Braatz v. Arpaio et al, No. 2:2014cv00689 - Document 5 (D. Ariz. 2014)

Court Description: ORDER granting the 2 APPLICATION for Leave to Proceed In Forma Pauperis. The Complaint (Doc. 1 ) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in complianc e with this Order. 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 that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). (See document for full details). Signed by Judge David G Campbell on 5/8/14. (LAD)
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Braatz v. Arpaio et al Doc. 5 1 2 ASH WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kenneth Harvey Braatz, 10 11 12 No. CV 14-0689-PHX-DGC (JFM) Plaintiff, vs. ORDER Joseph M. Arpaio, et al., 13 Defendants. 14 15 Plaintiff Kenneth Harvey Braatz, who is confined in the Maricopa County 16 Durango Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 17 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss 18 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 credited to 24 Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 25 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 26 agency to collect and forward the fees according to the statutory formula. 27 .... 28 .... 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) (emphasis added). While Rule 8 10 does not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 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 17 content that allows the court to draw the reasonable inference that the defendant is liable 18 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 19 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 20 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 21 specific factual allegations may be consistent with a constitutional claim, a court must 22 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 23 at 681. 24 25 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 26 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 27 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 28 JDDL-K But as the United States Court of Appeals for the Ninth Circuit has instructed, Pardus, 551 U.S. 89, 94 (2007) (per curiam)). -2- 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 Here, Plaintiff fails to state a claim upon which relief can be granted in his Complaint, 5 but it appears that allegations of additional or other facts could cure this failure. 6 Accordingly, Plaintiff’s Complaint will be dismissed without prejudice and Plaintiff will 7 be given an opportunity to amend. 8 III. 9 10 Complaint In his Complaint, Plaintiff alleges three counts against Defendants Maricopa County Sheriff Joseph M. Arpaio and the Maricopa County Sheriff’s Office. 11 In Count One, Plaintiff alleges as follows: the “air conditioning runs constantly, 12 regardless of outside temperature”; the “air conditioning temperature is kept at 67 degrees 13 or lower”; the “staff refuses to provide extra blankets or clothes”; the air ventilation is 14 “poor/improper”; the duct work is “dirty/uncleaned”; there are “multiple inmates with 15 unknown illnesses”; he “can’t get to medical in [a] timely manner”; he is “uncomfortable 16 at all times”; and there is asbestos in the ceiling. As a result, Plaintiff asserts that he is 17 “sick or becoming sick,” that he has lost sleep, that he has contracted “cold or flu 18 viruses,” that he has headaches and bodyaches, and that he is unsure of the long-term 19 effect these alleged injuries will have on him. 20 21 per day”; he receives “only two meals a day”; there are “unknown objects in dinner”; the 22 portions are small and cold; food is lost during transportation; the fruit is rotten, the milk 23 is spoiled, the jelly is expired, and there is mold on the bread; and staff “changed [the] 24 menu from 2 milks to one milk plus one jelly – now one milk to zero jelly.” As a result, 25 Plaintiff asserts that he is malnourished, that he has lost weight, that he has headaches 26 and stomach aches, the he has become weak and feels fatigued, and that he suffers from 27 “P.T.S.S.” 28 JDDL-K In Count Two, Plaintiff alleges as follows: he is served “under 2,000 caloris [sic] .... -3- 1 In Count Three, Plaintiff alleges as follows: Durango is one of the “only jails in 2 the U.S. to house 4 men per cell”; the “four bunks in a cell are too close together” and 3 this creates a fire hazard; “64 inmates share two tolits [sic] and share 2 showers”; the 4 “drains are clogged” but “staff won’t bring maintenance”; the holding tanks are 5 overcrowded and the “number of inmates per tank [is] above maximum capacity”; there 6 are “not enough tables and chairs”; the “bunks, tables, and chairs are rusted”; there is 7 asbestos in the buildings; conditions are unsanitary; and there are “unknown illnesses 8 between inmates.” As a result, Plaintiff asserts that he has “bodily injury,” “staff [sic] 9 infections,” suffers from “P.T.S.S.,” and is unsure of the long-term effect these alleged 10 injuries will have on him. 11 12 As relief, Plaintiff seeks monetary damages. IV. Failure to State a Claim 13 To prevail in a 42 U.S.C. § 1983 claim, a plaintiff must show that (1) acts by the 14 defendants (2) under color of state law (3) deprived plaintiff of federal rights, privileges, 15 or immunities, and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 16 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game 17 Comm’n, 42 F3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he 18 suffered a specific injury as a result of the conduct of a particular defendant, and he must 19 allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. 20 Goode, 423 U.S. 362, 371-72, 377 (1976). 21 22 Plaintiff fails to state a claim against Defendant Arpaio in his Complaint. “A 23 plaintiff must allege facts, not simply conclusions, that show that an individual was 24 personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 25 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a 26 plaintiff must allege that the official acted as a result of a policy, practice, or custom. See 27 Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). Further, there is 28 JDDL-K A. no respondeat superior liability under § 1983, so a defendant’s position as the supervisor Maricopa County Sheriff Joseph M. Arpaio -4- 1 of someone else who allegedly violated a plaintiff’s constitutional rights does not make 2 the supervisor liable. Monell v. Dep’t of Soc. Svcs. Of New York, 436 U.S. 658, 691 3 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 4 individual capacity “is only liable for constitutional violations of his subordinates if the 5 supervisor participated in or directed the violations, or knew of the violations and failed 6 to act to prevent them.” Taylor, 880 F.2d at 1045. A supervisor in his 7 Plaintiff fails to allege any facts regarding Defendant Arpaio in his Complaint. 8 Plaintiff does not allege that Defendant Arpaio directly violated Plaintiff’s constitutional 9 rights. Nor does Plaintiff allege facts showing that Defendant Arpaio violated his 10 constitutional rights pursuant to a policy, practice, or custom, participated in or directed 11 any violations of Plaintiff’s rights, or knew of any violations of Plaintiff’s rights but 12 failed to act to prevent them. Defendant Arpaio will be dismissed from this proceeding. 13 B. 14 The Maricopa County Sheriff’s Office is not a proper defendant. In Arizona, the 15 responsibility for operating jails and caring for prisoners is placed by law upon the sheriff 16 of the county in which a jail is located. See Ariz. Rev. Stat. Ann. § 11-441(A)(5); Ariz. 17 Rev. Stat. Ann. § 31-101. A sheriff’s “office” is simply an administrative creation of the 18 sheriff to allow him to carry out his statutory duties. As such, a sheriff’s “office” is not a 19 “person” that can be sued pursuant to § 1983; only individual sheriff’s officers may be 20 sued pursuant to § 1983. Accordingly, Defendant Maricopa County Sheriff’s Office will 21 be dismissed from this proceeding. 22 V. Maricopa County Sheriff’s Office Leave to Amend 23 24 state a claim upon which relief may be granted. Within 30 days, however, Plaintiff may 25 submit a first amended complaint to cure the deficiencies outlined above. The Clerk of 26 Court will mail Plaintiff a court-approved form to use for filing a first amended 27 complaint. If Plaintiff fails to use the court-approved form, the Court may strike the 28 JDDL-K For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to amended complaint and dismiss this action without further notice to Plaintiff. -5- 1 Plaintiff must clearly designate on the face of the document that it is the “First 2 Amended Complaint.” The first amended complaint must be retyped or rewritten in its 3 entirety on the court-approved form and may not incorporate any part of the original 4 Complaint by reference. Plaintiff may include only one claim per count. 5 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 6 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 7 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 8 complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 9 in the original complaint and that was voluntarily dismissed or was dismissed without 10 prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa 11 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 12 Further, if Plaintiff files an amended complaint, Plaintiff must write short, plain 13 statements telling the Court: (1) the constitutional right Plaintiff believes was violated; 14 (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did 15 or failed to do; (4) how the action or inaction of the Defendant is connected to the 16 violation of Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered 17 because of 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 explain how the conduct of each named Defendant is connected to the 20 specific injury suffered by Plaintiff, the allegations against that Defendant will be 21 dismissed for failure to state a claim. Conclusory allegations that a Defendant or 22 group of Defendants has violated a constitutional right are not acceptable and will 23 be dismissed. 24 25 detainee’s claim for unconstitutional conditions of confinement arises from the 26 Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment 27 prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 28 JDDL-K Moreover, in amending his Complaint, Plaintiff should be aware that a pretrial n.16 (1979). Nevertheless, the same standards are applied, requiring proof that the -6- 1 defendant acted with deliberate indifference. See Frost v. Agnos, 152 F.3d 1124, 1128 2 (9th Cir. 1998) (citation omitted). 3 Deliberate indifference is a higher standard than negligence or lack of ordinary 4 due care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). To 5 state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, the 6 alleged constitutional deprivation must be, objectively, “sufficiently serious”; the 7 official’s act or omission must result in the denial of “the minimal civilized measure of 8 life’s necessities.” Id. at 834. Second, the prison official must have a “sufficiently 9 culpable state of mind,” i.e., he must act with deliberate indifference to inmate health or 10 safety. Id. In defining “deliberate indifference” in this context, the Supreme Court has 11 imposed a subjective test: “the official must both be aware of facts from which the 12 inference could be drawn that a substantial risk of serious harm exists, and he must also 13 draw the inference.” Id. at 837 (emphasis added). 14 To state a claim for unconstitutional conditions of confinement, a plaintiff must 15 allege that a defendant’s acts or omissions have deprived the inmate of “the minimal 16 civilized measure of life’s necessities” and that the defendant acted with deliberate 17 indifference to an excessive risk to inmate health or safety. Allen v. Sakai, 48 F.3d 1082, 18 1087 (9th Cir. 1994) (quoting Farmer, 511 U.S. at 834); see Estate of Ford v. Ramirez– 19 Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). Whether conditions of confinement rise 20 to the level of a constitutional violation may depend, in part, on the duration of an 21 inmate’s exposure to those conditions. Keenan v. Hall, 83 F.3d 1083, 1089, 1091 (9th 22 Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). “The circumstances, 23 nature, and duration of a deprivation of [ ] necessities must be considered in determining 24 whether a constitutional violation has occurred.” Hearns v. Terhune, 413 F.3d 1036, 25 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). 26 27 and Fourteenth Amendments. See Hoptowit v. Ray, 682 F.2d 1237, 1248-49 (9th Cir. 28 JDDL-K Allegations of overcrowding, without more, do not state a claim under the Eighth 1982). A plaintiff may, however, state a cognizable claim where he or she alleges that -7- 1 overcrowding results in some unconstitutional condition. See, e.g., Akao v. Shimoda, 832 2 F.2d 119, 120 (9th Cir. 1987) (reversing district court’s dismissal of claim that 3 overcrowding caused increased stress, tension and communicable disease among inmate 4 population); see also Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming 5 that an Eighth Amendment violation may occur as a result of overcrowded prison 6 conditions causing increased violence, tension and psychiatric problems). 7 With respect to meals, “[t]he Eighth [and Fourteenth] Amendment[s] require[] 8 only that prisoners receive food that is adequate to maintain health; it need not be tasty or 9 aesthetically pleasing.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); see 10 Frost, 152 F.3d at 1128 (applying Eighth Amendment standard to a pretrial detainee’s 11 Fourteenth Amendment claims regarding his conditions of confinement). “The fact that 12 the food occasionally contains foreign objects or sometimes is served cold, while 13 unpleasant, does not amount to a constitutional deprivation.” LeMaire, 12 F.3d at 1456 14 (citations omitted). An inmate may, however, state a claim where he alleges that he is 15 served meals with insufficient calories for long periods of time. Id. 16 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 17 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 18 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original 19 complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised 20 in the original complaint and that was voluntarily dismissed or was dismissed without 21 prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa 22 County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 23 VI. Warnings 24 25 If Plaintiff is released from confinement, Plaintiff must pay the unpaid balance of 26 the filing fee within 120 days of his release. Also, within 30 days of his release, he must 27 either (1) notify the Court that he intends to pay the balance or (2) show good cause, in 28 JDDL-K A. writing, why he cannot. Failure to comply may result in dismissal of this action. Release -8- 1 B. 2 If Plaintiff’s address changes, Plaintiff must file and serve a notice of a change of 3 address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff 4 must not include a motion for other relief with a notice of change of address. Failure to 5 comply may result in dismissal of this action. Address Changes 6 C. 7 Plaintiff must submit an additional copy of every filing for use by the Court. See 8 LRCiv 5.4. Failure to comply may result in the filing being stricken without further 9 notice to Plaintiff. Copies 10 D. 11 Because the Complaint has been dismissed for failure to state a claim, if Plaintiff 12 fails to file an amended complaint correcting the deficiencies identified in this Order, the 13 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). 14 Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil 15 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more 16 prior occasions, while incarcerated or detained in any facility, brought an action or appeal 17 in a court of the United States that was dismissed on the grounds that it is frivolous, 18 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 19 is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Possible “Strike” 20 E. 21 If Plaintiff fails to timely comply with every provision of this Order, including 22 these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 23 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any 24 order of the Court). 25 IT IS ORDERED: 26 (1) Possible Dismissal Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 27 28 JDDL-K -9- 1 (2) As required by the accompanying Order to the appropriate government 2 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial 3 filing fee. 4 (3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff 5 has 30 days from the date this Order is filed to file a first amended complaint in 6 compliance with this Order. 7 (4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of 8 Court must, without further notice, enter a judgment of dismissal of this action with 9 prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g). 10 11 12 (5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner. Dated this 8th day of May, 2014. 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 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