Benacquisto v. Corizon Health et al, No. 2:2013cv02309 - Document 5 (D. Ariz. 2013)

Court Description: ORDER granting 2 Plaintiff's Application/Motion 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 must 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 David G Campbell on 12/4/13.(LSP)
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Benacquisto v. Corizon Health et al Doc. 5 1 2 KAB WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Craig Dominic Benacquisto, 10 11 12 No. CV 13-2309-PHX-DGC (MEA) Plaintiff, vs. ORDER Corizon Health, et al., 13 Defendants. 14 15 Plaintiff Craig Dominic Benacquisto, who is confined in the Maricopa County 16 Lower Buckeye Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 17 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will 18 grant the Application to Proceed and dismiss the Complaint with 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 not assess an initial partial filing fee. Id. The statutory filing fee will be 23 collected monthly in payments of 20% of the previous month’s income each time the 24 amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a 25 separate Order requiring the appropriate government agency to collect and forward the 26 fees according to the statutory formula. 27 .... 28 .... JDDL-K Dockets.Justia.com 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 6 which relief may be granted, or that seek monetary relief from a defendant who is 7 immune from 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). While Rule 8 does not demand 10 detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 12 omitted). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. (citation omitted). 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. (citation omitted). A claim is plausible 16 “when the plaintiff pleads factual content that allows the court to draw the reasonable 17 inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). 18 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 19 specific task that requires the reviewing court to draw on its judicial experience and 20 common sense.” Id. at 679 (citation omitted). Thus, although a plaintiff’s specific 21 factual allegations may be consistent with a constitutional claim, a court must assess 22 whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681. 23 24 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 25 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 26 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 27 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). If the Court determines that a pleading 28 JDDL-K But as the United States Court of Appeals for the Ninth Circuit has instructed, could be cured by the allegation of other facts, a pro se litigant is entitled to an -2- 1 opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 2 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Here, Plaintiff fails to state a claim upon 3 which relief can be granted in his Complaint, but it appears that the Complaint could be 4 cured by allegations of other facts. Accordingly, Plaintiff’s Complaint will be dismissed 5 without prejudice and Plaintiff will be given an opportunity to amend. 6 III. Complaint 7 In his Complaint, Plaintiff alleges three counts. Defendants are: (1) Corizon 8 Health, Health Administrator for the Arizona Department of Corrections (“ADOC”); 9 (2) Dr. Sandoval, M.D., doctor for the ADOC at the Arizona State Prison Complex, 10 Aspen Unit, in Phoenix, Arizona; and (3) Dr. Winskie, “psych doctor” at the Arizona 11 State Prison Complex in Tucson, Arizona. 12 In Count One, Plaintiff alleges that Defendants were deliberately indifferent to 13 Plaintiff’s serious medical needs in violation of the Eighth Amendment as follows: From 14 March 2013 to July 2013, “Corizon Health/Dr. Sandoval” neglected Plaintiff’s 15 healthcare. When Plaintiff was admitted to the Aspen Medical Men’s Treatment Unit, 16 Dr. Sandoval, “with Corizon’s knowledge,” discontinued a pain shot of Toradol, which 17 had previously been prescribed to Plaintiff. 18 Toradol without evaluating Plaintiff and no pain medication was issued to Plaintiff until 19 July 2013. As a result of the discontinuation of Toradol, Plaintiff “was subject to 20 immense pain in [his] neck and back for four months.” Dr. Sandoval threatened Plaintiff 21 that if he “pressed the issue” he would be sent to a different location. Because Plaintiff 22 “feared reprisal,” he did not put in a health needs request. Dr. Sandoval discontinued the shot of 23 24 Plaintiff’s serious medical needs in violation of the Eighth Amendment as follows: Dr. 25 Winskie and Corizon abruptly discontinued Plaintiff’s “psych medications” of Seroquel 26 600mg without stepping Plaintiff down or putting him on something else for several days. 27 As a result, Plaintiff had numerous thoughts of suicide and severe clinical depression on 28 JDDL-K In Count Two, Plaintiff alleges that Defendants were deliberately indifferent to his days without medication. “Corizon nurses did everything they could to stop the -3- 1 grievance process to include misplacing paperwork.” 2 In Count Three, Plaintiff alleges that Defendants violated his right to access the 3 grievance process without retaliation as follows: Corizon, Dr. Sandoval, and Dr. Winskie 4 colluded to retaliate against Plaintiff if his grievances were to proceed to the highest 5 level. Dr. Sandoval specifically threatened to move Plaintiff from the facility. As a 6 result, Plaintiff was in a state of constant fear of being removed from the facility, which 7 caused him anxiety, depression, and lingering thoughts of suicide. 8 9 Plaintiff seeks punitive and compensatory damages and injunctive relief. IV. Failure to State a Claim 10 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 11 (2) under color of state law (3) deprived him of federal rights, privileges or immunities 12 and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 13 Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 14 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific 15 injury as a result of the conduct of a particular defendant and he must allege an 16 affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 17 423 U.S. 362, 371-72, 377 (1976). 18 Moreover, not every claim by a prisoner relating to inadequate medical treatment 19 states a violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff 20 must show that the defendants acted with “deliberate indifference to serious medical 21 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 22 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need” by 23 demonstrating that failure to treat the condition could result in further significant injury 24 or the unnecessary and wanton infliction of pain and (2) the defendant’s response was 25 deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted). 26 27 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must 28 JDDL-K “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d both know of and disregard an excessive risk to inmate health; “the official must both be -4- 1 aware of facts from which the inference could be drawn that a substantial risk of serious 2 harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 3 837 (1994). 4 purposeful act or failure to respond to a prisoner’s pain or possible medical need and 5 harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may 6 also be shown when a prison official intentionally denies, delays, or interferes with 7 medical treatment or by the way prison doctors respond to the prisoner’s medical needs. 8 Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. Deliberate indifference in the medical context may be shown by a 9 Deliberate indifference is a higher standard than negligence or lack of ordinary 10 due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor 11 gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of 12 Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 13 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 14 “medical malpractice” do not support a claim under § 1983). “A difference of opinion 15 does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” 16 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, 17 without more, is insufficient to state a claim against prison officials for deliberate 18 indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 19 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of 20 “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 21 22 To state a claim under § 1983 against a private entity performing a traditional 23 public function, such as providing medical care to prisoners, a plaintiff must allege facts 24 to support that his constitutional rights were violated as a result of a policy, decision, or 25 custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 26 698 F.3d 1128, 1138-39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 27 1997). 28 JDDL-K A. .... Defendant Corizon -5- 1 Plaintiff’s vague and conclusory allegations do not support a claim that his 2 constitutional rights were violated by a policy, decision, or custom promulgated or 3 endorsed by Defendant Corizon. Plaintiff does not allege that decisions regarding his 4 medical care were made pursuant to a policy and, even if they were, he has failed to 5 identify any specific policy or custom and how it violated his constitutional rights. 6 Moreover, to the extent Plaintiff is asserting that Defendant Corizon neglected Plaintiff’s 7 healthcare and conspired against him, Plaintiff has not identified any actions that 8 Defendant Corizon took to support these conclusory allegations. Finally, because there is 9 no respondeat superior liability under § 1983, a private entity is not liable simply 10 because it employed individuals who allegedly violated a plaintiff’s constitutional rights. 11 See Tsao, 698 F.3d at 1139. Accordingly, the Court will dismiss Defendant Corizon. 12 B. 13 Plaintiff fails to state a claim for deliberate indifference to serious medical needs 14 against Dr. Sandoval and Dr. Winskie. Plaintiff alleges that Dr. Sandoval discontinued 15 Plaintiff’s pain shot of Toradol without examining him. Plaintiff alleges that Dr. Winskie 16 abruptly discontinued Plaintiff’s Seroquel without replacing the medication for several 17 days. Plaintiff does not allege any facts to support these allegations, such as the reasons 18 given by Dr. Sandoval and Dr. Winskie for discontinuing Plaintiff’s medications, whether 19 Plaintiff requested that he be given his medications and who he requested the medications 20 from, and the response to such requests, if any. Indeed, none of Plaintiff’s allegations 21 demonstrate that Defendant Sandoval or Defendant Winskie knew of an excessive risk to 22 Plaintiff’s health and disregarded such a risk. Accordingly, Plaintiff has failed to state a 23 claim for deliberate indifference to serious medical needs against Dr. Sandoval and Dr. 24 Winskie. Dr. Sandoval and Dr. Winskie 25 26 retaliate against Plaintiff if his grievances proceeded to the highest level and Dr. 27 Sandoval threatened to remove Plaintiff from the facility if he filed a grievance. 28 JDDL-K Plaintiff also alleges that Dr. Sandoval, Dr. Winskie, and Corizon colluded to Prisoners have a First Amendment right to file prison grievances, Rhodes v. Robinson, -6- 1 408 F.3d 559, 567 (9th Cir. 2005), but “[t]here is no legitimate claim of entitlement to a 2 grievance procedure,” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (citations 3 omitted), and the failure to follow grievance procedures does not give rise to a due 4 process claim. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“inmates lack 5 a separate constitutional entitlement to a specific prison grievance procedure”) (citation 6 omitted); Flournoy v. Fairman, 897 F.Supp. 350, 354 (N.D. Ill. 1995) (jail grievance 7 procedures did not create a substantive right enforceable under § 1983); Spencer v. 8 Moore, 638 F.Supp. 315, 316 (E.D. Mo. 1986) (violations of grievance system 9 procedures do not deprive inmates of constitutional rights); Buckley v. Barlow, 997 F.2d 10 494, 495 (8th Cir. 1993) (“[N]o constitutional right was violated by the defendants’ 11 failure, if any, to process all of the grievances [plaintiff] submitted for consideration.”). . 12 Plaintiff’s allegations that Dr. Sandoval, Dr. Winskie, and Defendant Corizon 13 colluded to retaliate against Plaintiff if his grievances proceeded to the highest level, and 14 that Dr. Sandoval threatened to remove Plaintiff from the facility if he filed a grievance, 15 are vague and conclusory and fail to state a claim upon which relief can be granted. 16 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520- 17 21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. 18 Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 19 liberal interpretation of a civil rights complaint may not supply essential elements of the 20 claim that were not initially pled. Id. 21 22 retaliate against him if he filed a grievance. Moreover, Plaintiff fails to plead facts 23 supporting his assertion that Dr. Sandoval threatened him, such as the events surrounding 24 the threat, when such a threat was made, what Dr. Sandoval said, or any facts showing 25 that Dr. Sandoval threatened Plaintiff to prevent him from filing grievances. Plaintiff 26 fails to state a claim based on threatened retaliation. Therefore, Defendants Sandoval and 27 Winskie will be dismissed. 28 JDDL-K Plaintiff fails to allege any facts that Sandoval, Winskie, and Corizon colluded to /// -7- 1 V. Leave to Amend 2 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to 3 state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 4 first amended complaint to cure the deficiencies outlined above. The Clerk of Court will 5 mail Plaintiff a court-approved form to use for filing a first amended complaint. If 6 Plaintiff fails to use the court-approved form, the Court may strike the amended 7 complaint and dismiss this 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 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 13 telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name 14 of the Defendant who violated the right; (3) exactly what that Defendant did or failed to 15 do; (4) how the action or inaction of that Defendant is connected to the violation of 16 Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered because of 17 that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 18 Plaintiff must repeat this process for each person he names as a Defendant. If 19 Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 20 injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 21 failure to state a claim. 22 Defendants has violated a constitutional right are not acceptable and will be 23 dismissed. Conclusory allegations that a Defendant or group of 24 25 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 26 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 27 complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 28 JDDL-K A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, in the original complaint and that was voluntarily dismissed or was dismissed without -8- 1 prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa 2 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 3 VI. Warnings 4 A. 5 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his 6 release. Also, within 30 days of his release, he must either (1) notify the Court that he 7 intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to 8 comply may result in dismissal of this action. 9 B. Release Address Changes 10 Plaintiff must file and serve a notice of a change of address in accordance with 11 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 12 for other relief with a notice of change of address. Failure to comply may result in 13 dismissal of this action. 14 C. 15 Plaintiff must submit an additional copy of every filing for use by the Court. See 16 LRCiv 5.4. Failure to comply may result in the filing being stricken without further 17 notice to Plaintiff. Copies 18 D. 19 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 20 fails to file an amended complaint correcting the deficiencies identified in this Order, the 21 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 22 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 23 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more 24 prior occasions, while incarcerated or detained in any facility, brought an action or appeal 25 in a court of the United States that was dismissed on the grounds that it is frivolous, 26 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 27 is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 28 JDDL-K E. Possible “Strike” Possible Dismissal -9- 1 If Plaintiff fails to timely comply with every provision of this Order, including 2 these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 3 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any 4 order of the Court). 5 IT IS ORDERED: 6 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 7 (2) As required by the accompanying Order to the appropriate government 8 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial 9 filing fee. 10 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 11 has 30 days from the date this Order is filed to file a first amended complaint in 12 compliance with this Order. 13 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 14 Court must, without further notice, enter a judgment of dismissal of this action with 15 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g). 16 17 18 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Dated this 4th day of December, 2013. 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 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. 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 5/1/2013 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 (month, day, year) to: this 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 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 “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,” “2B,” 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, 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 5/1/2013 1 550/555 B. DEFENDANTS 1. Name of first Defendant: . The first Defendant is employed as: at . (Position and Title) 2. (Institution) Name of second Defendant: . The second Defendant is employed as: at . (Position and Title) 3. (Institution) Name of third Defendant: . The third Defendant is employed as: at . (Position and Title) 4. (Institution) Name of fourth Defendant: at (Position and Title) . The fourth Defendant is employed as: . (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: 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 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 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 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 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. 6