Kauffman 360639 v. Mohave, County of

1 MDR 2 wo [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Zion Z. Kauffman, No. CV-23-08030-PCT-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 Mohave County, et al., 13 Defendants. [14] 15 Pro se Plaintiff Zion Z. Kauffman was confined in the Mohave County Adult 16 Detention Facility when he filed this civil rights action pursuant to 42 U.S.C. § 1983 , but 17 he is now confined in the Arizona State Prison Complex-Eyman (ASPC-Eyman). Pending 18 before the Court are Plaintiff’s Second Amended Complaint (Doc. 18) and Fourth 19 Application to Proceed In Forma Pauperis (Doc. 19). The Court will grant the Application 20 to Proceed and will dismiss the Second Amended Complaint with leave to amend. 21 I. Fourth Application to Proceed In Forma Pauperis and Filing Fee 22 The Court will grant Plaintiff’s Fourth Application to Proceed In Forma Pauperis. [23] 28 U.S.C. § 1915 (a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 24 § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing 25 fee will be collected monthly in payments of 20% of the previous month’s income credited 26 to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 27 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 28 agency to collect and forward the fees according to the statutory formula. 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 Second Amended Complaint will be dismissed for failure to state a claim, but 5 because it may possibly be amended to state a claim, the Court will dismiss it with leave 6 to amend. 7 III. Second Amended Complaint 8 A second amended complaint supersedes the original and First Amended 9 Complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios 10 v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court 11 treats the original and First Amended Complaints as nonexistent. Ferdik, 963 F.2d at 1262 . 12 Any cause of action that was raised in the original or First Amended Complaints and that 13 was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged 14 in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 15 2012) (en banc). Thus, the Court will consider only those claims raised in the Second 16 Amended Complaint against those Defendants named in the Second Amended Complaint. 17 In his three-count Second Amended Complaint, Plaintiff names as Defendants the 18 Mohave County Sheriff’s Office (MCSO), the Mohave County Adult Detention 19 Facility (MCADF), and the Rynning Unit and Special Management Unit 1 (SMU 1) at 20 ASPC-Eyman. He raises claims regarding the exercise of his religion, access to the courts, 21 basic necessities, medical care, property, and fees assessed by Defendant MCADF. 22 Plaintiff seeks monetary damages, “all of the stuff [he] need[s],” and the ability to “wash 23 [his] stuff.” 24 IV. Failure to State a Claim 25 A. Defendant MCSO 26 The Mohave County Sheriff’s Office is not a proper defendant because it is a “non27 jural entity.” Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir. 2015) (citing Braillard 28 v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010)). In Arizona, the 1 responsibility of operating jails and caring for prisoners is placed by law upon the sheriff. 2 See Ariz. Rev. Stat. §§ 11-441 (A)(5), 31-101. A sheriff’s office is simply an administrative 3 creation of the county sheriff to allow him to carry out his statutory duties and is not a 4 “person” amenable to suit pursuant to § 1983. Accordingly, the Court will dismiss 5 Defendant MCSO. 6 B. Defendants MCADF, Rynning Unit, and SMU 1 7 Section 1983 imposes liability on any “person” who violates an individual’s federal 8 rights while acting under color of state law. Congress intended municipalities and other 9 local government units to be included among those persons to whom § 1983 applies. 10 Monell v. Dept. of Soc. Servs., 436 U.S. 658, 689-90 (1978). However, the Mohave County 11 Adult Detention Facility, the Rynning Unit, and SMU 1 are buildings or collections of 12 buildings, not persons or legally created entities capable of being sued. Thus, the Court 13 will dismiss Defendants MCADF, Rynning Unit, and SMU 1. 14 V. Leave to Amend 15 For the foregoing reasons, the Court will dismiss Plaintiff’s Second Amended 16 Complaint for failure to state a claim upon which relief may be granted. Within 30 days, 17 Plaintiff may submit a third amended complaint to cure the deficiencies outlined above. 18 The Clerk of Court will mail Plaintiff a court-approved form to use for filing a third 19 amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike 20 the third amended complaint and dismiss this action without further notice to Plaintiff. 21 Plaintiff must clearly designate on the face of the document that it is the “Third 22 Amended Complaint.” The third amended complaint must be retyped or rewritten in its 23 entirety on the court-approved form and may not incorporate any part of the original 24 Complaint or prior Amended Complaints by reference. Plaintiff may include only one 25 claim per count. 26 A third amended complaint supersedes the original Complaint and prior Amended 27 Complaints. Ferdik, 963 F.2d at 1262 ; Hal Roach Studios, 896 F.2d at 1546 . After 28 amendment, the Court will treat the original Complaint and prior Amended Complaints as 1 nonexistent. Ferdik, 963 F.2d at 1262 . Any cause of action that was raised in the original 2 Complaint or prior Amended Complaints and that was voluntarily dismissed or was 3 dismissed without prejudice is waived if it is not alleged in a third amended complaint. 4 Lacey, 693 F.3d at 928 . 5 If Plaintiff files a third amended complaint, Plaintiff must write short, plain 6 statements telling the Court: (1) the constitutional right Plaintiff believes was violated; 7 (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did 8 or failed to do; (4) how the action or inaction of that Defendant is connected to the violation 9 of Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 10 that Defendant’s conduct. See 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 Plaintiff should take note that to state a First Amendment, free-exercise-of-religion 18 claim, a plaintiff must allege that a defendant substantially burdened the practice of the 19 plaintiff’s religion by preventing him from engaging in a sincerely held religious belief and 20 that the defendant did so without any justification reasonably related to legitimate 21 penological interests. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). In addition, 22 Plaintiff should be aware that under the Religious Land Use and Institutionalized Persons 23 Act (RLUIPA), a government may not impose a substantial burden on the religious 24 exercise of a confined person unless the government establishes that the burden furthers a 25 “compelling governmental interest” and does so by “the least restrictive means.” 42 U.S.C. 26 § 2000cc-1(a)(1)-(2). Under RLUIPA, the plaintiff bears the initial burden of 27 demonstrating a prima facie claim that the challenged state action constitutes a “substantial [28] 1 burden on the exercise of his religious beliefs.” Warsoldier v. Woodford, 418 F.3d 989 , 2 994 (9th Cir. 2005). 3 A substantial burden is one that is “‘oppressive’ to a ‘significantly great’ extent. 4 That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great 5 restriction or onus upon such exercise.” Id. at 995 (quoting San Jose Christian College v. 6 City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). A substantial burden must be 7 “more than an inconvenience”; it prevents an inmate from “engaging in [religious] conduct 8 or having a religious experience.” Worldwide Church of God v. Phila. Church of God, 9 Inc., 227 F.3d 1110 , 1121 (9th Cir. 2000) (citations omitted). 10 Plaintiff is advised that the right of meaningful access to the courts prohibits 11 officials from actively interfering with inmates’ attempts to prepare or file legal documents. 12 Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right 13 to bring petitions or complaints to federal court and not a right to discover such claims or 14 even to litigate them effectively once filed with a court. Id. at 354 . The right “guarantees 15 no particular methodology but rather the conferral of a capability–the capability of bringing 16 contemplated challenges to sentences or conditions of confinement before the courts.” Id. 17 at 356. 18 As a matter of standing, for an access-to-courts claim, a plaintiff must show that he 19 suffered an “actual injury” with respect to contemplated litigation. Id. at 349 . To show 20 actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the 21 defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous claim 22 that he wished to present. Id. at 352-53 . 23 “[T]he injury requirement is not satisfied by just any type of frustrated legal claim.” [24] Id. at 354 . The right of access to the courts “does not guarantee inmates the wherewithal 25 to transform themselves into litigating engines capable of filing everything from 26 shareholder derivative actions to slip-and-fall claims.” Id. at 355 . The nonfrivolous claim 27 must be a direct or collateral attack on the inmate’s sentence or a challenge to the conditions 28 of his confinement. Id. “Impairment of any other litigating capacity is simply one of the 1 incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. 2 (emphasis in original). 3 If Plaintiff files a third amended complaint, he should also be aware that to state an 4 Eighth Amendment conditions-of-confinement claim, plaintiffs must meet a two-part test. 5 “First, the alleged constitutional deprivation must be, objectively, sufficiently serious” 6 such that the “official’s act or omission must result in the denial of the minimal civilized 7 measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal 8 quotations omitted). Second, the prison official must have a “sufficiently culpable state of 9 mind,” i.e., he must act with “deliberate indifference to inmate health or safety.” Id. 10 (internal quotations omitted). Deliberate indifference is a higher standard than negligence 11 or lack of ordinary due care for the prisoner’s safety. Id. at 835. In defining “deliberate 12 indifference” in this context, the Supreme Court has imposed a subjective test: “the official 13 must both be aware of facts from which the inference could be drawn that a substantial risk 14 of serious harm exists, and he must also draw the inference.” Id. at 837 (emphasis added). 15 In addition, not every claim by a prisoner relating to inadequate medical treatment 16 states a violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff 17 must show (1) a “serious medical need” by demonstrating that failure to treat the condition 18 could result in further significant injury or the unnecessary and wanton infliction of pain 19 and (2) the defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 20 1091, 1096 (9th Cir. 2006). 21 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 22 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 23 know of and disregard an excessive risk to inmate health; “the official must both be aware 24 of facts from which the inference could be drawn that a substantial risk of serious harm 25 exists, and he must also draw the inference.” Farmer, 511 U.S. at 837 . Deliberate 26 indifference in the medical context may be shown by a purposeful act or failure to respond 27 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 28 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official 1 intentionally denies, delays, or interferes with medical treatment or by the way prison 2 doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 97 , 104-05 3 (1976); Jett, 439 F.3d at 1096. 4 Deliberate indifference is a higher standard than negligence or lack of ordinary due 5 care for the prisoner’s safety. Farmer, 511 U.S. at 835 . “Neither negligence nor gross 6 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 7 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458 , 8 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 9 do not support a claim under § 1983). “A difference of opinion does not amount to 10 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 11 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 12 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 13 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 14 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 15 Estelle, 429 U.S. at 105 . 16 Plaintiff should take note that a claim regarding the seizure of his property would 17 arise, if at all, under the Due Process Clause of the Fourteenth Amendment. However, the 18 “Due Process Clause is simply not implicated by a negligent act of an official causing 19 unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 20 327, 328 (1986). Even unauthorized and intentional deprivations of property do not 21 constitute a violation of procedural requirements of the Due Process Clause if a meaningful 22 post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517 , 533 23 (1984). The availability of a common-law tort suit against a state employee constitutes an 24 adequate post-deprivation remedy. Id. at 534-35 . Moreover, Arizona provides a 25 meaningful and adequate post-deprivation remedy through the prison grievance system, 26 specifically Department Order 909(8.0). Dennison v. Ryan, 522 F. App’x 414, 417-18 (9th 27 Cir. 2013); Aldrete v. Ariz. Dep’t of Corr., 2011 WL 30959 , at *7 (D. Ariz. Jan. 3, 2011); [28] 1 see also Wright v. Riveland, 219 F.3d 905, 918 (9th Cir. 2000) (both state tort claims and 2 prison grievance procedures provide adequate post-deprivation remedies). 3 Finally, Plaintiff should be aware that Arizona Revised Statutes section 31-121(B) 4 provides, in part, that “the sheriff may establish procedures to recover from the inmate the 5 cost of providing the inmate with necessary food. The cost to the inmate shall not exceed 6 two dollars per day.” It does not violate the Constitution to assess these fees. See Tillman 7 v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 416 (3rd. Cir. 2000) (“Courts have 8 consistently found that there is no constitutional impediment to deducting the cost of room 9 and board from a prisoner’s wages.”). 10 VI. Warnings 11 A. Release 12 If Plaintiff is released while this case remains pending, and the filing fee has not 13 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 14 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 15 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 16 result in dismissal of this action. 17 B. Address Changes 18 Plaintiff must file and serve a notice of a change of address in accordance with Rule 19 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 20 relief with a notice of change of address. Failure to comply may result in dismissal of this 21 action. 22 C. Possible “Strike” 23 Because the Second Amended Complaint has been dismissed for failure to state a 24 claim, if Plaintiff fails to file a third amended complaint correcting the deficiencies 25 identified in this Order, the dismissal may count as a “strike” under the “3-strikes” 26 provision of 28 U.S.C. § 1915 (g). Under the 3-strikes provision, a prisoner may not bring 27 a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the 28 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 1 brought an action or appeal in a court of the United States that was dismissed on the 2 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be 3 granted, unless the prisoner is under imminent danger of serious physical injury.” 28 4 U.S.C. § 1915 (g). 5 D. Possible Dismissal 6 If Plaintiff fails to timely comply with every provision of this Order, including these 7 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d 8 at 1260-61 (a district court may dismiss an action for failure to comply with any order of 9 the Court). 10 IT IS ORDERED: 11 (1) Plaintiff’s Fourth Application to Proceed In Forma Pauperis (Doc. 19) is 12 granted. 13 (2) As required by the accompanying Order to the appropriate government 14 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing 15 fee. 16 (3) The Second Amended Complaint (Doc. 18) is dismissed for failure to state 17 a claim. Plaintiff has 30 days from the date this Order is filed to file a third amended 18 complaint in compliance with this Order. 19 (4) If Plaintiff fails to file a third amended complaint within 30 days, the Clerk 20 of Court must, without further notice, enter a judgment of dismissal of this action with 21 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915 (g) 22 and deny any pending unrelated motions as moot. 23 . . . . 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 30th day of August, 2023. [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 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 $402.00 ($350.00 filing fee plus $52.00 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 $402 filing and administrative fees or the application to proceed in forma pauperis to: [1] Revised 12/1/20 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 courtapproved 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. [2] 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 “1A” 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. [3] 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. . [3] 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. . [4] 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. [5] E. REQUEST FOR RELIEF State the relief you are seeking: . I declare under penalty of perjury that the foregoing is true and correct. Executed on DATE SIGNATURE OF PLAINTIFF ___________________________________________ (Name and title of paralegal, legal assistant, or other person who helped prepare this complaint) ___________________________________________ (Signature of attorney, if any) ___________________________________________ (Attorney=s address & telephone number) ADDITIONAL PAGES All questions must be answered concisely in the proper space on the form. If you need more space, you may attach 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.