining institutional security and preserving internal order and discipline are 26 essential goals that may require limitation or retraction of the retained constitutional rights 27 of both convicted prisoners and pretrial detainees.”). Moreover, Plaintiff does not allege 28 Defendant Holdsworth’s conduct chilled the exercise of his First Amendment rights, and 1 it appears the only harm Plaintiff suffered from Defendant Holdsworth’s actions was the 2 lack of water for six hours during the night. At best, this is a minimal harm. Thus, the 3 Court will dismiss without prejudice Defendant Holdsworth and Count Three. 4 D. Count Four 5 A prerequisite for any relief under 42 U.S.C. § 1983 is a showing that the defendant 6 has acted under the color of state law. An attorney representing a criminal defendant does 7 not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 325 (1981); 8 see also Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (per curiam) (“[A]n 9 attorney, whether retained or appointed, does not act ‘under color of’ state law.”). Thus, 10 the Court will dismiss Defendant Golden and Count Four. 11 V. Leave to Amend 12 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 13 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 14 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 15 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 16 to use the court-approved form, the Court may strike the amended complaint and dismiss 17 this action without further notice to Plaintiff. 18 Plaintiff must clearly designate on the face of the document that it is the “First 19 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 20 entirety on the court-approved form and may not incorporate any part of the original 21 Complaint by reference. Plaintiff may include only one claim per count. 22 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, [23] 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 24 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 25 as nonexistent. Ferdik, 963 F.2d at 1262 . Any cause of action that was raised in the 26 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 27 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 28 F.3d 896 , 928 (9th Cir. 2012) (en banc). 1 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 2 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 3 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 4 do; (4) how the action or inaction of that Defendant is connected to the violation of 5 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 6 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377 . 7 Plaintiff must repeat this process for each person he names as a Defendant. If 8 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 9 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 10 failure to state a claim. Conclusory allegations that a Defendant or group of 11 Defendants has violated a constitutional right are not acceptable and will be 12 dismissed. 13 VI. Warnings 14 A. Release 15 If Plaintiff is released while this case remains pending, and the filing fee has not 16 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 17 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 18 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 19 result in dismissal of this action. 20 B. Address Changes 21 Plaintiff must file and serve a notice of a change of address in accordance with Rule 22 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 23 relief with a notice of change of address. Failure to comply may result in dismissal of this 24 action. 25 C. Possible “Strike” 26 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 27 fails to file an amended complaint correcting the deficiencies identified in this Order, the 28 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915 (g). 1 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 2 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 3 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 4 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 5 or fails to state a claim upon which relief may be granted, unless the prisoner is under 6 imminent danger of serious physical injury.” 28 U.S.C. § 1915 (g). 7 D. Possible Dismissal 8 If Plaintiff fails to timely comply with every provision of this Order, including these 9 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 10 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 11 the Court). 12 IT IS ORDERED: 13 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 14 (2) As required by the accompanying Order to the appropriate government 15 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 16 of $24.00. 17 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 18 has 30 days from the date this Order is filed to file a first amended complaint in compliance 19 with this Order. 20 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 21 Court must, without further notice, enter a judgment of dismissal of this action with 22 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915 (g) 23 and deny any pending unrelated motions as moot. 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 3 Dated this 20th day of April, 2020. [4] ' ° 7 = James A. C rg Senior United States District Judge [28] tc 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. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing. 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 3/11/16 1 Phoenix & Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500 401 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 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. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing. 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 within 21 days after serving it or within 21 days after any defendant has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, 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. 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,” “2-B,” 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. 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, v. CASE NO. __________________________________ (To be supplied by the Clerk) (1) _______________________________________ , (Full Name of Defendant) CIVIL RIGHTS COMPLAINT (2) _______________________________________ , BY A PRISONER (3) _______________________________________ , G Original Complaint (4) _______________________________________ , G First Amended Complaint G Second Amended Complaint Defendant(s). G Check if there are additional Defendants and attach page 1-A listing them. A. JURISDICTION 1. 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: . 2. Institution/city where violation occurred: . 550/555 B. DEFENDANTS 1. Name of first Defendant: . The first Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution) 2. Name of second Defendant: . The second Defendant is employed as: as: ______________________________________________ at_______________________________________. (Position and Title) (Institution) 3. Name of third Defendant: . The third Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (Institution) 4. Name of fourth Defendant: . The fourth Defendant is employed as: ______________________________________________ at_______________________________________. (Position and Title) (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? G Yes G No 2. If yes, how many lawsuits have you filed? . 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 COUNT I 1. 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 institution? G Yes G No 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. . COUNT II 1. 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. . COUNT III 1. 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 institution? G Yes G No 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. 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.