Opinion
CV 21-01465-PHX-JAT (CDB)
09-28-2021
Timothy J. Salazar, Plaintiff, v. David Shinn, et al., Defendants.
ORDER
James A. Teilborg, Senior United States District Judge
Plaintiff Timothy J. Salazar, who is confined in the Arizona State Prison Complex (ASPC)-Eyman, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to amend.
I. Application to Proceed In Forma Pauperis and Filing Fee
The Court will grant Plaintiff's Application to Proceed In Forma Pauperis. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $40.37. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula. . . . . . . . .
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a 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).
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Plaintiff's Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
III. Complaint
In his Complaint, Plaintiff sues Arizona Department of Corrections (ADC) Director David Shinn and Officers Pruitt, Uehling, and Boggs. Plaintiff asserts Eighth and Fourteenth Amendment violations with respect to his removal from the Security Threat Group (STG) Step Down Program. He seeks injunctive and monetary relief as well as his attorney's fees and court costs.
Plaintiff alleges the following:
On April 20, 2016, Plaintiff was brought to ASPC-Eyman Browning Unit's “VCU” for an investigation into a murder that had occurred at ASPC-Lewis. Plaintiff spent two years in VCU while the investigation continued. In February 2018, Plaintiff was reclassified and moved to Wing 4 at Browning Unit because of his Security Threat Group (STG) status. Plaintiff has had two major disciplinary violations in the past three years, and his last disciplinary violation was in 2018. Plaintiff has not participated in any “documented” STG or gang activity.
Plaintiff's inmate record indicates that from March 9, 2016 through May 2, 2020, he was classified as Maximum Custody Risk and Highest Internal Risk. See https://corrections.az.gov/public-resources/inmate-datasearch (search by Inmate Number 258054 in Active Inmates) (last accessed August 26, 2021). On May 2, 2020, he was reclassified to Maximum Custody and High Internal Risk. Id. On November 16, 2020, Plaintiff was reclassified to Maximum Custody and Moderate Internal Risk, which is his active classification. Id.
ADC's STG Step Down Program is set forth in Department Order (DO) 806.8. In January 2020, Plaintiff entered the STG Step-Down Program and was moved to Wing 2 at Browning Unit, Baker Cluster to continue participating in the program. On July 16, 2020, Plaintiff was removed from the STG Step-Down Program without any removal hearing or disciplinary infractions. Plaintiff was informed that he had been removed from the program because Plaintiff was “pending charges.”
On July 21, 2020, Plaintiff submitted an Inmate Informal Complaint Resolution stating that he had entered the Step Down Program on January 14, 2020; he had continuously participated in the program as required by DO 806; on July 16, 2020, while he was Phase 1 of the Step Down Program, he was verbally advised that that his Step-Down Program placement was being terminated; and he was removed from the program without receiving the “substantive and procedural requirements” set forth in Department Order 806.11. According to Plaintiff, the substantive and procedural requirements included written notification that listed the exact reasons for termination and removal from the program; a hearing, at which Plaintiff had the right to be present; and the right to appeal an adverse decision. Plaintiff requested immediate reinstatement into the Step-Down Program, noting that the “time frames” set forth in DO 806.11 had already been violated, and an untimely hearing would “no longer cure the due process violations.”
Following his removal from the Step-Down Program, Plaintiff apparently sent an Inmate Letter, although he does not state to whom he sent the Inmate Letter or what he wrote in the letter. On July 22, 2020, Plaintiff received a response from Defendant Uehling, which stated, “I have reviewed your inmate letter, you were informed wrong, it's not your past charges or convictions that got you removed. Although what would get you removed would be charges one ‘might' be facing in the near future, once the Department is notified of charges or cases that will be going to court that information is passed to the Administration.” Defendant Uehling wrote that the Administration could remove a prisoner from the Step-Down Program “per 806.11.1.1, ” which apparently was the reason Plaintiff was removed from the program.
On August 12, 2020, Plaintiff received a response to the Informal Complaint. The response noted that according to DO 806.8, to be eligible to participate in the Step-Down Program, a validated STG member must successfully complete a 24-month period in which he did not participate in any documented STG/gang activity and had no documented incidents of various disciplinary violations. The response also stated that prisoners could be removed from the program upon confirmation that the prisoner had violated any of the criteria outlined above, and no further prisoner action or hearing was required. The response further noted that it appeared Plaintiff had been removed from the program because he had failed to complete the program within the required timeframe.
On August 14, 2020, Plaintiff submitted an Inmate Grievance. In September 2020, Plaintiff received a response to the Inmate Grievance, which stated that Plaintiff had been removed from the Step-Down Program because an ongoing investigation had revealed that he had violated the criteria set forth in DO 806.
On September 7, 2020, Plaintiff submitted an Inmate Grievance Appeal to Defendant Shinn, stating “absolutely nothing” in DO 806 justified his removal from the Step-Down Program. Plaintiff wrote that he had spoken to the Special Security Unit (SSU) about this issue, and they had advised him that SSU had nothing to do with his removal from the program; rather, his removal was based on an incident that had occurred approximately five years earlier, when he was on a general population yard, and before he had been validated as an STG member. Plaintiff stated that he had been told that he was removed from the Step-Down Program because “they will be bringing charges stemming from that incident.” Plaintiff wrote that he had already completed all the sanctions incurred in the prison disciplinary system, including two years in an enhanced security unit, two years in STG maximum custody, and compliance with “all levels” of the STG policy. Plaintiff did not receive a response to the Inmate Grievance Appeal.
On April 4, 2021, DO 806 was revised. On May 19, 2021, Correctional Officer (CO) III Harper conducted a maximum custody review classification hearing. CO III Harper determined that Plaintiff's classification score was 45/33; his internal risk score was close/3; he was a validated member of the Mexican Mafia, an STG; he had two major disciplinary violations in the previous three years, the last of which was in 2018; and he had completed all available programming. CO III Harper noted that, “per SSU, ” Plaintiff was to remain in maximum custody due to STG activity in the past 24 months. On May 26, 2021, Plaintiff sent Lieutenant Quintero an Inmate Letter asking for clarification regarding his continued placement in maximum custody. Plaintiff stated that he met all the requirements to be moved to a lower custody yard, and he had not participated in any STG activity in the previous 24 months. On May 28, 2021, Plaintiff received a response from SSU Officer Madrigal, which stated, “you are denied due to pending charges, ” and any questions regarding the charges would “have to go through STG.”
On May 31, 2021, Plaintiff filed an Inmate Informal Complaint Resolution, stating that on May 21, 2021, he had been reclassified to the “appropriate” custody level-close custody-but CO III Harper nevertheless recommended that Plaintiff continue in maximum custody “per SSU.” Plaintiff wrote that pursuant to DO 801.10.11, ADC's Central Office was the “final approval” for removal from maximum custody, and if the Central Office denied the recommendation for removal, “the unit will be contacted to initiate the due process.” Plaintiff stated that under DO 806.5.3, to become eligible for custody reductions and housing changes, a validated STG member or terrorist classified as maximum custody must complete one of four conditions. Plaintiff wrote that he was in Step 3 and Phase 3, his classification score was 45/33, and he had not been involved in any violent or disruptive behavior or any gang/STG activity.
On June 10, 2021, Plaintiff sent an Inmate Letter to Lieutenant Quintero asking to whom Plaintiff needed to speak to resolve the issue. On June 15, 2021, Plaintiff received a response from Lieutenant Quintero, which said, “you are pending charges [and] according to the STG unit, you will not be eligible for reduction until charges are done, this was the reason for your removal from Step-Down.” Sometime thereafter, Plaintiff's May 31 Informal Complaint was returned unprocessed.
On June 14, 2021, Plaintiff submitted an Inmate Grievance, stating that he was grieving the inmate classification policy as a violation of his due process rights. Plaintiff wrote that he had not been charged with a crime in the last five years, he had not been involved in disruptive behavior and/or gang activity, and he had continued to reduce his classification scores and complete programming. Plaintiff wrote that he had not been present for his reclassification and could not challenge “any of these allegations.” It appears the Inmate Grievance was returned unprocessed.
On June 30, 2021, Plaintiff sent a letter to Defendant Shinn, stating that he met all the criteria for reclassification to close custody and asking Shinn to transfer him to a close custody general population unit. On July 5, 2021, Plaintiff submitted an Inmate Grievance Appeal, stating that he was appealing the failure to process his Informal Complaint and Inmate Grievance. On July 20, 2021, Plaintiff received a response to the Inmate Grievance Appeal, stating that it was unprocessed. The same day, Plaintiff filed a motion in Maricopa County Superior Court requesting disposition of any pending charges.
On July 23, 2021, Plaintiff sent an Inmate Letter to Defendants Pruitt, Uehling, and Boggs, stating that he had been removed from the Step-Down Program because he was “pending charges, ” and the same reason was being used to deny him the opportunity to reduce his custody level. Plaintiff asked the STG Unit to “drop the pending charges/STG activity pretext and let [him] reduce [his] classification level to” close custody. As of August 18, 2021, Plaintiff had not received a response to the Inmate Letter.
On July 23, 2021, Plaintiff received an Inmate Letter Response from Defendant Shinn's Office. Regional Operation Administrator Stacey Crabtree responded on behalf of Defendant Shinn and stated that it had been determined that Plaintiff no longer met the criteria for the Step-Down Program and that based on his pending charges, he was appropriately classified in maximum custody.
On August 2, 2021, Plaintiff received a letter from the Maricopa County Superior Court Clerk's Office stating that the Clerk could not process his motion without a valid case number. On August 6, 2021, Plaintiff received a letter from the Maricopa County Attorney's Office, stating the Office had not located any pending cases or warrants “involving this person” in Maricopa County Superior Court.
Plaintiff alleges that Defendants Pruitt, Uehling, and Boggs are responsible for enforcing “these policies and procedures, ” and it is “ob[]vious” that they are denying Plaintiff the opportunity to reclassify out of solitary confinement, where Plaintiff has remained for more than five years. . . . .
IV. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
A. Defendant Shinn
There is no respondeat superior liability under § 1983, and therefore, a defendant's position as the supervisor of persons who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
Plaintiff has not alleged that Defendant Shinn personally participated in a deprivation of Plaintiff's constitutional rights, was aware of a deprivation and failed to act, or formed policies that resulted in Plaintiff's injuries. Plaintiff alleges that in September 2020, he submitted an Inmate Grievance Appeal to Defendant Shinn regarding his removal from the Step-Down Program, but he did not receive a response to the Appeal. Plaintiff also alleges that on June 30, 2021, he sent a letter to Defendant Shinn, stating that he met all the criteria for reclassification to close custody and asking Shinn to transfer him to a close custody general population unit. Stacey Crabtree responded to Plaintiff's letter on behalf of Defendant Shinn; the response merely reiterated that it had been determined that Plaintiff no longer met the criteria for the Step-Down Program and that based on his pending charges, he was appropriately classified in maximum custody. These allegations do not support a conclusion that Defendant Shinn in any way was personally involved in the decision to remove Plaintiff from the Step-Down Program or to continue his placement in maximum custody. The Court will dismiss without prejudice Defendant Shinn.
B. Defendants Pruitt, Uehling, and Boggs
Plaintiff's only allegation against Defendants Pruitt and Boggs is that on July 23, 2021, Plaintiff sent an Inmate Letter to Defendants Pruitt, Uehling, and Boggs, stating that he had been removed from the Step-Down Program because he was “pending charges, ” and the same reason was being used to deny him the opportunity to reduce his custody level. Plaintiff did not receive a response to the Inmate Letter. These allegations are insufficient to support a conclusion that any conduct by Defendants Pruitt and Boggs resulted in any injury to Plaintiff.
With respect to Defendant Uehling, Plaintiff's only other allegation is that in July 2020, Uehling wrote in a response to Plaintiff's Inmate Letter that Plaintiff had been misinformed regarding the reason for his removal from the Step-Down Program. This allegation is insufficient to support a conclusion that Defendant Uehling in any way personally participated in the decision to remove Plaintiff from the Step-Down Program. Thus, the Court will dismiss Defendants Pruitt, Uehling, and Boggs.
C. Due Process
Plaintiff's claims regarding his removal from the Step-Down Program and his continued placement in maximum custody arise, if all, under the Due Process Clause of the Fourteenth Amendment. In analyzing a due process claim, the Court must first decide whether Plaintiff was entitled to any process, and if so, whether he was denied any constitutionally required procedural safeguard. Liberty interests that entitle an inmate to due process are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations omitted).
The opportunity to participate in the Step-Down Program did not create a liberty interest that entitled Plaintiff to due process. Rather, the Step-Down Program is voluntarily administered by ADC and allows STG prisoners to be removed from maximum custody by meeting certain requirements. See Johnson v. Ryan, 2020 WL 736352 (D. Ariz. Feb. 13, 2020). As such, as long as Plaintiff was afforded the process he was due for his placement in maximum custody, the Court cannot find that he is entitled to greater protections simply because ADC voluntarily offers a program that would create another way for Plaintiff to be removed from maximum custody. See id.; Sandin, 515 U.S. 481-84 (a court determines whether a liberty interest is created by a state prison regulation or policy by focusing on the nature of the deprivation it effects); James v. Rowlands, 606 F.3d 646, 657 (9th Cir. 2010) (“[W]hen a state establishes procedures to protect a liberty interest that arises from the Constitution itself[, ] ... the state does not thereby create a new constitutional right to those procedures themselves, and non-compliance with those procedures does not necessarily violate the Due Process Clause.... Rather, the Due Process Clause itself determines what process is due before the state may deprive someone of a protected liberty interest.”). Thus, Plaintiff cannot state a due process claim based on his removal from the Step-Down Program.
With respect to his placement in maximum custody, the Court notes that Plaintiff does not allege that his original placement in maximum custody in 2016 did not comport with due process requirements. See Wilkinson v. Austin, 545 U.S. 209 (2005) (notice and opportunity to be heard, involving informal, non-adversarial procedures were adequate safeguards for placement in maximum custody). In any event, Plaintiff's validation as an STG member and his placement in maximum custody was an administrative decision, not a disciplinary decision. Cf. Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997) (noting that “California's policy of assigning suspected gang affiliates to [segregated housing] is not a disciplinary measure, but an administrative strategy designed to preserve order in the prison and protect the safety of all inmates.”) Moreover, Plaintiff has no constitutional right to a particular security classification. See Neal v. Shimoda, 131 F.3d 818, 828 (9th Cir. 1997) (citing Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (no liberty interest protected by the Due Process Clause is implicated in a prison's reclassification and transfer decisions).
Plaintiff's due process claim regarding his continued placement in maximum custody also fails. First, as noted above, Plaintiff has no constitutional right to a particular security classification. See Id. Second, Plaintiff has not alleged facts to support a conclusion that he did not receive due process with respect to his continued maximum custody placement. Plaintiff wrote in his June 2021 Inmate Grievance that he had not been present for his reclassification and could not challenge “any of these allegations.” However, Plaintiff has not alleged any facts concerning the procedures associated with the May 2021 reclassification. Furthermore, the Court has previously concluded that ADC's periodic review of maximum custody placement satisfies due process. Hernandez v. Schriro, 2011 WL 2910710, at *8-9 (D. Ariz. 2011); see also Mendez v. Ryan, 2013 WL 6408389, at *8 (D. Ariz. 2013); Standley v. Ryan, 2012 WL 3288728, at *9-10 (D. Ariz. 2012); Faulkner v. Ryan, 2012 WL 407452, at *9-10 (D. Ariz. 2012). Nothing in Plaintiff's allegations compels a different conclusion.
In sum, Plaintiff has failed to state a claim in the Complaint, and it will be dismissed.
V. Leave to Amend
Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the “First Amended Complaint.” The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
VI. Warnings
A. Release
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
C. Possible “Strike”
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
D. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiffs Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $40.37.
(3) 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 compliance with this Order.
(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 that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot.
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
Instructions for a Prisoner Filing a Civil Rights Complaint in the United States District Court for the District of Arizona
1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated persons prepare a complaint seeking relief for a violation of their federal civil rights. These complaints typically concern, but are not limited to, conditions of confinement. This form should not be used to challenge your conviction or sentence. If you want to challenge a state conviction or sentence, you should file a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4 provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
4. The Filing and Administrative Fees. The total fees for this action are $402.00 ($350.00 filing fee plus $52.00 administrative fee). If you are unable to immediately pay the fees, you may request leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. § 1915” for additional instructions.
5. Original and Judge's Copy. You must send an original plus one copy of your complaint and of any other documents submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing.
6. Where to File. You should file your complaint in the division where you were confined when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson Division. Mail the original and one copy of the complaint with the $402 filing and administrative fees or the application to proceed in forma pauperis to:
Phoenix & Prescott Divisions:
OR Tucson Division:
U.S. District Court Clerk
U.S. District Court Clerk
U.S. Courthouse, Suite 130
U.S. Courthouse, Suite 1500
401 West Washington Street, SPC 10
405 West Congress Street
Phoenix, Arizona 85003-2119
Tucson, Arizona 85701-5010
7. Change of Address. You must immediately notify the Court and the defendants in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case.
8. Certificate of Service. You must furnish the defendants with a copy of any document you submit to the Court (except the initial complaint and application to proceed in forma pauperis). Each original document (except the initial complaint and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing.
A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this ___________ (month, day, year) to:
Name: ___________
Address: ___________
___________ Attorney for Defendant(s)
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 within 21 days after serving it or within 21 days after any defendant has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, you must file a motion for leave to amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an amended complaint may not incorporate by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendants not included in the amended complaint are considered dismissed. All amended complaints are subject to screening under the Prison Litigation Reform Act; screening your amendment will take additional processing time.
10. Exhibits. You should not submit exhibits with the complaint or amended complaint. Instead, the relevant information should be paraphrased. You should keep the exhibits to use to support or oppose a motion to dismiss, a motion for summary judgment, or at trial.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion. 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, ” “2-B, ” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS:
You must identify any other lawsuit you have filed in either state or federal court while you were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. If you have filed more than three lawsuits, you must provide the necessary information about each additional lawsuit on a separate page. Label the page(s) as “2-A, ” “2-B, ” etc., at the bottom of the page and insert the additional page(s) immediately behind page 2.
Part C. CAUSE OF ACTION:
You must identify what rights each defendant violated. The form provides space to allege three separate counts (one violation per count). If you are alleging more than three counts, you must provide the necessary information about each additional count on a separate page. Number the additional pages “5-A, ” “5-B, ” etc., and insert them immediately behind page 5. Remember that you are limited to a total of fifteen additional pages.
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.