Opinion
No. CV-05-68-PHX-DGC (JRI).
April 28, 2006
ORDER
On January 6, 2005, Michael P. McGuire, Jr. (Plaintiff), presently confined in the Maricopa County Towers Jail in Phoenix, Arizona (Towers Jail), filed with the Clerk of the Court a pro se "Civil Rights Complaint By A Prisoner" (Document #1) (Complaint) pursuant to 42 U.S.C. § 1983. Plaintiff did not pay the one hundred and fifty dollar ($150.00) filing fee, but filed a certified "Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" (Application To Proceed) and an "Inmate Account Statement" (Account Statement) with the Complaint.
When Plaintiff filed the Complaint, he was confined in the Maricopa County Madison Jail in Phoenix, Arizona (Madison Jail).
By Order filed June 9, 2005 (Document #5), Plaintiff's Application to Proceed was granted and Plaintiff was obligated to pay the one hundred and fifty dollar ($150.00) statutory filing fee for this action. Based on the average monthly deposits in Plaintiff's account for three (3) months preceding the filing of the Complaint, an initial partial filing fee of nine cents ($0.09) was assessed.
The Order also dismissed Defendants Joe Arpaio and Jail Commander at the Estrella Jail from this action without prejudice, and dismissed Plaintiff's Complaint without prejudice, with leave to amend. Plaintiff was given thirty (30) days from the filing date of the Order to file an amended complaint.
By separate Order filed June 9, 2005 (Document #4), the Maricopa County Sheriff or his designee was required to send to the Clerk of the Court the initial partial filing fee, and thereafter, payments from Plaintiff's trust account each time the amount in the account exceeds ten dollars ($10.00), until the statutory filing fee of one hundred and fifty dollars ($150.00) is paid in full.
STATUTORY SCREENING OF PRISONER COMPLAINTS
The Court is required to screen complaints or amended complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the Plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
The Court also must dismiss a complaint or portion thereof if Plaintiff fails to exhaust any administrative remedy available to him. 42 U.S.C. § 1997e(a).
AMENDED COMPLAINT AND SCREENING ORDER
On June 30, 2005, Plaintiff filed his "First Amended Complaint" (Document #6) (Amended Complaint). Plaintiff should take notice that all causes of action alleged in an original complaint which are not alleged in an amended complaint are waived. Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Accordingly, the Court will consider only those claims specifically asserted in Plaintiff's Amended Complaint.
Plaintiff alleges two (2) grounds in his Amended Complaint. (Amended Complaint at 4-5). Named as Defendant in the Amended Complaint is Joseph M. Arpaio, Maricopa County Sheriff. (Amended Complaint at 1-2). Plaintiff seeks compensatory and punitive monetary damages, court costs and filing fees, and interest on any judgment. (Amended Complaint at 7).
In Count I of the Amended Complaint, Plaintiff claims that his Fourth, Eighth, and Fourteenth Amendment rights were violated when he was placed in the general population at the Maricopa County Estrella Jail (Estrella Jail), despite his request at screening not to be placed around anyone who could covertly be known as a "skinhead" because his life would be in danger. (Amended Complaint at 4). Plaintiff claims that he was physically assaulted by two "skinhead members" at the Estrella Jail and lost two teeth in the attack, and that he now has headaches, trouble eating and sleeping due to neck and back injuries, and an overwhelming paranoia and anxiety of public places. Id.
In Count II of the Amended Complaint, Plaintiff claims that his Fourth, Eighth, and Fourteenth Amendment rights were violated when he was not given any medication, or scheduled for a follow-up visit to a doctor or psychiatrist, after he was initially seen by a nurse for his injuries from the beating by the "skinheads." (Complaint at 5). Plaintiff further claims that when he was seen by a dentist almost seven (7) months later, he was only given six (6) Tylenol pills for pain when the dentist pulled six (6) of this teeth at once. Id.
Liberally construed, these allegations adequately state a claim for relief. Accordingly, Defendant Joseph M. Arpaio will be required to file an answer to the Complaint.
RULE 41(b) WARNING
Plaintiff is warned that if he fails to timely comply with every provision of this Order, or any order of the Court entered in this matter, the action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may dismiss action for failure to comply with any order of the court),cert. denied. 506 U.S. 915 (1992).
IT IS THEREFORE ORDERED:
(1) That the Clerk of the Court is DIRECTED to send Plaintiff a service packet including a copy of this Order, a copy of the Amended Complaint (Document #6), and both a summons and request for waiver forms for Defendant Joseph Arpaio;
(2) That Plaintiff SHALL COMPLETE AND RETURN the service packet to the Clerk of the Court within twenty (20) days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order;
(3) That if Plaintiff does NOT either obtain a waiver of service of summons or complete service of the summons and Amended Complaint on Defendant Joseph M. Arpaio within one hundred and twenty (120) days of the date the Complaint was filed, or within sixty (60) days of the filing of this Order, whichever is later, the ACTION MAY BE DISMISSED as to Defendant pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Rule 16.2(b)(2)(B)(i) of the Local Rules of Civil Procedure (LRCiv);
(4) That the United States Marshal SHALL RETAIN the summons, a copy of the Amended Complaint, and a copy of this Order for future use;
(5) That the United States Marshal SHALL NOTIFY Defendant Joseph M. Arpaio of the commencement of this action and REQUEST WAIVER OF SERVICE pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendant shall include a copy of this Order. The Marshal shall file waivers of service of the summons or requests for waivers that are returned as undeliverable as soon as they are received. If a waiver of service of summons is not returned by Defendant to the Marshall within thirty (30) days from the date the request for waiver was sent by the Marshal, the Marshal shall:
(a) Personally serve copies of the summons, Amended Complaint (Document #6), and this Order upon the Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure;
(b) Within ten (10) days after personal service is effected, file the return of service for the Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon the Defendant. The costs of service shall be enumerated on the return of service form (USM-285) and shall include the costs incurred by the Marshal for photocopying additional copies of the summons, Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court;
(6) That if Defendant agrees to waive service of the summons and Amended Complaint, he SHALL RETURN the signed waiver form to the United States Marshal, not to Plaintiff;
(7) That Defendant SHALL ANSWER the Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure;
(8) That a clear, legible copy of every pleading or other document filed SHALL ACCOMPANY each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Plaintiff;
(9) That at all times during the pendency of this action, Plaintiff SHALL IMMEDIATELY ADVISE the Court and the United States Marshal of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date, except that if Plaintiff has been released from custody, the notice should so indicate. The notice shall not include any motions for any other relief. Plaintiff shall serve a copy of the notice on all opposing parties. Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b);
(10) That this matter is referred to Magistrate Judge Jay R. Irwin pursuant to LRCiv 72.1 and 72.2 for further proceedings.