Opinion
No. CV 09-0957-PHX-MHM (MHB).
October 2, 2009
ORDER
Plaintiff David Torrez, a California inmate who is confined in the La Palma Correctional Center, a Corrections Corporation of America (CCA) facility in Eloy, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, which the Court dismissed with leave to amend. (Doc.# 1, 4.) Plaintiff has filed a First Amended Complaint. (Doc.# 8.) Plaintiff has also filed a motion for service of the First Amended Complaint by the U.S. Marshal. (Doc.# 9.) The Court will dismiss the First Amended Complaint with leave to amend and deny the motion for service.
"Doc.#" refers to the docket number of filings in this case.
I. 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, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Further, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quotingBell 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 1950. 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 1951.
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). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n. 13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's First Amended Complaint will be dismissed for failure to state a claim, with leave to amend because the First Amended Complaint may possibly be saved by amendment.
II. First Amended Complaint
Plaintiff alleges three counts for violation of privacy, threats to safety, and constitutionally deficient medical care. He sues CCA and the following La Palma Correctional Center (LPCC) employees: Health Service Administrator Burnett; Unit Manager Meier; Security Lieutenant Johnson; an Unknown Male Staff member; and an Unknown Medical Staff, who is a nurse practitioner. He seeks injunctive, compensatory, and punitive relief.
Plaintiff's claims are based on the following allegations: Plaintiff was tested for tuberculosis by the California Department of Corrections and Rehabilitation (CDCR) in April 2008. In July 2008, Plaintiff was transferred to the Florence Correctional Center, a CCA facility in Florence, Arizona. On Saturday, September 6, 2008, Plaintiff began to experience severe lower abdominal pain and to urinate blood. Plaintiff was examined by medical staff who concluded that his condition was not an emergency. Plaintiff was returned to his cell and told to submit a health needs request so that he could be scheduled to be seen during the week. On Monday, September 8, Plaintiff was examined by a doctor who diagnosed Plaintiff with a bladder infection. The physician told Plaintiff that the infection and pain should subside within a few days, but to contact him if it did not. Plaintiff alleges that CCA has a policy of delaying in providing medical care in non-emergency situations until regular clinic hours. He contends that the delay in seeing a doctor pursuant to that policy caused him to suffer unnecessary pain.
On September 13, 2008, Plaintiff was transferred to LPCC. On arrival at LPCC, Plaintiff and about 30 other inmates were taken to the medical department, where clinic staff gave them an Intake Teaching Packet (ITP) and which they were to acknowledge reading with their signature. A few seconds after receiving the ITP, Defendants Meier, Johnson, and the Unknown Male Staff entered the clinic and took a "security stance" at the door: legs apart and arms crossed. Meier announced that any inmate who refused a tuberculosis test would be strapped down and forced to be tested because that was the "CCA way." (Doc.# 8 at 3A.) Meier also said that it was CCA policy to test an inmate for tuberculosis every time an inmate was relocated to a new facility. (Id.) Several inmates objected on the basis that they had already recently been tested by CDCR or that they took medications that caused a false positive, both of which would be in their medical files. The discussion between inmates and staff became more acrimonious. One inmate asserted that the ITP provided that they had the right to refuse medical treatment, which he construed to include tuberculosis testing. Meier told the inmates that anyone who refused the test would be strapped down, tested, and then sent to the "hole." (Id. at 3B.) Johnson told the inmates that the test posed no risk to the inmates and that there would be no exceptions to the test. The Unknown Male Staff added that additional security would be called if necessary to complete testing but that the inmates would regret it if additional security was called. At this juncture, the inmates were angry and Plaintiff feared they would riot and that he would be unable to protect himself, apparently due to his bladder infection. Meier reiterated that everyone had to be tested and threatened to call in the Special Operation Response Team (SORT), if necessary. Meier and the other officers retreated into the clinic and an inmate kicked a chair towards the door.
A few minutes later, an officer came out of the clinic and told Plaintiff that he was to go first. Plaintiff objected on the grounds that he had been unable to read the ITP because he did not have his eyeglasses. The officer required Plaintiff to go in. After taking his temperature and blood pressure, Plaintiff submitted to the PPD test over his express objections, while Meier and Johnson observed.
III. Failure to State a Claim
To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid constitutional claim, 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). Further, negligence by a defendant acting under color of state law is not sufficient to state a claim under § 1983. Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (plaintiff must plead more than mere negligence in a § 1983 action); see Alfrey v. United States, 276 F.3d 557, 568 (9th Cir. 2002).
A. Privacy
In Count I, Plaintiff alleges that CCA maintained a policy subjecting inmates to tuberculosis testing whenever they are transferred to a new facility and that Plaintiff was subjected to such testing, when unnecessary, over his objections. As a result, Plaintiff suffered a needle prick and contends that he suffered from emotional distress and body aches. Plaintiff alleges that Meier and Johnson remained present over Plaintiff's objection as Plaintiff disclosed confidential medical information with medical staff, which he contends violated his privacy rights. Plaintiff alleges that Unknown Medical Staff administered the tuberculosis test without Plaintiff's consent and despite his express objections that the test violated CCA, CDCR, and ITP policies. Plaintiff alleges that the administration of the test caused him pain when the needle was inserted and stress causing neck and back pain and insomnia.
"The applicability of the Fourth Amendment turns on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been "invaded by government action." Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quotation omitted); see also Bell v. Wolfish, 441 U.S. 520, 557 (1979). "A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order."Hudson, 468 U.S. at 527-28. Furthermore, any restriction on an inmate's privacy interests is justified to the extent that it is "reasonably related to legitimate penological interests." See Turner v. Safley, 482 U.S. 78, 89 (1987). Nevertheless, inmates have a "right to bodily privacy." Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir. 1992); see Hydrick v. Hunter, 500 F.3d 978, 1000 (9th Cir. 2007). The state, however, may restrict this right "to the extent necessary to further the correctional system's legitimate goals and policies." Grummett v. Rushen, 779 F.2d 491, 493 (9th Cir. 1985). Preventing disease and protecting the health of inmates are legitimate penological goals. See, e.g., Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989). Further, tuberculosis is recognized as a highly contagious disease in prison populations.Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993). The plaintiff "'bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains.'" Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (citations omitted).
Plaintiff fails to allege any facts to support that CCA maintained a policy that resulted in a violation of Plaintiff's privacy rights. Indeed, he states that Meier and Johnson remained present during his interview by medical staff in contravention of CCA policy and contracts with the CDCR. Plaintiff also fails to state a claim against Meier or Johnson based on their presence while he discussed medical information prior to administration of the tuberculosis test. Plaintiff fails to allege facts to support that Meier and Johnson were present for any reasons that were not reasonably related to legitimate penological interests: to ensure that Plaintiff complied with testing. Plaintiff otherwise fails to allege facts to support that he had an expectation of privacy in the administration of a tuberculosis test. Plaintiff also fails to allege facts to support that the Unknown Medical Staff who administered the tuberculosis test in any way violated Plaintiff's reasonable expectations of privacy in connection with the tuberculosis test. For these reasons, Plaintiff fails to state a claim for violation of his privacy rights in Count I.
B. Threats to Safety
In Count II, Plaintiff alleges a violation of the Eighth Amendment against Defendants Meier, Johnson, and Unknown Male Staff because they exposed Plaintiff to "substantial risk of harm with indifference to the risk by instigating a riot using unwarranted combative language" towards the inmates in the clinic waiting room. Plaintiff contends that when the inmates became agitated by the statements of Defendants Meier, Johnson, and Unknown Male Staff, Defendants threatened to call the Special Operation Response Team to control the inmates with pepper spray and physical restraint.
The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates, and officials have a duty to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The inmate must show that the deprivation is "objectively, sufficiently serious," and that the prison officials had a "sufficiently culpable state of mind," acting with deliberate indifference. Hearns, 413 F.3d at 1040 (quoting Farmer, 511 U.S. at 834). To demonstrate deliberate indifference, a prisoner must show that the official knew of and disregarded an excessive risk to inmate safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and the official must also draw the inference. Farmer, 511 U.S. at 837.
Plaintiff fails to allege facts to support that Defendants Meier, Johnson, or Unknown Male Staff knew of, but disregarded, a substantial threat to Plaintiff's safety. To the contrary, Plaintiff alleges that, when Defendants saw that the inmates were becoming agitated, Defendants took steps to control the inmates by informing them that they would call the SORT to control the inmates with pepper spray and physical restraints. No riot occurred. Finally, "[v]erbal harassment or abuse . . . is not sufficient to state a constitutional deprivation[.]'" Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (quoting Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)). For these reasons, Plaintiff fails to state a claim for a threat to his safety in Count II.
D. Medical Care
In Count III, Plaintiff alleges unconstitutionally inadequate medical care against CCA, Burnett, and Unknown Medical Staff. Not every claim by a prisoner that he has received inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must allege facts to support that a defendant acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference. Farmer, 511 U.S. at 837. Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference," "negligence," or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105-06.
Plaintiff alleges that CCA denied him constitutionally adequate medical treatment pursuant to its policy to delay non-emergency medical care until regular weekday appointments. He alleges that he suffered unnecessary pain due to the delay between Saturday, September 6, 2008, and Monday, September 8. Plaintiff acknowledges that he was evaluated by medical staff the day he began to suffer symptoms and that he was thereafter seen the following Monday. Plaintiff further states that the examining physician told Plaintiff that his bladder infection and pain should subside after a few days. Plaintiff does not allege that any treatment was provided by the physician or that the brief delay in anyway prolonged his pain. Plaintiff thus fails to allege an actual injury resulting from the delay in being examined by a physician under CCA's policy and therefore fails to state a claim against it.
Plaintiff sues Burnett based on his supervisory role over the LPCC medical department. "A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of a someone who allegedly violated a plaintiff's constitutional rights does not make him liable. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978);Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his individual capacity, "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045. Plaintiff fails to assert any basis for liability against Burnett other than respondeat superior. Plaintiff has not alleged that Burnett enacted or enforced a policy, custom, or practice that resulted in the denial of Plaintiff's constitutional rights. Further, Plaintiff has not alleged that Burnett directly violated his constitutional rights or that he was aware that Plaintiff's rights were being violated but failed to act. Thus, Plaintiff fails to state a claim against Burnett in Count III.
Plaintiff contends that Defendant Unknown Medical Staff forced him to submit to the tuberculosis test without his consent by ordering Plaintiff to extend his arm after Plaintiff objected to the test. Plaintiff has failed to allege facts to support that he was subjected to a wanton infliction of pain or that Defendant Unknown Medical Staff knew of and disregarded an excessive risk to Plaintiff's health.
For the reasons discussed, Plaintiff fails to state a claim for denial of constitutionally adequate medical care. Count III will be dismissed.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second amended complaint and dismiss this action without further notice to Plaintiff.
A second amended complaint supersedes the original Complaint and First Amended 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 and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or First Amended Complaint is waived if it is not raised in a second amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
V. Motion to Order Service of the First Amended Complaint by U.S. Marshal
Plaintiff has filed a motion to order service by the U.S. Marshal. (Doc.# 9.) As discussed above, Plaintiff fails to state a claim against any Defendant in his First Amended Complaint. Therefore, service is premature and Plaintiff's motion will be denied. When and if Plaintiff files a second amended complaint that states a claim, the Court will order service.
VI. Warnings
A. Release
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. 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. Copies
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in this Order, the dismissal will 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).
E. 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) Plaintiff's motion to order service by the U.S. Marshal is denied. (Doc.# 9.)
(2) Plaintiff's First Amended Complaint (doc.# 8) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.
(3) If Plaintiff fails to file a second 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 counts as a "strike" under 28 U.S.C. § 1915(g).
(4) 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(a) provides that complaints by incarcerated persons must be filed on the court-approved form. The form must be typed or neatly handwritten. The form must be completely filled in to the extent applicable. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
4. The Filing Fee. The filing fee for this action is $350.00. If you are unable to immediately pay the filing fee, you may request leave to proceed in forma pauperis. Please review the "Information for Prisoners Seeking Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant to 28 U.S.C. § 1915" for additional instructions.
5. Original and Judge's Copy. You must send an original plus one copy of your complaint and of any other documents submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten.
6. Where to File. You should file your complaint in the division where you were confined when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the Tucson Division. Mail the original and one copy of the complaint with the $350 filing fee or the application to proceed in forma pauperis to: 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. A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this _______________________ (month, day, year) to: Name: _____________________________ Address: ____________________________ Attorney for Defendant(s) _____________________________________ (Signature) 9. Amended Complaint. If you need to change any of the information in the initial complaint, you must file an amended complaint. The amended complaint must be written on the 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.
12. Completing the Civil Rights Complaint Form.
HEADING:
Part A. JURISDICTION:
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.
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.
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. (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 CASE NO. (1) (2) CIVIL RIGHTS COMPLAINT (3) BY A PRISONER (4) [] Check if there are additional Defendants and attach page 1-A listing them. A. JURISDICTION 28 U.S.C. § 1343 42 U.S.C. § 1983 28 U.S.C. § 1331Bivens v. Six Unknown Federal Narcotics Agents 403 U.S. 388 B. DEFENDANTS If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page. C. PREVIOUS LAWSUITS If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page. D. CAUSE OF ACTION COUNT I Count I. only one. Supporting Facts. each Defendant Injury. Administrative Remedies: COUNT II Count II. only one. Supporting Facts. each Defendant Injury. Administrative Remedies. COUNT III Count III. only one. Supporting Facts. each Defendant Injury. Administrative Remedies. If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page. E. REQUEST FOR RELIEF
__________________________________________________________________ Name and Prisoner/Booking Number __________________________________________________________________ Place of Confinement __________________________________________________________________ Mailing Address __________________________________________________________________ City, State, Zip Code ) _____________________________________________________________________________, ) (Full Name of Plaintiff) Plaintiff, ) ) vs. ) _______________________________________ ) (To be supplied by the Clerk) __________________________________________________________________________, ) (Full Name of Defendant) ) ) __________________________________________________________________________, ) ) __________________________________________________________________________, ) ) __________________________________________________________________________, ) [] Original Complaint Defendant(s). ) [] First Amended Complaint ) [] Second Amended Complaint 1. This Court has jurisdiction over this action pursuant to: [] (a); [] ; , (1971). [] Other: ____________________________________________________________________________________________. 2. Institution/city where violation occurred: ________________________________________________________________. 1. Name of first Defendant: _____________________________________________. The first Defendant is employed as: __________________________________________________________ at ____________________________________________. (Position and Title) (Institution) 2. Name of second Defendant: ___________________________________________. The second Defendant is employed as: __________________________________________________________ at ____________________________________________. (Position and Title) (Institution) 3. Name of third Defendant: _____________________________________________. The third Defendant is employed as: __________________________________________________________ at ____________________________________________. (Position and Title) (Institution) 4. Name of fourth Defendant: ___________________________________________. The fourth Defendant is employed as: __________________________________________________________ at ____________________________________________. (Position and Title) (Institution) 1. Have you filed any other lawsuits while you were a prisoner? [] Yes [] No 2. If yes, how many lawsuits have you filed? _____. 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?) _______________ _________________________________________________________________________________________. 1. State the constitutional or other federal civil right that was violated: _______________________ __________________________________________________________________________________________________. 2. Identify the issue involved. Check State additional issues in separate counts. [] Basic necessities [] Mail [] Access to the court [] Medical care [] Disciplinary proceedings [] Property [] Exercise of religion [] Retaliation [] Excessive force by an officer [] Threat to safety [] Other: _________________________________________. 3. State as briefly as possible the FACTS supporting Count I. Describe exactly what did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________. 4. State how you were injured by the actions or inactions of the Defendant(s). _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________. 5. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? [] Yes [] No b. Did you submit a request for administrative relief on Count I? [] Yes [] No c. Did you appeal your request for relief on Count I to the highest level? [] Yes [] No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. ________________________________________________________________________________________ ____________________________________________________________________________________________________. 1. State the constitutional or other federal civil right that was violated: _________________________________ ____________________________________________________________________________________________________________. 2. Identify the issue involved. Check State additional issues in separate counts. [] Basic necessities [] Mail [] Access to the court [] Medical care [] Disciplinary proceedings [] Property [] Exercise of religion [] Retaliation [] Excessive force by an officer [] Threat to safety [] Other: __________________________________________. 3. State as briefly as possible the FACTS supporting Count II. Describe exactly what did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________. 4. State how you were injured by the actions or inactions of the Defendant(s). _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________. 5. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? [] Yes [] No b. Did you submit a request for administrative relief on Count II? [] Yes [] No c. Did you appeal your request for relief on Count II to the highest level? [] Yes [] No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. ________________________________________________________________________________________ ____________________________________________________________________________________________________. 1. State the constitutional or other federal civil right that was violated: _________________________________ ____________________________________________________________________________________________________________. 2. Identify the issue involved. Check State additional issues in separate counts. [] Basic necessities [] Mail [] Access to the court [] Medical care [] Disciplinary proceedings [] Property [] Exercise of religion [] Retaliation [] Excessive force by an officer [] Threat to safety [] Other: ________________________________________. 3. State as briefly as possible the FACTS supporting Count III. Describe exactly what did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or arguments. _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________. 4. State how you were injured by the actions or inactions of the Defendant(s). _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________. 5. a. Are there any administrative remedies (grievance procedures or administrative appeals) available at your institution? [] Yes [] No b. Did you submit a request for administrative relief on Count III? [] Yes [] No c. Did you appeal your request for relief on Count III to the highest level? [] Yes [] No d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. ________________________________________________________________________________________ ____________________________________________________________________________________________________. 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)