Welch v. Maxson

1 JL 2 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Ryan William Welch, No. CV 20-08107-PCT-DGC (MHB) 10 Plaintiff, 11 v. ORDER [12] Unknown Maxson, et al., [13] Defendants. [14] 15 Plaintiff Ryan William Welch, who is confined in the Yavapai County Detention 16 Center, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and 17 an Application to Proceed In Forma Pauperis (Doc. 5). The Court will dismiss the 18 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 not assess an initial partial filing fee. Id. The statutory filing 23 fee will be collected monthly in payments of 20% of the previous month’s income credited 24 to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 25 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 26 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. Complaint1 7 Plaintiff is charged in Yavapai County Superior Court case ##P-1300-CR8 201900295, P-1300-CR-201900296, and P-1300-CR-201900330 with multiple felony and 9 misdemeanor charges.2 10 In his four-count Complaint, Plaintiff sues Yavapai County Sheriff Scott Mascher, 11 Sergeants Maxson and Sampson, and Judge John Napper. Plaintiff asserts claims of 12 excessive force and inadequate medical care, as well as claims regarding his pending 13 criminal case. He seeks monetary relief and release from custody. 14 In Count One, Plaintiff alleges that Defendant Maxson ordered eight officers to go 15 to Plaintiff’s cell in the middle of the night. Plaintiff asserts the officers forcefully cuffed 16 him, threw him into a wall, and pushed him down a flight of stairs while his hands were 17 cuffed behind his back. Plaintiff claims Defendant Maxson gave this order because she 18 did not like Plaintiff’s “language.” Plaintiff alleges he was not given a reason why the 19 officers were “doing this to [him].” 20 Plaintiff alleges he was cornered in his cell and “treated roughly,” which caused 21 bruising all over his arms and legs. Plaintiff also suffered a dislocated shoulder, a fractured 22 collarbone, and a fractured left wrist. Plaintiff’s hands and wrists were “cut up” from the [23] 1 Although Plaintiff indicates this Court has jurisdiction pursuant to 42 U.S.C. [24] § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Plaintiff has named only state actors. The Court will therefore construe [25] the Complaint as brought pursuant to § 1983. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (“Actions under § 1983 and those under Bivens are identical save for the [26] replacement of a state actor under § 1983 by a federal actor under Bivens.”). 27 2 See https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx (search by last name “Welch,” first name “Ryan” in Yavapai County Superior Court) (last accessed [28] June 9, 2020). On April 29, 2020, the trial court vacated the trial. Id. On May 28, 2020, the trial court scheduled a pretrial conference. Id. 1 handcuffs being too tight, and he twisted his right ankle when he was pushed and fell down 2 the stairs. Plaintiff’s right hand is numb, and a knuckle is out of place. Plaintiff claims he 3 has suffered serious mental and physical torture, he is in fear for his life, his mental health 4 is suffering, he is in pain, and he stays awake at night because he is scared. 5 In Count Two, Plaintiff alleges that he has been allowed outside for recreation twice 6 since his arrest on March 4, 2019. Defendant Sampson is in charge of Plaintiff’s unit and 7 controls when detainees may have outside recreation time. Plaintiff claims that as a result 8 of a lack of exposure to sunlight, he is at risk for vitamin D deficiency, compromised skin 9 regeneration, a low white blood cell count, and fatigue and sickness. Plaintiff also alleges 10 his life is at risk due to COVID-19, which exacerbates his underlying health issues but that 11 he fails to describe. 12 Between April and June 2019, Plaintiff was in solitary confinement for “hanging 13 [his] towel improperly.” Plaintiff has been in administrative segregation since 14 November 4, 2019, and is locked in his cell for 23 and a half hours per day. Plaintiff 15 appears to allege that on January 12, 2020, he was placed on lockdown for 72 hours because 16 he had been in the shower and had been locked out of his cell, so he was unable to lock 17 down for 15 minutes. Defendant Sampson apparently authorized the sanction because 18 Plaintiff was not in his cell for lockdown. He was allowed out of his cell for one hour 19 between January 12 and February 11, 2020, and he was only permitted 10 showers for that 20 month. Plaintiff alleges there is no reason for these restrictions because he is not a danger 21 to staff or other detainees. 22 In Count Three, Plaintiff alleges that he has been charged $2.00 per day for meals 23 that are already paid for by the federal government and that are “writ[ten] off taxes,” 24 because “they” bill the federal government then “write the negative debt off on IRS tax 25 returns.” Plaintiff asserts “they” also take money he had when he entered custody. Plaintiff 26 claims the meal charges “forc[e him] to be indigent” and make him a party in tax fraud. 27 In Count Four, Plaintiff alleges that he is not charged with any violent crimes, capital 28 offenses, or drug felonies; he is not a flight risk; and he has never been charged with or 1 convicted of any felony offenses. Plaintiff asserts he has not been convicted of any crime, 2 but he has been held in jail on an excessive bail of $25,000 cash only bond. Plaintiff claims 3 his due process rights have been violated because there is no compelling interest in keeping 4 him in custody, other than “forc[ing him] into signing a plea deal.” Plaintiff alleges that 5 Defendant Napper has imposed “extreme[] monetary conditions” and he is being held 6 against his will. 7 Plaintiff asserts his trial was scheduled to begin on March 24, 2020, but the day 8 before trial, Defendant Napper tried to transfer Plaintiff’s case to a different division, but 9 this was apparently denied. Plaintiff alleges his Rule 8 time is being waived and he has 10 “no right to a speedy trial.” Plaintiff claims his trial was rescheduled for May 12, 2020 and 11 then rescheduled again for May 26, 2020, but those trial dates were vacated on April 29, 12 2020. Plaintiff alleges he is “no longer awaiting trial,” and his motion to be released on 13 his own recognizance or to pretrial services was denied, and he therefore is “no longer 14 considered a pre-trial detainee.” Plaintiff also asserts he has not seen any of the evidence 15 against him since he was taken into custody in March 2019, although he has repeatedly 16 requested to see the evidence, and there has not been an evidentiary hearing. 17 IV. Failure to State a Claim 18 Pro se pleadings are construed liberally, Haines v. Kerner, 404 U.S. 519 , 520-21 19 (1972), but conclusory and vague allegations will not support a cause of action. Ivey v. Bd. 20 of Regents, 673 F.2d 266, 268 (9th Cir. 1982). A liberal interpretation of a civil rights 21 complaint may not supply essential elements of the claim that were not initially pled. Id. 22 A. Release from Custody Not Available 23 Plaintiff cannot obtain release from custody in a § 1983 proceeding. The federal 24 remedy for challenging confinement is a petition for writ of habeas corpus. See Preiser v. 25 Rodriguez, 411 U.S. 475, 500 (1973). The Court will dismiss Plaintiff’s request for release. 26 B. Defendant Mascher 27 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 28 specific injury as a result of specific conduct of a defendant and show an affirmative link 1 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362 , 2 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore 3 a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s 4 constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 5 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 6 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and 7 § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 8 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 . 9 Plaintiff has not alleged that Defendant Mascher personally participated in a 10 deprivation of Plaintiff’s constitutional rights, was aware of a deprivation and failed to act, 11 or formed policies that resulted in Plaintiff’s injuries. The Court will dismiss Defendant 12 Mascher without prejudice. 13 C. Defendant Napper 14 Judges are absolutely immune from § 1983 suits for damages for their judicial acts, 15 except when they are taken “in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, [16] 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); 17 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). An act is “judicial” when it is a 18 function normally performed by a judge and the parties dealt with the judge in his or her 19 judicial capacity. Stump, 435 U.S. at 362 ; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 20 1990). This immunity attaches even if the judge is accused of acting maliciously and 21 corruptly, Pierson v. Ray, 386 U.S. 547, 554 (1967), or of making grave errors of law or 22 procedure, see Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). 23 Plaintiff’s allegations against Defendant Napper pertain only to Napper’s judicial 24 acts taken in Plaintiff’s criminal proceeding. Defendant Napper is absolutely immune for 25 such acts. The Court will dismiss Defendant Napper. 26 D. Younger Abstention 27 The abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents 28 a federal court in most circumstances from directly interfering with ongoing criminal 1 proceedings in state court. Absent special circumstances, such as “proven harassment or 2 prosecutions undertaken by state officials in bad faith without hope of obtaining a valid 3 conviction and perhaps in other extraordinary circumstances where irreparable injury can 4 be shown,” a federal court will not entertain a pretrial habeas corpus petition. Carden v. 5 Montana, 626 F.2d 82, 85 (9th Cir. 1980) (quoting Perez v. Ledesma, 401 U.S. 82 , 6 85 (1971)). “[O]nly in the most unusual circumstances is a defendant entitled to have 7 federal interposition by way of injunction or habeas corpus until after the jury comes in, 8 judgment has been appealed from and the case concluded in the state courts.” Id. at 83-84 9 (quoting Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972)). 10 To the extent that Plaintiff’s claims relate to his ongoing criminal proceeding, 11 Younger abstention is appropriate. The Court will dismiss all such claims. 12 E. Excessive Force 13 The Fourteenth Amendment’s Due Process Clause, and not the Eighth Amendment, 14 applies to the use of excessive force against pretrial detainees that amounts to punishment. 15 Kingsley v. Hendrickson, 576 U.S. 389 , 135 S. Ct. 2466, 2473 (2015); Gibson v. County of 16 Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002). Force is excessive if the officers’ use of 17 force was “objectively unreasonable” in light of the facts and circumstances confronting 18 them, without regard to their mental state. Kingsley, 135 S. Ct. at 2472-73 ; see also 19 Graham v. Connor, 490 U.S. 386, 397 (1989) (applying an objectively unreasonable 20 standard to a Fourth Amendment excessive force claim arising during an investigatory 21 stop). In determining whether the use of force was reasonable, the Court should consider 22 factors including, but not limited to 23 the relationship between the need for the use of force and the amount of force 24 used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem 25 at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. [27] Kingsley, 135 S. Ct. at 2473 . [28] 1 Because officers are often forced to make split-second decisions in rapidly evolving 2 situations, the reasonableness of a particular use of force must be made “from the 3 perspective of a reasonable officer on the scene, including what the officer knew at the 4 time, not with the 20/20 vision of hindsight.” Id. at 2473-74 (citing Graham, 490 U.S. at 5 396). Further, “[n]ot every push or shove, even if it may later seem unnecessary in the 6 peace of a judge’s chambers,” violates the Constitution. Graham, 490 U.S. at 396 (citation 7 omitted). 8 Plaintiff’s allegations regarding the incident described in Count One are too vague 9 and conclusory to state an excessive force claim against Defendant Maxson. Plaintiff 10 claims Maxson ordered officers to forcibly remove Plaintiff from his cell and cuff his hands 11 behind his back, which resulted in Plaintiff falling down a flight of stairs and suffering 12 injuries, because Maxson did not like Plaintiff’s language. But Plaintiff does not clearly 13 allege that Maxson ordered or intended the officers to use excessive force, and he provides 14 no factual detail regarding the incident that prompted Maxson to order the officers to 15 remove Plaintiff from his cell. Plaintiff has not named as Defendants any of the officers 16 who allegedly assaulted him. Absent additional information, Plaintiff has not stated an 17 excessive force claim in Count One, and this claim will be dismissed, as will Defendant 18 Maxson. 19 F. Conditions of Confinement 20 A pretrial detainee has a right under the Due Process Clause of the Fourteenth 21 Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, [22] 441 U.S. 520, 535 (1979). “Pretrial detainees are entitled to ‘adequate food, clothing, 23 shelter, sanitation, medical care, and personal safety.’” Alvarez-Machain v. United States, [24] 107 F.3d 696, 701 (9th Cir. 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 25 1982)). To state a claim of unconstitutional conditions of confinement against an 26 individual defendant, a pretrial detainee must allege facts that show: [27] (i) the defendant made an intentional decision with respect to the conditions 28 under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable [1] official in the circumstances would have appreciated the high degree of risk 2 involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s [3] injuries. [4] Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). [5] Whether the conditions and conduct rise to the level of a constitutional violation is [6] an objective assessment that turns on the facts and circumstances of each particular case. [7] Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). A “de minimis level of [8] imposition” is insufficient. Bell, 441 U.S. at 539 n.21. The “‘mere lack of due care by a [9] state official’ does not deprive an individual of life, liberty, or property under the [10] Fourteenth Amendment.” Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. [11] 2016) (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a plaintiff must [12] “prove more than negligence but less than subjective intent—something akin to reckless [13] disregard.” Id. [14] Plaintiff alleges that Defendant Sampson is in charge of determining when detainees [15] are allowed outside for recreation. But Plaintiff does not allege any facts to support a [16] conclusion that he requested outside recreation from Defendant Sampson that was denied, [17] or that Sampson otherwise was personally involved in disallowing Plaintiff from receiving [18] outside recreation. Plaintiff also alleges that Defendant Sampson authorized placing him [19] on lockdown for 72 hours, but Plaintiff again fails to provide sufficient factual detail [20] concerning the infraction Sampson alleged Plaintiff had committed or the reasons given, if [21] any, for the sanction imposed. Plaintiff does not connect any of the remaining allegations [22] in Count Two to any named Defendant. As presented, Plaintiff has not stated a conditions23 of-confinement claim against Defendant Sampson, and this Defendant will be dismissed, [24] as will Count Two. [25] G. Meal Charges [26] “Courts have consistently found that there is no constitutional impediment to [27] deducting the cost of room and board from a prisoner’ s wages.” Tillman v. Lebanon [28] County Corr. Facility, 221 F.3d 410, 416 (3d. Cir. 2000); see also Sickles v. Campbell 1 County, 501 F.3d 726, 730 (6th Cir. 2007) (withdrawal of funds from detainee’s account 2 without pre-deprivation hearing did not offend due process); Slade v. Hampton Roads Reg’l 3 Jail, 407 F.3d 243, 253-54 (4th Cir. 2005) (procedural due process does not require a pre4 deprivation hearing before fees defraying incarceration costs is deducted from detainee’s 5 account). The Court will therefore dismiss Count Three. 6 V. Leave to Amend 7 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 8 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 9 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 10 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 11 to use the court-approved form, the Court may strike the amended complaint and dismiss 12 this action without further notice to Plaintiff. 13 Plaintiff must clearly designate on the face of the document that it is the “First 14 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 15 entirety on the court-approved form and may not incorporate any part of the original 16 Complaint by reference. Plaintiff may include only one claim per count. 17 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, [18] 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 19 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 20 as nonexistent. Ferdik, 963 F.2d at 1262 . Any cause of action that was raised in the 21 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 22 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 23 F.3d 896, 928 (9th Cir. 2012) (en banc). 24 VI. Warnings 25 A. Release 26 If Plaintiff is released while this case remains pending, and the filing fee has not 27 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 28 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 1 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 2 result in dismissal of this action. 3 B. Address Changes 4 Plaintiff must file and serve a notice of a change of address in accordance with Rule 5 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 6 relief with a notice of change of address. Failure to comply may result in dismissal of this 7 action. 8 C. Possible “Strike” 9 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 10 fails to file an amended complaint correcting the deficiencies identified in this Order, the 11 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915 (g). 12 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 13 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 14 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 15 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 16 or fails to state a claim upon which relief may be granted, unless the prisoner is under 17 imminent danger of serious physical injury.” 28 U.S.C. § 1915 (g). 18 D. Possible Dismissal 19 If Plaintiff fails to timely comply with every provision of this Order, including these 20 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 21 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 22 the Court). 23 IT IS ORDERED: 24 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 5) is granted. 25 (2) As required by the accompanying Order to the appropriate government 26 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 27 fee. [28] 1 (3) | The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 2| has 30 days from the date this Order is filed to file a first amended complaint in compliance 3| with this Order. 4 (4) ‘If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 5 | Court must, without further notice, enter a judgment of dismissal of this action with 6| prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915 (g) and deny any pending unrelated motions as moot. 8 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. 10 Dated this 15th day of June, 2020. [13] David G. Campbell 14 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.