--MEA Castillo v. Gant et al, No. 2:2010cv02308 - Document 7 (D. Ariz. 2011)

Court Description: ORDER granting 5 Plaintiff's Motion/Application for Leave to Proceed in forma pauperis, Plaintiff must pay the $350.00 filing fee. The Complaint is dismissed with 30 days leave to amend. Clerk shall enter dismissal with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g) if Plaintiff fails to comply. Signed by Judge G Murray Snow on 1/3/11.(LSP)
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--MEA Castillo v. Gant et al 1 Doc. 7 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Miguel F. Castillo, Plaintiff, 10 11 vs. 12 Dr. Gant, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV 10-2308-PHX-GMS (MEA) ORDER 14 15 Plaintiff Miguel F. Castillo, who is confined in the Arizona State Prison Complex, in 16 Tucson, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and 17 an Application to Proceed In Forma Pauperis. The Court will dismiss the Complaint with 18 leave to amend. 19 I. Application to Proceed In Forma Pauperis and Filing Fee 20 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 21 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 22 The Court will assess an initial partial filing fee of $24.90. The remainder of the fee will be 23 collected monthly in payments of 20% of the previous month’s income each time the amount 24 in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate 25 Order requiring the appropriate government agency to collect and forward the fees according 26 to the statutory formula. 27 II. 28 Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against JDDL-K Dockets.Justia.com 1 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 2 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 3 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 4 be granted, or that seek monetary relief from a defendant who is immune from such relief. 5 28 U.S.C. § 1915A(b)(1), (2). 6 A pleading must contain a “short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 8 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 9 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 10 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 11 statements, do not suffice.” Id. 12 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 14 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 15 that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 17 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 19 allegations may be consistent with a constitutional claim, a court must assess whether there 20 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 21 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 22 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, No. 07-17265, 2010 WL 23 4673711 at *3 (9th Cir. Nov. 19, 2010). A “complaint [filed by a pro se prisoner] ‘must be 24 held to less stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting 25 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 26 27 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 28 JDDL-K If the Court determines that a pleading could be cured by the allegation of other facts, action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court -2- 1 should not, however, advise the litigant how to cure the defects. This type of advice “would 2 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 3 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was 4 required to inform a litigant of deficiencies). Plaintiff’s Complaint will be dismissed for 5 failure to state a claim, with leave to amend because the Complaint may possibly be saved 6 by amendment. 7 III. Complaint 8 Plaintiff alleges one count for unconstitutional medical care while he was prisoner in 9 Maricopa County’s Lower Buckeye Jail (LBJ). Plaintiff sues Maricopa County Sheriff 10 Joseph Arpaio and the Maricopa County Board of Supervisors. He also sues LBJ Nurses 11 Jane Doe and Ana Doe and Dr. Gant. Plaintiff seeks compensatory and punitive relief. 12 13 from January 6 through May, 2010. Plaintiff was 55-years old, suffered from diabetes, 14 congestive heart failure, and high blood pressure and had three stents in his arteries. In April 15 2010, Plaintiff was placed on suicide watch for three days. During that period, he was 16 confined in an empty, unsanitary room with a hole in the ground for a toilet. He was forced 17 to sleep on the filthy, cold concrete floor, and only provided a canvas sheet as “a dress, 18 blanket and a mattress [sic].” (Doc. 1 at 3.) Apparently while so confined, Plaintiff awoke 19 to find his foot bleeding and significant amounts of blood on the floor, but he does not 20 describe an injury or provide any reason for the foot to bleed. Plaintiff asked Nurse Doe to 21 treat his injured foot; Doe refused. The next day, Plaintiff asked Nurse Ana to treat his foot. 22 She cleaned the wound, but refused to let Plaintiff see a doctor for “proper treatment.” (Id.) 23 Plaintiff filed a grievance and several days later he was seen by Dr. Gant. Dr. Gant “failed 24 to treat the infection” by giving him antibiotics. The infection worsened, causing pain and 25 limiting Plaintiff’s mobility. Plaintiff again asked to be seen because of the pain and 26 impaired mobility. In May 2010, Plaintiff saw a different doctor, who prescribed antibiotics. 27 The antibiotics failed to cure the infection and Plaintiff lost the feeling in his foot, which 28 JDDL-K Plaintiff alleges the following facts in his Complaint: Plaintiff was confined in LBJ became “dark in color, [] unhealthy, and immobile.” (Id. at 3A.) Plaintiff was subsequently -3- 1 transferred to the Arizona Department of Corrections (ADC). Plaintiff continues to suffer 2 from the injury and to require pain medication. 3 IV. Failure to State a Claim 4 Section 1983 provides a cause of action against persons acting under color of state law 5 who have violated rights guaranteed by the United States Constitution and federal law. 42 6 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). To 7 state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about 8 which he complains was committed by a person acting under the color of state law and (2) 9 the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 10 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also allege that he suffered a specific 11 injury as a result of the conduct of a particular defendant and he must allege an affirmative 12 link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 13 371-72, 377 (1976). 14 15 Plaintiff sues the Maricopa County Board of Supervisors. He alleges no facts against 16 any Board member in his or her individual capacity. When individuals, such as members of 17 the Maricopa County Board of Supervisors, are sued in an official capacity, the real party in 18 interest is the entity of which the officers are agents. Kentucky v. Graham, 473 U.S. 159, 19 165-66 (1985) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). In 20 this case, that entity is Maricopa County. The actions of individuals may support municipal 21 liability only if a claimed injury resulted pursuant to an official policy or custom of the 22 municipality. Botello v. Gammick, 413 F.3d 971, 978-79 (9th Cir. 2005); Cortez v. County 23 of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). For that reason, a municipality may 24 not be sued solely because an injury was inflicted by one of its employees or agents. Long 25 v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Rather, the municipality is 26 liable only when the execution of its policy or custom inflicts the constitutional injury. Id.; 27 Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005). As stated by the Ninth 28 JDDL-K A. Maricopa County Board of Supervisors Circuit: -4- 1 2 3 4 5 6 7 8 9 There are three ways to meet the policy, practice, or custom requirement for municipal liability under § 1983: (1) the plaintiff may prove that a public entity employee committed the alleged constitutional violation pursuant to a formal policy or a longstanding practice or custom, which constitutes the standard operating procedure of the local government entity; (2) the plaintiff may establish that the individual who committed the constitutional tort was an official with “final policy-making authority” and that the challenged action itself thus constituted an act of official government policy; or (3) the plaintiff may prove that an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action .... An unconstitutional policy need not be formal or written to create municipal liability under § 1983; however, it must be so permanent and well settled as to constitute a custom or usage with the force of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 16768, ... (1970). Furthermore, “[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policy maker.” Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, ... (1985). 10 Avalos v. Baca, 596 F.3d 583, 587-88 (9th Cir. 2010) (quoting Avalos v. Baca, 517 F. 11 Supp.2d 1156, 1162 (C.D. Cal. 2007)). Therefore, a plaintiff cannot state a § 1983 claim 12 against a municipal defendant unless he alleges that the municipal defendant maintained a 13 policy or custom pertinent to the plaintiff’s alleged injury and explains how such policy or 14 custom caused his injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming 15 dismissal of a municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)). 16 Plaintiff alleges that the Board of Supervisors has a long-standing policy and custom 17 of “inflicting pain and punishment on pretrial detainees, and hiring incopetent [sic] medical 18 staff.” (Doc. 1. at 3B.) Plaintiff fails to allege facts to support that Board of Supervisors 19 maintains either a formal policy or a longstanding practice or custom of inflicting pain and 20 punishment on pretrial detainees by failing to provide medically appropriate care, nor does 21 he allege facts to support that the Board of Supervisors has a policy or custom of hiring 22 incompetent medical staff. Plaintiff does not otherwise allege that the Board itself denied 23 him medically appropriate care or that it ratified a subordinate’s unconstitutional decision or 24 action. Therefore, Plaintiff fails to state a claim against the Board and it will be dismissed. 25 B. Sheriff Arpaio 26 Plaintiff also sues Sheriff Arpaio. To state a claim against a defendant, a “plaintiff 27 must allege facts, not simply conclusions, that show that an individual was personally 28 JDDL-K -5- 1 involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 2 (9th Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege 3 that the official acted as a result of a policy, practice, or custom or that the official 4 promulgated a policy, practice or custom resulting in the violation. See Cortez, 294 F.3d at 5 1188. Further, there is no respondeat superior liability under § 1983, so a defendant’s 6 position as the supervisor of someone who allegedly violated a plaintiff’s constitutional 7 rights does not make him liable. Monell, 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 8 1045 (9th Cir. 1989). 9 constitutional violations of his subordinates if the supervisor participated in or directed the 10 violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 11 1045. A supervisor in his individual capacity, “is only liable for 12 Plaintiff alleges that Arpaio had a long-standing policy and custom of “inflicting pain 13 and punishment on pretrial detainees, and hiring incopetent [sic] medical staff.” (Doc. 1 at 14 3B.) Plaintiff fails to allege facts to support that Arpaio had such policy or custom or that 15 his injuries resulted from such policy. Plaintiff does not otherwise allege Arpaio was directly 16 involved in any violation of Plaintiff’s constitutional rights. Plaintiff therefore fails to state 17 a claim against Arpaio under § 1983. 18 C. 19 Plaintiff asserts that he received constitutionally deficient medical care. 20 Not every claim by a prisoner relating to inadequate medical treatment states a 21 violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a 22 plaintiff must show that the defendants acted with “deliberate indifference to serious medical 23 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 24 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need” by demonstrating 25 that failure to treat the condition could result in further significant injury or the unnecessary 26 and wanton infliction of pain and (2) the defendant’s response was deliberately indifferent. 27 Jett, 439 F.3d at 1096 (quotations omitted). 28 JDDL-K Medical Care “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, -6- 1 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know 2 of and disregard an excessive risk to inmate health; “the official must both be aware of facts 3 from which the inference could be drawn that a substantial risk of serious harm exists, and 4 he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate 5 indifference in the medical context may be shown by a purposeful act or failure to respond 6 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 439 7 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally 8 denies, delays, or interferes with medical treatment or by the way prison doctors respond to 9 the prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. 10 Deliberate indifference is a higher standard than negligence or lack of ordinary due 11 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 12 negligence will constitute deliberate indifference.” Clement v. California Dep’t of 13 Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter 14 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 15 “medical malpractice” do not support a claim under § 1983). “A difference of opinion does 16 not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. 17 Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is 18 insufficient to state a claim against prison officials for deliberate indifference. See Shapley 19 v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference 20 must be substantial. The action must rise to a level of “unnecessary and wanton infliction 21 of pain.” Estelle, 429 U.S. at 105. 22 23 conclusory. Plaintiff does not sufficiently allege facts to support that his foot injury rose to 24 the level of a serious medical need, including the cause and severity of the injury or wound. 25 He also does not sufficiently allege facts to support that any Defendant knew or should have 26 known that the failure to provide other or different treatment of the foot was likely to result 27 in a substantial risk of serious harm. For these reasons, Plaintiff fails to state a claim for 28 JDDL-K Plaintiff’s allegations concerning the injury or wound to his foot are vague and deliberate indifference to a serious medical need. -7- 1 V. Leave to Amend 2 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state 3 a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first 4 amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail 5 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails 6 to use the court-approved form, the Court may strike the amended complaint and dismiss this 7 action without further notice to Plaintiff. 8 Plaintiff must clearly designate on the face of the document that it is the “First 9 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 10 entirety on the court-approved form and may not incorporate any part of the original 11 Complaint by reference. Plaintiff may include only one claim per count. 12 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 13 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 14 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as 15 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original 16 complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 17 565, 567 (9th Cir. 1987). 18 VI. Warnings 19 A. Release 20 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. 21 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay 22 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result 23 in dismissal of this action. 24 25 Plaintiff must file and serve a notice of a change of address in accordance with Rule 26 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 27 relief with a notice of change of address. Failure to comply may result in dismissal of this 28 JDDL-K B. Address Changes action. -8- 1 C. Copies 2 Plaintiff must submit an additional copy of every filing for use by the Court. See 3 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice 4 to Plaintiff. 5 D. Possible “Strike” 6 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails 7 to file an amended complaint correcting the deficiencies identified in this Order, the 8 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 9 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 10 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior 11 occasions, while incarcerated or detained in any facility, brought an action or appeal in a 12 court of the United States that was dismissed on the grounds that it is frivolous, malicious, 13 or fails to state a claim upon which relief may be granted, unless the prisoner is under 14 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 15 E. Possible Dismissal 16 If Plaintiff fails to timely comply with every provision of this Order, including these 17 warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 18 1260-61 (a district court may dismiss an action for failure to comply with any order of the 19 Court). 20 IT IS ORDERED: 21 (1) Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 5.) 22 (2) As required by the accompanying Order to the appropriate government agency, 23 24 Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $24.90. (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 25 30 days from the date this Order is filed to file a first amended complaint in compliance with 26 this Order. 27 28 JDDL-K (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice -9- 1 2 3 4 that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g). (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. DATED this 3rd day of January, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K - 10 - 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 Fee. The filing fee for this action is $350.00. If you are unable to immediately pay the filing fee, 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. 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 $350 filing fee or the application to proceed in forma pauperis to: Revised 3/9/07 1 Phoenix & Prescott Divisions: OR U.S. District Court Clerk U.S. Courthouse, Suite 130 401 West Washington Street, SPC 10 Phoenix, Arizona 85003-2119 Tucson Division: U.S. District Court Clerk U.S. Courthouse, Suite 1500 405 West Congress Street 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. 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 before any defendant has answered your original complaint. See Fed. R. Civ. P. 15(a). After any defendant has filed an answer, you must file a motion for leave to amend and lodge (submit) a proposed amended complaint. 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,” “2B,” 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, vs. (1) (Full Name of Defendant) (2) (3) (4) Defendant(s). G Check if there are additional Defendants and attach page 1-A listing them. ) , ) ) ) ) CASE NO. ) (To be supplied by the Clerk) , ) ) , ) CIVIL RIGHTS COMPLAINT ) , ) BY A PRISONER ) , ) G Original Complaint G First Amended Complaint ) ) G Second Amended Complaint A. JURISDICTION 1. 2. 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: . Institution/city where violation occurred: . Revised 3/9/07 1 550/555 B. DEFENDANTS 1. Name of first Defendant: at . The first Defendant is employed as: . (Position and Title) 2. (Institution) Name of second Defendant: at . The second Defendant is employed as: . (Position and Title) 3. (Institution) Name of third Defendant: at . The third Defendant is employed as: . (Position and Title) 4. (Institution) Name of fourth Defendant: at . The fourth Defendant is employed as: . (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? 2. If yes, how many lawsuits have you filed? G Yes G No . Describe the previous lawsuits: a. First prior lawsuit: 1. Parties: v. 2. Court and case number: 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . . b. Second prior lawsuit: v. 1. Parties: 2. Court and case number: 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . . c. Third prior lawsuit: 1. Parties: v. 2. Court and case number: 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) . . If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page. 2 D. CAUSE OF ACTION 1. COUNT I 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 G Yes G No at your institution? 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 1. COUNT II 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 1. COUNT III 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 G Yes G No at your institution? 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. 6