Free Order (Service Packet) - District Court of Arizona - Arizona

RP

1 2 3 4 5 6 7 8 9 10 11 12 Joseph M. Arpaio, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
When Plaintiff filed the Complaint, he was confined in the Maricopa County Towers Jail in Phoenix, Arizona (Towers Jail).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Alvin LaRue Pinkoson, Plaintiff, vs.

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No. CV-03-1928-PHX-MHM (MEA) ORDER

On October 2, 2003, Alvin LaRue Pinkoson (Plaintiff), presently confined in the Barchey Unit of the Arizona State Prison Complex - Lewis in Buckeye, Arizona (ASPCLewis), filed with the Clerk of the Court a pro se "Civil Rights Complaint By A Prisoner" (Document #1) (Complaint) pursuant to 42 U.S.C. § 1983.1 Plaintiff did not pay the one hundred and fifty dollar ($150.00) filing fee, but instead he filed an "Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" (Application To Proceed) with the Complaint, which included a copy of his "Inmate Account Statement" (Account Statement). By Order filed May 27, 2004, Plaintiff's Application To Proceed was granted and

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Plaintiff was obligated to pay the one hundred and fifty dollar ($150.00) statutory filing fee for this action. Based on the average monthly balances and deposits of zero ($0.00) in Plaintiff's account, no initial partial filing fee was assessed. The Order filed May 27, 2004 also denied Plaintiff's "Request To Have Judge Order Clerk Of The Court To Send Service Packet To Plaintiff" (Document #4) without prejudice, and dismissed Plaintiff's Complaint without prejudice, with leave to amend. Plaintiff was given thirty (30) days from the filing date of the Order to file an amended complaint in order to state specific allegations of deprivation of constitutional rights against proper defendant(s), to name as defendant(s) the individual(s) who participated in the activities alleged in his amended complaint, to state what injury he has suffered as a result of the activities of the defendant(s), and to show how, prior to filing this action, he exhausted his administrative remedies as to each of his claims for relief. By separate Order (Payment Order), the Director of the Arizona Department of Corrections or her designee was required to send to the Clerk of the Court payments from Plaintiff's trust account each time the amount in the account exceeds ten dollars ($10.00), until the statutory filing fee of one hundred and fifty dollars ($150.00) was paid in full. 28 U.S.C. § 1915(b)(2). Unfortunately, this Payment Order was mistakenly filed as an attachment to the Order filed May 27, 2004 (Document #8), and was therefore never served on the Director. Accordingly, the Clerk of the Court will be directed to remove this Payment Order from the Order filed May 27, 2004, to file it as a separate Order nunc pro tunc May 27, 2004, and to serve copies as directed in the Payment Order. STATUTORY SCREENING OF PRISONER COMPLAINTS The Court is required to screen complaints or amended complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the Plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). The Court also must dismiss TERMPSREF -2Document 12 Filed 08/11/2005 Page 2 of 7

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a complaint or portion thereof if Plaintiff fails to exhaust any administrative remedy available to him. 42 U.S.C. § 1997e(a). AMENDED COMPLAINT AND SCREENING ORDER On June 28, 2004, Plaintiff filed his "First Amended Complaint" (Document #9) (Amended Complaint). Plaintiff should take notice that all causes of action alleged in an original complaint which are not alleged in an amended complaint are waived. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Accordingly, the Court will consider only those claims specifically asserted in Plaintiff's Amended Complaint. Plaintiff alleges one (1) ground in his Amended Complaint. (Amended Complaint at 4). Named as Defendants in the Amended Complaint are: (1) Joseph M. Arpaio, Maricopa County Sheriff; (2) Tate, Captain of Towers Jail; and (3) Maricopa County Board of Supervisors. (Amended Complaint at 1-2). Plaintiff seeks compensatory and punitive money damages, as well as Court costsfees, and attorney fees. (Amended Complaint at 7). DISMISSAL OF DEFENDANT Board of Supervisors The Board of Supervisors is not a proper Defendant to this action. Local government bodies, such as Arizona counties, are persons under § 1983 and may be sued for constitutional injuries. Liability may be imposed on a county if a plaintiff establishes that his injuries were inflicted pursuant to an official county policy or custom. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) (citations omitted). Official county policy may only be set by an official with "final policymaking authority." Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986) (plurality opinion)). To identify those officials with "final policymaking authority," the Court looks to state law. Id. (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988) (plurality opinion) (quotations omitted)). TERMPSREF -3Document 12 Filed 08/11/2005 Page 3 of 7

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In Arizona, the responsibility of operating jails is placed by law upon the sheriff, not on the county's Board of Supervisors. See A.R.S. § 11-441(A)(5); A.R.S. § 31-101. Therefore, the Board of Supervisors is not liable to Plaintiff under § 1983 because it lacks authority to establish an official policy with respect to the operation of the jail. Further, the Board of Supervisors cannot be held liable for the actions of the sheriff or his deputies on a theory of respondeat superior liability. See Thompson, 885 F.2d at 1443. Accordingly, Defendant Board of Supervisors will be dismissed without prejudice from this action for failure to state a claim upon which relief may be granted. CLAIM TO WHICH AN ANSWER WILL BE REQUIRED Count I In Count I of the Amended Complaint, Plaintiff alleges that his Eighth Amendment rights have been violated by the totality of conditions at the Towers Jail that he was forced by Defendants Joseph M. Arpaio and Captain Tate to endure. (Amended Complaint at 4). Count I adequately states a claim and the Court will require Defendants Arpaio and Tate to file an answer to this claim. RULE 41(b) WARNING Plaintiff is warned that if he fails to timely comply with every provision of this Order, or any order of the Court entered in this matter, the action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may dismiss action for failure to comply with any order of the court), cert. denied, 506 U.S. 915 (1992). IT IS THEREFORE ORDERED: (1) That the Clerk of the Court is DIRECTED to REMOVE the "Order For Payment Of Inmate Filing Fee" (Payment Order) from the back of the Court's Order filed May 27, 2004 (Document #8), to FILE the Payment Order separately nunc pro tunc May 27, 2004, and to SERVE copies of the Payment Order as directed in the Order; (2) That Defendant Maricopa County Board of Supervisors is DISMISSED WITHOUT PREJUDICE from this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and TERMPSREF -4Document 12 Filed 08/11/2005 Page 4 of 7

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1915A(b)(1) for failure to state a claim upon which relief may be granted; (3) That the Clerk of the Court is DIRECTED to send Plaintiff a service packet including a copy of this Order, a copy of the "First Amended Complaint" (Document #9) (Amended Complaint), and both a summons and request for waiver forms for Defendants Joseph M. Arpaio and Tate; (4) That Plaintiff SHALL COMPLETE AND RETURN the service packet to the Clerk of the Court within twenty (20) days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order; (5) That if Plaintiff does NOT either obtain a waiver of service of summons or complete service of the summons and Amended Complaint on a Defendant within one hundred and twenty (120) days of the date the Complaint was filed, or within sixty (60) days of the filing of this Order, whichever is later, the ACTION MAY BE DISMISSED as to the Defendant pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Rule 16.2(b)(3)(B)(i) of the Local Rules of Civil Procedure (LRCiv); (6) That the United States Marshal SHALL RETAIN the summons, a copy of the Amended Complaint, and a copy of this Order for future use; (7) That the United States Marshal SHALL NOTIFY Defendants Arpaio and Tate of the commencement of this action and REQUEST WAIVER OF SERVICE pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendant shall include a copy of this Order. The Marshal shall file waivers of service of the summons or requests for waivers that are returned as undeliverable as soon as they are received. If a waiver of service of summons is not returned by a Defendant to the Marshall within thirty (30) days from the date the request for waiver was sent by the Marshal, the Marshal shall: (a) Personally serve copies of the summons, Amended Complaint (Document #9), and this Order upon the Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; (b) Within ten (10) days after personal service is effected, file the return of service for the Defendant, along with evidence of the attempt to secure a TERMPSREF -5Document 12 Filed 08/11/2005 Page 5 of 7

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waiver of service of the summons and of the costs subsequently incurred in effecting service upon the Defendant. The costs of service shall be

enumerated on the return of service form (USM-285) and shall include the costs incurred by the Marshal for photocopying additional copies of the summons, Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court; (8) That if a Defendant agrees to waive service of the summons and Amended Complaint, he or she SHALL RETURN the signed waiver form to the United States Marshal, not to Plaintiff; (9) That Defendants SHALL ANSWER the Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure; (10) That any answer or responsive pleading SHALL STATE the specific

Defendant(s) by name on whose behalf it is filed. The Court may strike any answer or responsive pleading that does not identify the specific Defendant(s) by name on whose behalf it is filed; (11) That a clear, legible copy of every pleading or other document filed SHALL ACCOMPANY each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. See LRCiv 5.4. Failure to submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Plaintiff; (12) That Plaintiff SHALL SERVE upon Defendants, or if appearance has been entered by counsel, upon the attorney, a copy of every further pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original document and copy, to be filed with the Clerk of the Court, a certificate stating the date a true and correct copy of the pleading or document was mailed to Defendant or the counsel. Any paper TERMPSREF -6Document 12 Filed 08/11/2005 Page 6 of 7

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received by a District Court Judge or Magistrate Judge which has not been filed with the Clerk of the Court may be disregarded by the Court; (13) That at all times during the pendency of this action, Plaintiff SHALL

IMMEDIATELY ADVISE the Court and the United States Marshal of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date, except that if Plaintiff has been released from custody, the notice should so indicate. The notice shall not include any motions for any other relief. Plaintiff shall serve a copy of the notice on all opposing parties. Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b); (14) That this matter is referred to Magistrate Judge Mark E. Aspey pursuant to LRCiv 72.1 and 72.2 for further proceedings. DATED this 10th day of August, 2005.

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