Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 1 of 78

1 Daniel J. Pochoda (SBA 021979) James Duff Lyall (SBA 330045)*
2 ACLU FOUNDATION OF ARIZONA 3707 N. 7th Street, Suite 235
3 Phoenix, AZ 85014 Telephone: (602) 650-1854
4 dpochoda@acluaz.org jlyall@acluaz.org
5 *Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

6

Attorneys for Plaintiffs Robert Gamez, Shawn Jensen, Stephen Swartz, Dustin Brislan, Sonia Rodriguez,

7

Christina Verduzco, Jackie Thomas, Jeremy Smith, Victor Parsons, Maryanne Chisholm, Desiree Licci,

8

Joseph Hefner, Joshua Polson, and Charlotte Wells, on behalf of themselves and all others similarly situated

9 [ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE]

10 Jennifer Alewelt (SBA 027366)

11

Ruth Szanto (SBA 029073) ARIZONA CENTER FOR DISABILITY LAW

12

5025 East Washington St. Suite 202 Phoenix, AZ 85034

13

Telephone (602) 274-6287 jalewelt@azdisabilitylaw.org

14 rszanto@azdisabilitylaw.org

Attorneys for Plaintiff Arizona Center for Disability Law

15 UNITED STATES DISTRICT COURT

16 DISTRICT OF ARIZONA

17 Robert Gamez; Shawn Jensen; Stephen Swartz;

18

Dustin Brislan; Sonia Rodriguez; Christina Verduzco; Jackie Thomas; Jeremy Smith;

No. CV-10-2070-PHX-JWS (MEA)

19

Victor Parsons; Maryanne Chisholm; Desiree Licci; Joseph Hefner; Joshua Polson; and

CLASS ACTION

20 Charlotte Wells, on behalf of themselves and all others similarly situated; and Arizona Center for
21 Disability Law,

22 v.

Plaintiffs,

THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

23 Charles Ryan, Director, Arizona Department of
24 Corrections; and Richard Pratt, Interim Division

Hon. John W. Sedwick

Director, Division of Health Services, Arizona 25 Department of Corrections, in their official

capacities, 26

Defendants

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1

NATURE OF THE ACTION

2

1. Prisoner Plaintiffs and the Plaintiff Class are housed in Ar izona Department

3 of Corrections (“ADC ”) state prisons, an d seek declaratory and injunctive relief against
4

5 Charles Ryan and Michael Pratt, (collectively, “Defendants”) in t heir official capacities.

6 Prisoner Plaintiffs and the Plain tiff Class are entirel y dependent on Defendants for their

7 basic health care. Ho wever, the system under which Defendants Ryan and Pratt provide 8
medical, mental health, and dental care (collectively, “health care”) to prisoners is grossly 9
10 inadequate and subjects all prisone rs to a s ubstantial risk of serious har m, including

11 unnecessary pain and suffering, preventable injury, amputation, disfigurement, and death.

12 For years, the health care provided by Defendants in Arizona’s prisons has fallen short of 13
minimum constitutional requirements and failed to meet prisoners’ basic heal th needs. 14
15 Critically ill prisoners have begged prison officials for treatment, only to be told “be

16 patient,” “it’s all in your head,” or “pray” to be cured. Despite warnings from their own

17 employees, prisoners and their f amily members, and advocates ab out the risk of serious
18 injury and death to prisoners, Defendants are deliberately indifferent to the substantial risk
19
20 of pain and suff ering to prisoners, inclu ding deaths, which occ ur due to Def endants’

21 failure to provide minimally adequate health care, in violation of the Eighth Amendment.

22 “Just as a pri soner may starve if not f ed, he or she may suffer or die if not provided
23 adequate medical care. A prison that depriv es prisoners of basic sustenance, incl uding
24
25 adequate medical care, is inco mpatible with the concept of human dignity and has no

26 place in civilized society.” Brown v. Plata, 563 U.S. __, 131 S.Ct. 1910, 1928 (2011).

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1

2. Arizona prisoners also suffer serious harm and are subject to a substantial

2 risk of serious harm as a result of Defendants holding prisoners in isolation in supermax 3
Special Management Units (“SMUs”) in cruel and un usual conditions of confinement. 4
5 Defendants continue t o be deliberatel y indifferent to the substant ial risk of pain and

6 suffering, including deaths, which occur due to their systemic failure to provide minimally

7 adequate conditions to prisoners in isolation, in violation of the Eighth Amendment. 8
3. Plaintiffs seek injunctive relief to com pel Defendants to immediatel y 9
10 provide prisoner-Plaintiffs and the class m embers they represent with constitutionally

11 adequate health care and with protection from unconstitutional conditions of confinement.

12

JURISDICTION

13 4. This Court has juri sdiction pursuant to 28 U. S.C. §§ 1331 and 13 43. This
14

15 civil action seeks declaratory and injunctive relief under 28 U.S.C. §§1343, 2201, and

16 2202; and 42 U.S.C. § 1983.

17

VENUE

18 5. Venue is proper u nder 28 U.S.C. § 1391 (b), because the Defendants reside
19

20 in the District of Arizona, and because a subs tantial part or all of the events or om issions

21 giving rise to Plaintiffs’ claims occurred in the District of Arizona.

22

PARTIES

23 Plaintiffs
24

25

6. Plaintiff Robert Gamez is a prisoner in ADC’s Eyman complex, housed in a

26 SMU. Mr. Ga mez suffered a childhood head injury and h as been diagnosed with

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1 borderline IQ, possible Post-Traumatic Stress Disorder (PTSD), and possible frontal lobe 2 dysfunction, symptoms of which include m ajor depression, panic and anxiety. Although 3
Mr. Gamez displays symptoms consistent with frontal lobe d ysfunction and a n initial 4 5 screen was positive, ADC never conducted follow up tests to confirm his diagnosis. Mr. 6 Gamez has experienced multiple interruptions in care, including delays in responses to his 7 Health Needs Re quests (“HNRs”), del ays in receiving and abr upt changes to his 8
medication, receiving improper medication, inadequate monitoring and f ollow up visits , 9 10 and a lack of psychological services for pronounced mental health deterioration during his 11 prolonged isolation in the SMU. For exa mple, beginning in Aug ust 2009, Mr. Ga mez 12 submitted multiple HNRs describing symptoms of paranoia, anxiety, panic, and psychosis, 13
and asking to be t aken off his m edications and out of isolation. Despite experiencing 14 15 acute symptoms, Mr. Gamez was not seen for five months. Mr. Gamez’s care was 16 managed by a nurse practitioner, and he was not seen by a psychiatrist from 2007 to 2011 17 despite referrals from staff, multiple HNRs and deteriorating mental and physical health. 18
7. Plaintiff Shawn Jensen is a prisoner in ADC’s Tucson complex. Defendants 19 20 have failed to provide hi m with adequate and timely medical care, causing hi m harm and 21 permanent injury. Mr . Jensen has a histor y of prostate cancer. In ADC custod y, he 22 encountered delays in having the can cer diagnosed and treated and co ntinues to 23
experience harm and injuries caus ed by Defendants’ inadequate medical care. I n 24 25 November 2006, Mr. Jensen was tested with a Prostate Antigen (PS A) Test and f ound to 26 have an elevated score of 8.4 and a nodule on the prostate. Once the PSA is over 7, most
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1 clinicians order a biopsy. A prison doctor referred him for a biopsy in January 2007, but

2 he did not receive the biopsy until October 2009, after his PSA score had risen to 9.3. The 3
biopsy revealed he had Stage 2 prostate cancer, an aggressive form, and by February 2010 4
5 his PSA score was 12 and urologists recommended aggressive treatment of the cancer, a

6 bone scan to de termine the exte nt of the can cer, and s urgery to remove the tumor. Mr.

7 Jensen experienced gaps as long as two months in getting from the prison pharmacy the 8
chemotherapy medication that was pre scribed for him by outside urologists. He d id not 9
10 have the surger y until mid-July 2010. When he returned to pris on after the surger y,

11 Defendants provided incompetent medical care, and Mr. Jensen suffered harm and

12 permanent injuries due to staf f performing medical procedures for which they were not

13 qualified.
14

15

8. Plaintiff Stephen Swa rtz is a prisone r in ADC’s Lewis complex. In

16 February 2010, Mr. Swartz suffered eye injuries and extensive facial fractures as a result

17 of an inm ate assault. He did not receive tim ely follow-up with a plastic surgeon or
18 ophthalmologist, but w as instead ref erred to an oral surgeon to treat the f acial fractures.
19
20 Despite multiple referrals from prison doctors for specialty care, Mr. Swartz did not see an

21 ophthalmologist until January 2011, almost a year after he was assaulted, and has

22 permanent partial paralysis to his face. Mr. Swartz f iled numerous HNRs to ad dress
23 untreated neuropathic pain, and re peatedly waited months to learn whethe r pain
24
25 medications would be approved and provided. He co ntinues to report chronic pain. Mr.

26 Swartz is also diagnosed with bipolar disorder and major depressive disorder, and despite

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1 multiple incidents of self-harm, has r eceived inadequate mental health care while on

2 suicide watch and in isolation in a SMU. Additionally, Mr. Swartz has had a cracked 3
molar for two years. When he went to the d entist for the pain, Mr. Swartz was ref used a 4
5 filling and told the only available treatment was to pull the tooth.

6

9. Plaintiff Dustin Brislan is a prisoner in ADC’s Eyman complex, housed in a

7 SMU. Mr. Brislan is diagnosed with bipolar disorder, schizoaffective disorder, and

8 borderline personality disorder, and he has a designation of
9

Serious Mental Illnes s

10 (“SMI”). He engages in severe self-injurious behavior – including cutting, head banging,

11 and self-starvation. As a result of his mental illness, he ex periences depression,

12 hallucinations, suicidal ideation, and parano ia. Despite the sever ity of Mr. Brislan’s 13
condition, Defendants have failed to provide him with minimally adequate mental health 14
15 care. Mr. Bri slan has received i mproper medication, and has e xperienced delays in

16 receiving and abr upt changes to his medication. Mr. Brislan ha s not been monitore d

17 regularly by a psychiatrist, or received therapeutic treatment to address his extreme self-
18 harming behavior. Instead, he has been place d on suicide watch f or excessive lengths of
19
20 time, where he did not receive adequate treat ment and continued to commit repeated acts

21 of self-harm.

22

10. Plaintiff Sonia Rodriguez is a prisoner in ADC’s Perryville complex. She is

23 designated as S MI, and she experience s depression, anxie ty, and hallucination s.
24

25 Defendants have failed to provide Ms. Rodr iguez with minimally adequate mental health

26 care, and she has experienced poor medication management, lack of therapeutic treatment,

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1 and conditions of cruel and inh umane confinement in Perryville’s SMU and on s uicide

2 watch. The harsh conditions and extreme isolation of the SMU and on suicide watch have 3
worsened her mental conditions. M s. Rodriguez has asthma, and has ex perienced 4
5 multiple asthma attacks and breathing problems due to the ongoing use of pepper spray by

6 correctional staff on th e women housed in the SMU and in suicide watch. On multiple

7 occasions, her medications have been a bruptly discontinued or cha nged and her dos age 8
adjusted without explanation or proper monitoring. As a result, Ms. Rodriguez has 9
10 suffered severe si de effects, including uncontrolled shaking, difficulty speaking, and

11 physical “slowing” and lethargy, and a worsening of her mental health symptoms.

12

11. Plaintiff Christina Ve rduzco is a p risoner in ADC’s Perryville complex,

13 housed in a S MU. Ms. Verduzco is diag nosed with p aranoid schizophrenia, bipolar
14

15 disorder, and borderline personality disorder. She e xperiences a variety of symptoms,

16 including auditory and visual hallucinations, anxiety, paranoia, and self-harm by cutting

17 herself. Def endants have f ailed to provide her with minimally adequate mental health
18 care. She is conf ined in isolation in Perr yville’s SMU and has be en placed on suicide
19
20 watch on multiple occasions, most recently in February 2012. While on sui cide watch,

21 Ms. Verduzco is forced to wear a smock that barely comes to the top of her thighs, such

22 that her legs and arms are exposed to cold air. While on suicide watch, she has no way to
23 turn out the lights, wh ich are someti mes left on 24 hours a da y, and she is subjected to
24
25 safety checks every 10 to 30 minutes, where correctional staff wake her up if she is asleep.

26 As a result, she cannot sleep, which aggravates her condition. Ms. V erduzco has minimal

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1 human contact, cannot go outside, brush her teeth, or bathe regularly. Outside of suicide

2 watch in the SMU, her experience is similar: extended is olation, limited exercise, and 3
limited therapeutic treatment. Ms. Verduzco has asthma, but she has been pepper sprayed 4
5 repeatedly by corrections officers. After being sprayed, she has been dragged out of her

6 cell, hosed down, and thrown back into her cell. Ms. Verduzco has been pepper sprayed

7 so much and so often that she now says she is developing a tolerance to the spray. 8
12. Plaintiff Jackie Thomas is a prisoner in ADC’s Eyman complex, housed in a 9
10 SMU. Mr. Thomas has been diagnosed with depression and seizure disorders. Although

11 Mr. Thomas did not have suicidal ideation when he first arrived at the SMU, his mental

12 and medical conditions have deter iorated over time as he has e xperienced prolonged 13
periods of isolation in the SMU. While isolated in the S MU, he has become suicidal and 14
15 committed multiple acts of self-harm, has d eveloped insomnia and lost a great deal of

16 weight. As a r esult, he has been placed in suicide watch multiple times, where he

17 received minimal mental health care. Mr. Thomas has experienced multiple failures in the
18 administration of his mental health care, in cluding improper cessation and initiation of
19
20 psychotropic medications, failure to administer prescribed medication, repeated use of

21 ineffective medications and m edications with severe side ef fects, lack of informed

22 consent, and long delays in follow up and psychiatric evaluation. In November 2011, Mr.

23 Thomas overdosed on Diclofenac and did not receive medical attention.
24

25

13. Plaintiff Jeremy Smith is a prisoner in ADC’s E yman complex, housed in a

26 SMU. Mr. Smith is diagnosed with depression, a condition aggravated by interruptions in

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1 his mental health treatment and his prolonged and indefinite incarceration in the SMU.

2 Mr. Smith’s medications have been a bruptly discontinued without explanation and 3
restarted at inappropriate times, after lengthy delays, and without proper evaluation by a 4
5 psychiatrist. Mr. Smith also has been prescribed powerful medications not indicated for

6 depression. F or example, beginning in April 2008, Mr. Smith was gi ven a potent

7 antipsychotic medication carrying a risk of severe side effects, without first being seen by 8
the doctor. Hi s file contains no doc umentation as to wh y that medication was prescribed 9
10 or any indication that Mr. Smith gave his informed consent to receive it. The i mpact of

11 Mr. Smith’s improper care is compounded by the extreme isolation he experiences in the

12 SMU. Mr. S mith has formally renounced his former gang membership (“debriefed”) and 13
is thus eligible to be placed in a less restrictiv e setting; however, despite his mental health 14
15 condition ADC refuses to transfer him out of the SMU.

16

14. Plaintiff Victor Parsons is a prisoner in ADC’s Lewis complex. Mr. Parsons

17 has been diagn osed with Attention Deficit Hyperactivity Disorder (ADHD) w ith a
18 possible history of bipolar disord er. M r. Parsons has received inadequate mental health
19
20 care, including abrupt stopping and starting of medication, inappropriate medication, and

21 delays in follow up appointments. For exa mple, in June 2010 , Mr. Parsons’ medications

22 were suddenly discontinued without expla nation. Af ter he began to decompensate and
23 experience psychiatric symptoms, he sub mitted an HNR requesti ng treatment. Mr.
24
25 Parsons’ medication was abruptly restarted without titrating, placing him at high risk for

26 severe side ef fects. Mr. Parson s has also experienced delays in his medical and dental

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1 care. Mr. Parsons filed four HNRs in 2009 complaining that a temporary filling had fallen

2 out of his tooth. Each time he was seen, Parsons was given another temporary filling that 3
would fall out weeks later, forcing him to restart the process. He was told that the only 4
5 alternative was to hav e his tooth pulled, but he ref used. A fter five months, he f inally

6 received a permanent filling. In Fe bruary 2010, Mr. Parsons developed signs of chronic

7 and recurrent gastrointestinal problems, for which he received delayed and haphazard 8
care. Mr. Parsons complained of persistent abdominal pain but received only Tums and 9
10 antacid which did no t relieve his s ymptoms, and eig ht months passed bef ore the

11 appropriate tests were ordered. He did not have an endoscopy and biopsy until September

12 2011 to identify the cause of the ongoing symptoms, and as of December 2011 the prison 13
doctors still did not have the results of the biopsy to assist them in making a diagnosis and 14
15 treatment plan.

16

15. Plaintiff Maryanne Chisholm is a prisone r in ADC’s Perr yville complex.

17 Ms. Chisholm has b een diagnosed with hypertension, but was not ref erred to a
18 cardiologist for eight months, despite experiencing chest pains and shortness of breath.
19
20 Ms. Chisholm has been diagnosed with bipolar disorder, Obsessive Compulsive Disorder,

21 and depressive disorder. She has experienced significant delays and int erruptions in

22 medication delivery and psychiatric care and follow-up, which have contributed to
23 worsening symptoms. In April 2011, Ms. Chishol m reported experiencing a nervous
24
25 breakdown and r equested an ad justment of medication; however, she was not seen by a

26 psychiatrist for one month and did not receive a follow up appointment as scheduled. Ms.

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1 Chisholm’s mental health has al so been adversely impacted by custodial harassment.

2 Shortly after first meeting with Plaintif fs’ counsel in October 201 1, Ms. Chishol m was 3
subjected to th ree aggressive room searches in as many weeks. When she asked for an 4
5 explanation Ms. Chisholm was told that she was “causing problems.” In Februa ry 2012,

6 staff again searched her cell three separate times, and confiscated a book of art and her art

7 supplies, which Ms. Chisholm relies on to manage her mental health symptoms. The art 8
supplies were taken be cause she had painted a shelf in her cell wit hout permission – in 9
10 2008. She also has a broken tooth and another tooth with a missing crown. The dentist

11 told her the only available treatment was to pull her teeth, which she has refused.

12

16. Plaintiff Desiree Licci is an inmate in ADC’s Perryville complex. Ms. Licci

13 has a family history of cancer and was hersel f treated for cancer ten years ago. In 2010
14

15 she observed multiple masses growing on h er breasts, mouth, and arms, and rep orted

16 discomfort in her cervix. Starting in December 2010, Ms. Licci requested testing, and in

17 April 2011 the prison doctor referred her to an oncologist. However, she has still not seen
18 an oncologist and was not sent for a CT scan until September 2011. In the interim, Ms.
19
20 Licci began experi encing frequent diarrhea, nausea, exhaustion, weight loss, pain, a nd

21 other alarming symptoms. T he CT scan detected multiple masses in Ms. Licci’s

22 reproductive organs and biopsies and a colonoscopy were ordered. Still, th e Perryville
23 gynecologist insisted that nothing was wrong with her reproductive organs. Ms. Licci did
24
25 not receive an MRI until December 2011, and it was not properly administered. Ms. Licci

26 had to submit a grievance and wait another m onth before receiving a second MRI, which

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1 confirmed multiple masses on both ovar ies. In Januar y 2012, Ms. Licci asked the

2 Perryville Facility Health Administrator (FHA) why she still had n ot seen an oncologist 3
approximately eight months after being referred by the prison doctor. The FHA told Ms. 4
5 Licci the oncologist refused to see h er without her c omplete file and that ADC “didn’t

6 have” Volume I of her file. Howev er, ADC has Ms. Licci’s complete file, as it wa s

7 produced to Plaintiffs’ counsel in January 2012. Additionally, Ms. Licci has a Port-a-cath 8
implanted in her chest; however, nothing in her f ile indicates whether or not it was 9
10 properly flushed by medical staff prior to November 2011.

11

17. Plaintiff Joseph Hefner is a p risoner in ADC’s Lewis complex. Mr. Hefner

12 has impaired vision and experiences eye pain as a result of Defendants’ failure to provide 13
him with minimally adequate health care. In 2006, Mr . Hefner’s vision dete riorated 14
15 rapidly after an ADC nurse gave him expired eye drops. In 2006, and again in 2008, Mr.

16 Hefner did not timely receive doctor-prescribed eye medication following eye surgery.

17 Although he has submitted numerous HNRs for recurrent eye pain and twice been referred
18 by an o ptometrist to see an ophthal mologist, Mr. Hef ner has been waiting to see an
19
20 ophthalmologist for over three years. In Ma rch 2011, Mr. Hef ner was hospitalized for

21 injuries sustained in a prison altercati on. His outside medical records were not requeste d

22 by the prison physician until t hree months later, after Mr. Hef ner submitted multiple
23 HNRs describing persistent pain and reque sting treatment. The records were never
24
25 reviewed. A CT scan was not done until October 2011, seven months after Mr. Hefner’s

26 injury. Mr. Hefner also has ch ronic gastroesophageal reflux disease (GERD) but his

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1 requests for a medical diet have been denied.

2

18. Plaintiff Joshua Polson is a prisoner in ADC’s Eyman complex, housed in a

3 SMU. Mr. Polson has been diagnosed with bipolar disorder, mood d isorder, and
4

5 psychosis. He experiences mood swings, hallucinations, paranoia, and depression, all of

6 which are caused or worsened as a re sult of Defendants’ failure to provi de him with

7 minimally adequate mental health care. Mr. P olson has a family history of suicide and he 8
has attempted suicide three times. Nonetheless, he is incarcerated in isolation, where he 9
10 has minimal human contact, which re sults in increased suicid al ideation. He has

11 experienced repeated gaps in his m edication and sporadic monitori ng of his m edication

12 levels. Additionall y, Mr. Polson experien ces chronic ear inf ections and has permanent 13
hearing loss in his right ear following significant delays in care, including delays in seeing 14
15 a physician, delays in follow-up appointments, and dela ys in referrals to outside

16 specialists. After losing hearing in his right ear, Mr. Polson submitted multiple HNRs for

17 chronic pain in his left ear, bu t was not evaluated by a doctor for over a month. Mr.
18 Polson also experienced multiple pr oblems with his dental care. H e had long dela ys in
19
20 treatment for teeth that were broken, and waited three years to receive partial dentures for

21 many missing teeth. Mr. Polson f iled a request to see the dentist about a front tooth that

22 had broken off and was causing him a great deal of pain. He was told in response that he
23 was requesting routine care, and he had to wait f ive months to see the dentis t. The
24
25 remaining portion of the tooth was not extracted until a year after it broke off.

26

19. Plaintiff Charlotte W ells is a prisoner in AD C’s Perryville complex. Ms.

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1 Wells has a history of heart disease and high blood pressure, and suffered a heart attack

2 prior to being incarcerated. She arrived to ADC custody in October 2009 complaining of 3
chronic chest pains, and continued to e xperience dizziness and high blood pressure but 4
5 was not evaluated b y a cardiologist unti l she was hospitalized f our months later f or a

6 blocked artery. Ms. Wells received a stent, b ut two days after returning to Perr yville she

7 again reported chest pains. Ms. Wells was not seen by a doctor or returned to the hospital, 8
despite her history and the high risk of arterial clogging and heart attack immediately 9
10 following the placement of a stent. She experienced chest pain and high blood pressure,

11 for which she was repeatedl y evaluated not by an outs ide cardiologist but rather b y the

12 Perryville gynecologist. Ms. Wells continues to have p roblems with her bloo d pressure 13
and intermittent chest pain. Additionally, Ms. Wells experienced broken fillings in two of 14
15 her teeth in 2010. She complained of pain and requested the f illings be repaired, but was

16 told the only option was to have the teeth pulled, or submit a HNR and wait months to

17 have the fillings approved. She did this, and endured pain for several months before her
18 filings were replace d; however, when she got the f illing, the d entist cracked an adjacent
19
20 tooth. Again, she was told she could have the tooth pulled, or to submit another HNR and

21 wait for a filling. She has waited since November 2011 for repair to the damaged tooth.

22

20. Plaintiff Arizona Center f or Disability Law (“ACDL”) is desi gnated as

23 Arizona’s authorized protection and advocacy agency under the Protection and Advocacy
24

25 for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801, et. seq. ACDL has

26 statutory authority to pursue legal, administrative, and other appropriate remedies to

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1 ensure the protection of individuals with mental illness who are or will be receiving care

2 and treatment in the State of Arizona. 42 U.S.C. § 10805(a)(1). ACDL is pursuing this 3
action to protect and advocate for the rights and interests of prisoners who are “individuals 4
5 with mental illness” as that term is defined in 42 U.S.C. § 10802. The interests that ACDL

6 seeks to vindicate by bringing this lawsuit – the protection of the rights of individuals with

7 mental illness – are central to ACDL’s purpose.
8 Defendants
9

10

21. Defendant Charles Ryan is the Director of the ADC, and he is sued herein in

11 his official capacity. As the Director of the ADC, Mr. Ryan is responsible for establishing,

12 monitoring, and enforcing overall operations, policies, and practices of the Arizona state 13
prison system, which includes the provision of constitutionally adequate medical, mental 14
15 health, and dental care for all prisoners committed to the custody of ADC. A.R.S. §§ 31-

16 201, 41-1604 (A), 4 1-1608. As Director , Mr. R yan is respo nsible for decisions

17 concerning staff hiring, supervisio n, deployment, and traini ng that directl y affect
18 prisoners’ abilities to obtain adequate and necessary health services. He is responsible for
19
20 providing constitutional conditions of confinement in all units, including but not limited to

21 isolation units. At all times relevant hereto, he has acted under color of state law.

22

22. Defendant Richard Pratt, P.A.,1 is the Interim Division Director of the

23

24
25 1 Mr. Pratt’s Physician Assistant li cense (#2342) with the Arizona Regulatory Board of Physician Assistants expired on Oct. 1, 2004 and has not been renewed as of the date of
26 this filing. Mr. Pratt recently replaced Michael Adu-Tutu, D.D.S., as Division Director of Health Services. Plaintiffs’ allegations refer to Defendant Pratt because he is t he current

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1 Health Services Division of the ADC a nd is sued in his official capacity. A s Division

2 Director, Mr. Pratt is responsible for establishing, monitoring, and enforcing system-wide 3
health care policies and practices. He is r esponsible for supervising the provision of 4
5 adequate medical, mental health, and dental care for all prisoners within the custody of the

6 department, including but not li mited to isola tion units. At all ti mes relevant hereto, he

7 has acted under color of state law.
8 FACTUAL ALLEGATIONS
9

10

23. Defendants promise prisoners through written policies to provide su fficient

11 resources to provide the “community standard of health care,” bu t fall far below that

12 measure. ADC Dept. Order 1101.01, 1.1. Defendants’ written policies are more honored
13 in the breach than in the observance, leavi ng prisoners at the merc y of de f acto policies
14 15 that put their lives and health at r isk.2 Defendants are well aware of severe system-wide

16 deficiencies that have caused and con tinue to cause signif icant harm to t he prisoners in

17 their custody, yet they have failed to take reasonable measures to abate the impermissible
18 risk of harm. In recent years, Defendants ignored repeated warnings of the inadequacies
19
20 of the health care system and of the dangerous conditions in their isolation units that they

21 received from inmate grievances, reports from outside groups, and complaints from prison

22 personnel, including their own staff. For example, in December 2009, a prison physician
23 emailed Defendant Ryan complaining that ADC officials were bre aking the law by not
24
25 Division Director, and notwithstanding that the majority of acts and omissions described herein occurred during the tenure of Mr. Pratt’s predecessor, Dr. Adu-Tutu.
26 2 As used hereafter, “policy and practice” includes unwritten policies, customs, and actual practices of Defendants.

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1 providing adequate health care. James Baird, M.D., the D irector of Medical Servic es,

2 responded on behalf of Defendant Ryan and stated, “[t]he Department has not been found, 3
as yet, to be delibera tely indifferent. … Is the Department being deliberately indifferent? 4
5 Maybe. Probably. That would be up to a Federal Judge to decide. I do think that there

6 would be numerous experts in the field that would opine that deliberate indifference has

7 occurred.” 8
24. The Deputy Medical Director f or Psychiatry at the E yman prison warned 9
10 Defendant Ryan and Defendant Pratt’s predecessor as Health Services Director, Michael

11 Adu-Tutu, D.D.S., in a series of emails in the fall of 2009 that prisoners “are not receiving

12 a reasonable level of psychiatric care. We are out of compliance with our own policies 13
regarding minimum frequency of contact with a provider, as well as community standards 14
15 for adequate care. The lack of treatment represents an escalating danger to the community,

16 the staff and the inmates.”

17

25. On October 12, 20 11, counsel f or Plaintiffs submitted a 21-pa ge demand

18 letter to Def endant Ryan, describing numerous systemic problems in the health care
19

20 system and isolat ion units operated b y Defendants, and detaili ng multiple examples of

21 harm and injuries to prisoners resulting from these inadequate policies and practice s.

22 Defendant Ryan initially responded by requesting three months to investigate these
23 problems. In the subsequent months, counsel for Plaintiffs continued to notify Defendants
24
25 of individual prisoners asking for immediate attention to health care problems. However,

26 as of this date, De fendant Ryan has not prov ided any substantive response to the issues

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1 raised in the letter other than to say that he did not think the ADC health care system had

2 any systemic problems.

3

I. Defendants Deprive Plaintiffs of Constitutionally Adequate Health Care in

4

Violation of the Eighth Amendment

5

26. Plaintiffs and the Plaintiff class allege the f ollowing. Defendants Ryan and

6 Pratt have a policy and practice of failing to provide prisoners with adequate health care,
7

8 and are deliberately indifferent to the fact that the systemic failure to do so results in

9 significant injury and a substantial risk of serious harm.

10

A. Prisoners Face Lengthy and Dangerous Delays in Receiving and Outright

11

Denials of Health Care

12

27. Defendants have a policy and practice of failing to provide timely access to

13 health care and are deli berately indifferent to the risk of harm and injury to prisoners that 14
results from this systemic failure. To re quest health care, prisoners must submit a HNR 15
16 form, describing the need for medical, dental, or mental health attention, regardless of

17 whether they have informed medical staff about their symptoms. Prisoners face numerous

18 barriers in s ubmitting this required form: oftentimes, there are no HNR forms in liv ing
19 units; staff give prisoners photocopies of HNR forms that are later rejected for not being
20
21 originals; correctional officers refuse to provide f orms to pri soners or discourage th em

22 from filing them; and officers read completed HNRs and tell prisoners they are not sick,

23 and refuse to accept or forward the HNR to health care personnel.
24 28. In addition, of ficers sometimes prohibit prisoners from assisting fellow
25
26 inmates in completing HNRs, even thoug h the officers are aware th at this prevents so me

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1 prisoners from filing requests. This prohibition also harms prisoners who are acutely ill,

2 experiencing severe mental health problems, vision-impaired, developmentally disabled, 3
illiterate, have inju ries or perm anent disabilities that make it dif ficult to write, or are 4
5 otherwise unable to fill out the f orms, especially because staff members will not provide

6 assistance. For exa mple, Plaintiff Smith has an injury to his hand t hat prevents him from

7 writing. He asked officers to assist him in completing the HNRs, but the officers stated
8 they were prohibited by ADC policy from helping him.
9

10

29. In addition to rest ricting the abil ity of prisoners to re quest health care,

11 Defendants have a poli cy and practice of failing to provide c are after receiving notice of

12 prisoners’ needs, and are deliberately indifferent to th e harm that results. Even if the 13
completed HNR is forwarded to health care staff, it is not processed in a ti mely manner, 14
15 so prisoners have to f ile multiple H NRs and face long dela ys of many weeks and often

16 months before they receive medicine or a re examined by qualified clinicians, and

17 experience harm and unnecessary pain and suffering as a result.
18 30. Oftentimes, medical staff members respond to a HNR stating only that the
19
20 prisoner is on a waitin g list to see a ph ysician, dentist, ps ychiatrist, or outside specialis t,

21 even in response to HNRs alleging serious injuries that require immediate action.

22 Plaintiffs Hefner, Gamez, and Swartz have received responses telling them to “be patient”
23 to HNRs alleging seri ous pain or injuries. Plaintiff Licci was t old by the Perr yville
24
25 Facility Health Administrator (FHA) that she was “hi ndering [her] own care” by filing

26 grievances and HNR s about not seeing an o utside specialist about numerous suspicious

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1 masses on her reproductive organs. Plaintiff Verduzco, who has a history of self-harm

2 and multiple suicide attempts, filed a HNR reporting headaches, that she was experiencing 3
auditory hallucinations, and that she nee ded help with her ps ychotropic medication, 4
5 begging, “I’m scarde [sic]. Confused.” She received a written response three days later,

6 stating “You will be put on the waiting list to be seen.” A prisoner who had a stent

7 implanted at an outside hospital in August 2011 after a heart attac k was ordered by the 8
surgeon to see a c ardiologist within a month. Th e prisoner has filed multiple HNRs 9
10 asking to be ref erred to a cardiologist, b ut the most recent res ponse he received to his

11 HNR in January 2012 was “Medical aware. Please be patient. Thanks.” Another prisoner

12 with major disabilities and multiple chronic medical problems received a response to one 13
HNR stating, “due to the fact that the prov ider has to se e a large amount of inmates, the 14
15 number of issues addressed per inmate will be limited to one main issue.” He was told in

16 a different response that he “must learn to ac cept and live with [ the] reality” of pain and

17 discomfort. A staf f member told a pr isoner who filed multiple HNRs over a two- month
18 period for untreated high blood pressure, seei ng stars, and having pr oblems getting out of
19
20 bed, that a two month wait for medical care is acceptable, and that he should “pray” for

21 his health issues to be cured.

22

31. Defendants have been warned repeatedly about these unreasonable delays in

23 access to health care. In A pril 2009, a ph ysician at the Eyman complex sent an email
24

25 entitled “Deficient access to care, Ri sk exposure” to Def endant Pratt’s predecessor as

26 Health Services Director, Dr. Adu-Tutu, and other prison officials, noting it took prisoners

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1 “about 6 weeks to be seen” after the medical department receives a HNR, a nd that the

2 situation was a “ multi car accident waiting to happen.” The dela ys have only grown 3
worse: in Febr uary 2011 a Perryville psychiatrist warned Dr. Ben Shaw, the Director of 4
5 Mental Health Ser vices who reports to De fendant Pratt, that “we are backed up 3-4

6 months with the HNRs and longer for regular follow-ups.”

7

32. Lengthy delays in responding to HNRs and providing necessary health care

8 are the s ystem-wide norm, as r eflected in c ountless examples. P laintiff Hefner filed
9

10 multiple HNRs in the spring of 2011 about pain and injuries to his ribs and torso after an

11 attack, but was not seen by a doctor for three months. Plaintiff Polson has recurrent ear

12 infections, but whe n he has the m he must file multiple HNRs and wait an ywhere from

13 three to six weeks to be seen and given antibiotics or ear drops.
14

15

33. This failure to tim ely respond to HNRs is compounded by Defendants’

16 failure to create an effective tracking and scheduling system for health care appointments

17 or of prisoners’ medical records. There also are no standardized protocols or timeframes
18 dictating deadlines by which a prisoner re questing care must receive a f ace-to-face
19
20 appointment with a n urse, doctor, or other clinician. As a result, inadequately-trained

21 lower-level staff triage the HNRs and decide whether to schedule an examination, without

22 sufficient information.
23 34. The harm from the delays in care is aggra vated by Defendants’ policy and
24
25 practice of having ADC clinicians make treatment decisions without examining prisoners,

26 instead relying on brief notes or descriptions from lower-level medical assistants and even

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1 correctional officers who have no medical training. In the unsupervised gatekeeping role 2 Defendants force on t hem, these lower leve l medical and custod y staff often do not 3
recognize or acknowledge the symptoms a patient displays until the condition has become 4 5 so acute as to be lif e threatening or res ults in permanent injury. F or example, Plaintiff 6 Polson had chronic ear infections for months that were not being cured wit h basic 7 antibiotics. During that time, he wa s only seen by a Licens ed Practical Nurse ( LPN) or 8
medical assistant who would consult with a doctor over t he phone; the ph ysician would 9 10 not physically examine him. He ha d blood oozing ou t of his ear af ter multiple ear 11 infections, but was told by a physicians’ assistant and a L PN that it was j ust a scratch. 12 Due to Mr. Polson’s recurrent untreatable infections and a pri or diagnosis of the 13
particularly antibiotic-resistant methicillin-resistant staphylococcus aureus (“MRSA”), the 14 15 minimum standard of care requires the physician to personally examine Mr. Polson and 16 culture his ear to make sure a different medicine would work. This was not done, and Mr. 17 Polson suffered permanent hearing loss. 18
35. Plaintiff Hefner has a co mplicated ophthalmological history including 19 20 surgery for glaucoma and cataracts, and experiences iritis (recurrent inflammation of the 21 iris) after being given expired e ye drops b y a prison nurse in 2006. He submitted seven 22 HNRs for eye pain and problems between August 2009 and Oct ober 2011. Bec ause 23
HNRs are not reviewed by a physician or clinical staff member, the staff who review the 24 25 HNRs have repeatedly chosen to triage his request b y placing him on a waitlist to see an 26 optometrist, rather than an ophthalmologist. As of January 2012, he still had not yet seen
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1 an ophthalmologist, despite twice being referred by the optometrist.

2

36. Defendants also hav e a polic y and practice of relying on un qualified

3 personnel to pe rform medical procedures for which they are unqualified, with ho rrific
4

5 results. For exa mple, Plaintiff Jensen had prostate cancer s urgery in July 2010 an d

6 returned to the Tucson prison with an internal Foley catheter connecting his bladder to his

7 urethra through the bladder neck. The catheter was to stay in place for three weeks and be 8
removed only by the outside urologist or surgeon. Two weeks after his retur n, the 9
10 catheter began to leak urine. Mr. J ensen submitted two HNRs but was not seen until 48

11 hours later by a nurse who said he co uld wait until his sche duled follow-up appointment.

12 The next day, still experiencing pain and leaking urine, he was seen by a nursing assistant 13
(“NA”) who requested a doctor’s or der to irrigate the Foley catheter. The ph ysician did 14
15 not examine Mr. Jen sen before authorizing the procedure. When the NA atte mpted to

16 irrigate Mr. Jensen’s catheter, she instead shoved it deeper inside him and twisted it 180

17 degrees, causing excruciating pain. The improper manipulation of the catheter tore out his
18 internal stitches, and the catheter ended up outside his bladder, lying freely in his
19
20 abdomen, such that urine drained from his torn bladder directly into his abdominal cavity.

21 Despite Mr. Jensen’s excruciating pain, and the absence of urine, he was not taken to the

22 ER or to see an outsid e specialist until his p reviously scheduled follow-up appointment
23 three days later, at which point the outside clinicians rushed him to the operating room for
24
25 emergency surgery. As a result of the injuries sustaine d during the NA’s atte mpt to

26 irrigate the cathete r, he has required multiple follow up surgeries to repair the bladder ,

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Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 24 of 78

1 remove scar tissue, and treat inf ections. In February 2012, Mr. Jensen was told by an

2 outside urologist that he needed surgery to replace his irreparably destroyed bladder.

3

B. Defendants Do Not Provide Prisoners With Timely Emergency Treatment 4

5

37. Defendants Ryan and Pratt ha ve a po licy and practice of not p roviding

6 prisoners with timely emergency responses and treatment, and do not have an ade quate

7 system for responding to health care emergencies.
8 38. There is not an adequate number of on-duty health care staff to respond to
9 10 possible emergencies. For exa mple, the T ucson complex’s Whetstone Unit, designated

11 for prisoners with the gravest and most complex medical needs, does not have clinical

12 staff on duty between the hours of 6 pm and 6 am.
13 39. Defendants have not adequately trained security and health c are staff on
14 15 how to handle health care emergencies, and as a result of this failure to respond properly

16 and timely to emergencies, prisoners suffer avoidable harm and injuries, including

17 unnecessary deaths. While trained in basic first aid, correctional officers are not trained to
18 evaluate medical situations. Yet correct ional staff act as gatekeepers, making critical
19 20 decisions about whether emergency care is warranted. In July 2010, correctional officers
21 at the Tucso n prison stood by and watched a severely mentally ill prisoner named Tony

22 Lester bleed to de ath after his second suicid e attempt. Mr. Les ter, who had parano id
23 schizophrenia, multiple personality disorder, and auditor y hallucinations, had been taken
24 off suicide watch, taken off his medications, and housed in the general population, where
25
26 he was given a hygiene kit that included a razor. He used the razor blade to slit his throat,

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1 groin, and wrists, and he wrote the word “V OICES” in his blood on an envelope. An

2 ADC internal investigation found that the f our responding officers stood b y and did not 3
administer any basic first aid. One off icer told investig ators he didn’t want to b e 4
5 “wallowing through” Mr. Lester’s blood, and another said his limited training did not

6 teach him how to stop bleeding. When an internal investigator asked one officer, “So you

7 guys just stood around for 23 minutes and watched this guy bleed to death?”, the officer
8 stated that his response was to call Mr. Lester’s name and to try to elicit a reaction.
9

10

40. In October 2011, a prisoner at the E yman prison collapsed in his living unit

11 from a heart attack. Other prisoner s yelled for security staff to contact medical staff.

12 Officers told the priso ners to “wait a nd see what happens,” and did not summon help or 13
provide assistance to t he stricken priso ner. In desperation, an other inmate checked the 14
15 prisoner’s pulse, and finding none, began t o perform CPR. Af ter a f ew minutes, the

16 prisoner began breathing again. On ly then did officers summon medical staff. Three

17 hours later, the prisoner was sent from the medical unit back to his li ving unit and told he
18 had a medical appointment in a f ew days. The prisoner had anothe r heart attack the next
19
20 day and died. After his death, the prisoner who saved his life after the first heart attack by

21 performing CPR was issued a disciplinary write-up for violating a rule that prisoners may

22 not perform medical procedures on other inmates.
23 41. It is not only correctional staff that lack nec essary training in responding to
24
25 emergency situations. Lower level medical staff, who serve as the first line of response to

26 prisoners’ requests for medical assistance, often do not recognize when a priso ner is

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1 experiencing an emergency. In Se ptember 2011, Plain tiff Swartz swallowed a metal

2 spring and copper wire, and told medical staff he had d one so. The mental health staff 3
members did not believe him and j oked about how they would need to c ut him open. 4
5 They had him screened with a metal detector or metal wand, and told him he would h ave

6 to wait t o pass the pieces of metal. Using a metal detector to d etect the presence of

7 objects in adults does not comport with the appropriate standard of care, which requires 8
physicians to obtain X-rays and/or CT scans to determine the location of the object, and to 9
10 emergently remove sharp objects from the esophagus, stomach, or small intestine via

11 endoscopy. Mr. Swartz had an X-ray the following day, after he swallowed yet another

12 object, this time a sharpened paper clip. The X-ray revealed multiple pieces of metal in 13
his stomach, including the spring and paper clip, but the prison do ctor did not ref er him 14
15 for an endoscopy, and instead told Mr. Swartz he would have to pass the objects, which he

16 did painfully several weeks later. Ignoring sharp ingested objects puts a patient at risk for

17 perforation of internal organs and death.
18 42. In another example, in May 2011, a prisoner who was four months pregnant
19
20 began experiencing painful contractions an d spotting b lood, and went to Perr yville’s

21 medical unit. The staff person on dut y told her it was nothing serio us, that her proble ms

22 were “all in your head,” and that she co uld not see a clinician f or evaluation or treatment.
23 She was sent back to her livin g unit, and s he continued to e xperience great pain and
24
25 cramping for an hour and a half, until she miscarried.

26

43. Even when properly responding to an emergency, medical staff face barriers

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1 to providing timely emergency assistance. For example, a prisoner in the Yuma prison has

2 three to four seizures per week because he does not regularly receive epilepsy medication. 3
He regularly encounters delays in the emergency response during his seizures because of 4
5 the configuration of his living unit – the entr ance door is 34 inches wide, and f acing the

6 entrance is a wall approximately four feet high. As a result, medical staff cannot get a

7 gurney through the doorway without spending critical time contorting the gurney through 8
the door and around the wall. Other prisoners or officers must help lift the gurney over 9
10 the wall, or drag the convulsing prisoner to the door of the unit.

11

C. Defendants Fail to Provide Necessary Medication and Medical Devices to

12

Prisoners

13

44. Defendants have a po licy and practice of failing to prescr ibe, provide, and

14 properly manage medication, or of only providing incorrect, interrupted, or inco mplete

15 dosages of medication. Defendants also have a policy and practice of failing to provide 16
necessary medical devices and sup plies. Prisoners experience delays and ga ps in 17
18 receiving medicine or supplies, including those prescribed by outside doctors. Delays and

19 gaps also occur when prisoners transfer from one ADC prison to another. Prisoners face

20 abrupt discontinuation of their medications for weeks or months, before being seen by a
21 new provider. For ex ample, Plaintiff Swartz was transf erred in Dece mber 2011 from
22
23 Phoenix to Lewis, but had to file multiple HNRs and wait several weeks before he began

24 receiving the psychotropic medications prescribed by Phoenix physicians.

25

45. Defendants have a policy and practice of not providing prisoners with the

26 full course of their medication, not providing prisoners medication as prescribed or in a

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1 timely fashion, and i nappropriately starting and stopping medication. As a result,

2 prisoners suffer unnecessary harm, and in the cases of prisoners with psychotic and mood 3
disorders, suffer withdrawal s ymptoms and the recurrenc e of symptoms such as 4
5 hallucinations and sui cidal ideation. For ex ample, Plaintiff Parsons’ m edications were

6 abruptly discontinued without an y clinical explanation and he was not seen f or his

7 resulting psychiatric problems for two weeks. At that point he was prescribed an entirely
8 different medication.
9

10

46. Psychotropic medications that are to be

taken dail y regularly go

11 undelivered, without explanation or war ning. Plaintif f Gamez has had medicatio ns

12 abruptly started, stopped and restarted, in cluding a potent anti psychotic medication. 13
Plaintiff Rodriguez w as switched multiple times from Risperdal to Haldol to treat her 14
15 psychosis, but with no documented explanation for the changes, an d with a more rapid

16 titrating on and tapering off the m edications than i s consistent with the therapeutic

17 indications of use.
18 47. Prisoners also are gi ven expired medication or incorrect d osages of
19
20 medication, resulting in harm. When Plaintiff Hefner originally suffered his eye injury, a

21 nurse at the Saf ford prison gave hi m eye medication that had expired more than t hree

22 months previously. When he used the medication, his vision dramatically worsened, and
23 he developed iritis. A prisoner at the Tucson complex was given the incorrect dosage of
24
25 medication to t reat his seizures in September 2011. He suffered a stroke, and despite

26 pleas for help from his fellow inmates, waited more than a day before medical staff saw

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1 him and referred him to an outside hospital’s Intensive Care Unit. Now, due to the stroke, 2 he slurs his speech, has difficulty walking and relies on a wheelchair, and is incontinent. 3
48. Defendants have a polic y and practice of only providing medicine listed on 4 5 a limited formulary of approved medication, and rou tinely substitute doctor-approved 6 drug regimens with drugs on the ADC-approved formulary. As a result of this policy and 7 practice, prisoners are deprived of medications that are we ll-established as effective for 8
their health conditio ns, and receive inf erior, ineffective, or obsolete m edications, or 9 10 nothing at all. For exam ple, when Plaintiff Brislan was incarcerated, mental health staff 11 discontinued his prio r, effective medications because the y were not listed on the 12 formulary. Instead, he was pres cribed Buspar, an old er anti-anxiety medication, even 13
though he told the nu rse it had not worked for him in th e past. His mental health 14 15 symptoms continued to worsen while on Buspar. Plaintif f Parsons was given a pote nt 16 antipsychotic medication for hyperactivity, a condition for which the drug is not normally 17 prescribed, and had other psychiatric medications discontinued several times. On multiple 18
occasions, Plaintiff Gamez was prescribed antipsychotic and anti-epileptic medications 19 20 such as T horazine and Tegretol f or off-label treatment of irritability and mood disorder 21 caused by a child hood traumatic brain i njury, even though the re are other drugs that ar e 22 more effective for treating these symptoms, with fewer side effects. 23
49. According to t he 2011 deposition te stimony of one of ADC’s doctors, the 24 25 prescription of non-formulary medication is frequently subject to delay and erroneous 26 denial. ADC p olicies restricting these prescriptions result in multiple requests b y prison
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1 doctors over months until an a d-hoc committee of medical a nd administrative staff at

2 ADC’s central office reviews th e request. As a res ult, prisoners experience delays in 3
treatment and unnecessary harm. For example, Plaintiff Swartz w ent for more than six 4
5 weeks without medication for pain from his serious injuries and broken facial bones from

6 an assault, while awaiting central office approval of the ph ysician’s prescription for

7 Tramadol. However, he was not prescribed a different pain medication on the formulary 8
list pending the approval of Tramadol. Without the medication, he experienced intense 9
10 pain and had problems eating.

11

50. Defendants have a polic y and practice of not providing medically necessary

12 devices, thus depriving these pr isoners of basic sanitat ion. Plaintiff Jensen and ot her 13
prisoners who need ca theters are given f ewer clean catheters than they need, and thu s 14
15 have to re-use the ca theters, putting them at risk of bladder and urinary tract infections.

16 Plaintiff Jensen has repeatedly not been provided an adequate number of catheters, and at

17 times has had to rely on h is wife to order and pay for the catheters, and have them
18 delivered to the prison. Prisoners who need incontinence briefs or wipes often go without
19
20 them, or are told they only are allowed one diaper pe r day. As with Plaintiff Jensen,

21 prisoners fortunate enough to have the assistance of family members often rely on them to

22 obtain toileting supplies and have them delivered to the prison. 23
D. Defendants Employ Insufficient Health Care Staff 24
51. Many of the severe deficiencies in ADC’s health care system are caused by 25
26 Defendants’ failure to em ploy sufficient health care staf f positions to provide adequat e

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1 health care to prison ers. There are si mply insufficient medical, dental, and mental health

2 clinicians (i.e. physicians, psychiatrists, dentists, physicians’ assistants, registered nurses, 3
and other qualified clinicians) on staff to meet the significant and documented health care 4
5 needs of the almost 33,100 prisoners in ADC custody.

6

52. As an ADC doctor at the Florence prison test ified in September 2011, “we

7 are chronically and consistently understaffed.” The same doctor had previously noted this 8
problem in a n email to prison staf f, stating that “[ s]omething bad is going to happen 9
10 sometime” and pleading for help. In an email to Defendant Pratt’s predecessor, Dr. Adu-

11 Tutu, and other administrative and medical officials, this same physician noted that “[w]e

12 just don’t have the man power to do our assigned duties,” are “unable to meet our policy 13
and constitutional mandates,” and the provision of health care “ continue[s] to be a multi14
15 car accident waiting to happen.” And in an email to other ADC medical staff, the doctor

16 noted that “inadequat e staffing levels and unrealistic workload s lead to signif icant

17 breakdowns in the front line services we are trying to provide” and concluded that “we are

18 not meeting our own or anybody else’s standard of care.”
19

20

53. Defendants’ policy and practice of chronically and consistently

21 understaffing health ca re positions results in multiple deficiencies and inadequate health

22 care: there is not enou gh staff to timely respond to prisoners’ requests for health care and
23 to emergencies, to pro vide uninterrupted medication delivery, or t o adequately screen,
24
25 monitor and provide follow-up care to prisoners with serious and chronic illnesses. The

26 inadequate health care staffing is caused b y Defendants’ systematic elimination of health

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1 care staffing positions in recent years, including physicians, dentists, registered nurses,

2 and psychiatrists, and Def endants’ failure to activel y recruit, hire, train, supervise and
3 retain sufficient and competent health care staff.
4

5

54. Despite rising health care costs across the co untry, ADC spending on health

6 care staff positions dr opped more than $4 .4 million, or 8.4%, f rom Fiscal Year (“FY ”)

7 2009 to FY 2011 while the overall s tate prison population declined by less than 1%. 8
These positions were eliminated despite warnings from Defendants’ own health care staff 9
10 that prisoners would suffer serious har m from the re sulting delays in access to care,

11 emergency response, specialty care referrals, and inadequate chr onic care and m edication

12 management. For example, in February 2011, the sole psychiatrist on staff at Perryville – 13
a complex with 3,500 prisoners and multiple special mental health units for female 14
15 prisoners – wrote an email entitled “Please help” to pris on officials, warning th em that

16 mental health staffing was “ab ysmal,” and as a result mental health staff had to “renew

17 meds for dozens of people per week wit hout getting to see the m because there is not
18 enough time.” The ps ychiatrist concluded, “I’m doing the best I c an but it is still not
19
20 enough. I do n ot want to leave my position here as I feel that I d o some good for the

21 women here and society in general but I am stretched very thin.” In June 2011 the same

22 psychiatrist wrote an email entitled “Please assist Florence” to Defendant Ryan and
23 Defendant Pratt’s predecessor Dr. Adu-Tutu, and other ADC officials describing the “dire
24
25 situation” at Florence as it wa s the last d ay that complex would have a psychiatric

26 provider. S he described the probl ems the remaining l ow-level staff were having in

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1 providing medication for prisoners. Defendant Ryan’s response was, “Your concerns are 2 not falling on ‘deaf ears’. I acknowledge your messages.” 3
55. The harm resulting f rom staffing shortages is not lim ited to Perr yville and 4 5 Florence. The Deputy Medical Director for Psychiatry at Eyman warned Defendant Ryan 6 and Dr. Adu-Tutu in a series of emails in the fall of 2009 that prisoners “are not receiving 7 a reasonable level of psychiatric care. We are out of compliance with our own policies 8
regarding minimum frequency of contact with a provider, as well as community standards 9 10 for adequate care. The lack of treatment represents an escalating danger to the community, 11 the staff and the in mates.” Def endant Ryan responded with a b rusque one sentence 12 response that “a strategy is being pursued.” 13
56. That strategy, if one was indeed pursued, has failed. As of August 2011, 14 15 more than half of all mental health s taff positions were va cant at the E yman complex, 16 which houses multiple mental health units and two SMUs, where prisoners are h eld in 17 isolation. As of October 31, 2011, th ere was not a single ps ychiatrist on staf f for the 18
entire Eyman complex. Nor are an y psychiatrists currently employed on staf f at the 19 20 Florence, Lewis, and Tucson complexes, which along with Eyman are designated to house 21 prisoners classified as “MH-4: High Need,” signifying the prison ers need specialized 22 placement in a mental health program and intensive psychiatric staffing and services. As 23
of August 2011, the Y uma prison housed 52 prisoners classified as MH-3, whic h ADC’s 24 25 criteria describe as prisoners who require “regular, full-time psychological and psychiatric 26 staffing and services” and who need mental health treatment and supervision. Yet as of
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1 November 2011, the only mental health staff person for the entire Yuma complex was a

2 lower-level, Psychology Associate II. That position does not require medical training or a 3
Ph.D., but rather only a degree in counseling or social work. A Psychology Associate II 4
5 cannot manage or prescribe medications under current state law, and should be supervised

6 by a psychologist.

7

57. Defendants have knowingly ignored the warnings of their ow n staff and

8 others about the staf fing shortages, and as a result prisoners con tinue to suf fer from
9

10 constitutionally inadequate health care an d substantial risk of serious har m due to

11 Defendants’ deliberate indifference to the impact of the system-wide staffing shortages.

12 II. 13

Even If Prisoners See Health Care Providers, They Do Not Receive Adequate Medical, Dental, or Mental Health Care

14

A. Substandard Medical Care

15

58. Plaintiffs Jensen, Swartz, Parsons, Chis holm, Licci, Hefner, Polson, and

16 Wells, and the Medical Subclass, allege the following. Defendants Ryan and Pratt have a
17

18 policy and pra ctice of failing to provide pri soners with a dequate medical care, an d are

19 deliberately indifferent to the f act that the s ystemic failure to do so results in signif icant

20 injury and an substantial risk of serious harm to prisoners. Def endants’ failure to provide
21 adequate medical care results in prisoners experiencing prolonged, unnecessary pain and
22
23 suffering, preventable injury, amputation, disfigurement, and death.

24

1. Defendants Fail to Provide Prisoners With Care for Chronic Diseases and

25

Protection From Infectious Disease

26

59. Defendants have a polic y and pra ctice of failing to provide priso ners with

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1 medically necessary care to address ongoin g medical needs or di seases. Def endants’

2 deliberate indifference to their systemic failure to pr operly treat or manage prisoners’ 3
chronic illnesses exacerbates prisoners’ conditions, and frequently leads to preventable 4
5 permanent injuries or deaths. For example, a prisoner who needed medical care for

6 gastrointestinal bleeding and an untreated hernia trag ically did not receive proper

7 treatment even af ter Defendants were awar e of his problem s. H is hernia ruptured hi s 8
stomach lining and h e was f ound dead af ter “vomiting up his i nsides,” according to 9
10 witnesses. Pri or to hi s death, he reported t hat a prison doctor tol d him the hernia was

11 “merely cosmetic,” yet when the prisoner asked about his prognosis, the doctor joked, “I

12 wouldn’t go to Vegas with you.” A prisoner who has Hepatitis C requested treatment in a 13
HNR, but was told in response that since he h ad received a disciplinary ticket, he was not 14
15 eligible for treatment until one year after the date of the ticket.

16

60. Defendants also h ave a policy and practice of not providing medical diets

17 ordered by clinicians for prisoners with chronic conditions such as high blood pr essure,
18 high cholesterol, kidney failure, and diabetes. Instead, all prisoners, including those with
19
20 chronic conditions requiring special d iets, are given a nutritio nally inadequate, hig h-fat

21 and high-sodium diet. Plain tiff Hefner has chronic gastroesophageal reflux disease

22 (GERD) and requires a special diet. Howeve r, his request f or a medical diet was denied,
23 and the m eals he is given of ten aggravate his condition, f orcing him to choose bet ween
24
25 eating food that will cause physical distress, or eating nothing.

26

61. Defendants also have a policy and practice of failing to effectively enforce

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1 state law prohibiting smoking inside buildings, endangering the health of prisoners and

2 Defendants’ employees with chronic medical conditions such as asth ma, chronic 3
obstructive pulmonary disease, alle rgies, or emphysema, and p osing a health risk to 4
5 prisoners and staff exposed to second-hand smoke. Plaintiffs Gamez and Thomas both

6 have asthma, and report that second-hand cigarette smoke has triggered asthma attacks.

7

62. Defendants have a p olicy and practice of failing to mitigate the risk of

8 infectious and communicable diseases, such as MRSA, Vancomycin-Resistant
9

10 Enterococcus (VRE), Hepatitis C, and tuberculosis. Defendants fail to maintain basic

11 sanitation to prevent the exacerbation of chronic conditions and the spread of infectious

12 diseases. Many sections of ADC’s prisons are f ilthy, fail to meet basic sanitation 13
standards, and expose prisoners to serious, and sometimes fatal, communicable diseases. 14
15 These conditions include urine-soaked mattresses, uncontrolled infestations of vermin,

16 and cell walls and floors covered with black mold or smeared with the f eces, spit, and

17 blood of other in mates. Priso ners with cuts or oth er injuries to their bo dies have
18 contracted serious infections from the unsanitary conditions of the prison. A prisoner
19
20 living in unsanitary conditions in the Tucson complex developed a staph infection but was

21 not examined by medical staff until the inf ection had spread to hi s eyes. He now has

22 minimal vision in his right eye and has lost vision in his left eye.

23

2. Defendants Fail to Provide Timely Access to Medically Necessary Specialty

24

Care

25

63. Defendants have a polic y and pra ctice of failing to provide priso ners with

26 specialty care, or doing so only after extensive and unreasonable delays, often resulting in

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1 unnecessary pain and suffering, permanent injuries, and death. Defendants do not employ

2 medical specialists, but instead send prisoners to contracted outside specialists. In 2009, 3
reimbursement rates for prison medical contractors were capped so as to be no higher than 4
5 those paid b y the State’s Medicaid p rogram, the Arizona Hea lth Care Cost Conta inment

6 System. Defendants knew of the i mpending change t o the r eimbursement system, but

7 failed to take st eps to ameliorate the foreseeable impact of the cha nge in p olicy. As a 8
result, all outside medical providers ended their contracts with ADC. For much of 2009 9
10 and 2010, Defendants had no contracts in place with outside providers, and even today

11 have few outside spec ialists under co ntract to treat ADC pri soners. Prior to the rate

12 change, ADC’s spending on outside medical services in FY 2009 was $70,860,190. In FY 13
2011, the first full year following the change in rates, spe nding on specialty services had 14
15 plummeted by 38% t o $43,807,120, while there was no c orresponding decline in the

16 number of prisoners in ADC’s custody. Two years later, as a result of the accumulation of

17 pending referrals and the smaller number of contracted providers, prisoners still encounter

18 lengthy delays in getting specialized care for serious medical needs.
19

20

64. Defendants have been warned repeatedl y by their own prison d octors and

21 are well aware that de lays in referrals, including those caus ed by an overly burdensome

22 approval process for outside specia lists harm prisoners, b ut Defendants are deliber ately
23 indifferent to the resulting har m. An ADC physician testified that it takes m onths for
24
25 specialty referrals to be processed and that physicians are not notified of the decision from

26 ADC headquarters as to whether the ref erral will be granted. Th is doctor told pri son

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1 officials “the referral system has broken down.” Another AD C physician described in an

2 email to prison officials how difficult it w as to refer to a specialist a patient with a 3
suspected carcinoma of the lip. A fter repeatedly submitting urgent referrals, he finally 4
5 sent the request direct ly to the Di vision Director of Health Services. The ph ysician

6 described a s ystem where referrals are “f alling through c racks,” and estimated that “an

7 extensive list of examples… would probably exceed 30% of [his] consults.” 8
65. Defendants’ policy and practice of systematically failing to provide timely 9
10 access to outside specialists causes prisoners unnecessary harm. In late Febr uary 2010,

11 Plaintiff Swartz was attacked b y other inmates and suffered eye injuries and fractures of

12 his cheek bone, orbital bone around his e ye, and upper jaw bone – fractures that, if not 13
treated, result in the person’s f ace caving in, and in perm anent disfigurement. Outside 14
15 emergency room doctors advised that he be seen within a week by an ophthalmologist and

16 plastic surgeon. Prison doctors submitted these referrals to the review committee, but they

17 were not approved. In stead, Mr. Swartz was sent to an oral surgeon, who operated on his
18 face without an anesthesiologist present. Mr. Swartz was over-sedated and had to have an
19
20 antidote to b e revived. His f ace was partiall y paralyzed due to ner ve damage from the

21 botched surgery and over-sedation, and his eyelid drooped, causing dryness to his cornea.

22 It was not until al most eleven months after the injur y that he f inally saw an
23 ophthalmologist regarding his various injuries. Almost two years after the attack, he has
24
25 yet to have his eye and facial damage repaired by a specialist.

26

66. In another t ragic case, medical staff at the T ucson prison complex did not

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1 diagnose, treat, or refer to specialists a prisoner named Ferdinand Dix who had untreated 2 small cell lung canc er that had spread to his l iver, lymph nodes, and other major organs , 3
causing sepsis, liver failure, and kidney failure. For two years, Mr. Dix had filed multiple 4 5 HNRs and exhi bited many symptoms consistent with lung can cer, including a chroni c 6 cough and persistent shortness of breath, and he tested positive for tuberculosis. Due to 7 the metastasized cancer, Mr. Dix’s liver was infested with tumors and grossly enlarged to 8
four times normal size, pressing on other internal organs and impeding his ability to eat, 9 10 but no medical staff even performed a simple palpation of his abdomen. Instead, medical 11 staff told him to drink energy shakes. When Mr. Dix was finally taken to an outside 12 hospital in a non-responsive state in February 2011, his abdomen was distended to the size 13
of that o f a full-term pregnant woman, as s een in the photograp h below. Mr. Dix died 14 15 from the untreated cancer a few days after ADC finally sent him to the hospital. 16 17 18 19 20 21 22 23 24 25
67. Defendants have a policy and practice of failing to order or approve outside 26
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1 diagnostic testing, including biopsies of suspicious tumors and growths, and are 2 deliberately indifferent to the re sulting harm to prisoners. F or example, Plaintiff Jensen 3
waited more than two years to have a biopsy of the mass in his prostate, because contracts 4 5 with outside providers were ca ncelled. B y the time he was finally seen a nd treated, the 6 cancer was much wors e, resulting in more in vasive surgery and the need to perm anently 7 use a cathe ter. Be ginning in 2 010 Plaintiff Licci observed multiple masses growing on 8
her breasts, mouth, and arms, and rep orted discomfort in her cerv ix. The masses were 9 10 observable in ph ysical examinations. She be gan experiencing f requent diarrhea, nausea, 11 exhaustion, weight loss, pain, and other alarming symptoms. Ms. Licci has a family 12 history of cancer an d was treated for cancer in 20 01. Starting in December 2010 she 13
requested testing and a prison doctor ordered a ref erral to an oncologist. However, Ms. 14 15 Licci was not sent to an oncologist and did not receive a C T scan until la te September 16 2011. At that ti me the masses were des cribed as “lightin g [the CT scan] up like a 17 Christmas tree,” and the specialist ordered biopsies an d a colo noscopy. S till, the 18
Perryville gynecologist insisted that nothing was wrong with her. She finally had an MRI 19 20 in December 2011, but it was not properl y administered. Ms. Licci had to file additional 21 HNRs and grievances before receiving a second MRI, which confirmed multiple masses 22 on both ovaries. She still has not seen an oncologist or had biopsies. 23
68. A prison physician submitted a request that Plaintiff Hefner have a CT scan 24 25 to rule out a rib f racture and injury to his spleen in March 2011 af ter he was injured in an 26 attack, but the reques t was never reviewed or com pleted. Mr. Hefner experienced
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1 persistent pain and submitted three different HNRs in April and May of 2011, but was not

2 seen by a doctor until June 29, 2011, at which time the CT s can was again requested. He 3
did not get a CT scan until late October, 201 1, suffering unnecessary pain in the interi m. 4
5 Plaintiff Parsons co mplained of severe abdo minal pain in e arly February 2010, but was

6 given only Tums and antacids. Over the next several months, he filed multiple HNRs

7 about sharp burning pains in his abdomen, and was ta ken to t he emergency room one 8
time, but it was not until late October 2010 that he was finally tested and found positive 9
10 for infection with heli cobacter pylori (“h. p ylori”), a bact eria that can cause gas tritis,

11 nausea, and ulcers. Mr. Parsons continued to report pain and symptoms of gastrointestinal

12 distress in 201 1, but did not have an end oscopy and biop sy until September 2011 to

13 determine if he still had h. pylori.
14

15

69. When outside physicians see prisoners, they often prescribe treatment

16 regimens and medication. However, when prisoners return to p rison, Defendants fail to

17 monitor symptoms or provide follow-up treatment ordered by outside hospital physicians
18 in accordance with the prescribed treatment regimens and medical standards of care. As a
19
20 result, prisoners suffer infections and unnec essary setbacks in thei r recovery and must

21 return to the hospital.

22

B. Substandard Dental Care

23 70. Plaintiffs Swartz, Parsons, Chishol m, Polson, and W ells, and the Dental
24

25 Subclass, allege the following. Defendants Ryan and Pratt have a policy and practice of

26 failing to provide m edically necessary dental services, and are deliberatel y indifferent to

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1 the fact that the s ystemic failure to do so resul ts in injury and a subst antial risk of serious

2 harm to prisoners. 3
71. Prisoners wait months or years for basic dental treat ment and suffer 4
5 significant pain and other harm. Plaintiff Polson was put on the “routine care” waiting list

6 for dental treatment even though he has multiple teeth that are visibly missing or broken.

7 The prison dentist de signated him as qualified for partial dentures in April 2008, but the y 8
were not fitted until April 2011. He regularly does not receive his soft food diet. He also 9
10 filed a HNR after a dead front tooth broke, asking to be seen by the dentist, and to receive

11 a soft diet, and inquiring about the status of receiving the dentures. The onl y response on

12 the HNR was “You are requesting ROUTINE care. You are on ROUTINE care list.” He

13 was not seen by the dentist until five months later.
14

15

72. The primary dental service provided by Defendants is tooth extraction, even

16 if a much less invasive procedure such as a filling is medically appropriate and necessary.

17 Prisoners regularly face the horrible dile mma of saving a tooth a nd suffering pain, or
18 ending the pain and losing a tooth that otherwise could be saved. Plai ntiff Swartz is
19
20 currently in this posi tion. Some prisoners in itially refuse the extractions, but eventu ally

21 acquiesce after suffering pain f or a long period of time, or their co ndition worsens until

22 extraction is t he only treatment option available. After Plaintiff Wells repor ted missing
23 fillings in two of her t eeth in Dece mber 2010, the prison dentist re commended they be
24
25 extracted. She r efused, and the denti st told her to f ile an HNR r equesting replacement

26 fillings. Ms. Wells endured pain for several months before her f illings were replaced;

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1 however, in the process an adjacent tooth was cracked, exposing a nerve. She was told by

2 the dentist to submit another HNR to get tha t tooth repaire d. Seve ral months later, she
3 still has not received appropriate care and suffers pain.
4

5

73. Prisoners who are f ortunate enough t o get f illings are not gi ven permanent

6 fillings, but rather temporary fillings that are not designed to las t more than a few months

7 at most. Plaintiff Parsons filed an HNR in June 2008 regarding a cavity, but was not seen 8
until September of that year, at which time he was given a temporary filling. He filed four 9
10 HNRs in 2009 c omplaining that the te mporary filling had fallen out of his tooth. Each

11 time, he was given another temporary filling that would fall out weeks later, and he would

12 have to restart the process.

13 C. Substandard Mental Health Care
14

15

74. Plaintiffs Gamez, Swartz, Brislan, Rodriguez, Verduzco, T homas, Smith,

16 Parsons, Chisholm, and Polson, Plaintiff Arizona Cente r for Disability Law, and the

17 Mental Health Subclass, allege the following. Def endants Ryan and Pratt hav e a polic y
18 and practice of failing to provide prisoners with adequate mental health care, a nd are
19 20 deliberately indifferent to the f act that the s ystemic failure to do so results in injur y and a
21 substantial risk of serious harm to prisoners.

22

1. Defendants Deny Mentally Ill Prisoners Medically Necessary Mental

23

Health Treatment, Including the Proper Management and Administration

of Psychotropic Medication, Therapy, and Inpatient Treatment

24

75. Defendants have a p olicy and practice of denying treatment or providing 25

26 inadequate treatment to prisoners with serious mental health needs. Bec ause of chronic

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1 understaffing, mentally ill prisoners have insufficient interactions with psychiatrists; many

2 receive at most a five- or ten-minute interactions once or twice a year in which they are 3
asked only if their medications are working. Accor ding to Defendants’ own records, 4
5 some contacts with mental health staff are as brief as two minutes. As a result, clinicians

6 cannot make informed decisions about care. For example, Plaintiff Gamez did not s ee a

7 psychiatrist from 2007 to 2011, despite exhibiting worsening mental health and behaviors 8
such as paranoia, anx iety, panic, and ps ychosis. Instead, a nurse practitioner merely 9
10 prescribed a variet y of psychotropic medications, including drugs not indicated f or his

11 diagnosis and behavior. On two separate occasions when Plaint iff Brislan was placed in

12 suicide watch for weeks for engaging in self-har ming behavior and suffering severe side 13
effects from a variet y of psychotropic medications, he did not see a ps ychiatrist for 14
15 stretches of five and seven months.

16

76. Since they possess at most a glancin g familiarity with their p atients,

17 clinicians are unable to m eaningfully evaluate crucial decisions affecting safety and
18 health, such as the clinical appropriateness of indefinite confinement in SMUs an d other
19
20 units that hold pris oners in long-ter m isolation with minimal opportunities for human

21 interaction. For example, Plaintiff Gamez experienced hallucinations and deterioration in

22 his mental health due to abrupt interruptions in his medication, yet for two years he never
23 saw a ps ychiatrist while in E yman’s SMU. Similarly, while in E yman’s SMU, Plaintiff
24
25 Thomas did not see a psychiatrist for almost a year even though he had been moved to the

26 suicide watch unit multiple times.

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1

77. This systemic failure of mental health treatment extends to the mana gement

2 of psychotropic medication. Defendants have a policy and practice of failing to monitor 3
and provide follow-up treatment after prescribing psychotropic medications. In additi on, 4
5 prisoners who are on p sychotropic medications that increase heat se nsitivity are exposed

6 to levels of heat that p ose potentially lethal risks. Defendants are aware of the resulting

7 problems and the risk of serious harm to prisoners. In June 2011, the sole psychiatrist at 8
Perryville emailed Defendant Ryan and other prison officials about the “dire situation” at 9
10 the Florence prison, as it was the last day a psychiatric provider would be on staff. As a

11 result of the staf f shortage, she said she was contacted by nursing staff at the Florence

12 prison, asking her to pr escribe or renew medications for patients she had never exa mined, 13
and who were housed at a prison 90 miles away from where she worked. The psychiatrist 14
15 told Defendants that

16

These are patients I h ave never met or treat ed. The liability for treating

17

patients without evaluating and monitoring them is not one I am willing to undertake. It is unreasonable for administration to ex pect that its (very

18

few) providers that it has lef t to carr y the burden of treating patients

unseen. In the past, I have been willing to f ill meds for a day or two until

19

the patient could b e seen b y the facility psych provider, but I am not

20

willing to prescribe meds for long per iods of time without seeing the

inmate. …I hope f or the sake of the patients and the staff at Florence that

21

you will drop everything else you are doing and work on getting a provider

22

for them.

23

78. Defendant Ryan’s response was “[ y]our concerns are not f alling on ‘deaf

24 ears’.” Yet the problem the psychiatrist raised in June continues. Acc ording to ADC

25 staffing reports, as of November 2011, four of the six prisons designated by Defendants 26
for Level MH-4 seriously mentally ill prisoners – Eyman, Florence, Lewis, and Tucson –

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1 do not have a single psychiatrist on staff; it is therefore unclear who is writing or renewing 2 prescriptions for psychotropic medication at those co mplexes. The Phoenix f acility, 3
which is loca ted on th e grounds of the Arizo na State Hos pital and is designated for the 4 5 highest two level s of prisoners in need of inpatient mental health care, has onl y one 6 psychiatrist on staff. As of February 28, 2012, 197 prisoners were housed in these mental 7 health units at Phoenix. 8
79. Because prisoners on psychotropic medications rarely if ever see a 9 10 psychiatrist due to staffing shortages, there is little or no follow-up to evaluate the efficacy 11 of prescribed m edications, to ensure that dosages are adjus ted properly to achieve 12 therapeutic levels, or to evaluate prisoners for possible adverse side effects. For example, 13
Plaintiffs Parsons, Polson, and Gamez did not have their blood regularly drawn to test for 14 15 dangerous side effects of medication. Similarly, without any documentation of the basis 16 for their decisio ns, mental health staff prescribed Pla intiff Rodriguez high doses of 17 Haldol, an old medication that carries a much greater risk than newe r medications of side 18
effects and long QTc syndrome, which puts a person at ri sk of heart arrhythmias. Ms. 19 20 Rodriguez had a his tory of long QTc measurements, and exhi bited symptoms including 21 lack of spontaneous speech, muscle and jaw stiffness, involuntary movements, and 22 grimacing. Ms . Rodriguez finally started to refuse Haldol because of the side effects, 23
aggravating her symptoms of mental illness. While housed in Eyman and Lewis prisons, 24 25 Plaintiff Brislan demonstrated ongoing self-harming behaviors and dangerous side ef fects 26 from multiple psychotropic medications, but he was rarel y evaluated by a psychiatrist to
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1 see if medication adjustments might be helpful for his symptoms. Psychiatrists renewed

2 the prescriptions, but the clinical notes did no t indicate that the ps ychiatrist had ever seen
3 Brislan, a clear violation of the applicable standard of care.
4

5

80. Defendants have a pol icy and practice of allowing ongoi ng monitoring of

6 prisoners on p sychotropic medication by LPNs, psychology assistants, or medication

7 assistants who hand out the medications. T hese lower level mental health staff are not 8
qualified to adequately convey a prisoner’s concerns to a ps ychiatrist. Furthermore, staff 9
10 at this level s hould not be orderi ng or a uthorizing the dispensation of medication.

11 Plaintiff Swartz saw only lower level mental health staff at his cell front and did not see a

12 psychiatrist for over a year, even though he had multiple suicide attempts and was put on 13
a variety of psychotropic medication, and the dosages were regularly changed. Similarly, 14
15 in June 2008, Plaintif f Smith was prescribed Celexa, but did not receive it f or nearly a

16 year. He was also prescribed lithium; however, despite the need for close monitoring for

17 side effects from the lithium, he was not seen by a doctor for three months. His lithium
18 was renewed without Mr. Smith having seen a doctor for six months. In November 2009,
19
20 Mr. Smith submitted a HNR reporting that he was vomiting when given lithium without

21 food. He was given T ums and was not seen b y a doctor. When he reported continuing

22 symptoms in Ja nuary 2010, he was told to s ubmit another H NR and was not seen b y a
23 doctor until March 2010, four months after first reporting symptoms. Plaintiff Verduzco
24
25 goes months without seeing the Perr yville psychiatrist, despite d emonstrating multiple

26 symptoms of severe psychological distress including hallucinations and acts of self-harm.

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1

81. According to Defendants’ own records, approximately 1,350 ADC prisoners

2 are “severely mentally ill.” Some of these prisoners suffer from psychosis, a disorder that 3
is marked b y loss of contact with rea lity and disorganized thinking. Persons suf fering 4
5 from psychosis may have perceptual dist urbances such as hall ucinations, paranoia,

6 delusional beliefs, and bizarre behaviors. Some of these very mentally ill prisoners require

7 an inpatient level of care – a structured pro gram of psychosocial rehabilitation services 8
coupled with indi vidual therapy and appropriate medication management – but the y do 9
10 not receive it. Def endants have failed to reliabl y provide inpatient mental health care to

11 those prisoners whose serious mental health needs require it. Plaintif fs Brislan,

12 Rodriguez, and Verduzco are among those who require but have not received inpatient

13 mental health care.
14

15

2. Defendants Deprive Suicidal and Self-Harming Prisoners of Basic Mental

Health Care

16

82. Defendants have a p olicy and practice of housing prisoners with serious 17

18 mental health needs in unsafe conditions that heighten their risk of suicide. I n FY 2011,

19 there were 13 suicides in ADC pri sons, out of a population that a veraged 34,000 during

20 that time. That is a rat e of 38 suicides per 10 0,000 prisoners per year, more than do uble
21 the national a verage suicide rate in s tate prisons of 16.67 per 100 ,000. Three pr isoners
22
23 committed suicide in one week in late January 2012, including a 19-year-old woman.

24

83. One factor responsible for such a high suicide rate is Defendants’ policy and

25 practice of maintaining suicide wa tch facilities that of fer no meaningf ul treatment. 26
Usually the only people who i nteract with prisoners on suicide watch are corr ectional

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1 officers who check o n them periodically, medication assistants who dispense p ills, or

2 psychology assistants who talk to them through the front of their cell. Plaintiff Swartz did 3
not receive psychotherapy for more than two months in the summer of 2011 while on 4
5 suicide watch at the Lewis facility. After he swallowed glass and was taken to an outside

6 hospital, the hospital psychiatrist recommended that he be ta ken to an i npatient mental

7 health unit. These units are in the P hoenix complex. In stead, Mr. Swartz re mained at 8
Lewis where he c ontinued to har m himself. He f inally was moved to the Phoe nix 9
10 inpatient unit al most three m onths after the hospital ps ychiatrist had made that

11 recommendation, but after a short period of time he was again returned to Lewis. Plaintiff

12 Thomas did not see a psychiatrist for 11 months despite being p laced on suici de watch

13 multiple times.
14

15

84. Defendants also have a policy and practice of holding suicidal and mentally

16 ill prisoners in conditions that violate all notions of minimally adequate mental health care

17 and basic human dignity, and are not compatible with civilized standards of humanity and
18 decency. Suicide watch cells are often filthy, with walls and f ood slots smeared with
19
20 other prisoners’ blood and feces, reeking of human waste. Mental health staff show a lack

21 of professionalism and little co mpassion for prisoners end uring these conditions: f or

22 example, prisoners in suicide cells are tau nted for being in “the feces cells.” W hen
23 Plaintiff Swartz complained to a LPN ab out the unhygienic conditions of the suicide cell
24
25 at Lewis, the LPN described him in the mental health notes from the encounter as

26 “bitching about cleanliness – germs and disease.”

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1

85. Defendants have a policy and practice of keeping suicide watch cells at very

2 cold temperatures. Pr isoners are strip ped of all clothing and gi ven only a stiff suicide 3
smock and a thin blanket, making the extreme cold even harder to tolerate. P laintiffs 4
5 Rodriguez and Verduzco report that the suicide smock used in Perryville barely comes to

6 the top of female prisoners’ thighs , so both their legs and ar ms are exposed to cold air.

7 Many prisoners are also deprived of mattresses and as a result must sleep on bare steel bed 8
frames, or on the f loor made filthy with the bodily fluids of prior i nhabitants. Pl aintiff 9
10 Brislan spent several weeks in a frigid suicide cell with no mattress.

11

86. Defendants have a po licy and practice of exposing pr isoners on suicide

12 watch to gratuitou sly harsh, degrading, a nd damaging conditions of confinement. 13
Prisoners are given o nly two cold meals a day, and are de nied the opportunity to g o 14
15 outside, brush their te eth, or take sh owers. The onl y monitoring prisoners rece ive in

16 suicide watch is when correctional of ficers force the m awake every ten to 30 minutes,

17 around the clock, ostensibly to check on their safety. In some suicide cells, bright lights
18 are left on 24 hours a day. The res ulting inability to s leep aggravates the pri soners’
19
20 psychological distress.

21

87. Mentally ill pri soners on suicide watch c omplain of correctional staff

22 behavior that interferes with any therapeutic effect of being on s uicide watch, including
23 harassment, insults and taunts, and the exce ssive and practical ly sporting use of pepper
24
25 spray. Prisoners at the Perryville suicide watch units, including Plaintiff Verduzco, have

26 jerked awake when awoken by staff on the “safety checks,” and are pepper spr ayed for

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1 allegedly attempting to assault the of ficers. Guards in the Perryville suicide watch units

2 also frequently pepper spray female prisoners in their e yes and t hroats when th ey are 3
delusional or hallucinating. Plai ntiffs Rodriguez and V erduzco have asthma and rely 4
5 upon inhalers, and the y have had asthma attacks from the regular u se of pepper spray in

6 the women’s suicide watch unit. On m ultiple occasions after she was pepper spra yed in

7 the eyes, nose, and mouth, Ms. Verduzco was dragged to a s hower, stripped naked, and 8
sprayed with extremely cold water to rinse away the pepper spray; she was then left naked 9
10 to wait for a new vest and blanket. A prisoner in the Florence prison’s suicide watch unit

11 reports that while the re he was handed razor blades to swallow b y other prisoners, and

12 told “just die rig ht away.” He started to swallow the blades, and security staff pepper

13 sprayed him while he coughed up blood, and did not provide other emergency response.
14

15

88. Defendants’ policy and practice of holding suicidal prisoners in excessively

16 harsh conditions does not prevent but ra ther promotes self-injurious behavior. Plaint iff

17 Brislan has cut himself numerous times with razors and pieces of metal while on suicide
18 watch at multiple prisons, including Tucson, Lewis, and Eyman’s SMU 1 and Browning
19
20 units. At the Tucso n prison, staff put him on suicide watch in a cell with broken glass on

21 the floor which he used to cut himself. During another stay in suicide watch, Mr. Brislan

22 was given a razor blade that he used t o deeply lacerate both of his thigh s. While on
23 suicide watch in the Lewis prison duri ng the summer of 2011, Plaintif f Swartz, on
24
25 separate occasions, swallowed multiple foreign objects, inclu ding two large staples,

26 plastic wrap, a piece of glass, a lead-head concrete nail, a spork, two pens, sharpened

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1 paper clips, a metal spring, a steel bolt, and two copper wires. As with Plaintiff Brislan,

2 Mr. Swartz’s repeated suicidal gestures and ability to access dangerous objects while on 3
suicide watch confirms that he was n ot being properly monitored and that an y mental 4
5 health treatment he might have been receiving was inadequate.

6

89. Defendants also have a policy and practice of improperly using the suicide

7 watch cells to punish prisoners for alleged d isciplinary infractions. An E yman prisoner 8
who went on a hunger strike to protest prison policies, but did not display signs of mental 9
10 illness or dis tress, was put in a suicide watch cell f or several wee ks and was tol d by a

11 mental health provider, “If you weren’t on this hunger strike, you wouldn’t have to live in

12 the feces cell.”

13 III. Defendants Subject Prisoners in Isolation to Unconstitutional Conditions
14

15

90. Plaintiffs Gamez, Swartz, Brislan, Rodriguez, Verduzco, T homas, Smith,

16 and Polson, Plaintiff Arizona Center for Disability Law, and the Iso lation Subclass allege

17 the following. Defendants have a policy and practice of confining thousands of prisoners
18 in isolation (d efined as conf inement in a cell for 22 hours or more each day or
19 20 confinement in Eyman – S MU 1, Eyman – Browning Unit, Florence – Ce ntral Unit, or
21 Perryville – Lu mley Unit Special Ma nagement Area (SMA) ), in co nditions of enforced

22 idleness, social isolation, and se nsory deprivation, and a re deliberately indifferent to the
23 resulting substantial risk of serious physical and psychiatric harm.
24 91. The large majority of prisoners in isolation are held in four facilities: tw o
25
26 SMUs at the Eyman prison (SMU 1 and Browning Units); the Florence complex’s Central

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1 Unit; and the Perr yville complex’s Lumley SMA for female prisoners. However, other

2 prisoners are held in i solation in Co mplex Detention Units (CDUs) and other restricted
3 housing units throughout ADC.
4

5

92. Prisoners in isolation leave their cells no more than three times a week, for a

6 brief shower and no more than two h ours of “exercise” in the “rec pen” – a barren,

7 windowless concrete c ell with high walls tha t is not m uch larger th an the cells in which 8
prisoners live, wit h no exercise equip ment. Many prisoners refuse to go to the rec pen, 9
10 because it is so small that it does not allow meaningful exercise, and because prisoners are

11 placed in restraints an d strip-searched when going to and returning from the rec pen. In

12 addition, prisoners sometimes are not allowed to t ake water to the rec pe n, even at the 13
height of Arizona’s summer heat. For those prisoners who do wish to go to the rec pen, 14
15 even this brief respite is often denied: exercise is so metimes cancelled due to staffing

16 shortages. Pri soners in Florence’s Central Unit, i ncluding Plaintiff Gamez, are not

17 allowed to go to recre ation if they are not clean-shaven, but are often deprived of shaving
18 supplies and are thus denied exercise. Some prisoners in i solation receive no outdoor
19
20 exercise at all for months or years on end; others receive insufficient exercise to preserve

21 their physical and mental health.

22

93. Conditions of isolation are designed to minimize human contact and

23 environmental stimulation. Most or all of these prisoners are held in cells with a sol id
24

25 steel door and no window to the o utside. S ome prisoners have no means of telling t he

26 time and become disoriented and confused, not knowing the date or whether it is d ay or

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1 night. The cells are of ten illuminated 24 hours a day, making sleep difficult and further

2 contributing to pris oners’ disorientation and mental deterioration. Chronic sleep 3
deprivation is common. Plaintif f Thomas reported an ina bility to sleep and requ ested 4
5 Ambien, but was not prescribed a sleep aid. Pr operty is extremely limited. Ma ny

6 prisoners have no radi o or television , and many are illiterate or have difficulty reading,

7 leaving them in a state of enf orced idleness with nothing to do but sleep, sit, or pace in
8 their cells.
9

10

94. Prisoners in isolation often go m onths or years without any meaningful

11 human interaction. U nless they are f ortunate enough to receive a brief medical or legal

12 appointment or a visit, prisoners are isolated from virtually all human contact. Their only 13
regular interaction with another hu man being occurs whe n officers deliver their food 14
15 trays, or place the m in restraints and stri p-search them while tak ing them to or f rom the

16 rec pen.

17

95. Defendants have a po licy and practice of denying prisoners in isolation

18 adequate nutrition, which Defendants justify on the basis that, because these prisoners
19

20 receive virtually no exercise, they burn fewer calories and therefore need less food. Some

21 prisoners in i solation receive only two meals per da y, which do not meet their minimal

22 nutritional needs. Prisoners experience constant hunger pangs and some lose significant
23 weight as a result of Defendants’ policy of providing i nadequate nutrition. Plaintiff
24
25 Thomas lost 30 pounds while in isolation. Plaintiff Smith, who is in isolation supposedly

26 for his own protection after leaving a gang, often cannot eat the limited amount of food he

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1 is given, as i t is ta mpered with b y the prisoner kitchen workers who target h im for

2 retaliation. He has complained to prison staff, to no avail. 3
96. The devastating effects of these co nditions of extreme social isolation and 4
5 environmental deprivation are well know n to Def endants. An abundant ps ychiatric

6 literature spanning nearly two hun dred years has docum ented the adverse mental health

7 effects of isolation, and Arizona prisoners are no exception. Even prisoners who have no 8
mental illness w hen first placed in isolatio n often experience a dramatic deterioratio n in 9
10 their mental health, developing symptoms such as paranoia, anxiety, depression, and post-

11 traumatic stress disorder. For example, Mr. Thomas did not suffer from suicidal ideation

12 when he was put in isolation, but as ti me went on, his mental and ph ysical state 13
deteriorated. He developed suicidal ideation and physically harmed himself several times. 14
15 Plaintiff Smith’s file notes that on Ja nuary 5, 2010, he repor ted mental health pro blems

16 while housed in isolation, but he co uld not be seen due to a “psych RN shortage.” Even

17 those prisoners who withstand isolation better than most are su bjected to intolera ble
18 conditions, as they are forced to endure the hallucinations and screaming of prisoners
19
20 suffering the debilitating effects of isolation.

21

97. Isolation is even more predictably damaging to prisoners with a pre-existing

22 mental illness. For these prisoners, isolation poses a grave risk of exacerbation of mental
23 health symptoms, psychiatric injury such as PTSD, self-harm, and suicide. Deprived of
24
25 the social in teraction that is essent ial to kee p them grounded in reality, many prisoners

26 with mental illness experience catastrophic and often irreversible psychiatric deterioration.

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1 Unlike prison officials in many states, Defendants’ policy and practice allows the isolation

2 of prisoners with mental illness, and Defendants knowingly hold prisoners designated as
3 seriously mentally ill in isolation.
4

5

98. The harm to prisoners in isolation is exacerbated by the policy and practice

6 of Defendants of failing to provide adequate mental health care staffing and treatment. In

7 addition, the harsh re gime and severe li mits on hum an contact in isolation render 8
appropriate mental health treatment effectively impossible. Prisoners in isolation do not 9
10 receive regular contact with psychiatrists or mental health clinicians, nor do the y receive

11 the limited group therapy that is sometimes provided to prisoners in other ADC f acilities.

12 Defendants stated in response to a public records request that they keep no records of the 13
mental health pr ogramming provided to pr isoners in isola tion. These prisoners’ rare 14
15 interactions with mental health staf f usually consist of “cellfront” contacts in which the

16 staff member shouts through the cell door, within earshot of both off icers and other

17 prisoners. There is currently no psychiatrist on staff at Eyman, which has two SMUs.
18 99. The most common form of mental health treatment for prisoners in isolation
19
20 is the ad ministration of powerful psychotropic medications, with little or no su pervision

21 by a psychiatrist. For example, Plaintiff Gamez was not seen b y a psychiatrist from 2007

22 through 2011 despite worsening mental health symptoms. His mental health deteriorated
23 extensively while held in i solation from 2009 through 2011, yet he did not see a
24
25 psychiatrist or rece ive psychotherapy despite filing multiple HNRs detailin g his

26 symptoms. Si milarly, Plaintiffs Brislan and Swartz had psychotropic medications

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1 renewed without any contact with a ps ychiatrist, despite in creasing incidents of self-

2 harming behavior and side effects while in isolation. Pris oners who require an in patient 3
level of mental health care, like Plaintiffs Brislan and Verduzco, do not receive it, and are 4
5 instead left in isolation where their condition worsens.

6

100. The predictable outc omes of these cruel conditions of isolation are

7 psychiatric deterioration, self-injury, and death. Plaintiffs Swartz and Brislan attempted to 8
commit suicide on multiple occasions while in isolation . Rece ntly a prison er with 9
10 depression who was housed in isolation at Florence-Central Unit repeatedly asked

11 custodial staff and medical staff passing by if he could be seen b y mental health because

12 he was suicid al. Noth ing was done f or him, and he co mmitted suicide by hanging on

13 January 28, 2012.
14

15

CLASS ACTION ALLEGATIONS

16

Plaintiff Class

17

101. All prisoner Plaintiffs bring this ac tion on their own behalf and, pursuant to

18 Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of a
19

20 class of all prisoners who are now, or will in the f uture be, subjected to the medical,

21 mental health, and de ntal care (collectivel y “health care”) policies and practices of the

22 ADC (the “Plaintiff Class”).

23 Numerosity: Fed. R. Civ. P. 23(a)(1)
24

25

102. The class is so nu merous that joinder of all members is i mpracticable. Fed.

26 R. Civ. P. 23(a)(1). As of March 1, 2012, there are approxi mately 33,100 prisoners in the

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1 custody of ADC’s prisons, all of whom are dependent entirel y on Defendants for the

2 provision of health car e. Due to Def endants’ policies and p ractices, all AD C prisoners, 3
numbering tens of thousands annually, receive or are at risk of receiving inadequate health 4
5 care while in ADC prisons.3

6

103. The Plaintiff Class members are identifiable using records maintained in the

7 ordinary course of business by the ADC.
8 Commonality: Fed. R. Civ. P. 23(a)(2)
9

10

104. There are questio ns of law and f act common to the m embers of the class.

11 Such questions include, but are not limited to:

12

(a) whether Defendants’ failure to operat e a health ca re system

13

providing minimally adequate health care violates the Cruel an d

Unusual Punishments Clause of the Eighth Amendment, 14

15

(b) whether Defendants have been deliberately indifferent to the serio us

health care needs of class members.

16

17 Defendants are expected to raise common defenses to these claims, including denying that

18 their actions violated the law.

19

Typicality: Fed. R. Civ. P. 23(a)(3)

20 105. The claims of the Plaintiffs are typical of those of the Plaintiff Class, as their
21 22 claims arise from the same policies, practices, or courses of conduct; and their claims are

23 based on the same theory of law as the class’s claims.

24 /// 25

26 3 This proposed class does not include the approximately 6,400 Arizona prisoners housed in private for-profit prisons pursuant to contracts with ADC.

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1

Adequacy: Fed. R. Civ. P. 23(a)(4)

2

106. Plaintiffs are capable of fairly and adequately protecting the interests of the

3 Plaintiff class because Plaintiffs do not have any interests antagonistic to the class.
4

5 Plaintiffs, as well as the Plaintiff class members, seek to enjoin the unlawful acts and

6 omissions of Defendants. Finally, Plaintiffs are represented by counsel experienced in

7 civil rights litigation, prisoners’ rights litigation, and complex class action litigation.
8 Fed. R. Civ. P. 23(b)(1)(A) and (B)
9

10

107. This action is maintainable as a class ac tion pursuant to Fed. R. Civ. P.

11 23(b)(1) because the number of class members is approximately 33,100, and the

12 prosecution of separate actions by individuals would create a risk of inconsistent and 13
varying adjudications, which in turn would establish incompatible standards of conduct 14
15 for Defendants Ryan and Pratt. Additio nally, the pr osecution of separate actions b y

16 individual members could result in adjudications with respect to individual members that,

17 as a practic al matter, would substantially impair the ab ility of other members to pr otect

18 their interests.
19

20

Fed. R. Civ. P. 23(b)(2)

21

108. This action is also maintainable as a class action pursuant to Fed. R. Civ. P.

22 23(b)(2) because Defendants’ policies, practices, actions, and omissions that form the
23 basis of this co mplaint are co mmon to a nd apply generally to all members of the cl ass,
24
25 and the injunctive an d declaratory relief sought is appropria te and will appl y to all

26 members of the class. All state-wide healt h care policies are ce ntrally promulgated,

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1 disseminated, and enf orced from the central headquarters of ADC b y Defendants Ryan

2 and Pratt. The injunctive and declaratory relief sought is appropriate and will apply to all
3 members of the Plaintiff class.
4

5

Medical Subclass

6

109. Plaintiffs Jensen, Swartz, Parsons, Chis holm, Licci, Hefner, Polson, and

7 Wells bring this ac tion on their own behalf and, purs uant to Rules 23(a), 23( b)(1), and 8
23(b)(2) of the Federal Rules of Civil Procedure, on behalf of a subclass of all prisoners 9
10 (hereinafter “Medical Subclass”) who are n ow, or will in the future be, su bjected to t he

11 medical care policies a nd practices of the ADC. “Medical care” inc ludes care related to

12 hearing and vision.

13 Numerosity: Fed. R. Civ. P. 23(a)(1)
14

15

110. The Medical Subclass is so n umerous that joinder of all members is

16 impracticable. As of March 1, 2012, t here are approximately 33,100 prisoners in the

17 custody of ADC’s prisons, all of whom are dependent entirel y on Defendants for the
18 provision of medical care. Due to Defendants’ policies and practices, all ADC prisoners,
19
20 numbering tens of thousands an nually, receive or are at ri sk of receiving ina dequate

21 medical care while in ADC prisons.

22

111. The Medical Subclass members are identifiable using records maintained in

23 the ordinary course of business by the ADC.
24

25

Commonality: Fed. R. Civ. P. 23(a)(2)

26

112. There are questions of law and fact common to the members of the Medical

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1 Subclass. Such questions include, but are not limited to:

2

(a) whether Defendants’ failure to oper ate a medical care system

3

providing minimally adequate medical care violates the Cr uel and

Unusual Punishments Clause of the Eighth Amendment, 4

5

(b) whether Defendants have been deliberate ly indifferent to the

resulting harm and risk of harm to Medical Subclass members who

6

are deprived of minimally adequate medical care.

7 Defendants are expected to raise common defenses to these claims, including denying that
8 their actions violated the law.
9

10

Typicality: Fed. R. Civ. P. 23(a)(3)

11

113. The claims of the Plai ntiffs are t ypical of those of the Medical Subclass,

12 because their claims arise from the same policies, practices, or courses of conduct; and

13 their claims are based on the same theory of law as the subclass’s claims.
14

15

Adequacy: Fed. R. Civ. P. 23(a)(4)

16

114. Plaintiffs are capable o f fairly and adequately protecting the interests of the

17 Medical Subclass because Plaintiffs do not have an y interests antagonistic to the subclass.
18 Plaintiffs, as well as the Medical Subcla ss members, seek to enjoi n the unlawful acts and
19
20 omissions of Defendants. T he Plaintiffs are r epresented by counsel experienced in civil

21 rights litigation, prisoners’ rights litigation, and complex class action litigation.

22

Fed. R. Civ. P. 23(b)(1)(A) and (B)

23 115. Since the number of Medical Subclass members is so large, the prosecution
24

25 of separate actions by individuals would create a risk of inconsistent and var ying

26 adjudications, which i n turn would estab lish incompatible standards of conduct f or

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1 Defendants Ryan and Pratt.

2

116. Additionally, the pros ecution of separate actions b y individual members

3 could result in adjudications with respect to individual members that, as a practical matter,
4

5 would substantially impair the ability of other members to protect their interests.

6

Fed. R. Civ. P. 23(b)(2)

7

117. Defendants’ policies, practices, actions, and omissions that form the basis of

8 the claims of the Medical Subclass are common to and apply generally to all members of
9

10 the subclass, and the injunctive and declaratory relief sought is appropriate and will apply

11 to all members of the subclass. All state-wide medical policies are centrally promulgated,

12 disseminated, and enf orced from the central headquarters of ADC b y Defendants Ryan 13
and Pratt. The injunctive and declaratory relief sought is appropriate and will apply to all 14
15 members of the subclass.

16

Dental Subclass

17

118. Plaintiffs Swartz, Parsons, Chisholm, Polson, and Wells bring this action on

18 their own behalf and, pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules
19

20 of Civil Procedure, on behalf of a subclass of all prisoners (hereinafter “Dental Subclass”)

21 who are now, or will in the future be, subjected to the dental care policies and practices of

22 the ADC.

23 Numerosity: Fed. R. Civ. P. 23(a)(1)
24

25

119. The Dental Subclass is so nu merous that joinder of all members is

26 impracticable. As of March 1, 2012, t here are approximately 33,100 prisoners in the

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1 custody of ADC’s prisons, all of whom are dependent entirel y on Defendants for the

2 provision of dental car e. Due to Def endants’ policies and p ractices, all AD C prisoners, 3
numbering tens of thousands annually, receive or are at risk of receiving inadequate dental 4
5 care while in ADC prisons.

6

120. The Dental Subclass members are identifiable using rec ords maintained in

7 the ordinary course of business by the ADC.
8 Commonality: Fed. R. Civ. P. 23(a)(2)
9

10

121. There are questions of law and f act common to the members of the Dental

11 Subclass. Such questions include, but are not limited to:

12

(a) whether Defendants’ failure to operat e a dental ca re system

13

providing minimally adequate dental care violates the Cruel and

Unusual Punishments Clause of the Eighth Amendment, 14

15

(b) whether Defendants have been deliberate ly indifferent to the

resulting harm and risk of harm to Dental Subclass members who are

16

deprived of minimally adequate dental care.

17 Defendants are expected to raise common defenses to these claims, including denying that

18 their actions violated the law.
19

20

Typicality: Fed. R. Civ. P. 23(a)(3)

21

122. The claims of the Plaintif fs are t ypical of those of the Dental Subclass,

22 because their claims arise from the same policies, practices, or courses of conduct; and

23 their claims are based on the same theory of law as the subclass’s claims.
24

25

Adequacy: Fed. R. Civ. P. 23(a)(4)

26

123. Plaintiffs are capable o f fairly and adequately protecting the interests of the

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1 Dental Subclass because Plaintiffs do not ha ve any interests antagonistic to the subclass.

2 Plaintiffs, as well as the Dental Subclass members, seek to enjoin the unlawful acts and 3
omissions of Defendants. F inally, Plaintiffs are repre sented by counsel experienced in 4
5 civil rights litigation, prisoners’ rights litigation, and complex class action litigation.

6

Fed. R. Civ. P. 23(b)(1)(A) and (B)

7

124. Since the number of Dental Subclass members is so large, the prosecution of

8 separate actions b y individuals would cr eate a risk of inconsistent and var ying
9

10 adjudications, which i n turn would estab lish incompatible standards of conduct f or

11 Defendants Ryan and Pratt. Additi onally, the prosecuti on of separate actio ns by

12 individual members could result in adjudications with respect to individual members that, 13
as a practic al matter, would substantially impair the ab ility of other members to pr otect 14
15 their interests.

16

Fed. R. Civ. P. 23(b)(2)

17

125. Defendants’ policies, practices, actions, and omissions that form the basis of

18 the claims of the Dental Subclass are co mmon to and appl y generally to all members of
19

20 the subclass, and the injunctive and declaratory relief sought is appropriate and will apply

21 to all members of the subclass. All state-wide dental policies are centrally promulgated,

22 disseminated, and enf orced from the central headquarters of ADC b y Defendants Ryan
23 and Pratt. The injunctive and declaratory relief sought is appropriate and will apply to all
24
25 members of the subclass.

26 ///

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Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 65 of 78

1

Mental Health Subclass

2

126. Plaintiffs Gamez, Swartz, Brislan, Rodri guez, Verduzco, S mith, Parsons,

3 Chisholm, and Polson, bring this action on their own behalf and, pursuant to Rules 23 (a),
4

5 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on b ehalf of a subclass o f

6 all prisoners (hereinafter “Mental Health Subclass”) who are now, or will in the f uture be,

7 subjected to the mental health care policies and practices of the ADC.
8 Numerosity: Fed. R. Civ. P. 23(a)(1)
9

10

127. The Mental Heal th Subclass is so nu merous that joinder of all me mbers is

11 impracticable. As of March 1, 2012, t here are approximately 33,100 prisoners in the

12 custody of ADC’s prisons, all of whom are dependent entirel y on Defendants for the 13
provision of mental health care. Due to Defendants’ policies and practices, all A DC 14
15 prisoners, numbering tens of thousands ann ually, receive or are at risk of receiving

16 inadequate mental health care whil e in A DC prisons. The M ental Health Subclass

17 members are ident ifiable using records maintained in the ordinar y course of business b y

18 the ADC.
19

20

Commonality: Fed. R. Civ. P. 23(a)(2)

21

128. There are questions of law and fact common to the members of the Mental

22 Health Subclass. Such questions include, but are not limited to:

23

(a) whether Defendants’ failure to operate a m ental health care system

24

providing minimally adequate mental health care violates the Cruel

25

and Unusual Punishments Clause of the Eighth Amendment,

26

(b) whether Defendants have been deliberate ly indifferent to the

resulting harm and risk of harm to Mental Health Subclass members

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Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 66 of 78

1

who are deprived of minimally adequate mental health care.

2 Defendants are expected to raise common defenses to these claims, including denying that
3 their actions violated the law.
4

5

Typicality: Fed. R. Civ. P. 23(a)(3)

6

129. The claims of the Pl aintiffs are t ypical of those of the Mental Health

7 Subclass, because their claims arise f rom the same policies, practices, or cou rses of
8 conduct; and their claims are based on the same theory of law as the subclass’s claims.
9

10

Adequacy: Fed. R. Civ. P. 23(a)(4)

11

130. Plaintiffs are capable o f fairly and adequately protecting the interests of the

12 Mental Health Subclass because Plaintiffs do not have any interests antagonistic to the 13
subclass. Plaintif fs, as well as the Mental Health Subclass members, seek to enjoin the 14
15 unlawful acts and omissions of Defendants. Finally, Plaintiffs are represented by counsel

16 experienced in civil rights litigation, prisoners’ rights litigation, and complex class action

17 litigation.

18 Fed. R. Civ. P. 23(b)(1)(A) and (B)
19

20

131. Since the number of Mental Health Subclass members is so la rge, the

21 prosecution of separate actions by individuals would create a risk of inconsistent and

22 varying adjudications, which in turn would establish incompatible standards of conduct
23 for Defendants Ryan and Pratt. Additio nally, the pr osecution of separate actions b y
24
25 individual members could result in adjudications with respect to individual members that,

26 as a practic al matter, would substantially impair the ab ility of other members to pr otect

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Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 67 of 78

1 their interests.

2

Fed. R. Civ. P. 23(b)(2)

3 132. Defendants’ policies, practices, actions, and omissions that form the basis of
4

5 the claims of the Me ntal Health Subclass are common to and apply generally to all

6 members of the su bclass, and the injunctive and declaratory relief sought is appropriate

7 and will appl y to all members of the subcla ss. All state-wide mental health polici es are 8
centrally promulgated, disseminated, and enforced from the central headquarters of ADC 9
10 by Defendants Ryan and Pratt. The injunctive and declaratory relief sought is appropriate

11 and will apply to all members of the subclasses.

12

Isolation Subclass

13 133. Plaintiffs Gamez, Swartz, Brislan, Rodriguez, Verduzco, T homas, Smith,
14

15 and Polson bring this action on t heir own behalf and, pursuant t o Rules 23(a), 23(b)(1),

16 and 23(b)(2) of the Federal Rules of Civil Procedure, against Defendants Ryan and Pratt

17 on behalf of a subclass of all prisoners (hereinafter “Isolation Subclass”) who are now, or
18 will in the future be, subject by the ADC to isolation, defined as confinement in a cell for
19
20 22 hours or more each day or confinement in Eyman - SMU 1, Eyman - Browning Unit,

21 Florence - Central Unit, or Perryville - Lumley Unit Special Management Area (SMA).

22

Numerosity: Fed. R. Civ. P. 23(a)(1)

23 134. The Isolation Subclass is so nu merous that joinder of all members is
24

25 impracticable. Each year approximately 3,000 prisoners are subj ected to Def endants’

26 policies and practices of denying minimally adequate conditions of confinement while in

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Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 68 of 78

1 isolation. The Isolation Subclass members are identifiable using records maintained in the

2 ordinary course of business by the ADC.
3 Commonality: Fed. R. Civ. P. 23(a)(2)
4

5

135. There are questions of law and fact common to the members of the Isolation

6 Subclass. Such questions include, but are not limited to:

7

(a) whether Defendants’ policy and practice of not providing a housing

8

environment free of debilitating iso lation and inhumane conditions

to prisoners subjected to isolati on violates the Cruel a nd Unusual

9

Punishments Clause of the Eighth Amendment,

10 (b) whether Defendants have been deliberate ly indifferent to the

11

Isolation Subclass members’ risk of injury and har m from the

12

debilitating isolation and inhumane conditions to which the y are subjected.

13 Defendants are expected to raise common defenses to these claims, including denying that
14

15 their actions violated the law.

16

Typicality: Fed. R. Civ. P. 23(a)(3)

17

136. The claims of the Plai ntiffs are t ypical of those of the Isolation Subclass,

18 because their claims arise from the same policies, practices, or courses of conduct; and
19

20 their claims are based on the same theory of law as the subclass’s claims.

21

Adequacy: Fed. R. Civ. P. 23(a)(4)

22

137. Plaintiffs are capable o f fairly and adequately protecting the interests of the

23 Isolation Subclass because Plaintiffs do not have any interests antagonistic to the subclass.
24

25 Plaintiffs, as well as th e Isolation Subclass members, seek to enjoin the unlawful acts and

26 omissions of Defendants. F inally, Plaintiffs are repre sented by counsel experienced in

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Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 69 of 78

1 civil rights litigation, prisoners’ rights litigation, and complex class action litigation.

2

Fed. R. Civ. P. 23(b)(1)(A) and (B)

3 138. Since the number of Isolation Subclass members is approximately 3,000, the
4

5 prosecution of separate actions by individuals would create a risk of inconsistent and

6 varying adjudications, which in turn would establish incompatible standards of conduct

7 for Defendants Ryan and Pratt. Additio nally, the pr osecution of separate actions b y 8
individual members could result in adjudications with respect to individual members that, 9
10 as a practic al matter, would substantially impair the ab ility of other members to pr otect

11 their interests.

12

Fed. R. Civ. P. 23(b)(2)

13 139. Defendants’ policies, practices, actions, and omissions that form the basis of
14

15 the claims of the Isolation Subclass are co mmon to and apply generally to all members of

16 the subclass, and the injunctive and declaratory relief sought is appropriate and will apply

17 to all members of the subclass. All state -wide policies on the con ditions of isolation are
18 centrally promulgated, disseminated, and enforced from the central headquarters of ADC
19
20 by Defendants Ryan and Pratt. The injunctive and declaratory relief sought is appropriate

21 and will apply to all members of the subclass.

22

CLAIMS FOR RELIEF

23

First Cause of Action

24

(All Prisoner Plaintiffs and the Plaintiff Class v. Defendants Ryan and Pratt)

25

(42 U.S.C. § 1983; Eighth Amendment)

26

140. By their policies and practices d escribed herein, Defendants subject all

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 70 of 78

1 prisoner Plaintiffs and the Plaintiff class to a substantial ri sk of serious har m and in jury

2 from inadequate health care. These policie s and practices ha ve been and continue t o be 3
implemented by Defendants and their agen ts, officials, employees, and all persons actin g 4
5 in concert wi th them under color of state law, in their official capacities, and are th e

6 proximate cause of the Plaintiffs’ and the Pla intiff Class’s ongoing deprivation of rights

7 secured by the United States Constitution under the Eighth Amendment. 8
141. Defendants have been and are aware of all of the deprivations complained of 9
10 herein, and have condoned or been deliberately indifferent to such conduct.

11

Second Cause of Action

12

(Plaintiffs Jensen, Swartz, Parsons, Chisholm, Licci, Hefner, Polson, and Wells; and Medical Subclass v. Defendants Ryan and Pratt)

13

(42 U.S.C. § 1983; Eighth Amendment)

14

142. By their policies an d practices describ ed herein, Def endants subject

15 Plaintiffs Jensen, Swar tz, Parsons, Chisholm, Licci, Hef ner, Polson, and Wells, and the

16 Medical Subclass to a substantial risk of serious harm and injury from inadequate medical
17

18 care. These policies and practices have been and continue to

be im plemented by

19 Defendants and their agents, officials, employees, and all persons acting in concert with

20 them under color of state law, in their official capacities, and are the proximate cause of
21 the Plaintiffs’ and the Medical Subclass’s ongoing deprivation of rights secure d by the
22
23 United States Constitution under the Eighth Amendment.

24

143. Defendants have been and are aware of all of the deprivations complained of

25 herein, and have condoned or been deliberately indifferent to such conduct.
26 ///

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 71 of 78

1

Third Cause of Action

2

(Plaintiffs Swartz, Parsons, Chisholm, Polson, and Wells; and Dental Subclass v. Defendants Ryan and Pratt)

3

(42 U.S.C. § 1983; Eighth Amendment)

4

144. By their policies an d practices describ ed herein, Def endants subject

5 Plaintiffs Swartz, Par sons, Chisholm, Polson, and Wells, and the Dental Subclass to a 6
substantial risk of serious harm and injury from inadequate dental care. These policies 7
8 and practices have bee n and continue to be i mplemented by Defendants and their agents ,

9 officials, employees, and all persons acting in concert with the m under color of state law,

10 in their of ficial capacities, and are th e proximate cause of the Plai ntiffs’ and the Dental 11
Subclass’s ongoing deprivation of rights secured b y the United States Constitution under 12
13 the Eighth Amendment.

14

145. Defendants have been and are aware of all of the deprivations complained of

15 herein, and have condoned or been deliberately indifferent to such conduct.

16

Fourth Cause of Action

17

(Plaintiffs Gamez, Swartz, Brislan, Rodriguez, Verduzco, Thomas, Smith, Parsons,

18

Chisholm, and Polson; Plaintiff Arizona Center for Disability Law; and

Mental Health Subclass v. Defendants Ryan and Pratt)

19

(42 U.S.C. § 1983; Eighth Amendment)

20

146. By their policies an d practices describ ed herein, Def endants subject

21 Plaintiffs Gamez, Swartz, Brislan, Rodriguez, Verduzco, Thomas, Smith, Parsons,
22

23 Chisholm, and Polson, and the Mental Health Subclass t o a substa ntial risk of serious

24 harm and injur y from inadequate mental health care. These policie s and practices have

25 been and contin ue to be i mplemented by Defendants and their agents, of ficials, 26
employees, and all persons acting in concert with them under color of state law, in t heir

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 72 of 78

1 official capacities, a nd are the pr oximate cause of the Plaintif fs’ and the Men tal Health

2 Subclass’s ongoing deprivation of rights secured b y the United States Constitution under
3 the Eighth Amendment.
4

5

147. Defendants have been and are aware of all of the deprivations complained of

6 herein, and have condoned or been deliberately indifferent to such conduct.

7

Fifth Cause of Action

8 (Plaintiffs Gamez, Swartz, Brislan, Rodriguez, Verduzco, Thomas, Smith, and Polson;

and Plaintiff Arizona Center for Disability Law; and Isolation Subclass v.

9

Defendants Ryan and Pratt)

10

(42 U.S.C. § 1983; Eighth Amendment)

11

148. By their policies an d practices describ ed herein, Def endants subject

12 Plaintiffs Gamez, Swartz, Brislan, Rodriguez, Verduzco, Thomas, Smith, and Polson, and 13
the Isolation Subcl ass to a substantial risk of serious har m and inj ury from inadequate 14
15 physical exercise, inadequate nutrition, inadequate mental health treatment, and conditions

16 of extreme social isol ation and environ mental deprivation. These p olicies and practice s

17 have been and conti nue to be imple mented by Defendants and t heir agents, of ficials,
18 employees, and all persons acting in concert with them under color of state law, in t heir
19
20 official capacities, and are the proxim ate cause of the Plaintiffs’ and the Isolation

21 Subclass’s ongoing deprivation of rights secured b y the United States Constitution under

22 the Eighth Amendment.
23 149. Defendants have been and are aware of all of the deprivations complained of
24
25 herein, and have condoned or been deliberately indifferent to such conduct.

26 ///

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 73 of 78

1

PRAYER FOR RELIEF

2

150. Plaintiffs and the classes the y represent have no adequate remedy at law to

3 redress the wrongs suffered as set forth in this complaint. Plaintiffs have suffered and will
4

5 continue to suffer irreparable in jury as a re sult of the unl awful acts, omissions, policies,

6 and practices of Defendants Ryan and Pratt, as alleged herein, u nless Plaintiffs and the

7 classes they represent are granted th e relief they request. The need for relief is critical 8
because the rights at issue are par amount under the Uni ted States Constitution and the 9
10 laws of the United States.

11

151. WHEREFORE, the named plaintiffs and the classes they represent request

12 that this Court grant them the following relief: 13
A. Declare that the s uit is maintainable as a cl ass action purs uant to Federal 14
15 Rule of Civil Procedure 23(a) and 23(b)(1) and (2);

16

B. Adjudge and declare that the act s, omissions, policies, and practices of

17 Defendants, and their agents, employees, officials, and all persons acting in concert with
18 them under color of state law or otherwise, d escribed herein are in violation of the rights
19
20 of prisoner Plaintif fs and the classes the y represent under th e Cruel and Unusu al

21 Punishments Clause of the Eighth Amendment, which grants constitutional protection to

22 the Plaintiffs and the class they represent;
23 C. Preliminarily and permanently enjoin Def endants, their agents, e mployees,
24
25 officials, and all persons acting in concert with the m under col or of state law, from

26

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 74 of 78

1 subjecting prisoner Plaintiffs and the Plaintiff Class to the illegal and unconstitution al

2 conditions, acts, omissions, policies, and practices set forth above. 3
D. Order Defendants and their agents, e mployees, officials, and all persons 4
5 acting in concert with them under color of state law, to develop and implement, as soon as

6 practical, a plan to eli minate the substa ntial risk of serious harm that prisoner Plain tiffs

7 and members of the Plaintiff Class suffer due to Defendants’ inadequate medical, mental 8
health, and dental care , and due to Def endants’ isolation policies. Defendants’ plan shall 9
10 include at a minimum the following:

11

1. Staffing: Staff ing shall be suf ficient to pro vide prisoner Plaintiffs

12

and the Plaintiff Class with timely access to qualified and competent clinicians who can provide routine, urgent, emergent, and specialty

13

health care;

14

2. Access: Policies and practices that provide timely access to health

15

care;

16

3. Screening: P olicies and practices tha t reliably screen for medical,

dental, and mental health conditions that need treatment;

17

4. Emergency Response: Ti mely and competent responses to health

18

care emergencies;

19

5. Medication and Supplies: Ti mely prescription and distribution of

20

medications and supplies necessary for medically adequate care;

21

6. Chronic Care: Timely access to competent care for chronic diseases;

22

7. Environmental Conditions: Basic sanitar y conditions that do not

23

promote the spr ead or exacerbation of diseases or inf ections,

including but not limited to a smoke-free environment;

24

8. Mental Health Treatment: Timely access to necessary treatment for

25

serious mental illness, including medication, therapy, inpatient

26

treatment, suicide prevention, and suicide watch;

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 75 of 78

1

9. Quality Assurance: A regular assess ment of health care staff ,

2

services, procedures, and activities designed to improve outcomes, and to identify and correct errors or systemic deficiencies;

3

10. Isolation: Pro hibition of confinement of prisoner Plaintif fs and the

4

Isolation Subclass under conditions of social isolation and sensor y

5

deprivation that put prisoners at substantial risk of serious physical and mental harm. Pr oviding prisoner Plaintiffs and the Isola tion

6

Subclass with necessary nutrition and regular outdoor exercise to

preserve their physical and mental health. 7

8

E. Award Plaintiffs the costs of this suit , and r easonable attorneys’ fees and

9 litigation expenses pursuant to 42 U.S.C. § 1988, and other applicable law;

10

F. Retain jurisdiction of this case until Defendants have fully complied with

11 the orders of this Court, and there is a reasona ble assurance that Defendants will continue
12
13 to comply in the future absent continuing jurisdiction; and

14

G. Award such other and further relief as the Court deems just and proper.

15 16 Dated: March 6, 2012

ACLU FOUNDATION OF ARIZONA

17

By: /s/ Daniel J. Pochoda

18

Daniel J. Pochoda James Duff Lyall

19

Donald Specter (Cal. 83925)*

20

Alison Hardy (Cal. 135966)* Sara Norman (Cal. 189536)*

21

Corene Kendrick (Cal. 226642)* PRISON LAW OFFICE

22

1917 Fifth Street Berkeley, CA 94710

23

Telephone: (510) 280-2621 dspecter@prisonlaw.com

24

ahardy@prisonlaw.com snorman@prisonlaw.com

25

ckendrick@prisonlaw.com

26

*Application for pro hac vice pending

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 76 of 78

1

David C. Fathi (Wash. 24893)*

2

Amy Fettig (D.C. 484883) *

ACLU NATIONAL PRISON

3

PROJECT

915 15th St. N.W., 7th Floor

4

Washington, D.C. 20005

5

Telephone: (202) 548-6603 dfathi@npp-aclu.org

6

afettig@npp-aclu.org

7

*Application for pro hac vice pending

8

Daniel C. Barr (SBA 010149) Jill L. Ripke (SBA 024837)

9

James A. Ahlers (SBA 026660) Kirstin T. Eidenbach (SBA 027341)

10

John H. Gray (SBA 028107) Thomas D. Ryerson (SBA 028073)

11

Matthew B. Du Mée (SBA 028468) PERKINS COIE LLP

12

2901 N. Central Ave., Suite 2000 Phoenix, AZ 85012-2788

13

Telephone: (602) 351-8000 dbarr@perkinscoie.com

14

jripke@perkinscoie.com jahlers@perkinscoie.com

15

keidenbach@perkinscoie.com jhgray@perkinscoie.com

16

tryerson@perkinscoie.com mdumee@perkinscoie.com

17

Caroline Mitchell (Cal. 143124)*

18

Douglas Roberts (Cal. 264451)* JONES DAY

19

555 California St., 26th Floor San Francisco, CA 94104

20

Telephone: (415) 875-5712 cnmitchell@jonesday.com

21

douglasroberts@jonesday.com

22

*Application for pro hac vice pending

23

Attorneys for Plaintiffs Robert Gamez, Shawn Jensen, Stephen Swartz, Dustin Brislan, Sonia

24

Rodriguez, Christina Verduzco, Jackie Thomas, Jeremy Smith, Victor Parsons,

25

Maryanne Chisholm, Desiree Licci, Joseph Hefner, Joshua Polson, and Charlotte Wells,

26

on behalf of themselves and all others similarly situated

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:10-cv-02070-JWS--MEA Document 31 Filed 03/06/12 Page 77 of 78

1

ARIZONA CENTER FOR DISABILITY

2

LAW

3

By: /s/ Jennifer Alewelt

4

Jennifer Alewelt (SBA 027366)

Ruth Szanto (SBA 029073)

5

5025 East Washington St. Suite 202

Phoenix, AZ 85034

6

Telephone (602) 274-6287

jalewelt@azdisabilitylaw.org

7

rszanto@azdisabilitylaw.org

8

Attorneys for Plaintiff Arizona Center for

Disability Law

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on March 6, 20 12, I electronically transmitted the

4 attached documents to the Clerk’s Office using the CM/ECF System.

5 /s/ Gloria Torres
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

 
 Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 1 of 22

JDDL-K

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Robert Carrasco Gamez, Jr.,
9 Plaintiff,
10 vs.
11 Charles L. Ryan, et al.,
12 Defendants.
13

) No. CV 10-2070-PHX-JWS (MEA) ) ) ORDER ) ) ) ) ) ) )

14

Plaintiff Robert Carrasco Gam ez, Jr., who is confined in the Ariz ona State Prison

15 Complex, Kasson Unit, in Florence, Arizona, has file d a pro se civil rights Com plaint

16 pursuant to 42 U.S.C. § 1983 and two Applications to Proceed In Forma Pauperis. (Doc.

17 1, 9, 11.) The Court will dismiss the Complaint with leave to amend and deny the secondin

18 forma pauperis application as moot.

19 I. Application to Proceed In Forma Pauperis and Filing Fee

20

Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

21 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

22 The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory

23 fee will be collected monthly in payments of 20% of the previous month’s income each time

24 the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a

25 separate Order requiring the appropriate government agency to collect and forward the fees

26 according to the statutory formula.

27

28

Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 2 of 22

JDDL-K

1 II. Statutory Screening of Prisoner Complaints

2

The Court is required to screen complaints brought by prisoners seeking relief against

3 a governmental entity or an officer or an e mployee of a governm ental entity. 28 U.S.C.

4 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

5 claims that are legally frivolous or malicious, that fail to state a claimupon which relief may

6 be granted, or that seek monetary relief from a defendant who is immune from such relief.

7 28 U.S.C. § 1915A(b)(1), (2).

8

A pleading must contain a “short and plain statement of the claim showing that the

9 pleader is entitled to relief.” Fed. R. Civ. P. 8a()(2) (emphasis added). While Rule 8 does not

10 demand detailed factual allegations, “it dem ands more than an unadorned, the-defendant-

11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009).

12 “Threadbare recitals of the elem ents of a cause of action, supported by m ere conclusory

13 statements, do not suffice.” Id.

14

“[A] complaint must contain sufficient factual m atter, accepted as true, to ‘state a

15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

17 that allows the court to draw the reasonable inference that the defe ndant is liable for the

18 misconduct alleged.” Id. “Determining whether a com plaint states a plausible claim for

19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

20 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

21 allegations may be consistent with a constitutional claim, a court must assess whether there

22 are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

23

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

24 must “continue to construepro se filings liberally.” Hebbe v. Plile,rNo. 07-17265, 2010 WL

25 4673711 at *3 (9th Cir. Nov. 19, 2010). A “complaint [filed by a pro se prisoner] ‘must be

26 held to less stringent standards than form al pleadings drafted by la wyers.’” Id. (quoting

27 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

28

- 2 -

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JDDL-K

1

If the Court determines that a pleading could be cured by the allegation of other facts,

2 a pro se litigant is entitled to an opportunity to a mend a complaint before dismissal of the

3 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court

4 should not, however, advise the litigant how to cure the defects. This type of advice “would

5 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225,

6 231 (2004); see alsoLopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was

7 required to inform a litigant of deficiencies). Plaintiff’s Com plaint will be dism issed for

8 failure to state a claimwith leave to amend because the Complaint may possibly be saved by

9 amendment.

10 III. Complaint

11

Plaintiff alleges two counts asserting denial of constitutionally adequate emdical care,

12 conditions of confinement, and equal protection. Plaintiff sues the following employees of

13 the Arizona Department of Corrections (ADC): Director Charles L. Ryan; Deputy Complex

14 Warden G. Fizer; Facility Health Adm inistrator (FHA) Dr. Dennis Kendall; Corrections

15 Officer III Pittario; and Complex Warden John Doe. Plaintiff seeks declaratory, injunctive,

16 compensatory, and punitive relief.

17

Plaintiff alleges the following facts: Plaintiff arrived at ADC’s Alhambra Reception

18 Center on July 25, 2003. Plaintiff was then transferred to Special Management Unit I (SMU

19 I) and, specifically, the Violence Control Unit (VCU), which housed the violently mentally

20 ill. Plaintiff was “never provided a legitim ate reason” for his assignm ent to the VCU.

21 Plaintiff grieved his placement in VCU but was informed that placement decisions were non-

22 grievable. After four m onths, Plaintiff was m oved to a less-restrictive area in SMU I.

23 According to Plaintiff, Defendants knowingly failed to provide adequate mental health care

24 to maximum custody inmates, which exacerbated their mental illness.

25

On September 6, 2009, Plaintiff grieved “the treatment he was receiving” in supermax

26 facilities, particularly cell confinement for 23 hours a day that exacerbates mental illness of

27 inmates. He submitted his grievance to Defendant Pittario. On September 15, 2009, he was

28 notified that his grievance had been denied. The same day, Plaintiff appealed the denial to

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1 Defendant Kendall. On December 2, 2009, Plaintiff received a response from Defendant

2 Fizer denying his appeal. Plaintiff appealed to Defendant Doe, which was denied on January

3 21, 2010. Plaintiff then appealed to Director Ryan, who denied that appeal on February 25,

4 2010.

5 IV. Failure to State a Claim

6

Section 1983 provides a cause of action againtspersons acting under color of state law

7 who have violated rights guaranteed by the United States Constitution and federal law. 42

8 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). To

9 state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about

10 which he complains was committed by a person acting under the color of state law and (2)

11 the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander,

12 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff m ust also allege that he suffered a specific

13 injury as a result of the conduct of a particular defendant and he must allege an affirmative

14 link between the injury and the conduct of that defendant. Rizzo v. Goode , 423 U.S. 362,

15 371-72, 377 (1976).

16

Further, to state a claim, “[a] plaintiff must allege facts, not simply conclusions, that

17 show that an individual was personally involved in the deprivation of his civil rights.”

18 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in

19 his official capacity, a plaintiff m ust allege that the official acted as a result of a policy,

20 practice, or custom. See Cortez v. County of Los Angeles , 294 F.3d 1186, 1188 (9th Cir.

21 2001). In addition, there is no respondeat superior liability under § 1983, so a defendant’s

22 position as the supervisor of som eone who allegedly violated a plaintiff’s constitutional

23 rights does not make him liable. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);

24 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his individual capacity,

25 “is only liable for constitutional violations of his subordinates if the supervisor participated

26 in or directed the violations, or knew of the violations and failed to act to prevent them .”

27 Taylor, 880 F.2d at 1045. Further, where a defendant’s only involve ment in allegedly

28 unconstitutional conduct is the denial of administrative grievances, the failure to intervene

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1 on a prisoner’s behalf to remedy the alleged unconstitutional behavior does not amount to

2 active unconstitutional behavior for purposes of § 1983. Shehee v. Luttrell, 199 F.3d 295,

3 300 (6th Cir. 1999); accord Mintun v. Blades, No. CV-06-139-BLW, 2008 WL 711636 at

4 *7 (D. Idaho Mar. 14, 2008); Stocker v. Warden, No. 1:07-CV-00589LJODLBP, 2009 WL

5 981323 at *10 (E.D. Cal. Apr. 13, 2009).

6

A. Third Party Allegations

7

In his Complaint, Plaintiff appears to be seeking im proved mental health care for

8 mentally ill inmates confined in supermax units. Plaintiff does not allege thathe is mentally

9 ill or that he has been denied constitutionally necessa ry mental health care. A “‘plaintiff

10 generally must assert his own legal rights andinterests, and cannot assert the legal rights or

11 interests of third parties.’” Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 610

12 (9th Cir. 2005) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). Therefore, to the extent

13 that Plaintiff seeks to relief on behalf of other inmates, Plaintiff fails to state a claim.

14

B. Negligence

15

Plaintiff in part alleges that Defenda nts acted negligently by failing to provide

16 adequate mental health care to inmates. Mere negligence by a defendant acting under color

17 of state law is not sufficient to stat e a claim under § 1983. Daniels v. Williams, 474 U.S.

18 327, 330-31 (1986) (plaintiff must plead more than mere negligence in a § 1983 action); see

19 Alfrey v. United States , 276 F.3d 557, 568 (9th Cir. 2002). Therefore, to the extent that

20 Plaintiff asserts that any Defendant negligently failed to provide himmental health care, he

21 fails to state a claim.

22

C. Medical Care

23

Plaintiff asserts in part that he has been denied constitutionally adequate emdical care.

24 Not every claim by a prisoner relating to inadequate medical treatment states a violation of

25 the Eighth Amendment. To state a § 1983 m edical claim, a plaintiff must show that the

26 defendants acted with “deliberate indifference to serious medical needs.” Jett v. Penner, 439

27 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A

28 plaintiff must show (1) a “serious medical need” by demonstrating that failure to treat the

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1 condition could result in further significant injury or the unnecessary and wanton infliction

2 of pain and (2) the defendant’s response was deliberately indifferent. Jet,t439 F.3d at 1096

3 (quotations omitted).

4

“Deliberate indifference is a high legal standard.” Toguchi v. Chun,g391 F.3d 1051,

5 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know

6 of and disregard an excessive risk to inmate health; “the official must both be aware of facts

7 from which the inference could be drawn that a substantial risk of serious harm exists, and

8 he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate

9 indifference in the medical context may be shown by a purposeful act or failure to respond

10 to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 439

11 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally

12 denies, delays, or interferes with medical treatment or by the way prison doctors respond to

13 the prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

14

Deliberate indifference is a higher standard than negligence or lack of ordinary due

15 care for the prisoner’s safety. Farm er, 511 U.S. at 835. “Neither negligence nor gross

16 negligence will constitute deliberate indifference.” Clement v. California Dep’t of Corr,.220

17 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); seealso Broughton v. Cutter Labs., 622 F.2d 458,

18 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice”

19 do not support a claimunder § 1983). “A difference of opinion does not amount to deliberate

20 indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242

21 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim

22 against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State

23 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial.

24 The action must rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429

25 U.S. at 105.

26

Plaintiff’s allegations concerning the denialof constitutionally adequate mental health

27 care are vague and conclusory. Although pro se pleadings are liberally construed, Haines

28 v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support

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1 a cause of action. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268

2 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply

3 essential elements of the claim that were not initially pled. Id. Plaintiff fails to allege facts

4 to support that he has or had a serious mental health care need. He also fails to allege facts

5 to support that any Defendant acted with deliberate indifference tohis serious mental health

6 care needs, including who, when, and how. For these reasons, Plaintiff fails to state a

7 constitutional claim for denial of medical care.

8

D. Equal Protection

9

Plaintiff also asserts a denial of equal protection. The Equal Protection Clause of the

10 Fourteenth Amendment provides that a state m ay not “deny to any person within its

11 jurisdiction the equal protection of the laws,” which is essentially a direction that all persons

12 similarly situated should be treated alike. U.S. Const., amend. XIV; see City of Cleburne v.

13 Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). A state practice that interferes with a

14 fundamental right or that discrim inates against a suspect class of individuals is subject to

15 strict scrutiny. Massachusetts Bd. of Ret. v. Murgia , 427 U.S. 307, 312 (1976); City of

16 Cleburne, 473 U.S. at 441. Absent allegations that heis a member of a suspect class, or that

17 a fundamental right has been violated, a plaintfif must allege facts to support that he has been

18 intentionally treated differently from others who are similarly situated without a reasonable

19 basis therefor. SeeVillage of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Conclusory

20 allegations do not suffice. See Village of Arlington Heights v. Me tropolitan Hous. Dev.

21 Corp., 429 U.S. 252, 265 (1977).

22

Plaintiff has not alleged facts to support that he is a member of a suspect class or the

23 violation of a fundam ental right. He also fails to allege facts to support that he has

24 intentionally been treated differently than others who are sim ilarly situated without a

25 reasonable basis therefor. Accordingly, Plaintiff fails to state an equal protection claim.

26

E. Due Process

27

Plaintiff also appears to be assert that his due process rights have been violated based

28 on his assignment to SMU I and the conditions in there. There is no constitutional right to

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1 a particular classification. Vignolo v. Miller , 120 F.3d 1075 (9th Cir. 1997); Baum ann v. 2 Arizona Dep’t. of Corr., 754 F.2d 841,846 (9th Cir. 1985). Further, inmates have no liberty 3 interest in remaining in a particular facility; they may be transferred for any constitutionally 4 permissible reason or for no reason at all. Meachum v. Fano, 427 U.S. 215, 225 (1976); 5 Ward v. Dyke, 58 F.3d 271, 274 (6th Cir. 1995); Shango v. Jurich, 681 F.2d 1091, 1100 (7th 6 Cir.1982); Rizzo v. Dawson, 778 F.2d 527, 530-31 (9th Cir. 1985). Liberty interests that 7 entitle an inmate to due process are “generally limited to freedomfrom restraint which, while 8 not exceeding the sentence in such an unexpected manner as to give rise to protection by the 9 Due Process Clause of its own force, nonetheless imposes atypical and significant hardship 10 on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conn,e5r15 U.S. 11 472, 484 (1995) (internal citations omitted). In analyzing whether a hardship is atypical and 12 significant, three guideposts to consider are: (1) the conditions of confinem ent; (2) the 13 duration of the condition and the degree of restraint impose d; and (3) whether the 14 disciplinary sanction will affect the duration of the prisoner’s sentence. Ramirez v. Galaza, 15 334 F.3d 850, 861 (9th Cir. 2003); Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996). 16 Courts have found the existence of atypical and significant hardships in a very lim ited 17 circumstances. See, e.g. , Wilkinson v. Austin , 545 U.S. 209, 221-24 (2005) (holding 18 inmates’ liberty interests were implicated by their indefinite confinement in highly restrictive 19 “supermax” prison, where the inmates were deprived of almost all human contact and were 20 disqualified from parole consideration); Serrano v. Francis , 345 F.3d 1071, 1078-79 (9th 21 Cir.2003) (placing disabled inmate, without his wheelchair, in segregation unit not equipped 22 for disabled persons gave rise to a liberty interest); Ram irez, 334 F.3d at 861 (directing 23 district court to consider two-year duration of adm inistrative segregation in determ ining 24 whether placement imposed atypical and significant burden). “As long as the conditions or 25 degree of confinement to which the prisoner is subjected is within the sentence ipmosed upon 26 him and is not otherwise violative of the Constitution, the Due Process Clause does not in 27 itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye 28 v. Haymes, 427 U.S. 236, 242 (1976). Thus, a claimthat prison officials “added things” to
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1 an appeal to m ask procedural errors does not, for exam ple, meet this standard because

2 inmates lack a separate constitutional entitlement to a specific prison grievance procedure.

3 Ramirez, 334 F.3d at 860 (citing Mann, 855 F.2d at 640).

4

1. VCU Confinement

5

To the extent that Plaintiff com plains of his c onfinement in the VCU in 2003, his

6 claims are facially time-barred. The failure to state a claimincludes circumstances where a

7 defense is complete and obvious from the face of the pleadings. Franklin v. Murphy , 745

8 F.2d 1221, 1228 (9th Cir. 1984) (applying form er § 1915(d) now codified at 28 U.S.C.

9 § 1915(e)(2)(B)). Further, a court may raise the defense of statute of limitations sua sponte.

10 See Levald, Inc. v. City of PalmDesert, 998 F.2d 680, 687 (9th Cir. 1993); see also Hughes

11 v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (appropriate to dismiss prisoner’s complaint

12 sua sponte as time-barred under § 1915(e)(2)(B)); Na sim v. Warden, Maryland House of

13 Corr., 64 F.3d 951, 956 (4th Cir. 1995) (en banc) (same); Pino v. Ryan, 49 F.3d 51, 53 (2d

14 Cir. 1995) (same); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (same); Johnson

15 v. Rodriguez, 943 F.2d 104, 107-08 (1st Cir. 1991) (same).

16

In § 1983 actions, the Court app lies the statute of limitations of the forum state for

17 personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266, 274-76 (1985); TwoRivers v.

18 Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir.

19 1991). The Arizona statute of limitations for personal injury actions is two years. SeAe .R.S.

20 § 12-542(1); Madden-Tyler v. Maricopa County, 943 P.2d 822, 824 (Ariz. Ct. App. 1997);

21 Vaughan, 927 F.2d at 478. The Court m ust also apply any state rule for tolling to actions

22 brought under § 1983. Hardin v. Straub, 490 U.S. 536, 544 (1989); TwoRivers, 174 F.3d at

23 992. Arizona provides for tolling of the statute of limitation after a cause of action accrues

24 for the period during which a plaintiff was less than 18 years old or of unsoundinmd. A.R.S.

25 § 12-502.

26

Plaintiff alleges that he was confined in the VCU for four months in 2003. Plaintiff

27 did not file his Complaint in this case until September 27, 2010, or some seven years later.

28 Plaintiff has not alleged facts to support that the statute of limitations is subject to tolling.

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1 Absent such allegations, any due process allegation concerning his VCU confinem ent is

2 facially untimely and will be dismissed as time-barred.

3

2. SMU I Confinement

4

Plaintiff also asserts that the conditions of confinement in SMU I violate due process.

5 However, the only facts a lleged in support of th is claim is that m entally ill inmates are

6 confined 23 hours a day. That, absent m ore, does not rise to the level of an atypical and

7 significant hardship in relation to the ordina ry incidents of prison life. As noted above,

8 Plaintiff does not allege that he is or was m entally ill while confined in S MU I. While

9 Plaintiff asserts the conditions in SMU I were punitive, he does not allege fa cts to support

10 that his c onfinement in SMU I was intended as punishm ent, rather than m erely as a

11 classification and housing decision. He also does he allege facts to support that the duration

12 of his confinement was affected. For these reasons, Plaintiff fails to state a due process claim

13 based on his confinement in SMU I.

14 V. Leave to Amend

15

For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to state

16 a claim upon which relief m ay be granted. Within 30 days, Plaintiff m ay submit a first

17 amended complaint to cure the deficiencies outlined above. The Clerk of Court will m ail

18 Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails

19 to use the court-approved form, the Court may strike the amended complaint and dismiss this

20 action without further notice to Plaintiff.

21

Plaintiff must clearly designate on the face of the docum ent that it is the “First

22 Amended Complaint.” The first am ended complaint must be retyped or rewritten in its

23 entirety on the court-approved form and m ay not incorporate any pa rt of the original

24 Complaint by reference. Plaintiff may include only one claim per count.

25

A first amended complaint supersedes the original complaint. Ferdik v. Bonzele,t 963

26 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & C,o8.96 F.2d 1542,

27 1546 (9th Cir. 1990). After am endment, the Court will treat an original com plaint as

28 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original

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1 complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d

2 565, 567 (9th Cir. 1987).

3 VI. Warnings

4

A. Release

5

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

6 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

7 the balance or (2) show good cause, in writing, why he cannot. Failure to copmly may result

8 in dismissal of this action.

9

B. Address Changes

10

Plaintiff must file and serve a notice of a change of address in accordance with Rule

11 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

12 relief with a notice of change of address. Failure to comply may result in dismissal of this

13 action.

14

C. Copies

15

Plaintiff must submit an additional copy of every filing for use by the Court. See

16 LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

17 to Plaintiff.

18

D. Possible “Strike”

19

Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails

20 to file an am ended complaint correcting the defic iencies identified in this Order, the

21 dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g).

22 Under the 3-strikes provision, a prisoner m ay not bring a civil action or appeal a civil

23 judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior

24 occasions, while incarcerated or detained in any facility, brought an action or appeal in a

25 court of the United States that was dismissed on the grounds that it is frivolous, malicious,

26 or fails to state a claim upon which relief m ay be granted, unless the prisone r is under

27 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

28

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1

E. Possible Dismissal

2

If Plaintiff fails to timely comply with every provision of this Order, including these

3 warnings, the Court may dismiss this action without further notice. SeeFerdik, 963 F.2d at

4 1260-61 (a district court may dismiss an action for failure to comply with any order of the

5 Court).

6 IT IS ORDERED:

7

(1) Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 9.)

8

(2) As required by the accompanying Order to the appropriate government agency,

9 Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.

10

(3) Plaintiff’s second in forma pauperis application is denied as moot. (Doc. 11.)

11

(4) The Complaint is dismissed for failure to state a claim. (Doc. 1.) Plaintiff has

12 30 days from the date this Order is filed to file a first amended complaint in compliance with

13 this Order.

14

(5) If Plaintiff fails to file an am ended complaint within 30 days, the Clerk of

15 Court must, without further notice, enter a judgment of dismissal of this action with prejudice

16 that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).

17

(6) The Clerk of Court must mail Plaintiff a court-approved formfor filing a civil

18 rights complaint by a prisoner.

19

DATED this 26th day of January 2011.

20

21

/s/ JOHN W. SEDWICK

UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

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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 vi olation 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 s pace on the form. If needed, you may attach additional pages,but no more than fifteen additional page,sof 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 formproperly, 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 anoriginal plus one copyof 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, Moha ve, or Yavapai County, file in the Pres cott Division. If you were confined in Pima, Cochsie, 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:

Revised 3/9/07

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Phoenix & Prescott Divisions:

OR

U.S. District Court Clerk

U.S. Courthouse, Suite 130

401 West Washington Street, SPC 10

Phoenix, Arizona 85003-2119

Tucson Division: U.S. District Court Clerk U.S. Courthouse, Suite 1500 405 West Congress Street 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 initialcomplaint and application to proceedin forma pauperis). Each original document ( except the initial complaint and application to proceed in forma pauperis) must include a certificate of service on thelast 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 C ourt 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 am ended complaint must be written on the courtapproved civil rights complaint form. You may file one amended complaint without leave (permission) of Court before any defendant hasanswered your original complaint. SeeFed. 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 add ition, an amended complaint may not incorporate by reference any part of your prior complaint. LRCiv 15.1(a)(2). Any allegations or defendant s not included in the amended complaint are considered dismissed. All amended complaints are subject to screening under the Pris on Litigation Reform Act; screening your amendment will take additional processing time.

10. Exhibi ts. 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.

2

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12. Completing the Civil Rights Complaint Form.
HEADING: 1. Your Name. Print your name, prison or inmate number, and institutional mailing address on the lines provided.
2. Defendants. If there are four or fewer defendants, print the name of each. If you name more than four defendants, print the name of the first defendant on the first line, write the words “and others” on the second line, and attach an additional page listing the names of all of the defendants. Insert the additional page after page 1 and number it “1A” 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 tiral. A jury trial is not available if you are seeking only injunctive relief.
Part A. JURISDICTION: 1. Nature of Suit . Mark whether you are filing the complaint pursuant to 42 U.S.C. § 1983 for state, county, or city defendants;“Bivens v. Six Unknown Federal Narcotics Agents” for federal defendants; or “other.” If you mark “other,” identify the source of that authority.
2. Location. Identify the institution and city where the alleged violation of your rights occurred.
3. Defendants. Print all of the requested informatoin about each of the defendants in the spaces provided. If you are naming more than four defendants, you must provide the necessary information about each additional defendant on separate pages labeled “2-A,” “2-B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.
Part B. PREVIOUS LAWSUITS: You must identify any other lawsuit you havefiled in either state or federal court while
you were a prisoner. Print all of the request ed information about each lawsuit in the spaces provided. If you have filed more than t hree lawsuits, you must prov ide the necessary information about each additional lawsuit on a separate page. Label the page(s) as “2-A,” “2B,” 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 defe ndant 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 immeadteily behind page 5. Remember that you are limited to a total of fifteen additional pages.
3

Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 16 of 22
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 closelyidentifies 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 specifi c as possible. Yo u 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. S ee 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 procedu res 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 atcion. 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 s ection of the complaint is being continued and number the pages.
4

Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 17 of 22

Name and Prisoner/Booking Number Place of Confinement Mailing Address City, State, Zip Code
(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

(Full Name of Plaintiff)

Plaintiff,

vs.
(1)
(Full Name of Defendant)
(2)

(3)

(4)
Defendant(s).
G Check if there are additional Defendants and attach page 1-A listing them.

)

,)

)

)

) CASE NO.

)

(To be supplied by the Clerk)

,)

)

,)

)

CIVIL RIGHTS COMPLAINT

,)

BY A PRISONER

)

, ) G Original Complaint

) G First Amended Complaint

) G Second Amended Complaint

A. JURISDICTION

1. This Court has jurisdiction over this action pursuant to:

G 28 U.S.C. § 1343(a); 42 U.S.C. § 1983

G 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

G Other:

.

2. Institution/city where violation occurred:

.

Revised 3/9/07

1

550/555

Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 18 of 22

B. DEFENDANTS

1. Name of first Defendant:
(Position and Title)

. The first Defendant is employed as:

at

.

(Institution)

2. Name of second Defendant:
(Position and Title)

. The secondDefendant is employed as:

at

.

(Institution)

3. Name of third Defendant:
(Position and Title)

. The third Defendant is employed as:

at

.

(Institution)

4. Name of fourth Defendant:
(Position and Title)

. The fourth Defendant is employed as:

at

.

(Institution)

If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.

C. PREVIOUS LAWSUITS

1. Have you filed any other lawsuits while you were a prisoner?

G Yes

G 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?)

.

If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page.

2

Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 19 of 22

D. CAUSE OF ACTION

COUNT I 1. State the constitutional or other federal civil right that was violated:
.

2. Count I. Identify the issue involved. Check only one. State additional issues in separate counts.

G Basic necessities

G Mail

G Access to the court

G Medical care

G Disciplinary proceedings G Property

G Exercise of religion

G Retaliation

G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count I. Describe exactly what each Defendant did or did not do that violatedyour rights. State the factsclearly in your own words without citing legal authority or arguments.

. 4. Injury. State how you were injured by the actions or inactions of the Defendant(s).

.

5. Administrative Remedies:

a. Are there any administrative remedies (grievance procedures or administrative appeals) available

at your institution?

G Yes G No

b. Did you submit a request for administrative relief on Count I?

G Yes G No

c. Did you appeal your request for relief on Count I to the highest level?

G Yes G No

d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why

you did not.

.

3

Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 20 of 22

COUNT II 1. State the constitutional or other federal civil right that was violated:
.

2. Count II. Identify the issue involved. Check only one. State additional issues in separate counts.

G Basic necessities

G Mail

G Access to the court

G Medical care

G Disciplinary proceedings G Property

G Exercise of religion

G Retaliation

G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each Defendant did or did not do that violatedyour rights. State the factsclearly in your own words without citing legal authority or arguments.

. 4. Injury. State how you were injured by the actions or inactions of the Defendant(s).

.

5. Administrative Remedies.

a. Are there any administrative remedies (grievance procedures or administrative appeals) available

at your institution?

G Yes G No

b. Did you submit a request for administrative relief on Count II?

G Yes G No

c. Did you appeal your request for relief on Count II to the highest level?

G Yes G No

d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why

you did not.

.

4

Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 21 of 22

COUNT III 1. State the constitutional or other federal civil right that was violated:
.

2. Count III. Identify the issue involved. Check only one. State additional issues in separate counts.

G Basic necessities

G Mail

G Access to the court

G Medical care

G Disciplinary proceedings G Property

G Exercise of religion

G Retaliation

G Excessive force by an officer G Threat to safety G Other:

.

3. Supporting Facts. State as briefly as possible the FACTS supporting Count III. Describe exactly what each Defendant did or did not do that violatedyour rights. State the factsclearly in your own words without citing legal authority or arguments.

. 4. Injury. State how you were injured by the actions or inactions of the Defendant(s).

.

5. Administrative Remedies.

a. Are there any administrative remedies (grievance procedures or administrative appeals) available

at your institution?

G Yes G No

b. Did you submit a request for administrative relief on Count III?

G Yes G No

c. Did you appeal your request for relief on Count III to the highest level?

G Yes G No

d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why

you did not.

.

If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page.

5

Case 2:10-cv-02070-FJM--MEA Document 15 Filed 01/26/11 Page 22 of 22

State the relief you are seeking:

E. REQUEST FOR RELIEF

.

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)
ADDITIONAL PAGES
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. B ut the form must be completely filled in to the extent applicable. If you attach additional pages, be sure tiodentify which section of the complaint is being continued and number all pages.

6

 
 Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 1 of 15

,
.

......

.

" .

•.··~~Iy~·,'"~( ..

:Ko~tC·. ·fQA~~ \0\1:\0\" ::' '...".

. .... t.hf15Of1· '>I\'~"fC ~\Olqcr:£-:; , NamCl1lld Prisoner/Boo1cingNumber, .'.

. . , .

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.Place of Confinement . .:.

:.....

.

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. 'CLERK. US -D1$TRlCT COUPIT, .....

DIStRICT OF ARI7QNA, . '. .

DEPUTY ",

Mailing Address . . .'

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.:£\o(fJJ'\tKE't1S\3L'.

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. ... (Failure to notiJythe Coutt ofy~'ur change of addres; ~ay:resuit'in'dj.S~is~aioft~is·a~tio~.) ." ....

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,

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" '!N'THE UNITED S'rATES':DISnUCTCOuRT c'

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. : FOR THE DISTrUGT OF ARIZONA

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. '. .b six 42 8.28 28

U.S.C. § U.S.C ..§

11333413.(;aB)i;~ensUv.S. .C.

§ 198~" ':'"

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Unknoi.n Federal Narcotics

>,"" ...... ".... '.
AgentS, '403. U.S. 388 (1971).

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.

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A·f1·QCCen Ac ; 2. Institution/city where vicJation oocwroo:

kIUn,tflQ&~

,Revised 319/07

, .

.,550/555,

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SQ
Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 2 of 15
•

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 3 of 15

.'

.

.

.' .

. . B . DEFENDANTS

L.t-iNN '.' ". .' . 1. :N~eoffrrstDefendatit: cb~~
'.' ,." "'~~\~W;\c-.-....._~'..;;;o..'_'._.._... _'.~'._~.. _ _. _ . _ _.at

A-s·reThe

frr,5tDefe.ndant
l'lDCL-eocL

ise.mpl.oyed a~: .....

.

.

.(Positionand Title) .

' . (Insti~ution) .

.

'·3, .·tti\m'1~~\fudan~a~~~*fi\der\\ at A~ec '8~~~efendantiSeJ)lploYOd as!

..' ... :: ' .

' . (position and Title)

. .

.'
'" ,"

.. '(Institution) .. ;.

~Ie:nQ:t1nl is employed as:

:, ," ....
IT • c ;:," y~u' na~e more. than four Def~ndants,ans':.'er the questions l~ed abov~.for each 'additionai Defendant on a separate pa~e..

·C. PREVIOUS LAWSUITS".

", ','

riy'F .' . ·"······'1: Have you f1ledimy ot1'er lawsui~whll~;ou were ~'prisoner? •..•. •

DN~

. . . . .:

2.',:" If;~~::llOW:~~Y ia~s~itsh~~~'Y6U fiI~~?•Ohie.~.b~s~ribe th~~revi6us\awsuits: .' ..

.;'

'..'. b.. Second prior lawsuit:
l.P~ies:

v. __.,-.-_________--'-____

'.' 2. .Court 'and case number: 3,' Result: (Was thecasedis-m-i-ss-e-d-? -W--a-si-t-a-p-pe-a-le-d-?--Is-i-t -st-il-l p-e-n-d-in-g-?-)_--_--_--_-~_-_ --_--_

c. Third prior lawsuit:

1. Parties:

v. ..._-----'--____- - - - - ' - - - - - - -

2. Court and case.number: _ _ _ _ _ _ _ _ _ _-.-_ _ _ _ _ _ _ _ _ _ _ __

3. Result: (Was the case dismissed? Was it appealed? Is it still pendmg?)._ _ _ _ _ _ __

lfyou filed more than. threelawsuits, answer the questions listed above for each additional lawsuit on a separate page.

2'

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 4 of 15

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 5 of 15

I: ..

. D.· CAUSE OF ACTION

... COUNTI

. ' .2. ". Count ~.~denti?: the 'isslle irlvolv~d. C~e,ck only one.. State additionaliss.ues in se~ara.te ~ounts: ..•.

.., ;' ,':,,0 BasIC necessIties '

,··0 Mall .' .. . 0 Accessto the court . IJ MedIcal.care

o " ..'';.>':0 Di~ciplinaryproceedin~s "., ..,' 0 Property , . Exercise of religion. ..0 Retaliation

, '.'.

.:
,

-0
,

Excessive

force

by ~
' .. ':

o"f. fic.e~'

0

Threa:tto safetY
,"

0

Other: _ _ _ _ _ _ _ _ _ _ _ _~ ..

, ."

.

,

'.

3. . Supporting' Facts.. State as bnefly as possible the FACTS supporting Co~t I. Describe exactly what

' T " . each Defendant c;lid or did not do that viol~te4 yourrights...State the facts clearly in your own words without' .

.citing legalautliorit <?rar u~ents. . . . .

.

.f;'

Administrative R e m e d i e s : .

.

a. Are there any a4ministrati,ve remedies (grievance procedures or administrative appeals) ayailabl~..

at your institutio~?' . . " . ' . . . . . .

' . ttl Yes 0 No

b. Did you submit a request for admi~Strativerelief on Count I ? . '

...~ Yes' '0 No •.

c. Did you appeal yo~ re.quest for relief on COl.mt I to the highest level? .'

~ Yes ." 0 No,

d. If you did not sub~it or appeal a request for administrative relief at any level, bri/fiy explain whY .

. ~~~..

.

.

. 3

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 6 of 15

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 7 of 15

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 8 of 15

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 9 of 15

,'.".

COUNT II

tiona! or other. fe'deral civilrl

. ;

:.,'

, ~,

o <'2... Count ~I. Ide~t~~the issue involved~~hec~Qniy one.. State additi.o.nal is.sues in ~arate. count.s.

Bastc necesSIties .' '.

'. 0 Mati . . 0 Access to the court .. ~Medlcal care

. . '. 0 Discipliriarypr()c~edings •. '. DProp~rty '. ". 0 Exercise ofreligion· . 0 Retaliation'

" 0 Excessiv6 forceby an officer OThr~'atio, safety 0 ()ther:_-.,-_ _---,_ _ _ _ _ _ __

,,'

3.

. '". '.

.. ' "
~ -

. " .....

. . . '.'~

'

.

,

-

-

.

,

-

-

-

.

.

,

.

.

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,

-

-

-

-

.

,

.

_

-

-

.

.

:

.

.

_

-

-

-

-

-

-

-

-" . ,

--
;:

-

_

.

,

-

-

-

,

-

-

-

-

-

-

-

-

-

:

.

.

.

.

-

-

,

-

-

-

-

,

-

-

-

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-

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-

.

.

,

.

.

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.

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.

.

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- - - - - - ' - - - - - - . , . . - - ' - - - - - - , ' - - - - ' - - , . _ _ - - - . . , . . - . . , . . - - - . , . - - - - - - - - - - c ' - - - ; - -....:.. ~

._------,.----------.,.---:-------------.,.-- ....:.....:..~.--~:-.' -.-' ---'-----"-:-'.,....,.

----.,...,-------------..,,--'----------------------' .:',

State how you were injured'

,. : ",

5. Administrative Remedies..'

·a. Are there any administrative remedies, (grievance pro~edures or administrative appeals) available .,

at your institution?

'

" .

$I Yes 0 No<

b. Did you submit a request for administrative relief on CounfII?

No. .(1 Yes ".0

c.Did you appeal your request for relief on CountTI to the highest level?

$ Yes . D No'

d. If you did not submit or appeal a request for administrative relief at any level, briefly explainwhy

you did not..

.

'4

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 10 of 15

.

"

....
','

E. REQUEST FOR RELIEF

.

.

. .

u~derp~rialty is .' '. 1 declare

of perjury that the foregohlg true and correct.

.. '

.

. . "

;';

. :Executed on 'l5f:e{2l~ <to(O '

.........DATE

....

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..

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person who
.

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prepare
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this

complaint)
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,(Attomey'saddress & tel~phone number)

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" ..... ". ',.'"
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ADDITIONAL PAGES

.. '-',
.: •... -",'

All questions must be answered concisely in the proper space on the fonn. Ifyou need more space, you may'

attach no more than fifteen additional pages. But the form must be completely filled in to the extent

applicable. Ifyou attach additional pages, be sure to identify which section ofthe complaint is being continued

.and nurD.ber all pages. .

. .

.

.. .

.6

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 11 of 15

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 12 of 15

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Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 14 of 15

Case 2:10-cv-02070-FJM--MEA Document 1 Filed 09/27/10 Page 15 of 15

/ .---=
----.....
--

-=~ ,i

-'

-

,

-,

-I

 
 Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 1 of 23
" '
_FILEO"'---=--':"lODGED
_ RECEIV50 _ COpy

M.AR 2 ~ 1911

Mailing Address
~\\)Q£f\cr t=s:C <65\721,
cJ City, State, Zip Code

Q~eLE§R!~8.tURl9etbla~t-:tfl:RRlJeiQttj'Lb'U\.R.r.

/

____ ______- __ _ ___". , . I:H

'£:. G<::.;.) /-·rrv

~_ ~ :-=-=-~ ~ ~

_~ ..<t

(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

~b\G~tf-J's\)CD COf\~e~ u~.·

)
, )

(Full Name of Plaintiff)

Plaintiff,

)

1

' sL. vs.

ID ~ V C CASE NO. -2QJ{HH}-rrW,s{MEf\) ) (To be supplied by the Clerk)

~~~~~~~~~~4=~~~~~' )

.(lF.u.:l.l (N2)La.m>IqetR,o=.f;.D·.e.f:eAn.CdSta~\nJ}tJ)c. .J. \ S~\<el o.\Ll. )1 . u.!.c\~.1. . !.lo~u- _ _ _ _,

)
)

~(3)~Illi~'- ,-, -,-~- ,- - , -<-b.'--"-S~v_h_:.._..:....::...{(\l....!-""ffi..L---_ _ _, ~

)

(4)

)

CIVIL RIGHTS COMPLAINT

¥Y\ort6eo \:e o UU~I TtB\Y~A\ PRISONER Original Complaint

\

o Defendant(s). Check if there are additional Defendants and attach page I-A listing them.

)
)

~-----------------

~First Amended Complaint
o Second Amended Complaint

A. JURISDICTION ~ Ve"lt£

1. This Court has jurisdiction over this action pursuant to:
'$ 28 U.S.c. § 1343(a); 42 U,S.c. § 1983
o028 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Other: ________________________________

h0'£ 2. Institution/city where violation occurred:

C (},f)\(lp.;\ O(\\~ £\c&.e(\(£J ~'R.) Z. .

Revised 3/9/07

1

550/555

Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 2 of 23
" '

B. DEFENDANTS

~~ L :s3-",-_ _ maD 1. -N-->a'0m\....e.,.¥RoC"f""f"i""r,s-,t~~D_efe_ nda_ nt: _ _ _ _

. at

h~f·C

The first Defendant is employed as

f}w..€y1(e

..

(Position and Title)

(Institution)

am~\of E.~:~ \<wOt'<\\ 2. N£tvL\-=s~:eJco\\ntfd\\D\-e'Y,(fPeO\nSldt\lOa\nn\at:ntd)TI~tl,e)a'sj~\OO

. . The sycond Defendant is employed as:

at ~ S· p·C ~10i2~ocf

.

(Institution)

3.

Name ofthird Defendant: _-"~....,J0bB,,,-,=-+---,b=-.-,Sc=4.'t..:..h->-..<f..<.-.,-,\t\)==-_:r--=:--=..y....
--lID\oL\-'l~eC~..j::::.O~b::--_ _ _ _ _ _ _ _ _at ~''S-fC

Th~ttJhii-rednQuy:fendant

is

employed

.as:

(Position and Title)

(Institution)

4. NameoffourthDefendant: _ _ _ _ _ _ _ _ _ _ _ _ _ _. The fourth Defendant is employed as: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _at_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____

(Position and Title)

(Institution)

If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.

C. PREVIOUS LAWSUITS

1. Have you filed any other lawsuits while you were a prisoner?

'rfJ Yes

DNo

one . 2. If yes, how many lawsuits have you filed?

Describe the previous lawsuits:

a. First prior lawsu't:
1. Parties: ...O;l.t.b.ll~~w....J!.~....!.L~..J::::'i---o:c---.---=2. Court and case number: 3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)--!.~<..>W.~:__---

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?)_ _ _ _ _ _ __

If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page. 2

Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 3 of 23

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Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 4 of 23
'. '
D. CAUSE OF ACTION COUNT I

2. Count I. Identify the issue involved. Check only one. State additional issues in s~arate counts.

o Basic necessities

0 Mail

0 Access to the court

~ Medical care

o Disciplinary proceedings

0 Property

0 Exercise of religion

0 Retaliation

o Excessive force by an officer 0 Threat to safety 0 Other: __________________

4.

5. Administrative Remedies:

a. Are there any administrative remedies (grievance procedures or administrative appeals) available

at your institution?

~ Yes 0 No

b. Did you submit a request for administrative relief on Count I? c. Did you appeal your request for relief on Count I to the highest level?

~ Yes 0 No
ifS. Yes 0 No

d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why youdidnot. ___________________________________________________

3

.'
Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 5 of 23

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. Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 13 of 23
\,

COUNT II 1: State the cons"titutional Dr other fed~r?-l ~ivil ~ight that was violated: ......---.,-~-+-_ _...-...~_ _ __
gm f\Y'r'\e }JOIIfOlo+&0 0.\:) "O)D&±H-LJt\QO { C£lJe' ODd ()O!J:)(.)C1! {Jvrll'sbroeq+"

2. Count II. Identify the issue involved. Check only one. State additional issues in 5Parate counts.

D Basic necessities

D Mail

D Access to the court

~ Medical care

D Disciplinary proceedings

D Property

D Exercise of religion

D Retaliation

D Excessive force by an officer D Threat to safety D Other: _ _ _ _ _ _ _ _ _ _ _ _ __

3. Supporting Facts. State as briefly as possible the FACTS supporting Count II. Describe exactly what each Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal authority or.arguments.
\ \'00

5. Administrative Remedies.

a. Are there any administrative remedies (grievance procedures or administrative appeals) available

at your institution?

0 Yes D No

b. Did you submit a request for administrative relief on Count II?

EtI Yes D No

c. Did you appeal your request for relief on Count II to the highest level?

~ Yes D No

d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you did not. __________________________________________

4

.. Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 14 of 23
'

COUNT III 1.

2. Count III. Identify the issue involved. Check only one. State additional issues in separate counts.

D Basic necessities

D Mail

D Access to the court

D Medical care

D Disciplinary proceedings D Property

D Exercise of religion

~ Retaliation

D Excessive force by an officer D Threat to safety D Other: _ _ _ _ _ _ _ _ _ _ _ _ __

4. Injur,Y., State how you were injured by the actions or inactions of the Defendant(s).
QeJ'~)\0J Qb~cnrJ~)C\~\ uV)O Qn~s\cC\ l ~1)d~j

5. Administrative Remedies.

a. Are there any administrative remedies (grievance procedures or administrative appeals) availahle

at your institution?

~ Yes 0 Nu f

b. Did you submit a request for administrative relief on Count III?

,. Yes ~ Nt;

c. Did you appeal your request for relief on Count III to the highest level?

8-Yes '(J NtG

d. If you did not submit or agpeal a req~est for administrative relief at any level, briefly explain why

you did not. uk ~ G{(\e~/esbe \~5Le t VtJ~foceSS \\

If you assert more than three Counts, answer the questions listed above for each additional Count on a separate page. 5

Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 15 of 23

Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 16 of 23 -

.

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Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 17 of 23

Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 18 of 23

reme~:lhal-j~pk'''''''''''LL!-[~UL/..~I.JL!~~-~r-p."""'''':'"---11

. __ _________ ______ ~~~~~~~~l~~~~~~-~~-~~U~~~t.-- ~

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'. Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 19 of 23 ' E. REQUEST FOR RELIEF

I declare under penalty of perjury that the foregoing is true and correct.

_3--=-, \ _ _ Executed on

2D~\ \\,----,,0

DATE

(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)
ADDITIONAL PAGES
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 all pages.

6

Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 20 of 23

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Case 2:10-cv-02070-FJM--MEA Document 18 Filed 03/22/11 Page 22 of 23

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 Case 2:10-cv-02070-FJM--MEA Document 28 Filed 07/28/11 Page 1 of 21

Place of Confinement ' . . . '

.

. ffi~87ID·

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.

IN'THE UNITED STA;~S:riiSTRICT.c·oURi·,.'·:·:··: .:::.::.:' '. -" .' :.-

. . FOR THE DIST;RIGT OF ARIZONA··.~··,.

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:··S !--:..'.·Defendant(s).· · .. '.,:.' .0 FirstAmendedCompl~t. :: ... , ."".::.:;'"

Chce'kifthereai~additi~JiaIDefcndantsandattac~p~e l-Alistingtheut : : ':::-') ~ Second ~endec;l Complaint". .-' .:'..;..; ./.':)'/:-'::::..."

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.1. This Court has jurisdictib~ over this a~ti~npursuant to': - . . . . . . . . .... •. ':":';,' .'

. :~ 2'8 U.S.C. § 1343(a); 42 U.S.c. § 198~ ..'....

. .' ,

. ,

. 0 28 U.S-.C.,§ 1331;Bi~ens v. si~ Uclm~~ Federal Narcotics Agent~;··403U.S. 388 (197i):-- ::'

. 0 Oth~r: .'

.'

_ . . . . . . . . . . .'

£bferaLA 2. ~curred: Nf)'~·e Institutionlcity whereviolation ~\ (1m*.

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Case 2:10-cv-02070-FJM--MEA Document 28 Filed 07/28/11 Page 2 of 21

B. DEFENDANTS

.. '

'.'

..

.'

'~;' . "

'1.: .N..·ame'of flrs~De{endan.·t: lliet ~. s~ro
'. . . fu~\),~{L' .. . ".

at . tr..W. .cThwl:i€mOerfEen.d.ant isem'p..lOy..e'd..· as.:

(Positionand Title) .

(Institution) . .

. 2.'

--¥'~::::::;..t.~Tl.~II\l.LIl':='Y'I.:..:.."..J'":L..I..!..+h_·_. :. .......,..----,. The second Pnfendant is e.mployedas:

~"'-'-'-----'-'-''''''''-!..I..."''-'T'-'~.:...J.--L...u..tU.LlJ..1...LII...~~-..,...-_,at b'sf C f{DreU~. . .., '. '.'

(Institution).

.·..__.__--'-___._",. l..44¥~~o=:...l~.e.Jl')!...!.-.___---.,~,.....,.,.,.. The third Defendant is employed as:
...:,. :. . . .,'.."__ _ ~"""~OU;:: _ _ _ _ _ _ _ _-::...I!....-___at'_"""-=-..L-.::__-+'C~..e~

. (position and Title)

... (Institution)

'.' .' .>-.~ ,";.

.

.

---,'-'..............~.............~~.:-~~.....,.~'40~~:~~:~~~~a-t-~""""'·-s.·'Te·hce

foUrth Defendant is
f1c.ffl0ce···

.employed as:
.. '.

'. .,. . . (Institution)

. . .. :;

. .'

,

. . ..'..

. •.... ,;:,' If yC!ti name more.than foux: Defe~dants,.answer: the questions listed above .for each 'additional Defendant on a separate page;.'

....: <'. ' . '

~ .

.. .

• ,'.

.

•• .. ':.- .. ,

• . .- . •

.

.'.

.

'. ,,', • ;= '"

. ': ,.,-,' .

.... ',:, :.. "'

: ..

. :c. PREVIOUS LAWSUITS .•

".:.,"

,. ,

-'. ~

.•••:.1 •

.'. .~.:

:. b.Second·prior lawsuit:

.- ",'" :.

. .

~

.'

. ' . ',,',

. "

,.. '. ..: 1..Parties: - - - -............,....,.'-"'-:--:-Ir---.-t--;e:---r..: 2. .Court and case number: +W~~~~~~~~~~~~~~-~~~~~~~~~+4' 3.' Result: (Was the case. dismissed? Was it appealed? Is it still pending?)""""'I-WI.f.LL=\--_ __

c. Third prior lawsuit:

.!.- Parties:

---------~~~~~+_-+~---T_~

2. Court and case number: ~"""'-".D.u..a.....::=us..II!U.~--+..l.JI4~~::..M~L.....I~-........loL....L:_l~I!..:..'""'~~..........

3. Result: (Was

Was it appealed? ~s it still pendiIig?)~4E2J!!lli~~-.....;

.If YOil filed: m'ore tlian three'lawsuits, answer the questions listed above for each additional lawsuit on a separate page. 2'

•

•

•

Case 2:10-cv-02070-FJM--MEA Document 28 Filed 07/28/11 Page 3 of 21

Case 2:10-cv-02070-FJM--MEA Document 28 Filed 07/28/11 Page 4 of 21

D. CAUSE OF ACTION

.." ; . . . .. -.:' .",

. '.'

.

... COUNTI

. . ~ Il_j·~__ J

.''...1..·..•.State the constitUtio\lal or.Jther federal civil right:th.at was.' violated: -'O..}.:...."n.·m·~QAL4\maL.uL.l">'-4U,ff.»...J..!..I.7...N·.!-[·_·._ _ __

~Rl~ UtJ\Yill~\ Q\lN\6hm~ . ..... .

. . .'

.'2..,. C~unt L Identify the issue involved. Che.ck 'only one.. State additionalissues in separatecou~ts. '.
i1 . ':',::::·0 Basic ~ecessities' .' . :0 Mail' . : '.. 0 Access.to the ~ourt· Medical care

..' ... ·.·::,)·0 Di~ciplinarypro~eedings ·::....·0 PropertY· ".. ~O Exercise ofreligion ." . :'.f:j Retaliation '.

.

..•... :·

.. ·0
. . .

Exces~ive
. ,'.. -: .

fo~ce

by ~
.. ',,".:

o'. f

fice
'.

r' 0
.:' .

Threat'to

: . ':

-,

~afetY
.

0

Other: _ _ _ _ _._ _ _ _ _ _--:----,.:.
. ," '

..

'. 3.'·Supporting'Facts. State as bnefly as possible the'FACTS supporting Co~t L Describe exactly what

.' . each Defendant <;lid or did not do that violated yourrights....State the facts clearly in your own words without

·'::'dting Ie ,al ~uthority orar ments.··· .

.. '

. . ·01 4Xle.'

.. . .

... . '.:~., :.:
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.... ------,...--,------------------------:-------~

. ' , '

.5. . Administrative Remedies: .

.

.

.

10 a. Are ther~ any administrati.v~ reme~ies (grie'vance procedures or administrative appeals) ayaila1Jl~
at your instituti~~?' .:...... . ; .' ". . . . . . '. . ' Yes 0 No'"

. b. D~d you submit a requ~st for administrativereIief on Count I?

..$ Yes' 'Q No .

c. Did you appeal'yo~ request f~r relief onColint I to the highest level?

ipYes :' 0 No.

d. Ifyou did not submit .or appeal a request for administrative relief at any level, briefly explain why ..

~~~

.....

.~ .

.. 3

Case 2:10-cv-02070-FJM--MEA Document 28 Filed 07/28/11 Page 5 of 21

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.COUNT.ll

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o .0 Discipliriary proceedings . 0 'Property '. . . Exercise .of religion

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5. Administrative Remedies..'

, "

a. Are there any administrative reme~ies (grievance.procedures or adriIinistrative appeals) available,

at your institution? . .

' . .... . " : . . . . ' . .~ Yes :0 No'

b. Did you submit a re.quest for administ~ative relief on C~unt II? .

. .

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c. Did you appeal your request for relief on Count IT to the highest level?:'

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Case 2:10-cv-02070-FJM--MEA Document 28 Filed 07/28/11 Page 19 of 21
. ....

., State the relief you are seeking:

E. REQUESTFORRELIEF

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is .' i deqlare ~derp~rialty of perjury that the forego~g trUe and correct..

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ADDITIONAL PAGES .

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All questions must be answered concisely in the proper space on the fonn. Ifyou need more spaQe, you may <.

attach no more than fifte~n additional pages. But the form must be. completely filled in to the. extent

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·.and nu:rnber all pages~

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Case 2:10-cv-02070-FJM--MEA Document 28 Filed 07/28/11 Page 20 of 21

Case 2:10-cv-02070-FJM--MEA Document 28 Filed 07/28/11 Page 21 of 21

 
 Case 2:10-cv-02070-FJM--MEA Document 30 Filed 03/01/12 Page 1 of 4

1

SC

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Robert Carrasco Gamez, Jr.,

10

Plaintiff,

11 vs.

12 Charles L. Ryan, et al.,

13

Defendants.

14

) No. CV 10-2070-PHX-JWS (MEA) ) ) ORDER ) ) ) ) ) ) )

15

Plaintiff Robert Carrasco Gam ez, Jr., who is confined in the Arizona State Prison

16 Complex, Central Unit in Florence, Arizona, filed a pro se civil rights Complaint pursuant

17 to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. The Court granted

18 the in forma pauperis application but dismissed the Complaint for failure to state a claim

19 with leave to amend. Plaintiff filed his First Amended Complaint, which the Court dismissed

20 for failure to state a claim with leave to amend. (Doc. 18, 20.) Plaintiff thereafter filed a

21 Second Amended Complaint. (Doc. 28.) Recently, counsel filed a notice of appearance on

22 behalf of plaintiff. The Second Amended Complaint will be dismissed with leave to file a

23 third amended complaint.

24 I. Statutory Screening of Prisoner Complaints

25

The Court is required to screen complaints brought by prisoners seeking relief against

26 a governmental entity or an officer or an em ployee of a governm ental entity. 28 U.S.C.

27 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

28 claims that are legally frivolous or malicious, that fail to state a claimupon which relief may

Case 2:10-cv-02070-FJM--MEA Document 30 Filed 03/01/12 Page 2 of 4

1 be granted, or that seek monetary relief from a defendant who is immune from such relief.

2 28 U.S.C. § 1915A(b)(1), (2).

3

A pleading must contain a “short and plain statement of the claim showing that the

4 pleader is entitled to relief.” Fed. R. Civ. P. 8a()(2) (emphasis added). While Rule 8 does not

5 demand detailed factual allegations, “it dem ands more than an unadorned, the-defendant-

6 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009).

7 “Threadbare recitals of the elem ents of a cause of action, supported by m ere conclusory

8 statements, do not suffice.” Id.

9

“[A] complaint must contain sufficient factual m atter, accepted as true, to ‘state a

10 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

11 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

12 that allows the court to draw the reasonable inference that the de fendant is liable for the

13 misconduct alleged.” Id. “Determining whether a com plaint states a plausible claim for

14 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

15 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

16 allegations may be consistent with a constitutional claim, a court must assess whether there

17 are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

18

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

19 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

20 Cir. 2010). A “complaint [filed by apro se prisoner] ‘must be held to less stringent standards

21 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

22 94 (2007) (per curiam)).

23 II. Second Amended Complaint

24

Plaintiff ostensibly alleges two counts for violation of his right to constitutionally

25 adequate medical care and threats to safety. Plaintiff sues the following current or form er

26 employees of the Arizona Departm ent of Corrections (ADC): Director Charles L. Ryan;

27 former ADC Director Dora B. Schriro; Facility Health Adm inistrator (FHA) Dr. Dennis

28

- 2 -

Case 2:10-cv-02070-FJM--MEA Document 30 Filed 03/01/12 Page 3 of 4

1 Kendall; former FHA, Dr. Sherry Goldsmith; and Corrections Officer John Doe. Plaintiff

2 seeks declaratory and injunctive relief.

3 III. Failure to Comply with Instructions and Rules

4

A complaint having the factual elements of a cause of action scattered throughout the

5 complaint and not organized into a “short and plain statement of the claim” may be dismissed

6 for failure to satisfy Rule 8(a) of the Federal Rules of Civil Procedure. See Sparling v.

7 Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry v. Renne, 84

8 F.3d 1172 (9th Cir. 1996). Moreover, under Rule 10(b) of the Federal Rules of Civil

9 Procedure, “[i]f doing so would promote clarity, each claimfounded on a separate transaction

10 or occurrence . . . must be stated in a separate count.” Fed. R. Civ. P. 10(b).

11

Prisoners are required to use court-approved form complaints. The Instructions for

12 completing the court-approved form complaints specifically state that:

13

Local Rule of Civil Procedure (LRCiv) 3.4 provides that complaints by

incarcerated persons must be filed on the court-approved form.The form

14

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

15

in the appropriate space on the fo rm. If needed, you m ay attach additional

pages, but no more than fifteen additional pages , of standard letter-sized

16

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

17

to submit additional or corrected information, which may delay the processing

of your action. You do not need to cite law.

18

19 (Instructions at ¶ 1) (underlining added). The Instructions further provide that:

20

1. Counts. You must identify which civil right was violated.You may allege

the violation of only one civil right per count.

21

2. Issue Involved. Check the box that m ost closely identifies the issue

involved in your claim. You may check only one box per count . If you

22

check the box marked “Other,” you must identify the specific issue involved.

3. Supporting Facts. After you have identified which civil right was violated,

23

you must state the supporting facts. Be asspecific as possible. You must state

what each individual defendant did to violate your rights. If there is omre than

24

one defendant, you m ust identify which defendant did what act. You a lso

should state the date(s) on which the act(s) occurred, if possible.

25

4. Injury. State precisely how you were injured by the alleged violation of

your rights.

26

27 (Instructions, part C) (underlining added).

28

- 3 -

Case 2:10-cv-02070-FJM--MEA Document 30 Filed 03/01/12 Page 4 of 4

1

Although Plaintiff used the court-approved form complaint, the Second Amended

2 Complaint does not comply with the rules or Instructions for completing the formcomplaint.

3 The Second Amended Complaint is rambling and difficult to follow. Further, although

4 Plaintiff ostensibly asserts two counts, he seemingly attempts to embed other claims within

5 those two counts, rather than to separate claims into separate counts. Plaintiff also fails to

6 concisely and succinctly allege relevant facts to support each count. For these reasons, and

7 inasmuch as Plaintiff is now repre sented by counsel, the Court will dism iss the Second

8 Amended Complaint with leave to file a third amended complaint.

9 IT IS ORDERED:

10

(1) The Second Amended Complaint is dismissed. (Doc. 28.) Plaintiff has 30

11 days from the date this Order is filed to file a third amended complaint in compliance with

12 this Order.

13

(2) If Plaintiff fails to file a third amended complaint within 30 days, the Clerk of

14 Court must, without further notice, enter a judgm ent of dism issal of this action with

15 prejudice.

16

DATED this 29th day of February 2012.

17

18

/s/ JOHN W. SEDWICK

UNITED STATES DISTRICT JUDGE

19

20

21

22

23

24

25

26

27

28

- 4 -

 
 Case 2:10-cv-02070-FJM--MEA Document 42 Filed 03/08/12 Page 1 of 1

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7 Robert Carrasco Gamez, Jr.,, et al.,
8 Plaintiffs,
9 vs.
10 Charles L. Ryan, et al.,
11 Defendants.
12

) No. 2:10cv2070-PHX-JWS (MEA) ) ) ORDER ) ) ) ) ) ) )

13

Plaintiff has filed a class action com plaint at docket 31. The filing appears to be

14 timely. See the order at docket 30. Whether the court will actually certify a class, and if so,

15 the definition of the class are issues yet to be determined. However, it is clear that there is

16 a good possibility that a class will be certified. The district judge presently assigned to this

17 case is a visiting judge who does not have chambers in Arizona. Were the case to be certified

18 as a class action, it would be much more effectively managed by a judge who has chambers

19 and immediate access to a courtroom in Arizona. The question of certification should be

20 decided by the sam e judge who would handle the case in the event a class were to be

21 certified. For these reasons, the assigned judge directs the Clerk of Court to re-assign this

22 case to a district judge who has chambers in Arizona.

23

DATED this 7th day of March 2012.

24

25

/s/ JOHN W. SEDWICK

UNITED STATES DISTRICT JUDGE

26

27

28

 
 Case 2:10-cv-02070-FJM--MEA Document 51 Filed 03/21/12 Page 1 of 2

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Robert Carrasco Gamez, Jr.,

) No. CV 10-2070-PHX-FJM

9

)

Plaintiff,

) ORDER

10

)

vs.

)

11

)

)

12 Charles L. Ryan et al,

)

)

13

Defendant.

)

)

14

This action was reassigned to the undersigned on March 8, 2012. (Doc. 42). We

15

reviewed the docket and discovered that the case was already 18 months old and yet had not

16

been developed beyond efforts to file a complaint. It is a pro se prisoner civil rights action

17

subject to the Prison Litigation ReformAct. The initial complaint was filed on September 27,

18

2010. On January 26, 2011, the court allowed plaintiff to proceeind forma pauperis,screened

19

the complaint under 28 U.S.C. §1915A, and dismissed it with leave to am end. (Doc. 15).

20

Plaintiff filed a first am ended complaint on March 22, 2011. On May 13, 2011, the court

21

screened it and dismissed it again with leave toamend. (Doc. 20). On July 28, 2011, plaintiff

22

filed a second amended complaint. The docket shows no activity until 6 months later when

23

on February 24, 2012, the ACLU filed an appearance on behalf of plaintiff. (Doc. 29). Six

24

days later, on March 1, 2012, the court dismissed the second amended complaint with leave

25

to amend yet again. (Doc. 30). The court not ed that counsel had now appeared and could

26

cure plaintiff's pleading deficiencies. Order of Mar. 1, 2012 at 4. (Doc. 30).

27

Instead, on March 6, 2012, counsel filed a "Third Amended Class Action Complaint

28

Case 2:10-cv-02070-FJM--MEA Document 51 Filed 03/21/12 Page 2 of 2

1 for Injunctive and De claratory Relief", 78 pages long, purporting to add 13 new inm ate

2 plaintiffs, the Arizona Center for Disability Law, and seeking class treatment. Because this

3 attempt to expand the scope of the action wasnot within the contemplation of the court when

4 a third amended complaint was allowed, the out-of-district judge assigned to the case ordered

5 it reassigned to an in-district judge. (Doc. 42). We thus inherited it in this posture.

6

The Third Amended Complaint would expand both the party structure and the claim

7 structure of the case . It would go from a single prisoner' s in forma pauperis claim to a

8 system wide assault on the state's provision of medical, dental, mental health and custodial

9 care to the entire prison population. This is far too much to hang on an 18 month old case

10 in which no filing fee has been paid. Unde r the Civil Justice Reform Act, 28 U.S .C.

11 §473(a)(2)(B), the presumptive pace of ordinary civil litigation is 18 m onths. And under

12 LRCiv 16.2(b)(2), prisoner pro se cases are to be resolved even earlier. This is now

13 impossible here.

14

Plaintiff was never granted leave to file this multi-party, multi-claim class action. He

15 was granted leave to conform his claim to the requirem ents of this court' s form and

16 instructions for pro se prisoner litigation. Order of Mar. 1, 2012 at 3-4. (Doc. 30). He has

17 failed to do this.

18

Accordingly, IT IS ORDERED STRIKING THE THIRD AMENDED COMPLAINT

19 AND DISMISSING this action for lack of prosecution under Rule 41(b), Fe d. R. Civ. P.

20 This is without prejudice to the right of counsel to file a new and separate action on behalf

21 of the proposed new plaintiffs in this c ase, Gamez, and the proposed class. We note that

22 proposed plaintiff Arizona Center for Disability Law m ay not proceed in forma pauperis.

23 See Rowland v. California Men's Colony,506 U.S. 194, 211 (1993)(only natural persons may

24 proceed in forma pauperis).

25

DATED this 21st day of March, 2012.

26

27

28

- 2 -

Case 2:10-cv-02070-FJM--MEA Document 52 Filed 03/21/12 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Robert Carrasco Gamez, Jr., Plaintiff,
v. Charles L, Ryan, et al,
Defendants,

) ) ) ) ) JUDGMENT IN A CIVIL CASE ) ) CIV 10-2070-PHX-FJM ) ) ) ) )

Jury Verdict. This action came before the Coutr for a trial by jury. The issues have been tried and the jury has rendered its verdict.

XX Decision by Court. This action came for consideration before the Court. The issues have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that pursuant to the Co urt's Order of March 21, 2012, dismissing this action for lack of prosecution, judgment is hereby entered in favor of Defendants. Plaintiff shall take nothing by way of the Am ended Complaint. The Amended Complaint and this action are hereby dismissed without prejudice.

March 21, 2012 Date

BRIAN D. KARTH DCE/Clerk of Court
. s/ Ruth E. Williams By Ruth E. Williams
Deputy Clerk

 
 Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 1 of 12
CASREF,CLOSED,PPS
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:10−cv−02070−FJM−−MEA

Gamez v. Ryan et al Assigned to: Judge Frederick J Martone Referred to: Magistrate Judge Mark E Aspey (PS) Related Cases: 2:10−cv−01743−JWS−MEA
2:11−cv−02003−JWS−−MEA 2:10−cv−02663−JWS−MEA 2:12−cv−00601−NVW 2:10−cv−02789−JWS−−MEA 2:12−cv−00760−RCB−MEA 4:12−cv−00639−JGZ−−JR Cause: 42:1983 Prisoner Civil Rights Plaintiff

Date Filed: 09/27/2010 Date Terminated: 03/21/2012 Jury Demand: Plaintiff Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question

Robert Carrasco Gamez, Jr. also named as Robert C. Gamez, and Robert Gamez

represented by Corene T Kendrick Prison Law Office 1917 5th St. Berkeley, CA 94710 510−280−2621 Fax: 510−280−2704 Email: ckendrick@prisonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda ACLU − Phoenix, AZ 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 602−650−1854 Fax: 602−650−1376 Email: dpochoda@acluaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Cyrus Fathi ACLU − Washington DC 915 15th St. NW, 7th Fl. Washington, DC 20005 202−548−6609 Fax: 202−393−4931 Email: dfathi@npp−aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald Specter Prison Law Office 1917 5th St. Berkeley, CA 94710 510−280−2621 Fax: 510−280−2704 Email: dspecter@prisonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall ACLU − Phoenix, AZ 3707 N. 7th St., Ste. 235

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 2 of 12

Phoenix, AZ 85014 602−650−1854 Fax: 602−650−1376 Email: jlyall@acluaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Norman Prison Law Office 1917 5th St. Berkeley, CA 94710 510−280−2621 Fax: 510−280−2704 Email: snorman@prisonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy Prison Law Office 1917 5th St. Berkeley, CA 94710 510−280−2621 Fax: 510−280−2704 Email: ahardy@prisonlaw.com ATTORNEY TO BE NOTICED

Caroline N Mitchell Jones Day − San Francisco, CA 555 California St., 26th Fl. San Francisco, CA 94104 415−875−5712 Fax: 415−875−5700 Email: cnmitchell@jonesday.com ATTORNEY TO BE NOTICED

Douglas E Roberts Jones Day − San Francisco, CA 555 California St., 26th Fl. San Francisco, CA 94104 415−626−3939 Fax: 415−875−5700 Email: douglasroberts@jonesday.com ATTORNEY TO BE NOTICED

Plaintiff Arizona Center for Disability Law

represented by Jennifer Ann Alewelt Arizona Center for Disability Law − Phoenix, AZ 5025 E Washington St., Ste. 202 Phoenix, AZ 85034 602−274−6287 Fax: 602−274−6779 Email: jalewelt@azdisabilitylaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Angela Szanto Arizona Center for Disability Law − Phoenix, AZ 5025 E Washington St., Ste. 202 Phoenix, AZ 85034 602−274−6287 Email: RSzanto@azdisabilitylaw.org LEAD ATTORNEY

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 3 of 12

ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sonia Rodriguez

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maryanne Chisholm

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Christina Verduzco

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 4 of 12

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joshua Polson

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jackie Thomas

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dustin Brislan

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 5 of 12

ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joseph Hefner

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Desiree Licci

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shawn Jensen

represented by Daniel Joseph Pochoda (See above for address)

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 6 of 12

LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Charlotte Wells

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Victor Parsons

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address)

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 7 of 12

ATTORNEY TO BE NOTICED

Plaintiff Steven Swartz

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jeremy Smith

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Hardy (See above for address) ATTORNEY TO BE NOTICED

Caroline N Mitchell (See above for address) ATTORNEY TO BE NOTICED

Douglas E Roberts (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Charles L Ryan Director at ASPC Florence, individually and in his official capacity
Defendant
G Fizer Complex Warden (Deputy) at ASPC Florence TERMINATED: 03/22/2011
Defendant

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 8 of 12

Dennis R Kendall Dr.; Facility Health Administration (Mental Health) at ASPC Florence, individually and in his official capacity TERMINATED: 03/06/2012

Defendant
Unknown Pittario COIII, Assigned Counselor at ASPC Florence TERMINATED: 03/22/2011

Defendant
Unknown Party John Doe, Correctional Officer at ASPC−Eyman Complex, individually and in his/her official capacity TERMINATED: 03/06/2012

Defendant
Dora B Schriro Director, ASPC Florence, individually and in her official capacity TERMINATED: 03/06/2012

Defendant
Sherry Goldsmith Doctor, Former Facility Health Administrator, ASPC Florence, individually and in his/her official capacity TERMINATED: 03/06/2012

Defendant
Richard Pratt Interim Division Director, Division of health Services, Arizona Dept of Corrections

represented by Daniel Joseph Pochoda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/27/2010 09/27/2010 09/27/2010 09/27/2010 09/27/2010 11/03/2010

# Docket Text
1 AMENDED by #18 − PRISONER CIVIL RIGHTS COMPLAINT, filed by Robert Carrasco Gamez, Jr.(JRD) Modified on 3/23/2011 (REW). (Entered: 09/28/2010)
2 NOTICE OF ASSIGNMENT: (JRD) (Entered: 09/28/2010)
3 MOTION for Leave to Proceed in forma pauperis by Robert Carrasco Gamez, Jr. (REW) (Entered: 09/28/2010)
4 Prisoner Trust Fund Account Statement by Robert Carrasco Gamez, Jr. (REW) (Entered: 09/28/2010)
5 MOTION for Appointment of Counsel by Robert Carrasco Gamez, Jr. (REW) (Entered: 09/28/2010)
6 ORDER denying without prejudice Plaintiff's 3 Motion for Leave to Proceed in forma pauperis; within 30 days Plaintiff must either pay the $350.00 filing fee or

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 9 of 12

11/24/2010 12/02/2010
12/06/2010 12/06/2010 12/14/2010 12/14/2010 01/05/2011 01/26/2011 01/26/2011
02/16/2011 02/18/2011
03/22/2011

file a completed Application to Proceed In Forma Pauperis and a certified six−month trust account statement; if Plaintiff fails to comply with this order, the Clerk must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff; denying Plaintiff's 5 Motion for Appointment of Counsel. Signed by Judge Mary H Murguia on 11/1/10. (Attachments: # 1 IFP Form)(REW) (Entered: 11/03/2010)
7 MOTION for Extension of Time to Produce Certified Copy of Prisoner's Trust Account by Robert Carrasco Gamez, Jr. (REW) (Entered: 11/29/2010)
8 ORDER, granting Plaintiff's 7 Motion for Extension of Time; Plaintiff is granted an additional 30 days within which to comply with the 11/3/10 Order by either filing a new Application to Proceed In Forma Pauperis or paying the $350.00 filing fee; Plaintiff should file a declaration signed under penalty of perjury if he is unable to file a new Application to Proceed In Forma Pauperis in compliance with the 11/3/10 Order due to circumstances beyond his control; if Plaintiff fails to comply with this order, the Clerk must enter a judgment of dismissal of this action without prejudice and without further notice to Plaintiff. Signed by Judge Mary H Murguia on 11/29/10.(REW) (Entered: 12/02/2010)
9 MOTION for Leave to Proceed in forma pauperis by Robert Carrasco Gamez, Jr. (KMG) (Entered: 12/07/2010)
10 Prisoner Trust Fund Account Statement by Robert Carrasco Gamez, Jr. (KMG) (Entered: 12/07/2010)
11 (Second) MOTION for Leave to Proceed in forma pauperis by Robert Carrasco Gamez, Jr. (REW) (Entered: 12/15/2010)
12 (Second) Prisoner Trust Fund Account Statement by Robert Carrasco Gamez, Jr. (REW) (Entered: 12/15/2010)
13 Minute Order: This case is reassigned to the Honorable John W Sedwick for all further proceedings. All future documents filed shall reflect the initials JWS as part of the complete case number. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (REW) (Entered: 01/05/2011)
14 ORDER Directing Monthly Payments be made from Prison Account of Robert Carrasco Gamez. Signed by Judge John W Sedwick on 1/25/11. (TLJ) (Entered: 01/26/2011)
15 ORDER granting 9 Plaintiff's Motion for Leave to Proceed in forma pauperis; denying as moot 11 Plaintiff's Motion for Leave to Proceed in forma pauperis. The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint. If Plaintiff fails to comply, the Clerk of Court must enter a judgment of dismissal with prejudice that states that the dismissal may count as a strike under 28:1915(g). The Clerk of Court must mail Plaintiff a court−approved form for filing a civil rights complaint by a prisoner. Signed by Judge John W Sedwick on 1/26/11.(TLJ) (Entered: 01/26/2011)
16 MOTION for Extension of Time to Comply with Court Order by Robert Carrasco Gamez, Jr. (ESL) (Entered: 02/17/2011)
17 ORDER granting Plaintiff's 16 Motion for Extension of Time to file a first amended complaint to the extent that Plaintiff is granted an additional 30 days from the filing date of this Order in which to file a first amended complaint in compliance with the 1/26/11 Order 15 ; if Plaintiff fails to file an amended complaint within the extension granted herein, the Clerk 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). Signed by Judge John W Sedwick on 2/18/11. (REW) (Entered: 02/18/2011)
18 FIRST AMENDED COMPLAINT, Jury Demand against Dennis Kendall, Charles L Ryan, Dora B Schriro, filed by Robert Carrasco Gamez, Jr.(REW) (Entered: 03/23/2011)

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 10 of 12

03/22/2011 05/13/2011
05/17/2011 06/20/2011 06/24/2011
07/01/2011 07/11/2011 07/12/2011 07/14/2011
07/28/2011 02/24/2012 03/01/2012
03/05/2012 03/06/2012 03/06/2012 03/06/2012

19 MOTION for Appointment of Counsel by Robert Carrasco Gamez, Jr. (REW) (Entered: 03/23/2011)
20 ORDER, the First Amended Complaint 18 is dismissed for failure to state a claim; Plaintiff has 30 days to file a second amended complaint in compliance with this Order; if Plaintiff fails to file an amended complaint within 30 days, the Clerk 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). Signed by Judge John W Sedwick on 5/12/11. (REW) (Entered: 05/13/2011)
21 ORDER that Plaintiff's 19 motion for appointment of counsel is denied for the reasons stated in the Order filed on 05/13/11, doc. 20. Signed by Judge John W Sedwick on 05/17/11.(ESL) (Entered: 05/17/2011)
22 MOTION for Extension of Time to File Amended Complaint by Robert Carrasco Gamez, Jr. (REW) (Entered: 06/21/2011)
23 ORDER, granting Plaintiff's 22 Motion for Extension of Time to File a Second Amended Complaint to the extent as follows: stated Plaintiff is granted an additional 30 days from the filing date of this Order to file a second amended complaint in compliance with the 5/13/11 (Order) doc. 20; if Plaintiff fails to file an amended complaint within the extension granted, the Clerk 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). Signed by Judge John W Sedwick on 6/24/11. (REW) (Entered: 06/24/2011)
24 MOTION for Status Hearing by Robert Carrasco Gamez, Jr. (REW) (Entered: 07/05/2011)
25 MOTION to Compel defendants to produce medical file and injunction ordering a mental evaluation by Robert Carrasco Gamez, Jr. (TLJ) (Entered: 07/12/2011)
26 ORDER denying as moot 24 Plaintiff's Motion for Hearing. Signed by Judge John W Sedwick on 7/12/11.(TLJ) (Entered: 07/12/2011)
27 ORDER that Plaintiff's 25 motion to compel is denied. Plaintiff is granted until 08/15/11 in which to file a second amended complaint in compliance with the 05/13/11 Order, doc. 20. If Plaintiff fails to file an amended complaint within the extension granted herein, 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).Signed by Judge John W Sedwick on 07/14/11. (ESL) (Entered: 07/14/2011)
28 SECOND AMENDED COMPLAINT against Dennis Kendall, Charles L Ryan, Dora B Schriro, Unknown Party (John Doe), Sherry Goldsmith, filed by Robert Carrasco Gamez, Jr.(LAD) (Entered: 07/29/2011)
29 NOTICE of Appearance by Daniel Joseph Pochoda on behalf of Robert Carrasco Gamez, Jr. (Pochoda, Daniel) (Entered: 02/24/2012)
30 ORDER, the Second Amended Complaint 28 is dismissed; Plaintiff has 30 days to file a third amended complaint in compliance with this Order; if Plaintiff fails to comply with this order, the Clerk must, without further notice, enter a judgment of dismissal of this action with prejudice. Signed by Judge John W Sedwick on 2/29/12. (REW) (Entered: 03/01/2012)
32 NOTICE of Change of Address by Robert Carrasco Gamez Jr; #131401, ASPC−Eyman, Browning Unit, PO Box 3400, Florence AZ 85132 (REW) (Entered: 03/06/2012)
31 STRICKEN by Order #51 − AMENDED COMPLAINT (Third) against Charles L Ryan, filed by Robert Carrasco Gamez, Jr.(Pochoda, Daniel) Modified on 3/21/2012 (REW). (Entered: 03/06/2012)
33 MOTION for Admission Pro Hac Vice as to attorney Corene T Kendrick on behalf of Robert Carrasco Gamez, Jr. (BAS) (Entered: 03/06/2012)
34 MOTION for Admission Pro Hac Vice as to attorney Sara Norman on behalf of Robert Carrasco Gamez, Jr. (BAS) (Entered: 03/06/2012)

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 11 of 12

03/06/2012 03/06/2012 03/06/2012
03/06/2012 03/06/2012 03/06/2012
03/06/2012 03/06/2012 03/07/2012 03/07/2012 03/08/2012
03/09/2012
03/09/2012 03/09/2012

35 MOTION for Admission Pro Hac Vice as to attorney Donald Specter on behalf of Robert Carrasco Gamez, Jr. (BAS) (Entered: 03/06/2012)
PRO HAC VICE FEE PAID. $ 150, receipt number PHX119629 as to Corene T Kendrick, Donald Specter, Sara Norman. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/06/2012)
36 ORDER pursuant to General Order 09−08 granting 33 Motion for Admission Pro Hac Vice; granting 34 Motion for Admission Pro Hac Vice; granting 35 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/06/2012)
37 MOTION for Admission Pro Hac Vice as to attorney David Cyrus Fathi by Robert Carrasco Gamez, Jr. (Attachments: # 1 Certificate of Good Standing)(Fathi, David) (Entered: 03/06/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX119633 as to David Cyrus Fathi. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/06/2012)
38 ORDER pursuant to General Order 09−08 granting 37 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/06/2012)
39 SUMMONS Submitted by Robert Carrasco Gamez, Jr. (Pochoda, Daniel) (Entered: 03/06/2012)
40 SUMMONS Submitted by Robert Carrasco Gamez, Jr. (Pochoda, Daniel) (Entered: 03/06/2012)
NOTICE of request for e−notices by Augustine Jimenez. (Jimenez, Augustine) (Entered: 03/07/2012)
41 Summons Issued as to Richard Pratt, Charles L Ryan. (Attachments: # 1 Summons)(REW). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 03/07/2012)
42 ORDER, for the reasons stated in this order, the assigned judge directs the Clerk of Court to re−assign this case to a district judge who has chambers in Arizona. Signed by Judge John W Sedwick on 3/7/12. NOTE: This case has been reassigned, by random draw, to Judge Frederick J Martone. All future pleadings shall bear the case number: CV 10−2070−PHX−FJM (MEA).(REW) (Entered: 03/08/2012)
43 MOTION for Admission Pro Hac Vice as to attorney Caroline N Mitchell on behalf of Dustin Brislan, Maryanne Chisholm, Robert Carrasco Gamez, Jr, Joseph Hefner, Shawn Jensen, Desiree Licci, Victor Parsons, Joshua Polson, Sonia Rodriguez, Jeremy Smith, Steven Swartz, Jackie Thomas, Christina Verduzco, and Charlotte Wells. (BAS) (Entered: 03/09/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX119759 as to Caroline N Mitchell. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/09/2012)
44 ORDER pursuant to General Order 09−08 granting 43 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/09/2012)

Case: 2:10-cv-2070 As of: 09/13/2012 09:36 AM MST 12 of 12

03/13/2012 03/13/2012 03/15/2012 03/15/2012 03/15/2012 03/19/2012 03/20/2012 03/20/2012 03/21/2012 03/21/2012

45 SUMMONS Returned Executed by Joshua Polson, Jeremy Smith, Desiree Licci, Steven Swartz, Arizona Center for Disability Law, Robert Carrasco Gamez, Jr, Joseph Hefner, Charlotte Wells, Victor Parsons, Jackie Thomas, Sonia Rodriguez, Christina Verduzco, Shawn Jensen, Maryanne Chisholm, Dustin Brislan. Charles L Ryan served on 3/8/2012. (Eidenbach, Kirstin) (Entered: 03/13/2012)
46 SUMMONS Returned Executed by Joshua Polson, Jeremy Smith, Desiree Licci, Steven Swartz, Arizona Center for Disability Law, Robert Carrasco Gamez, Jr, Joseph Hefner, Charlotte Wells, Victor Parsons, Jackie Thomas, Sonia Rodriguez, Christina Verduzco, Shawn Jensen, Maryanne Chisholm, Dustin Brislan. Richard Pratt served on 3/8/2012. (Eidenbach, Kirstin) (Entered: 03/13/2012)
47 MOTION for Admission Pro Hac Vice as to attorney Alison Hardy on behalf of Arizona Center for Disability Law, Dustin Brislan, Robert Carrasco Gamez, Jr, Joseph Hefner, Shawn Jensen, Desiree Licci, Victor Parsons, Joshua Polson, Sonia Rodriguez, Jeremy Smith, Steven Swartz, Jackie Thomas, Christina Verduzco, and Charlotte Wells. (BAS) (Entered: 03/15/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX119975 as to Alison Hardy. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/15/2012)
48 ORDER pursuant to General Order 09−08 granting 47 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/15/2012)
49 MOTION for Admission Pro Hac Vice as to attorney Douglas E Roberts on behalf of plaintiffs Dustin Brislan, Maryanne Chisholm, Robert Carrasco Gamez, Jr, Joseph Hefner, Shawn Jensen, Desiree Licci, Victor Parsons, Joshua Polson, Sonia Rodriguez, Jeremy Smith, Steven Swartz, Jackie Thomas, Christina Verduzco, and Charlotte Wells. (BAS) (Entered: 03/20/2012)
PRO HAC VICE FEE PAID. $ 50, receipt number PHX120088 as to Douglas E Roberts. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/20/2012)
50 ORDER pursuant to General Order 09−08 granting 49 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/20/2012)
51 ORDER, striking the Third Amended Complaint and dismissing this action for lack of prosecution under Rule 41(b), Fed. R. Civ. P.; this is without prejudice to the right of counsel to file a new and separate action on behalf of the proposed new plaintiffs in this case, Gamez, and the proposed class; we note that proposed plaintiff, Arizona Center for Disability Law, may not proceed in forma pauperis. Signed by Judge Frederick J Martone on 3/21/12. (REW) (Entered: 03/21/2012)
52 CLERK'S JUDGMENT, pursuant to the Court's Order of March 21, 2012, dismissing this action for lack of prosecution, judgment is hereby entered in favor of Defendants. Plaintiff shall take nothing by way of the Amended Complaint. The Amended Complaint and this action are hereby dismissed without prejudice. (REW) (Entered: 03/21/2012)