Drew 048508 v. Paul

1 WO KM [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Tommy D. Drew, No. CV 21-01488-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER [12] Theodora Paul, et al., [13] Defendants. [14] 15 On August 30, 2021, Plaintiff Tommy D. Drew, who is confined in the Arizona 16 State Prison Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 and an Application to Proceed In Forma Pauperis (Doc. 2). On September 13, 18 2021, Plaintiff filed a “Motion for Supersedure of Original Complaint” (Doc. 6) and a 19 proposed Amended Complaint. The Court will construe the “Motion for Supersedure” as 20 a Motion to Amend, grant the Motion, order the Clerk of Court to file the First Amended 21 Complaint, and will dismiss the First Amended Complaint with leave to amend. 22 I. Application to Proceed In Forma Pauperis and Filing Fee 23 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 24 U.S.C. § 1915 (a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 25 § 1915(b)(1). The Court will assess an initial partial filing fee of $98.75. The remainder 26 of the fee will be collected monthly in payments of 20% of the previous month’s income 27 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. [1] 28 U.S.C. § 1915 (b)(2). The Court will enter a separate Order requiring the appropriate 2 government agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 8 relief may be granted, or that seek monetary relief from a defendant who is immune from 9 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, [18] 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679 . Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681 . 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338 , 342 27 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent [28] 1 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 2 U.S. 89 , 94 (2007) (per curiam)). 3 If the Court determines that a pleading could be cured by the allegation of other 4 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 5 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 6 Plaintiff’s First Amended Complaint will be dismissed for failure to state a claim, but 7 because it may possibly be amended to state a claim, the Court will dismiss it with leave 8 to amend. 9 III. First Amended Complaint 10 Plaintiff names the following Defendants in his one-count First Amended 11 Complaint: Site Medical Director Theodora Paul; Medical Provider Renae Furar; Director 12 of Nursing Donna Mendoza; Medical Providers Nicole Johnson, Lillian Davod, Xiao-ke 13 Gao, and Michelle Jennings; and Nurses Jessica Gonzalez, Nivia Campa, Michelle 14 Bryniak, Marcella Aumack, Melissa Michel, Angela White, Christina Robles, Oyuki 15 Coronado, Sarah Ziegler, and Anita Benavidez. Plaintiff seeks money damages and 16 declaratory and injunctive relief. 17 Plaintiff alleges he has been denied adequate medical care in violation of the Eighth 18 Amendment. In 2016, Plaintiff began regularly experiencing severe headaches that 19 sometimes caused him to vomit. Plaintiff sought treatment for the headaches but “received 20 nothing to alleviate the pain” and, as a result, “began self-medicating with heroin for the 21 first time in his life.” (Amend. Compl. at 3.) Plaintiff continued to seek treatment 22 throughout 2017, 2018, and 2019 “without success.” (Id.) On February 4, 2020, Plaintiff 23 was suffering “excruciating pain from a headache” and saw non-party Nurse Qhiao in the 24 nurse’s line. Qhiao “made a phone call but did not treat [Plaintiff] for his headaches.” (Id. 25 at 4.) On February 20, 2020, Defendant Furar examined Plaintiff and ordered a CT scan, 26 but “refused to treat [Plaintiff] for the headache he was experiencing, outside of continuing 27 prescribed medication.” (Id.) 28 Plaintiff submitted a Health Needs Request on April 2, 2020 and Furar “again 1 refused to provide the proper treatment” for Plaintiff’s pain. (Id. at 4.) Plaintiff asserts 2 Furar was deliberately indifferent. 3 On May 4, 2020, Furar reviewed “the ineffective medication prescribed for 4 Plaintiff’s headaches” and “again ignored [Plaintiff’s] complaints of severe headaches he 5 was having.” (Id.) On May 5, 2020, Defendant Gonzalez examined Plaintiff “and provided 6 no treatment.” On May 12, 2020, Defendant Gonzalez again examined Plaintiff “and again 7 remained deliberately indifferent to his suffering.” (Id.) 8 On June 23, 2020, Defendant Campa saw Plaintiff and “acted deliberately 9 indifferent.” (Id. at 5.) On June 29, 2020, Defendant Furar examined Plaintiff and “acted 10 with deliberate indifference.” (Id.) On July 20, 2020, Plaintiff underwent a CT scan, which 11 showed a “small arachnoid cyst in the left middle cranial fossa with non-attenuation in the 12 right sphenoid bone measuring 17x10 mm.” (Id.) Plaintiff alleges this type of cyst can 13 cause headaches and neurological damage. (Id.) 14 On August 1, 2020, Plaintiff filed an informal complaint “because nothing was done 15 to alleviate Plaintiff’s pain and suffering from his headache after the . . . CT scan.” (Id.) 16 On September 11, 2020, Defendant Mendoza responded to Plaintiff’s complaint and stated, 17 “a neurology consult was written but specialists always request testing first before [a] 18 visit.” (Id.) On October 2, 2020, Plaintiff underwent an MRI. The MRI results reported 19 a “left middle cranial fossa arachnoid cyst. Skull base is otherwise unremarkable. There 20 is no abnormal enhancement or evidence of osseous lesion.” (Id.) Between October 2, 21 2020 and January 19, 2021, Plaintiff saw medical staff “on thirteen separate occasions 22 relative to the pain and suffering Plaintiff’s headache was causing.” (Id.) 23 On January 28, 2021, Plaintiff was rushed to the medical unit and saw Defendants 24 Bryniak and Aumack, who referred him to Defendant Mendoza. Plaintiff claims 25 “Defendant Mendoza did nothing for [Plaintiff] to help with his pain and suffering from 26 the excruciating headache.” (Id. at 7.) On January 29, 2021, February 9, 2021, February 27 10, 2021, and February 15, 2021, Plaintiff was examined by Defendants Michel, Bryniak, 28 White, and Campa, respectively. Plaintiff claims Defendant White “prescribed Plaintiff be 1 fed in-house,” but otherwise none of these Defendants “attempted to do anything for the 2 pain and suffering Plaintiff was going through.” (Id.) 3 On February 18, 2021, Plaintiff saw Defendant Robles, who referred Plaintiff to 4 Defendant Site Medical Director Paul. Defendant Paul gave Plaintiff two Tylenol-3 5 tablets, an injection in his left shoulder, and an injection behind each ear. (Id.) Plaintiff 6 claims that “shortly thereafter, two golf ball-sized knots developed behind each of 7 [Plaintiff’s] ears.” (Id.) Plaintiff was rushed to the hospital emergency room and was told 8 by the attending physician, “why the hell would she give you injections at the back of your 9 scalp?” (Id.) On February 19, 2021, Defendant Davod examined Plaintiff after he returned 10 from the hospital and “did nothing for [his] headache.” (Id. at 8.) On February 27, 2021, 11 Defendant Coronado saw Plaintiff during a “provider follow up” and “did nothing to 12 staunch [Plaintiff’s] pain and suffering from his headache.” (Id.) 13 On March 9, 2021, in response to Plaintiff’s grievance, Defendant Mendoza wrote 14 that “there is a neuro consult in place and you are scheduled soon to be evaluated and to 15 determine [the] next step.” (Id.) On March 9, 2021, after a video examination, Defendant 16 Gao wrote in Plaintiff’s records, “cyst has no clinical significance.” (Id.) On March 10, 17 2021, an Incident Command System (ICS) was activated and Plaintiff saw Defendant 18 Bryniak, who examined Plaintiff and “made a phone call but treated Plaintiff [with] 19 deliberate indifference.” (Id. at 9.) On March 12, 2021, another ICS was called for 20 Plaintiff. Plaintiff saw Defendant Ziegler, who “did nothing for Plaintiff.” (Id.) 21 On April 12, 2021, Defendant Campa examined Plaintiff but did not provide 22 treatment. (Id.) On April 20, 2021, Defendant Davod examined Plaintiff and “did 23 nothing,” and Defendant Paul “provided nothing for Plaintiff’s pain and suffering.” (Id.) 24 On May 4, 2021, Defendant Robles examined Plaintiff and did not provide headache 25 treatment. On May 22, 2021, Plaintiff met with Defendant Jennings “and was treated with 26 deliberate indifference.” (Id.) On May 30, 2021, non-party Nurse Porter examined 27 Plaintiff and “demonstrated genuine concern for Plaintiff’s pain,” but her attempts to 28 provide treatment “were thwarted when provider [Defendant] Johnson ordered Ms. Porter 1 to refuse to treat [Plaintiff].” (Id. at 10.) 2 Defendant Benavidez examined Plaintiff on June 1, 2021, Defendant Avila 3 examined him on June 3, and Defendant Jennings examined him on June 7. Plaintiff claims 4 none of these Defendants “did anything to assist [Plaintiff] with his pain and suffering.” 5 (Id.) On June 15, 2021, Plaintiff tested positive for opiates, and Defendant Johnson 6 discontinued his Gabapentin prescription. Plaintiff states he has been prescribed 7 Gabapentin and Keppra since 2016 for treatment of seizures. On June 25, 2021, Plaintiff’s 8 headache pain was so severe that an ICS was activated. Avila examined Plaintiff and 9 eventually sent him back to his cell without treatment. (Id.) 10 On June 29, 2021, Plaintiff underwent a second MRI. The radiologist reported the 11 results as “stable [illegible] left middle cranial fossa arachnoid cyst.” (Id. at 11.) On July 12 7, 2021, Plaintiff submitted an inmate letter to non-party Deputy Warden Swayne, which 13 was forwarded to the medical unit. Plaintiff received no reply. 14 On July 30, 2021, Plaintiff submitted an HNR, “begging for a neurological 15 examination from a specialist.” (Id.) Defendant Mendoza replied that Plaintiff had 16 recently met with the Medical Director at which time his medical concerns were addressed 17 and Plaintiff was directed to speak with mental health. Plaintiff was also told that if he 18 disagreed with his treatment plan, he should submit his concerns through the grievance 19 process. (Id.) 20 IV. Failure to State a Claim 21 To state a § 1983 medical claim, a plaintiff must show (1) a “serious medical need” 22 by demonstrating that failure to treat the condition could result in further significant injury 23 or the unnecessary and wanton infliction of pain and (2) the defendant’s response was 24 deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 25 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 26 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 27 know of and disregard an excessive risk to inmate health; “the official must both be aware 28 of facts from which the inference could be drawn that a substantial risk of serious harm 1 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 2 Deliberate indifference in the medical context may be shown by a purposeful act or failure 3 to respond to a prisoner’s pain or possible medical need and harm caused by the 4 indifference. Jett, 439 F.3d at 1096 . Deliberate indifference may also be shown when a 5 prison official intentionally denies, delays, or interferes with medical treatment or by the 6 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 7 97, 104-05 (1976); Jett, 439 F.3d at 1096 . 8 Deliberate indifference is a higher standard than negligence or lack of ordinary due 9 care for the prisoner’s safety. Farmer, 511 U.S. at 835 . “Neither negligence nor gross 10 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 11 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458 , 12 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 13 do not support a claim under § 1983). “A difference of opinion does not amount to 14 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 15 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 16 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 17 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 18 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 19 Estelle, 429 U.S. at 105 . 20 A. Defendant Paul 21 Plaintiff claims that on February 18, 2021, Defendant Paul gave him two Tylenol-3 22 tablets, an injection in his left shoulder, and two injections behind each ear, which swelled 23 and required treatment at a hospital. Although these allegations may demonstrate 24 Defendant Paul was negligent in administering the injections to Plaintiff, negligence is not 25 sufficient to state an Eighth Amendment claim. 26 To the extent Plaintiff claims he has not been taken to a neurologist for a 27 consultation, Plaintiff has not alleged facts showing Defendant Paul was responsible for 28 scheduling the consultation or for the delays in Plaintiff receiving the consultation. 1 Similarly, it is unclear whether Defendant Paul is responsible for Plaintiff’s treatment plan, 2 and Plaintiff has not alleged facts showing that his treatment plan constitutes deliberate 3 indifference. Plaintiff does not describe the treatment plan or explain why it is ineffective. 4 Plaintiff has therefore failed to state a claim against Defendant Paul. 5 B. Remaining Nurses and Medical Providers 6 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 , 7 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 8 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 9 civil rights complaint may not supply essential elements of the claim that were not initially 10 pled. Id. 11 With respect to the remaining Defendants, Plaintiff alleges that each defendant acted 12 “with deliberate indifference” or “did nothing.” However, Plaintiff alleges he received a 13 CT scan and two MRIs and appears to indicate he was receiving some type of medication 14 for treatment of his headaches. Plaintiff does not describe the medication he was 15 prescribed, whether the medication was ever effective, whether different medications were 16 tried, or what treatment he requested beyond pain medication. Further, Plaintiff does not 17 allege that any of nurses named as defendants had authority to give Plaintiff medication 18 not already prescribed by a doctor or physician’s assistant. Plaintiff’s vague and 19 conclusory allegations fail to state Eighth Amendment claims against the remaining 20 Defendants. 21 V. Leave to Amend 22 For the foregoing reasons, Plaintiff’s First Amended Complaint will be dismissed 23 for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may 24 submit a second amended complaint to cure the deficiencies outlined above. The Clerk of 25 Court will mail Plaintiff a court-approved form to use for filing a second amended 26 complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second 27 amended complaint and dismiss this action without further notice to Plaintiff. [28] 1 Plaintiff must clearly designate on the face of the document that it is the “Second 2 Amended Complaint.” The second amended complaint must be retyped or rewritten in its 3 entirety on the court-approved form and may not incorporate any part of the original or 4 First Amended Complaint by reference. Plaintiff may include only one claim per count. 5 In each count, Plaintiff must write short, plain statements telling the Court: (1) the 6 constitutional right Plaintiff believes was violated; (2) the name of the Defendant who 7 violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or 8 inaction of that Defendant is connected to the violation of Plaintiff’s constitutional right; 9 and (5) what specific injury Plaintiff suffered because of that Defendant’s conduct. See 10 Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 11 Plaintiff must repeat this process for each person he names as a Defendant. If 12 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 13 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 14 failure to state a claim. Conclusory allegations that a Defendant or group of 15 Defendants has violated a constitutional right are not acceptable and will be 16 dismissed. 17 A second amended complaint supersedes the original Complaint and First Amended 18 Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. 19 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court 20 will treat the original and First Amended Complaints as nonexistent. Ferdik, 963 F.2d at 21 1262. Any cause of action that was raised in the original Complaint or First Amended 22 Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived 23 if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 24 896, 928 (9th Cir. 2012) (en banc). 25 VI. Warnings 26 A. Release 27 If Plaintiff is released while this case remains pending, and the filing fee has not 28 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 1 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 2 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 3 result in dismissal of this action. 4 B. Address Changes 5 Plaintiff must file and serve a notice of a change of address in accordance with Rule 6 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 7 relief with a notice of change of address. Failure to comply may result in dismissal of this 8 action. 9 C. Possible “Strike” 10 Because the First Amended Complaint has been dismissed for failure to state a 11 claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies 12 identified in this Order, the dismissal may count as a “strike” under the “3-strikes” 13 provision of 28 U.S.C. § 1915 (g). Under the 3-strikes provision, a prisoner may not bring 14 a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the 15 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 16 brought an action or appeal in a court of the United States that was dismissed on the 17 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be 18 granted, unless the prisoner is under imminent danger of serious physical injury.” 28 19 U.S.C. § 1915 (g). 20 D. Possible Dismissal 21 If Plaintiff fails to timely comply with every provision of this Order, including these 22 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 23 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 24 the Court). 25 IT IS ORDERED: 26 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 27 (2) As required by the accompanying Order to the appropriate government 28 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 1 | of $98.75. 2 (3) Plaintiffs “Motion for Supersedure of Original Complaint” (Doc. 6), which the Court construes as a Motion to Amend, is granted. The Clerk of Court must file the 4 First Amended Complaint attached to Doc. 6. 5 (4) The First Amended Complaint (attached to Doc. 6) is dismissed for failure 6| to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second 7 | amended complaint in compliance with this Order. 8 (5) — If Plaintiff fails to file a second amended complaint within 30 days, the Clerk 9| of Court must, without further notice, enter a judgment of dismissal of this action with 10 | prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915 (g) 11 | and deny any pending unrelated motions as moot. 12 (6) The Clerk of Court must mail Plaintiff a court-approved form for filing a 13 | civil rights complaint by a prisoner. 14 Dated this 24th day of September, 2021. [15] Wicked T. diburde Michael T. Liburdi 18 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.