Opinion
No. CV 09-8114-PCT-MHM (DKD).
May 17, 2010
ORDER
On June 30, 2009, Plaintiff, who is confined in the Arizona State Prison Complex-Coronado in Winslow, Arizona, filed a pro se civil rights Complaint; he paid the filing fee on August 3, 2009. (Doc. ##1, 6.) Plaintiff's Complaint raised multiple claims, including claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) against Eurofresh Farms, Inc. (Eurofresh); the State of Arizona, the Arizona Department of Corrections (ADC); Dora Schriro, former Director of ADC; and Charles Ryan, current Director of ADC (State Defendants). (Doc. #1.) Eurofresh and State Defendants separately moved to dismiss. (Doc. ##20, 27.) The Court granted the motions and dismissed the Complaint with leave to file an amended complaint that cured the deficiencies identified in the Order. (Doc. #38.)
The Court dismissed the ADA Title I claims against all Defendants with prejudice. (Doc. #38 at 21.)
On April 28, 2010, Plaintiff filed his First Amended Complaint. (Doc. #51.) The Court will dismiss the First Amended Complaint for failure to state a claim and give Plaintiff one final opportunity to file an amended complaint that cures the deficiencies.
Plaintiff also filed a Notice of Appeal from the Court's Order dismissing the Complaint with leave to amend, and he filed a Motion for Leave to Appeal in forma pauperis. (Doc. #45.) The Court will deny the Motion.
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.
"[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 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.
II. First Amended Complaint
In his First Amended Complaint, Plaintiff sues the following Defendants: Eurofresh, Inc., the ADC, and the State of Arizona. He asserts generally that he is a disabled veteran and that State Defendants contracted out his labor to Eurofresh on July 27, 2008. (Doc. #51 at 3.) On or about October 15, 2008 and November 10, 2008, Plaintiff requested a reasonable accommodation for his disability, stating that he could not walk for extended periods of time. The requests were denied. (Id.)
The First Amended Complaint raises six Counts as follows:
Count I: Defendants violated Title I of the ADA when they denied Plaintiff reasonable accommodation for his disability;
Count II: State Defendants violated Title II of the ADA when they denied Plaintiff access to the Arizona Correctional Industries (ACI) program;
Count III: Defendants' actions violated § 504 of the RA of 1973;
Count IV: Defendants' actions violated the Arizona Civil Rights Act (ACRA);
Count V: Eurofresh violated its contract with State Defendants by failing to comply with the ADA and federal and state employment laws; and
Count VI: Defendants' conduct constituted the intentional infliction of emotional distress. (Doc. #51.)
All claims are the same as those raised in the original Complaint. (Doc. #1.)
Plaintiff claims federal jurisdiction under 28 U.S.C. §§ 1331, 1332, and 1337 . He seeks $30,000 in lost wages, $100,000 in nominal and compensatory damages, and $300,000 in punitive damages, as well as injunctive relief. (Id. at 6.)
28 U.S.C. § 1337 gives district courts original jurisdiction of a civil action arising under an Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies. 28 U.S.C. § 1337(a).
III. Failure to State a Claim
A. Count I — ADA Title I
In Count I, Plaintiff asserts that ACI is a program conducted for the employment of prisoners. (Doc. #51 ¶ 1, citing Ariz. Rev. Stat. § 14-1621(1); § 14-1622(b)). He contends that he was employed by Eurofresh through ACI, which was administered and operated by State Defendants. (Id. ¶¶ 7-8.) Title I of the ADA prohibits the States and other employers from "discriminat[ing] against a qualified individual with a disability because of th[at] disability . . . in regard to . . . terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The Court has previously held that, as a matter of law, Plaintiff was not an employee for purposes of protection under Title I of the ADA. (Doc. #38 at 8, 11.) In addition, the Court notes that State Defendants have Eleventh Amendment immunity as to the Title I claims. (Id. at 16.) These claims are, again, dismissed with prejudice. (Id.)
B. Count II — ADA Title II
To state a claim under Title II of the ADA, a plaintiff must show: (1) he is a "qualified individual with a disability"; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. 42 U.S.C. § 12132. A disability within the meaning of the statute is a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102.
And "[t]o recover monetary damages under Title II of the ADA or the Rehabilitation Act, a plaintiff must prove intentional discrimination on the part of the defendant." Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). To establish intentional discrimination under the ADA, the plaintiff must show defendants acted with "deliberate indifference."Id. (emphasis added). "Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood." Id. at 1139.
In Count II, Plaintiff asserts that State Defendants denied him access to the ACI program. Plaintiff asserts that he cannot walk for extended periods of time due to an injury sustained in a parachute jump. (Doc. #51 ¶ 3.) He claims that Defendants have a record of his injuries and impairments. (Id. ¶ 4.) He asserts that he was an otherwise qualified individual and qualified to access the ACI program, which he claims confers benefits to qualified state prisoners, such as payment of wages six times that of prison jobs available outside the ACI program, bonuses, and job skills not available in prison jobs outside ACI. (Id. ¶¶ 18-20.) On November 10, 2008, State Defendants denied him access to ACI because of his disability. (Id. ¶ 19.) He claims they engaged in unlawful practices, including but not limited to denying him
— 'an individual with a disability who, with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by Defendants ADCO and the State' — access to the ACI program.
(Id. ¶ 23, quoting 42 U.S.C. § 12131(2).) He asserts that Defendants acted intentionally. (Id. ¶ 28.)
Plaintiff fails to state a claim. Plaintiff does not describe the work he was doing for Eurofresh, the accommodations that he sought, how he could have worked with or without accommodations, or what Defendants' specific responses were. Plaintiff's allegations regarding failure to provide modifications are nothing more than legal conclusions; in fact, he has simply quoted 42 U.S.C. § 12131(2). This is insufficient. See Iqbal, 129 S. Ct. at 1949. Count II will be dismissed.
C. Count III — Rehabilitation Act
"The Rehabilitation Act is materially identical to and the model for the ADA, except that it is limited to programs that receive federal financial assistance. . . ." Armstrong v. Davis, 275 F.3d 849, 862 n. 17 (9th Cir. 2001) (internal quotations omitted). Title II of the ADA was expressly modeled after § 504 of the RA. Zuckle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999) ("there is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act"). To state a claim under the Rehabilitation Act, a plaintiff must allege "(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance."Duvall, 260 F.3d at 1135.
Plaintiff asserts that State Defendants receive direct federal financial assistance and that Eurofresh receives benefits indirectly "by pass-through federal assistance." (Doc. #51 ¶¶ 30, 31, 32.)
Plaintiff fails to state claims against either State Defendants or Eurofresh. The claims against Defendants fail for the same reasons as those under Title II of the ADA fail in Count II — the allegations are mere legal conclusions. In addition, the RA claim against Eurofresh is dependent on the allegation that it receives an indirect financial benefit by "pass-through." This is too vague and conclusory, as well as implausible, to pass muster under Iqbal, 129 S. Ct. at 1949, 1951. Count III will be dismissed.
D. Count IV — Arizona Civil Rights Act
The state ACRA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases, leases to others or operates a place of public accommodation." Ariz. Rev. Stat. § 41-1492.02(A). A public accommodation is defined to include, among other things, places of lodging, restaurants and bars, theaters, stadiums, concert and lecture halls, auditoriums, convention centers, museums, libraries, public transportation stations, retail establishments, service establishments, social service establishments, places of recreation and schools. Nolan v. Starlight Pines Homeowners Ass'n, 167 P.3d 1277, 1280 (Ariz. 2007), citing Ariz. Rev. Stat. § 41-1492(9)(a)-(l). A disability within the meaning of the statute is a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." Ariz. Rev. Stat. § 41-1492(5).
Plaintiff asserts that Eurofresh's facility is a public place in that "it is open indiscriminately to other members of the general public, is a retail and wholesale enterprise, and provides tours to the general public." (Doc. #51 ¶ 39.) He also asserts that as a result of Defendants' failure to provide him with a reasonable accommodation, he "suffered a serious physical injury, an injury that prolonged his impairment of health and aggravated his disability. Plaintiff is now unable to work at all." (Id. ¶ 40.)
For purposes of screening the First Amended Complaint, the Court must accept as true Plaintiff's factual assertions. But as with his claim of discrimination under Title II of the ADA, Plaintiff does not describe the work he was doing for Eurofresh, the accommodations that he sought, how he could have worked with or without accommodations, or what Defendants' specific responses were. Plaintiff's allegations regarding failure to provide modifications are nothing more than legal conclusions. See Ariz. Rev. Stat. § 41-1492.02(F)(2).
Likewise, Plaintiff's claim that he suffered a serious physical injury is merely a conclusion; Plaintiff does not specify what the injury was or why he is no longer able to work. This is insufficient to meet the requirement of Ariz. Rev. Stat. § 31-201.01(L), which strictly limits the state-law causes of action that prison inmates may assert against the government and government employees:
A person who is convicted of a felony offense and who is incarcerated while awaiting sentence or while serving a sentence imposed by a court of law may not bring a cause of action seeking damages or equitable relief from the state or its political subdivisions, agencies, officers or employees for injuries suffered while in the custody of the state or its political subdivisions or agencies unless the complaint alleges specific facts from which the court may conclude that the plaintiff suffered serious physical injury or the claim is authorized by a federal statute.
Ariz. Rev. Stat. § 31-201.01(L). A "serious physical injury" is "an impairment of physical condition that creates a substantial risk of death or that causes serious disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ." Ariz. Rev. Stat. § 31-201.01(N)(2). Moreover, Plaintiff fails to explain how State Defendants are connected to the harm alleged under the ACRA. See Ariz. Rev. Stat. § 41-1492.02(A).
The Court will dismiss Count IV.
E. Count V — Breach of Contract
Plaintiff asserts that Eurofresh and State Defendants entered into a contract for prison labor and under the terms of the contract, Defendants promised to comply with the ADA and federal and state employment laws. (Doc. #51 ¶¶ 44-45.) He alleges that on November 10, 2008, Eurofresh violated the contract by discriminating against Plaintiff and that he suffered damages in the form of lost wages and future pay. (Id. ¶¶ 46-47.)
Because the Court will dismiss the federal and state employment claims against Eurofresh, the breach of contract claim will also be dismissed.
F. Count VI — Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional distress, a plaintiff must plead sufficient facts showing that: (1) the conduct by the defendant is "extreme" and "outrageous"; (2) the defendant either intended to cause emotional distress or recklessly disregarded the near certainty that such distress would result from his conduct; and (3), severe emotional distress occurred as a result of defendant's conduct.Citizen Publishing Co. v. Miller, 115 P.3d 107, 110 (Ariz. 2005). "Only when reasonable minds could differ in determining whether conduct is sufficiently extreme or outrageous does the issue go to the jury." Mintz v. Bell Atlantic Sys. Leasing Intern., Inc., 905 P.2d 559, 563 (Ariz. App. 1995). A plaintiff must plead facts that show "the defendant's conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Johnson v. McDonald, 3 P.3d 1075, 1080-81 (Ariz. App. 1999) (dismissing claim for intentional infliction of emotional distress where plaintiff failed to plead any conduct "so outrageous that it goes beyond all bounds of decency").
In Count VI, Plaintiff alleges Defendants' conduct was extreme and outrageous when they forced him to continue working, under threat of termination and derogatory performance evaluations to ADC. (Doc. #51 ¶ 49.) He asserts they disregarded the "wear" that such distress would cause and that he has suffered emotional distress, including insomnia, anxiety, and night terrors. (Id. ¶ 51.) This aggravated his physical impairment and resulted in serious physical injury within the meaning of Ariz. Rev. Stat. § 31-201.01(N)(2) and physical injury within the meaning of 42 U.S.C. § 1997e(e).
As previously noted by this Court, there is an extremely high burden for intentional-infliction-of-emotional-distress claims in Arizona.Bodett v. CoxCom, Inc., 366 F.3d 736, 747 (9th Cir. 2004). In Bodett, the Ninth Circuit noted that Arizona courts have typically found false accusations alone not enough to constitute an intentional infliction of emotional distress. Id. at 747-48, citing, e.g., Duhammel v. Star, 133 Ariz. 558, 653 P.2d 15 (Ariz. App. 1982) (false accusations against police officer made to city council and newspaper reporters are not outrageous conduct justifying claim for emotional distress).
The Court finds that these allegations in Count VI fall far short of a claim for intentional infliction of emotional distress. The Court will dismiss Count VI.
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.
Plaintiff must clearly designate on the face of the document that it is the "Second Amended Complaint." The second 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 or First Amended Complaint by reference. Plaintiff may include only one claim per count.
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. 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 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).
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).
VI. Motion for Leave to Appeal in forma pauperis
As noted, Plaintiff has filed a Notice of Appeal, appealing this Court's March 8, 2010 Order dismissing the original Complaint, and he filed a Motion for Leave to Appeal in forma pauperis. (Doc. #45.) Because Plaintiff paid the filing fee for this action, the Court did not determine his application to proceed in forma pauperis. (Doc. ##6, 11.) Therefore, the provisions of Federal Rule of Appellate Procedure 24(a)(3) do not apply to Plaintiff. Under Rule 24(a)(1), Plaintiff must seek permission from the district court to proceed in forma pauperis.
This Court has previously noted that the March 8 Order is not an appealable Order. (Doc. #50 at 2.) Thus, an appeal from the Order is not taken in good faith, and the Court will deny the Motion.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Plaintiff's First Amended Complaint (Doc. #51) and Plaintiff's Motion for Leave to Appeal in forma pauperis (Doc. #45).
(2) The First Amended Complaint (Doc. #51) is dismissed for failure to state a claim. Plaintiff has 30 days from the date of this Order is 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 may count as a "strike" under 28 U.S.C. § 1915(g).
(4) If Plaintiff files a second amended complaint within 30 days, the Court will issue a screening order pursuant to 28 U.S.C. § 1915A; Defendants must NOT answer the Second Amended Complaint or otherwise respond by appropriate motion pursuant to Rule 12(a) of the Federal Rules of Civil Procedure until after the Court issues its screening order.
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
(6) Plaintiff's Motion for Leave to Appeal in forma pauperis (Doc. #45) is denied.
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)