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JDDL 

ASH 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Cary VanDerMeulen, 

Plaintiff, 

v. 

Charles L. Ryan, et al., 

Defendants. 

No. CV 17-03828-PHX-JAT (DMF) 

ORDER 

On October 19, 2017, Plaintiff Cary VanDerMeulen, who is not in custody, filed a 

pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed 

In Forma Pauperis. In a January 25, 2018 Order, the Court granted the Application to 

Proceed and dismissed the Complaint because Plaintiff had failed to comply with Rule 8 

of the Federal Rules of Civil Procedure. The Court gave Plaintiff 30 days to file an 

amended complaint that cured the deficiencies identified in the Order. 

 On February 23, 2018, Plaintiff filed his First Amended Complaint (Doc. 6). 

Plaintiff has also filed a Motion for Service (Doc. 5). The Court will deny the motion, 

and dismiss the First Amended Complaint with leave to amend. 

I. Statutory Screening of Prisoner Complaints

 The Court is required to screen complaints brought by prisoners seeking relief 

against a governmental entity or an officer or an employee of a governmental entity. 28 

U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 

has raised claims that are legally frivolous or malicious, that fail to state a claim upon 
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which relief may be granted, or that seek monetary relief from a defendant who is 

immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 

 A pleading must contain a “short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 

does not demand detailed factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. 

 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 

claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 

on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s 

specific factual allegations may be consistent with a constitutional claim, a court must 

assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

at 681. 

 But as the United States Court of Appeals for the Ninth Circuit has instructed, 

courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 

342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 

stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 

Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 

 If the Court determines that a pleading could be cured by the allegation of other 

facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 

of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 

Plaintiff’s First Amended Complaint will be dismissed for failure to state a claim, but 

because it may possibly be amended to state a claim, the Court will dismiss it with leave 
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to amend. 

II. First Amended Complaint 

 In his five-count First Amended Complaint, Plaintiff names as Defendants: 

Arizona Department of Corrections (ADC) Director Charles L. Ryan; ADC Facility 

Health Administrator (FHA) Deborah Kinder; ADC Chaplain Herman; ADC Captain 

Paul Martell; ADC Food Services Coordinator Alex Ruiz; Warden Meegan Muse; 

Corizon Health Services (Corizon); FHA William Brunhofer; and Correctional Officer 

(CO) III Lomeli.1

 Plaintiff seeks monetary relief, and punitive damages. 

 Plaintiff styles Count One as a basic necessities claim. Plaintiff alleges that upon 

his admission to the ADC, he informed a doctor that he did not eat meat. The doctor told 

him that “diets were a ‘religious’ matter,” so Plaintiff requested to see a chaplain. 

Plaintiff eventually met with Herman, who “requested the religious grounds” for 

Plaintiff’s diet. Plaintiff alleges that Herman took 30 days to respond, and that Plaintiff 

had to repeat his request two additional times. It is not clear whether Herman ever 

approved or denied Plaintiff’s requests,2

 though Plaintiff alleges that “in the interim” his 

diet needs were not met. Plaintiff further alleges that the assistant deputy warden 

permitted Plaintiff to receive his requested diet while he was on the Gila Yard by 

 

1

 Plaintiff indicates that Ryan, Kinder, Herman, Martell, Ruiz, and Muse are sued 

in both their individual and official capacities. A suit against a defendant in his or her individual capacity seeks to impose personal liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For a person to be liable in his or her individual 

capacity, “[a] plaintiff must allege facts, not simply conclusions, that show that the 

individual was personally involved in the deprivation of his civil rights.” Barren v. 

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). By comparison, a suit against a defendant in his or her official capacity represents only another way of pleading an action against the entity that employs the defendant. Kentucky, 473 U.S. at 165. That is, the 

real party in interest is not the named defendant, but the entity that employs the defendant. Id. To bring a claim against an individual in his official capacity, a plaintiff must show that the constitutional deprivation resulted from the entity’s policy, custom, or practice. Id.; Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978). 

Although Plaintiff has named these defendants in both their individual and official 

capacities, Plaintiff’s allegations fail to plausibly show that any policy, practice, or custom of any entity has resulted in his alleged injuries. Accordingly, the Court will construe Plaintiff’s claims as directed against the Defendants in their individual

capacities only, and evaluate them accordingly. 

2

 Plaintiff alleges later in his First Amended Complaint that he “was (eventually) granted a ‘religious’ diet.” (Doc. 6 at 15). 
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directing Ruiz to put Plaintiff on the “dietary list” temporarily. However, after Plaintiff 

was moved off of the Gila Yard, Ruiz rescinded Plaintiff’s placement on the dietary list. 

Plaintiff also alleges that Ruiz “denied [Plaintiff] food” on another occasion when 

Plaintiff was given a “vegan regimen” when he was supposed to have been given a 

“vegetarian” regimen. Additionally, Plaintiff alleges that Ryan “received a certified 

letter” — apparently from Plaintiff’s wife — “as to the dietary needs of a person in his 

charge,” but “refused to provide for a proper/adequate diet”; that Muse “received [a] 

formal complaint regarding a person in her charge not receiving proper adequate 

nutrition”; and that “numerous grievances and administrative appeals” were filed. 

 Plaintiff styles Count Two as a medical care claim. Plaintiff alleges that he had a 

“valid prescription” at the time he entered the ADC system. However, “[u]pon seeing a 

doctor at [ASPC-Alhambra],” the prescription was taken and not returned or replaced. 

Plaintiff also alleges that he had “maintained a diet for a number of years” before his 

confinement in ADC custody. The diet did not include meat “in order to preclude 

medical conditions” such as coronary inflammation and high cholesterol. Plaintiff states 

that he informed “ADOC” that he would not eat meat, and was told in return that “unless 

a condition was ‘life threatening,’ nothing would be done to treat such a condition”; high 

blood pressure was given as one example of a condition. Plaintiff had “a number of 

communications” with Kinder about being prescribed a no-meat diet, but, after “lab tests” 

indicated that Plaintiff’s condition was “normal,” Kinder denied Plaintiff’s request for a 

no-meat medical diet. Plaintiff also alleges that Brunhofer “was written contesting the 

decision of [Kinder],” but Brunhofer apparently upheld the denial “on the basis of ADC 

policy that diets were the providence of religious services.” Plaintiff further alleges that 

Kinder failed to place the results of “medical tests” in Plaintiff’s medical records, that 

ADC has failed to comply with certain requirements of the settlement in Parsons v. Ryan, 

2:12-CV-00601-PHX-DKD (D. Ariz. 2012), and that he did not receive adequate dental 

care. 

 Plaintiff styles Count Three as a First Amendment free exercise of religion claim. 
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Plaintiff alleges that Herman “had the audacity to question the exercise of a religious 

belief,” namely Plaintiff’s request that he receive “proper sustenance.” Plaintiff provided 

Herman with “scriptural references” that apparently supported Plaintiff’s refusal to 

smoke, drink, or “eat food which makes [him] ‘sick.’” Herman apparently determined 

“that such beliefs were not ‘firmly held,’” and “failed to respond or answer the inquiries 

put to him.” 

 Plaintiff styles Count Four as an access to the courts claim, but makes no 

allegations against any named Defendant. 

 Plaintiff styles Count Five as a retaliation claim. Although somewhat verbose and 

unclear, Plaintiff alleges that he “took the same tray of food offered to all inmates,” 

which was apparently different than the dietary tray he was supposed to receive. Plaintiff 

was charged with a “major” disciplinary violation as a result. Plaintiff apparently 

contested the charge, but Martell — the disciplinary hearing officer — “developed an 

attitude,” refused to consider certain evidence, and eventually “told [Plaintiff] to ‘gather 

[his] papers and get out.’” Plaintiff alleges that Martell “violated ADOC policy in not 

providing for a fair, impartial hearing.” Plaintiff also alleges that Martell was “aided and 

abetted” by Lomeli, who allegedly “falsified documents” and made “false statements” 

that were “very incendiary” and “may have led to reprisals on the part of a person or 

person(s) who had already proven themselves to be unscrupulous in their actions.” 

Plaintiff states that at the conclusion of the disciplinary hearing, Plaintiff lost good time 

credit, which prolonged his eventual release. 

 Plaintiff has also filed an “Addendum” to his First Amended Complaint in which 

he alleges that that ADC is a “racket,” that Ruiz oversaw the “serving of ‘tainted’ food,” 

and that ADC is not in compliance with the settlement in Parsons. Plaintiff does not 

specify whether he seeks any relief for the allegations in the “Addendum.” 

.... 

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III. Failure to State a Claim

 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 

(2) under color of state law (3) deprived him of federal rights, privileges or immunities 

and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 

Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 

1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific 

injury as a result of the conduct of a particular defendant and he must allege an 

affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 

423 U.S. 362, 371-72, 377 (1976). Although pro se pleadings are liberally construed, 

Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will 

not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 

268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not 

supply essential elements of the claim that were not initially pled. Id. 

A. Parsons v. Ryan

 As explained in the Court’s January 25 Order, Plaintiff may not enforce the 

settlement or decrees entered in Parsons in a separate civil rights action. See Cagle v. 

Sutherland, 334 F.3d 980, 986 (11th Cir. 2003); Klein v. Zavaras, 80 F.3d 432, 435 (10th 

Cir. 1996); DeGidio v. Pung, 920 F.2d 525, 534 (8th Cir.1990); Green v. McKaskle, 788 

F.2d 1116, 1122-23 (5th Cir. 1986). Standing alone, remedial orders and settlement 

terms, such as those entered in Parsons, cannot serve as a substantive basis for a § 1983 

claim for damages because they do not create “rights, privileges, or immunities secured 

by the Constitution and laws.” Green, 788 F.3d at 1123-24. Rather, settlements and 

remedial decrees are the means by which unconstitutional conditions are corrected. Id. at 

1123. For these reasons, Plaintiff may not properly seek § 1983 relief to enforce Parsons

in this action and he fails to state a claim to the extent that he seeks relief pursuant to 

Parsons. 

.... 

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B. Corizon

 Plaintiff makes no particular allegations against Corizon beyond noting that 

Corizon is the “supplier of medical staff used by both the county and state” and employed 

Kinder and “perhaps” Brunhofer. Accordingly, Plaintiff has failed to state a claim 

against Corizon, and Corizon will thus be dismissed. 

 C. Count One

 To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must 

meet a two-part test. “First, the alleged constitutional deprivation must be, objectively, 

sufficiently serious” such that the “official’s act or omission must result in the denial of 

the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 

834 (1994) (internal quotations omitted). Second, the prison official must have a 

“sufficiently culpable state of mind,” i.e., he must act with “deliberate indifference to 

inmate health or safety.” Id. (internal quotations omitted). Deliberate indifference is a 

higher standard than negligence or lack of ordinary due care for the prisoner’s safety. Id.

at 835. In defining “deliberate indifference” in this context, the Supreme Court has 

imposed a subjective test: “the official must both be aware of facts from which the 

inference could be drawn that a substantial risk of serious harm exists, and he must also 

draw the inference.” Id. at 837 (emphasis added). 

 Here, Plaintiff has failed to state a claim. Plaintiff’s allegation that Herman 

“requested the religious grounds” for Plaintiff’s diet request does not support that 

Herman was deliberately indifferent to Plaintiff’s dietary demands. Plaintiff’s allegations 

that he was not provided a proper diet “in the interim” while Herman evaluated his 

request does not support that Herman was deliberately indifferent to Plaintiff’s needs. 

Nor has Plaintiff alleged facts to support that Herman denied or delayed plaintiff’s 

dietary request in order to harm Plaintiff. 

 As to Ruiz, Plaintiff also fails to state a claim. Plaintiff makes no allegation that 

Ruiz’s decision to “rescind” Plaintiff’s “temporar[y]” placement on the diet list while on 

the Gila Yard was made with the intent to harm Plaintiff. Nor does Plaintiff allege that 
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Ruiz was aware that Plaintiff was supposed to have received a “vegan regimen” rather 

than a “vegetarian regimen,” or that Ruiz somehow provided the vegan regimen in order 

to harm Plaintiff. 

 Finally, Plaintiff’s allegations against Ryan and Muse are far too vague to support 

a cause of action in Count One. Plaintiff does not describe what information he provided 

them with, what their response (if any) was, or why it should be considered deliberately 

indifferent. Accordingly, for all these reasons, Plaintiff has failed to state a claim in 

Count One, and it will thus be dismissed. 

D. Count Two 

Not every claim by a prisoner relating to inadequate medical treatment states a 

violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a 

plaintiff must show (1) a “serious medical need” by demonstrating that failure to treat the 

condition could result in further significant injury or the unnecessary and wanton 

infliction of pain and (2) the defendant’s response was deliberately indifferent. Jett v. 

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 

 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 

1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must 

both know of and disregard an excessive risk to inmate health; “the official must both be 

aware of facts from which the inference could be drawn that a substantial risk of serious 

harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate 

indifference in the medical context may be shown by a purposeful act or failure to 

respond to a prisoner’s pain or possible medical need and harm caused by the 

indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 

prison official intentionally denies, delays, or interferes with medical treatment or by the 

way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 

97, 104-05 (1976); Jett, 439 F.3d at 1096. 

 Deliberate indifference is a higher standard than negligence or lack of ordinary 

due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor 
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gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of 

Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 

622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or 

“medical malpractice” do not support a claim under § 1983). “A difference of opinion 

does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.” 

Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, 

without more, is insufficient to state a claim against prison officials for deliberate 

indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 

(9th Cir. 1985). The indifference must be substantial. The action must rise to a level of 

“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 

 Here, Plaintiff has failed to allege facts sufficient to support that Kinder was 

deliberately indifferent to Plaintiff’s medical needs. Plaintiff alleges that “blood work” 

indicated that Plaintiff was “normal,” and, based on these results, Kinder declined to 

order a medical diet for Plaintiff. At most, Plaintiff’s allegations amount to a difference 

of opinion, which, as described above, is insufficient to support an Eighth Amendment 

medical care claim. Accordingly, Plaintiff has failed to state a claim against Kinder in 

Count Two.3

 As to Brunhofer, Plaintiff’s allegations are far too vague to support a cause of 

action. Plaintiff’s lone allegation that Brunhofer “denied a diet on the basis of ADOC 

policy” is insufficient to support that Brunhofer was deliberately indifferent to Plaintiff’s 

medical needs, or, indeed, whether Brunhofer was even aware of Plaintiff’s purported 

medical needs. Accordingly, Plaintiff has failed to state a claim against Brunhofer in 

Count Two. 

 Plaintiff’s additional allegations that he did not receive adequate dental care are 

not directed at any named Defendant, and, as discussed previously, his allegations that 

ADC has not complied with Parsons do not create a basis for liability in a § 1983 suit. 

 

3

 To the extent Plaintiff also alleges that Kinder failed to place the above- mentioned lab tests in Plaintiff’s medical records, Plaintiff has failed to explain how he was injured as a result, and has therefore failed to state a claim. 
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Accordingly, for all of these reasons, Plaintiff has failed to state a claim in Count Two, 

and it will thus be dismissed.

 E. Count Three 

“Inmates clearly retain protections afforded by the First Amendment, including its 

directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of 

Shabazz, 482 U.S. 342, 348 (1987) (internal quotations and citations omitted). However, 

free exercise rights are “necessarily limited by the fact of incarceration, and may be 

curtailed in order to achieve legitimate correctional goals or to maintain prison security.” 

Id. To state a First Amendment free exercise claim, a plaintiff must allege that a 

defendant substantially burdened his religious practice without a justification reasonablyrelated to legitimate penological interests. Shakur v. Schriro, 514 F.3d 878 (9th Cir. 

2008); Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); Warsoldier v. Woodford, 418 

F.3d 989, 995 (9th Cir. 2005) (citing Thomas v. Review Bd. of the Ind. Employment Sec. 

Div., 450 U.S. 707, 717-18 (1981) (pressure on exercise must be substantial)); Canell v. 

Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) (same). The religious practice or exercise 

at issue must be rooted in sincerely-held religious belief and not in “‘purely secular’ 

philosophical concerns.” Malik, 16 F.3d at 333 (internal citation omitted). 

 Here, it is unclear precisely what Plaintiff’s religious beliefs are, other than to not 

smoke, drink, or “eat food which makes [him] ‘sick.’” Plaintiff also fails to describe 

what “scriptural verses” he provided to Herman, or explain why they support his apparent 

religious beliefs with regard to his requested diet. As such, without additional 

information, Plaintiff has failed to allege facts sufficient to support that Herman’s 

conclusion that Plaintiff’s dietary request was not based on “firmly held” religious beliefs 

was a violation of Plaintiff’s First Amendment rights, or that Herman’s conclusion was 

not reasonably related to a legitimate penological interest. Accordingly, Plaintiff has 

failed to state a claim in Count Three, and it will thus be dismissed. 

 F. Count Four

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Accordingly, Plaintiff has failed to state a claim for which relief could be granted in 

Count Four, and it will thus be dismissed. 

G. Count Five 

 A viable claim of First Amendment retaliation contains five basic elements: (1) an 

assertion that a state actor took some adverse action against an inmate (2) because of 

(3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 

exercise of his First Amendment rights (or that the inmate suffered more than minimal 

harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. 

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 

267 (9th Cir. 1997) (retaliation claims requires an inmate to show (1) that the prison 

official acted in retaliation for the exercise of a constitutionally protected right, and 

(2) that the action “advanced no legitimate penological interest”). The plaintiff has the 

burden of demonstrating that his exercise of his First Amendment rights was a substantial 

or motivating factor behind the defendants’ conduct. Mt. Healthy City School Dist. Bd. of 

Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 

1310, 1314 (9th Cir. 1989). 

 Here, Plaintiff makes no allegation that he was engaged in constitutionally 

protected conduct, that the disciplinary proceedings he complains of were instigated 

because of Plaintiff’s exercise of some constitutionally protected conduct, or that his First 

Amendment rights were chilled as a result. Accordingly, Plaintiff has failed to state a 

First Amendment claim in Count Five. 

 To the extent Plaintiff may be attempting to allege a due process claim with regard 

to the disciplinary hearing, he has also failed to state a claim. Assuming that whatever 

punishment Plaintiff received — which appears to be the loss of some amount of good 

time credits — was sufficiently atypical and significant to trigger Fourteenth Amendment 

protections,4

 procedural due process safeguards in a prison disciplinary hearing require 

 4 Error! Main Document Only.In analyzing a due process claim, the Court must 

first decide whether Plaintiff was entitled to any process, and if so, whether he was denied any constitutionally required procedural safeguard. Liberty interests which entitle an inmate to due process are “generally limited to freedom from restraint which, while 
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that the defendant receive: (1) written notice of the charges, no less than twenty-four 

hours prior to the hearing; (2) a written statement by the factfinders as to the evidence 

relied on and reasons for the disciplinary action; and (3) a limited right to call witnesses 

and present documentary evidence when it would not be unduly hazardous to institutional 

safety or correctional goals to allow the defendant to do so. Wolff v. McDonnell, 418 

U.S. 539, 565-66 (1974). 

 Once these Wolff procedural protections are followed, the only function of a 

federal court is to review the statement of evidence upon which the committee relied in 

making its findings to determine if the decision is supported by “some facts.” Hanrahan 

v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (citation omitted). Due process requires 

simply “that there be some evidence to support the findings made in the disciplinary 

hearing.” Superintendent v. Hill, 472 U.S. 445, 457 (1985). 

 Here, Plaintiff makes no allegation that he was not provided with the Wolff 

safeguards, or that there was no evidence on which to sustain the disciplinary charge. 

 not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. 

Conner, 515 U.S. 472, 484 (1995) (internal citations omitted). 

 Therefore, to determine whether an inmate is entitled to the procedural protections afforded by the Due Process Clause, the Court must look to the particular restrictions imposed and ask whether they “‘present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.’” Mujahid v. Meyer, 59 F.3d 

931, 932 (9th Cir. 1995) (quoting Sandin, 515 U.S. at 486). 

To determine whether the sanctions are atypical and a significant hardship, courts look to the prisoner’s conditions of confinement, the duration of the sanction, and 

whether the sanction will affect the duration of the prisoner’s sentence. See Keenan v. 

Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996). “Atypicality” requires not merely an empirical comparison, but turns on the importance of the right taken away from the prisoner. See Carlo v. City of Chino, 105 F.3d 493, 499 (9th Cir. 1997). See, e.g., Sandin, 515 U.S. at 472 (30 days disciplinary segregation is not atypical and significant); 

Torres v. Fauver, 292 F.3d 141, 151 (3rd Cir. 2002) (four months in administrative 

segregation is not atypical and significant); Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 

1997) (denial of year sentence reduction is not an atypical and significant hardship); Jones v. Baker, 155 F.3d 810 (6th Cir. 1998) (two and one-half years of administrative segregation is not atypical and significant); Griffin v. Vaughn, 112 F.3d 703, 706-708 

(3rd Cir. 1997) (fifteen months administrative segregation is not atypical and significant); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (six months of confinement in 

especially disgusting conditions that were “more burdensome than those imposed on the general prison population were not “atypical ... in relation to the ordinary incidents of prison life.”). 
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Accordingly, whether brought as a First Amendment retaliation claim or a Fourteenth 

Amendment due process claim, Plaintiff has failed to state a claim in Count Five, and it 

will thus be dismissed. 

H. Addendum

 As mentioned previously, Plaintiff makes no indication whether the “Addendum” 

to his First Amended Complaint is intended to provided additional bases for relief, or, if 

so, what injuries he has suffered as a result of the actions complained of in the addendum. 

Because a liberal interpretation of a civil rights complaint may not supply essential 

elements of the claim that were not initially pled, Ivey, 673 F.2d at 268, Plaintiff has 

failed to state a claim for which relief could be granted in the Addendum, and it will thus 

be dismissed. 

IV. Leave to Amend

 Within 30 days, Plaintiff may submit a second amended complaint to cure the 

deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form 

to use for filing a second amended complaint. If Plaintiff fails to use the court-approved 

form, the Court may strike the second amended complaint and dismiss this action without 

further notice to Plaintiff. 

 Plaintiff must clearly designate on the face of the document that it is the “Second 

Amended Complaint.” The second amended complaint must be retyped or rewritten in 

its entirety on the court-approved form and may not incorporate any part of the original 

Complaint or First Amended Complaint by reference. Plaintiff may include only one 

claim per count. 

 A second amended complaint supersedes the original Complaint and First 

Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal 

Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After 

amendment, the Court will treat the original Complaint and First Amended Complaint as 

nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 

original Complaint or First Amended Complaint and that was voluntarily dismissed or 
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was dismissed without prejudice is waived if it is not alleged in a second amended 

complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 

 If Plaintiff files a second amended complaint, Plaintiff must write short, plain 

statements telling the Court: (1) the constitutional right Plaintiff believes was violated; 

(2) the name of the Defendant who violated the right; (3) exactly what that Defendant did 

or failed to do; (4) how the action or inaction of that Defendant is connected to the 

violation of Plaintiff’s constitutional right; and (5) what specific injury Plaintiff suffered 

because of that Defendant’s conduct. See Rizzo, 423 U.S. at 371-72, 377. 

 Plaintiff must repeat this process for each person he names as a Defendant. If 

Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific 

injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for 

failure to state a claim. Conclusory allegations that a Defendant or group of 

Defendants has violated a constitutional right are not acceptable and will be 

dismissed. 

V. Motion

 Plaintiff’s Motion for Service is premature. As discussed above, the Court will 

deny the First Amended Complaint with leave to amend. If and when Plaintiff files a 

second amended complaint that sufficiently states a claim against a Defendant or 

Defendants, the Court will order service on those Defendants. Until that time, any 

attempt to serve Defendants is premature. Accordingly, the Court will deny Plaintiff’s 

Motion for Service as premature. 

VI. Warnings

A. Address Changes 

 If Plaintiff’s address changes, Plaintiff must file and serve a notice of a change of 

address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff 

must not include a motion for other relief with a notice of change of address. Failure to 

comply may result in dismissal of this action. 

. . . . 
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B. Possible Dismissal 

 If Plaintiff fails to timely comply with every provision of this Order, including 

these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 

F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any 

order of the Court). 

IT IS ORDERED: 

(1) The First Amended Complaint (Doc. 6) is dismissed for failure to state a 

claim. Plaintiff has 30 days from the date this Order is filed to file a second amended 

complaint in compliance with this Order. 

 (2) If Plaintiff fails to file a second amended complaint within 30 days, the 

Clerk of Court must, without further notice, enter a judgment of dismissal of this action 

with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. 

§ 1915(g) and deny any pending unrelated motions as moot. 

 (3) Plaintiff’s Motion for Service (Doc. 5) is denied as premature. 

(4) The Clerk of Court must mail Plaintiff a court-approved form for filing a 

civil rights complaint by a prisoner. 

 Dated this 30th day of May, 2018. 
Revised 3/11/16 1

Instructions for a Prisoner Filing a Civil Rights Complaint 

in the United States District Court for the District of Arizona

1. Who May Use This Form. The civil rights complaint form is designed to help incarcerated 

persons prepare a complaint seeking relief for a violation of their federal civil rights. These 

complaints typically concern, but are not limited to, conditions of confinement. This form

should not be used to challenge your conviction or sentence. If you want to challenge a state 

conviction or sentence, you should file a petition under 28 U.S.C. ' 2254 for a writ of habeas 

corpus by a person in state custody. If you want to challenge a federal conviction or sentence, you 

should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the 

judgment. 

2. The Form. Local Rule of Civil Procedure (LRCiv) 3.4(a) provides that complaints by 

incarcerated persons must be filed on the court-approved form. The form must be typed or 

neatly handwritten. The form must be completely filled in to the extent applicable. All questions 

must be answered clearly and concisely in the appropriate space on the form. If needed, you may 

attach additional pages, but no more than fifteen additional pages, of standard letter-sized 

paper. You must identify which part of the complaint is being continued and number all pages. If 

you do not fill out the form properly, you will be asked to submit additional or corrected 

information, which may delay the processing of your action. You do not need to cite law. 

3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a 

material fact, you may be prosecuted for perjury.

4. The Filing and Administrative Fees. The total fees for this action are $400.00 ($350.00 filing 

fee plus $50.00 administrative fee). If you are unable to immediately pay the fees, you may 

request leave to proceed in forma pauperis. Please review the “Information for Prisoners Seeking 

Leave to Proceed with a (Non-Habeas) Civil Action in Federal Court In Forma Pauperis Pursuant 

to 28 U.S.C. ' 1915” for additional instructions.

5. Original and Judge=s Copy. You must send an original plus one copy of your complaint and 

of any other documents submitted to the Court. You must send one additional copy to the Court if 

you wish to have a file-stamped copy of the document returned to you. All copies must be 

identical to the original. Copies may be legibly handwritten. This section does not apply to 

inmates housed at an Arizona Department of Corrections facility that participates in 

electronic filing.

6. Where to File. You should file your complaint in the division where you were confined 

when your rights were allegedly violated. See LRCiv 5.1(a) and 77.1(a). If you were confined 

in Maricopa, Pinal, Yuma, La Paz, or Gila County, file in the Phoenix Division. If you were 

confined in Apache, Navajo, Coconino, Mohave, or Yavapai County, file in the Prescott Division. 

If you were confined in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file in the 

Tucson Division. Mail the original and one copy of the complaint with the $400 filing and 

administrative fees or the application to proceed in forma pauperis to:
2

Phoenix & Prescott Divisions: OR Tucson Division:

U.S. District Court Clerk U.S. District Court Clerk

U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500

401 West Washington Street, SPC 10 405 West Congress Street

Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010

7. Change of Address. You must immediately notify the Court and the defendants in writing of 

any change in your mailing address. Failure to notify the Court of any change in your mailing 

address may result in the dismissal of your case.

8. Certificate of Service. You must furnish the defendants with a copy of any document you 

submit to the Court (except the initial complaint and application to proceed in forma pauperis). 

Each original document (except the initial complaint and application to proceed in forma pauperis) 

must include a certificate of service on the last page of the document stating the date a copy of the 

document was mailed to the defendants and the address to which it was mailed. See Fed. R. Civ. 

P. 5(a), (d). Any document received by the Court that does not include a certificate of service 

may be stricken. This section does not apply to inmates housed at an Arizona Department of 

Corrections facility that participates in electronic filing.

A certificate of service should be in the following form:

I hereby certify that a copy of the foregoing document was mailed

this (month, day, year) to:

Name: 

Address: 

 Attorney for Defendant(s)

 

(Signature)

9. Amended Complaint. If you need to change any of the information in the initial complaint, 

you must file an amended complaint. The amended complaint must be written on the 

court-approved civil rights complaint form. You may file one amended complaint without leave 

(permission) of Court within 21 days after serving it or within 21 days after any defendant has filed 

an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, you must file a motion for 

leave to amend and lodge (submit) a proposed amended complaint. LRCiv 15.1. In addition, an 

amended complaint may not incorporate by reference any part of your prior complaint. LRCiv 

15.1(a)(2). Any allegations or defendants not included in the amended complaint are 

considered dismissed. All amended complaints are subject to screening under the Prison 

Litigation Reform Act; screening your amendment will take additional processing time.

10. Exhibits. You should not submit exhibits with the complaint or amended complaint. 

Instead, the relevant information should be paraphrased. You should keep the exhibits to use to 

support or oppose a motion to dismiss, a motion for summary judgment, or at trial.

11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of 

any judge. The only appropriate way to communicate with the Court is by filing a written 

pleading or motion.
3

12. Completing the Civil Rights Complaint Form.

HEADING:

1. Your Name. Print your name, prison or inmate number, and institutional mailing 

address on the lines provided.

2. Defendants. If there are four or fewer defendants, print the name of each. If you 

name more than four defendants, print the name of the first defendant on the first line, 

write the words “and others” on the second line, and attach an additional page listing the 

names of all of the defendants. Insert the additional page after page 1 and number it 

“1-A” at the bottom.

3. Jury Demand. If you want a jury trial, you must write “JURY TRIAL DEMANDED”

in the space below “CIVIL RIGHTS COMPLAINT BY A PRISONER.” Failure to do so 

may result in the loss of the right to a jury trial. A jury trial is not available if you are 

seeking only injunctive relief.

Part A. JURISDICTION:

1. Nature of Suit. Mark whether you are filing the complaint pursuant to 42 U.S.C. ' 1983 

for state, county, or city defendants; “Bivens v. Six Unknown Federal Narcotics Agents”

for federal defendants; or “other.” If you mark “other,” identify the source of that 

authority. 

2. Location. Identify the institution and city where the alleged violation of your rights 

occurred. 

3. Defendants. Print all of the requested information about each of the defendants in the 

spaces provided. If you are naming more than four defendants, you must provide the 

necessary information about each additional defendant on separate pages labeled “2-A,”

“2-B,” etc., at the bottom. Insert the additional page(s) immediately behind page 2.

Part B. PREVIOUS LAWSUITS:

You must identify any other lawsuit you have filed in either state or federal court while you 

were a prisoner. Print all of the requested information about each lawsuit in the spaces provided. 

If you have filed more than three lawsuits, you must provide the necessary information about each 

additional lawsuit on a separate page. Label the page(s) as “2-A,” “2-B,” etc., at the bottom of the 

page and insert the additional page(s) immediately behind page 2.

Part C. CAUSE OF ACTION:

You must identify what rights each defendant violated. The form provides space to allege 

three separate counts (one violation per count). If you are alleging more than three counts, you 

must provide the necessary information about each additional count on a separate page. Number 

the additional pages “5-A,” “5-B,” etc., and insert them immediately behind page 5. Remember 

that you are limited to a total of fifteen additional pages.
4

1. Counts. You must identify which civil right was violated. You may allege the 

violation of only one civil right per count.

2. Issue Involved. Check the box that most closely identifies the issue involved in your 

claim. You may check only one box per count. If you check the box marked “Other,”

you must identify the specific issue involved.

3. Supporting Facts. After you have identified which civil right was violated, you must 

state the supporting facts. Be as specific as possible. You must state what each 

individual defendant did to violate your rights. If there is more than one defendant, you 

must identify which defendant did what act. You also should state the date(s) on which 

the act(s) occurred, if possible.

4. Injury. State precisely how you were injured by the alleged violation of your rights. 

5. Administrative Remedies. You must exhaust any available administrative remedies 

before you file a civil rights complaint. See 42 U.S.C. § 1997e. Consequently, you 

should disclose whether you have exhausted the inmate grievance procedures or 

administrative appeals for each count in your complaint. If the grievance procedures were 

not available for any of your counts, fully explain why on the lines provided.

Part D. REQUEST FOR RELIEF:

Print the relief you are seeking in the space provided. 

SIGNATURE:

You must sign your name and print the date you signed the complaint. Failure to sign the 

complaint will delay the processing of your action. Unless you are an attorney, you may not bring 

an action on behalf of anyone but yourself.

FINAL NOTE

You should follow these instructions carefully. Failure to do so may result in your 

complaint being stricken or dismissed. All questions must be answered concisely in the proper 

space on the form. If you need more space, you may attach no more than fifteen additional pages. 

But the form must be completely filled in to the extent applicable. If you attach additional pages, 

be sure to identify which section of the complaint is being continued and number the pages.
Revised 3/11/16 1 550/555

___________________________________________

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,

v. 

(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: .
2

B. DEFENDANTS

1. Name of first Defendant: . The first Defendant is employed 

as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)

2. Name of second Defendant: . The second Defendant is employed as:

as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)

3. Name of third Defendant: . The third Defendant is employed 

as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)

4. Name of fourth Defendant: . The fourth Defendant is employed 

as: ______________________________________________ at_______________________________________. (Position and Title) (Institution)

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.
3

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 violated your rights. State the facts clearly 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. 

.
4

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 violated your rights. State the facts clearly 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. 

.
5

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 violated your rights. State the facts clearly 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.
6

E. REQUEST FOR RELIEF

State the relief you are seeking:

.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on 

DATE SIGNATURE OF PLAINTIFF

___________________________________________

(Name and title of paralegal, legal assistant, or

other person who helped prepare this complaint)

___________________________________________

(Signature of attorney, if any)

___________________________________________

(Attorney=s address & telephone number)

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.