1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

James L. Kemp,

 Plaintiff,

v. 

Joseph M. Arpaio, et al.,

 Defendants.

No. CV-15-01784-PHX-PGR (ESW)

REPORT AND 

RECOMMENDATION 

TO THE HONORABLE PAUL G. ROSENBLATT, SENIOR UNITED STATES

DISTRICT JUDGE:

On September 8, 2015, Plaintiff filed a civil rights Complaint (Doc. 1) pursuant to 

42 U.S.C. § 1983. The Court dismissed the Complaint with leave to amend for failure to 

comply with the Local Rules of Civil Procedure. (Doc. 13). On December 31, 2015, 

Plaintiff filed a First Amended Complaint (Doc. 14) that named fifty Defendants and 

contained sixteen counts. In its February 3, 2016 Order, the Court dismissed without 

prejudice Counts One, Two, Three, Four, Six, Seven, Nine, Ten, Twelve, Thirteen, 

Fourteen and Fifteen. (Doc. 19 at 22). The Court required (i) Defendant Feraru to 

answer Count Five; (ii) Defendants San Martin and Anders to answer Count Eight; (iii) 

Defendants Jorgie,1 Fulford,2 and Baerg to answer Count Eleven; and (iv) Defendants 

Arpaio and Tenny to answer Count Sixteen. (Id.). The Court dismissed the remaining 

1 Defendant “Jorgie” is actually Georgiana Guta. (Doc. 43 at 1 n.1).

2 Defendant “Fulford” is actually Chantae Bernal-Fulford. (Doc. 43 at 1 n.2).

 

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 1 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendants. (Id.). Defendants Feraru, San Martin, Guta (Jorgie), Bernal-Fulford, 

Arpaio, and Tenny have been served and answered the First Amended Complaint on June 

28, 2016 (Doc. 43). Defendant Anders has been served and filed his Answer (Doc. 56) 

on August 8, 2016. Defendant Baerg has filed a Motion to Dismiss for Insufficient 

Service of Process (Doc. 63).

In a separate Order, the undersigned granted Plaintiff’s “Motion to Amend First 

Amended Complaint and to Join Additional Parties” (Doc. 51). The undersigned has 

screened the Second Amended Complaint (Doc. 76) pursuant to 28 U.S.C. § 1915(A). 

As the undersigned’s determination is dispositive of some of Plaintiff’s claims, the 

undersigned makes the following Report and Recommendation pursuant to Rule 72(b), 

Fed. R. Civ. P., and 28 U.S.C. § 636(b)(1)(B) and (C).

I. LEGAL STANDARDS

A. Screening the Second Amended Complaint 

The Court has a continuing obligation to screen complaints brought by prisoners 

seeking relief against an officer or employee of a governmental entity. 28 U.S.C. § 

1915A(a). The screening requirement extends to proposed amended complaints as well 

as complaints initially filed in an action. The Prison Litigation Reform Act, 42 U.S.C. § 

1997e (c)(1), requires the Court to dismiss all allegations that fail to state a claim upon 

which relief may be granted. See O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 

The Court must dismiss a complaint or portion thereof that is legally frivolous, fails to 

state a claim upon which relief may be granted, or seeks monetary relief from a defendant 

who is immune from suit. 28 U.S.C. § 1915(A)(b)(1), (2).

In reviewing Plaintiff’s Second Amended Complaint, the Court must accept as 

true all well-pled factual allegations and draw all reasonable inferences therefrom. See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Steckman v. Hart Brewing, 

Inc., 143 F.3d 1293, 1296-98 (9th Cir. 1998). A claim for relief must be plausible on its 

face to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A 

- 2 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 2 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

claim has facial plausibility 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. at 679.

Finally, a second amended complaint supersedes a first amended complaint. See 

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 a first amended complaint as nonexistent. Ferdik, 963 F.2d at 1262 (“after 

amendment the original pleading no longer performs any function and is treated 

thereafter as non-existent”) (internal quotation marks and citation omitted). Any cause 

of action that was raised in the first amended complaint and that was voluntarily 

dismissed or was dismissed without prejudice is waived if it is not alleged in a second 

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

(en banc).

B. Stating a Claim under 42 U.S.C. § 1983

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege factssupporting that

(1) the conduct about which he complains was committed by a person acting under the

color of state law and (2) the conduct deprived him of a federal constitutional or statutory

right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). With respect to each

defendant named in a particular count, 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) (emphasis

added). Vague and conclusory allegations concerning the involvement of official 

personnel in civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 

266, 268 (9th Cir.1982) (complaint devoid of specific factual allegations of personal 

participation is insufficient). 

In addition, “[t]here is no respondeat superior liability under § 1983.” Taylor v. 

List, 880 F.2d 1040, 1045 (9th Cir.1989); see also Iqbal, 556 U.S. at 676–77; Simmons v. 

Navajo County, Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton,

- 3 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 3 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

588 F.3d 1218, 1235 (9th Cir. 2009). “A defendant may be held liable as a supervisor 

under § 1983 if there exists either (1) his or her personal involvement in the constitutional 

deprivation, or (2) a sufficient causal connection between the supervisor's wrongful 

conduct and the constitutional violation.” See Starr v. Baca, 652 F.3d 1202, 1207 (9th 

Cir. 2011) (citation and internal quotation marks omitted); Rizzo v. Goode, 423 U.S. 362, 

371 (1976) (absent a positive act on behalf of the supervisor, the plaintiff must show an 

“affirmative link” between the supervisor's acts and the alleged constitutional violation).

“The requisite causal connection can be established . . . by setting in motion a 

series of acts by others,” or by “knowingly refusing to terminate a series of acts by others, 

which the supervisor knew or reasonably should have known would cause others to 

inflict a constitutional injury.” Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011); 

see also Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (“Supervisory 

liability is imposed against a supervisory official in his individual capacity for his own 

culpable action or inaction in the training, supervision, or control of his subordinates, for 

his acquiescence in the constitutional deprivations of which the complaint is made, or for 

conduct that showed a reckless or callous indifference to the rights of others.”). “[W]here 

the applicable constitutional standard is deliberate indifference, a plaintiff may state a 

claim for supervisory liability based upon the supervisor’s knowledge of and 

acquiescence in unconstitutional conduct by others.” Hydrick v. Hunter, 669 F.3d 937, 

941 (9th Cir. 2012) (internal citation and quotations omitted).

II. ANALYSIS

A. Count One

As explained in the Court’s February 3, 2016 Order, Count One of the First 

Amended Complaint alleges that 

[Plaintiff’s] Fourteenth Amendment rights were violated when, 

between January 26, 2010 and December 8, 2015, Defendant

Maricopa County Sheriff Joseph Arpaio placed him in

administrative segregation units that were also punitive

segregation units, and he was housed with known violent and

seriously mentally inmates. Plaintiff claims that on April 7, 2010,

- 4 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 4 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

he was physically assaulted by another inmate after Defendant

Rada (Detention Officer) refused to move him to “safety.” (Doc.

14 at 4.) Plaintiff claims he was again assaulted on August 6,

2010, after Defendant Najera (Detention Officer) refused to move

him to a safe housing unit. (Id.) Plaintiff was assaulted again on

August 18, 2013, after Defendant Tenny (Supervisor Sergeant)

refused to remove “a known psychotic, violent mentally ill inmate

from [Plaintiff’s] ‘hour out.’” (Id.) Plaintiff claims he was again

assaulted on September 6, 2014, after Defendant Garner

(Supervisor Sergeant) “allowed a known violent convict into a

make-shift ‘barber shop’ with no security cameras or MCSO

staff monitoring.” Plaintiff further claims that a matter of policy

or practice, Defendants Arpaio, McKay (Supervisor Sergeant),

Tenny Garner, and Fisk (Supervisor Sergeant) continued to place 

known violent and seriously mentally ill inmates into his cell

area, causing him to be assaulted and threatened.

(Doc. 19 at 4). 

The Court ruled that Plaintiff’s allegations regarding assaults that occurred on 

April 7, 2010, August 6, 2010, and August 18, 2013 are barred by the two-year statute of 

limitations. (Id. at 5). The Court further ruled that Plaintiff “has not alleged facts 

demonstrating that each named Defendant was aware [of] a specific substantial risk of 

harm to Plaintiff’s safety; specifically, he has not alleged when he informed each 

Defendant that he was in danger or how each Defendant was aware of the danger, nor has 

he alleged when each Defendant refused to move him or other inmates.” (Id.) (emphasis 

in original). The Court dismissed Count One for failure to state a claim.

In Second Amended Count One, Plaintiff cites the “Continuing Wrongs Rule.” 

(Doc. 76 at 7). Under the continuing violation theory, a plaintiff may seek relief for 

events outside of the limitations period if a series of violations are related closely enough 

to constitute a continuing violation and that one or more of the acts falls within the 

limitations period. See Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). However, if 

the “heart of plaintiffs’ complaint does not stem from the policy . . . but rather from the 

individualized decisions that resulted from implementation of a policy [,] [then] . . . 

[t]hese individualized decisions are best characterized as discrete acts, rather than as a 

- 5 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 5 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

pattern or practice of discrimination.” Cherosky v. Henderson, 330 F.3d 1243, 1247-48 

(9th Cir. 2003) (holding that plaintiffs’ allegation that discrete acts, which fell outside the 

limitations period, were undertaken pursuant to a discriminatory policy that continued to 

be implemented within the limitations period does not extend the limitations period as to 

the time-barred acts). In other words, “each time a policy is invoked to deny an 

individual plaintiff's request, an independently wrongful, discrete act occurs, a claim 

accrues, and the limitations period begins to run.” Pouncil v. Tilton, 704 F.3d 568, 579 

(9th Cir. 2012). 

Here, the alleged assaults occurring on April 7, 2010, August 6, 2010, and August 

18, 2013 are discrete acts. The undersigned does not find that the continuing violation 

theory applies. The undersigned recommends that the Court affirm its prior ruling that 

Plaintiff’s allegations regarding the assaults that occurred on April 7, 2010, August 6, 

2010, and August 18, 2013 are time-barred.

In Second Amended Count One, Plaintiff raises an Eighth Amendment failure to 

protect claim. The Supreme Court has held that mere negligent failure to protect an

inmate from another inmate is not actionable under Section 1983. Davidson v.

Cannon, 474 U.S. 344 (1986). A prison official violates the Eighth Amendment in

failing to protect one inmate from another only when two conditions are met. First, the

alleged constitutional deprivation must be, objectively, “sufficiently serious;” 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). 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. In defining “deliberate

indifference” in this context, the Supreme Court has imposed a subjective test: “the

official must both be aware of the 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 839 (emphasis supplied).

- 6 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 6 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff alleges that “[f]rom 7-01-2014 to 9-12-2014, [Plaintiff] asked Defendants 

Garner, Brown and Arpaio to remove known violent inmates, R.M. and A.B. after 

[Plaintiff] received death threats from them.” (Doc. 76 at 7). Plaintiff alleges that 

Defendants refused Plaintiff’s requests and on September 8, 2014, Plaintiff was 

“hospitalized after A.B. beat [him] and cut [his] chest with a razor.” (Id.). Liberally 

construing Second Amended Count One, the undersigned finds that Plaintiff has 

sufficiently stated an Eighth Amendment failure to protect claim against Defendants 

Garner, Brown, and Arpaio regarding the alleged September 8, 2014 assault. The 

undersigned thus recommends that the Court require Defendants Garner, Brown, and 

Arpaio to answer the claim.

B. Count Two

Plaintiff designates Count Two of the Second Amended Complaint as a claim for 

retaliation. (Id. at 9). Plaintiff alleges that he wrote four separate grievances against 

Defendant Klages from August 15, 2014 through October 4, 2014. (Id.). On or about 

September 27, 2014, Defendants Klages, Rubio, and Shugart allegedly confiscated 

Plaintiff’s grievances and refused to return them. Defendant Klages’ Team Leader, 

Defendant McKay, allegedly ordered Defendant Flannery and three other officers to raid 

his cell on October 1, 2014.3

 (Id.). Defendant claims that the officers confiscated his 

legal papers. Plaintiff asserts that the confiscation was in retaliation for his grievances 

against Defendant Klages, alleging that Defendant Flannery stated “You know why . . .” 

when Plaintiff asked him why his cell was raided. (Id. at 9).

“Prisoners have a First Amendment right to file grievances against prison officials 

and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 

(9th Cir. 2013). To state a constitutional claim for retaliation, a plaintiff must allege that 

a defendant acting under color of state law took adverse action against him because he 

engaged in protected conduct, the adverse action was not narrowly tailored to advance 

3 Defendant does not name the three other officers.

- 7 -

 

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 7 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

legitimate goals, and the adverse action chilled the plaintiff’s exercise of his First 

Amendment rights or caused him to suffer more than minimal harm. Rhodes v. Robinson, 

408 F.3d 559, 567-58 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th 

Cir. 1997) (retaliation claims require an inmate must show (i) that the prison official acted 

in retaliation for the exercise of a constitutionally-protected right, and (ii) that the action 

“advanced no legitimate penological interest”). 

Here, Plaintiff has not alleged facts suggesting that the alleged adverse actions 

chilled his exercise of his First Amendment rights. In fact, Plaintiff states that he wrote a 

grievance against Defendant Klages on October 4, 2014, which is after the alleged 

confiscations occurred. Moreover, Plaintiff has not alleged facts suggesting that the 

alleged confiscations caused him to suffer more than minimal harm. The undersigned 

finds that Plaintiff’s Second Amended Count Two fails to state a claim. The undersigned 

therefore recommends that the Court dismiss Count Two of the Second Amended 

Complaint.

C. Count Three

Count Three of the Second Amended Complaint presents claims under 42 U.S.C. 

§§ 1985 and 1986. (Doc. 76 at 11). Plaintiff alleges that Defendants Carper and 

Montgomery (i) conspired with Defendant Arpaio to suppress Plaintiff’s collection of 

inmate witness statements that could be used against Arpaio in the District Court cases 

and (ii) conspired to deter Plaintiff from testifying in District Court against Arpaio. (Id.

at 12).

42 U.S.C. § 1985 contains three subsections. 42 U.S.C. § 1985(1) prohibits 

conspiracies designed to prevent an individual from “holding any office . . . under the 

United States, or from discharging any duties thereof . . . .” 

42 U.S.C. § 1985(2) has two parts: “The first part of the subsection addresses 

conspiracies ‘which deter by force, intimidation, or threat a party or witness in federal 

court.’” Id. (internal citations omitted). “The second part of the subsection creates a 

federal right of action for damages against conspiracies which obstruct the due course of 

- 8 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 8 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

justice in any State or Territory with intent to deny equal protection.” Bagley v. CMC 

Real Estate Corp., 923 F.2d 758, 763 (9th Cir. 1991), cert. denied, 502 U.S. 1091 (1992); 

see also Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 348 (5th Cir. 1981) (“Congress 

meant Section 1985(2) to protect a party while attending or testifying in court.”). To 

bring a claim under Section 1985(2)’s second part, a plaintiff must allege “class-based, 

invidiously discriminatory animus.” Id.

Finally, 42 U.S.C. § 1985(3) provides:

If two or more persons in any State or Territory conspire . . . 

for the purpose of depriving, either directly or indirectly, any 

person or class of persons of the equal protection of the laws, 

or of equal privileges and immunities under the laws ... the 

party so injured or deprived may have an action for the 

recovery of damages occasioned by such injury or 

deprivation, against any one or more of the conspirators.

The elements of a 42 U.S.C. 1985(3) action are: “(1) a conspiracy; (2) for the purpose of 

depriving a person of the equal protection of the laws; (3) an act in furtherance of the 

conspiracy; (4) whereby a person is either injured in his person or property or deprived of 

a right or privilege of a United States citizen.” Mustafa v. Clark County School Dist., 157 

F.3d 1169, 1181 (9th Cir. 1998).

It appears that Plaintiff may be asserting a claim under the first part of 42 U.S.C. § 

1985(2) and/or under 42 U.S.C. § 1985(3). Plaintiff has failed to state a claim under both 

subsections. First, Plaintiff has not alleged facts showing that Defendants acted in 

concert, or had a “meeting of the minds” to deprive Plaintiff of his constitutional rights. 

“A mere allegation of conspiracy without factual specificity is insufficient.” Karim–

Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988) (explaining that a 

Section 1985 claim “must allege facts to support the allegation that defendants conspired 

together”); see also Mahaney v. Warren County, 206 F.3d 770, 772 (8th Cir. 2000) 

(“bare” allegations and “rank” conjecture are insufficient to support a claim 

under Section 1985 for a civil conspiracy). Next, Count Three does not contain facts 

from which it can be plausibly inferred that Defendants allegedly conspired against 

- 9 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 9 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff on the basis of class-based, invidiously discriminatory animus. See Aldabe v. 

Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (holding that Section 1985 conspiracy claim 

was properly dismissed because plaintiff had failed to allege facts establishing invidious 

discrimination); Farese v. Scherer, 342 F.3d 1223, 1229 n.7 (11th Cir. 2003) (“Farese 

alleges that he states a claim against the Defendants under § 1985(3) because he is a 

member of the ‘prisoner class.’ . . . [W]e conclude that the district court properly 

dismissed Farese’s § 1985(3) claim because prisoners are neither a class offered special 

protection under the equal protection clause nor a class that Congress intended to protect 

when it enacted § 1985(3).”); Ellibee v. Hazlett, 122 F. App’x. 932, 935 (10th Cir. 

2004) (“Ellibee has asserted that the alleged conspiracy was motivated by his 

membership in a class consisting of ‘incarcerated felons.’ This is not a class protected 

by § 1985. Accordingly, Ellibee’s federal conspiracy claim fails.”).

Finally, Plaintiff cannot establish a claim under the first part of 42 U.S.C. § 1985 

as Plaintiff has not alleged that a party intended to call Plaintiff as a witness in the federal

cases against Defendant Arpaio. Plaintiff has no freestanding constitutional right to 

testify at the hearings in those cases. 

For the above reasons, the undersigned recommends that the Court dismiss 

Plaintiff’s 42 U.S.C. § 1985 claim. Because “[a] claim can be stated under section 

1986 only if the complaint contains a valid claim under section 1985,” the undersigned 

also recommends that the Court dismiss Plaintiff’s 42 U.S.C. § 1986 claim. KarimPanahi, 839 F.2d at 626; Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985) (“This 

Circuit has recently adopted the broadly accepted principle that a cause of action is not 

provided under 42 U.S.C. § 1986 absent a valid claim for relief under section 1985.”). 

Accordingly, the undersigned recommends that the Court dismiss Count Three of the 

Second Amended Complaint.

- 10 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 10 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

D. Count Four

Plaintiff has not amended Count Four of the First Amended Complaint. The 

undersigned recommends that the Court dismiss Count Four of the Second Amended 

Complaint (Doc. 76 at 13) for the reasons set forth in its prior Order (Doc. 19 at 8).

E. Count Five 

Plaintiff has not amended Count Five of the First Amended Complaint. The 

undersigned recommends that the Court order Defendant Feraru to answer Count Five of 

the Second Amended Complaint (Doc. 76 at 8) for the reasons set forth in the Court’s

prior Order (Doc. 19 at 9-10).

F. Count Six

Count Six of the Second Amended Complaint presents claims under 42 U.S.C. §§ 

1985 and 1986. (Doc. 76 at 16). Plaintiff has not alleged facts showing that Defendants 

acted in concert, or had a “meeting of the minds” to deprive Plaintiff of his 

constitutional rights. As Plaintiff has not alleged that a party intended to call Plaintiff as 

a witness, Plaintiff has no constitutional right to testify in the federal cases against 

Defendant Arpaio. Plaintiff also does not allege facts from which the Court may 

plausibly infer that Defendants allegedly conspired against Plaintiff on the basis of 

class-based, invidiously discriminatory animus. Therefore, for the reasons discussed in 

Section III(C) above, the undersigned recommends that the Court dismiss Plaintiff’s 42 

U.S.C. §§ 1985 and 1986 claims contained in Count Six.

Count Six also presents a First Amendment retaliation claim. Count Six realleges facts contained in Count Three concerning certain letters Plaintiff wrote to 

Defendant Carper that primarily concerned civil rights abuses at the jail. (Doc. 76 at 

16). Count Six alleges that Defendants Arpaio, Tenny, and McKay communicated the 

content of those letters to Defendant Fisk and directed Defendant Fisk to raid Plaintiff’s 

cell on February 6, 2015 “to locate and confiscate all of the Sections 1985/1986 related 

documents . . . .” (Id.). Plaintiff alleges that after the raid, Defendant Fisk gave 

Plaintiff a “False Misconduct Write-up for the §§ 1985, 1986 documents he discovered 

- 11 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 11 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

in [his] stamped, sealed, legal envelope” addressed to “friends and lawyers” at a law 

firm. (Id.). Plaintiff states that Defendant Fisk then moved him to the “Disciplinary 

Lockdown for inmates who had assaulted officers and other inmates.” (Id.). Plaintiff 

further asserts that Defendants Arpaio, Tenny, McKay, and Fisk placed him in a cell 

“where they knew [Plaintiff] was most likely to be assaulted—with known, violent 

EBK gang member ‘S.T.’” and that Defendant Fisk assigned Defendant Chavira to 

work the pod. Plaintiff previously wrote grievances against Defendant Chavira. (Id.). 

 Plaintiff further alleges that (i) Defendant Chavira told inmate S.T. about 

Plaintiff’s grievances against Defendant Chavira and told S.T. to retaliate against 

Plaintiff, (ii) inmate S.T. followed Defendant Chavira’s instructions to “plac[e] a large 

glob of wet toilet paper over [their] cell intercom”; and (iii) “S.T. then went on a 4 hour, 

screaming rampage in which he threatened to beat [Plaintiff] to death and have his EBK 

gang members ‘Homies’ kidnap and torture [Plaintiff’s] mother if [he] brought any 

‘Heat’ (Formal Complaints) against Chavira or her Fisk Teammate, Chavez.” (Id.). 

Plaintiff claims that the retaliation caused extreme sleep deprivation.

4

 

Liberally construed, the undersigned finds that Count Six adequately states a First 

Amendment retaliation claim against Defendants Arpaio, Tenny, McKay, Fisk, and 

Chavira. The undersigned recommends that the Court require those Defendants to 

answer the retaliation claim contained in Count Six of the Second Amended Complaint.

G. Counts Seven and Nine

In Count Seven of the Second Amended Complaint, Plaintiff states that on or 

about March 19, 2015, he wrote a grievance against Defendants Tenny and McKay on 

behalf of an elderly inmate because that inmate suffered from mental and physical 

disabilities. (Id. at 18). Plaintiff alleges that on April 2, 2015, Defendant Tenny came to 

Plaintiff’s cell door “spitting with rage” and “threatened, ‘Let me tell you something, 

4 Plaintiff also alleges “irreparable damages” to his criminal defense. However, a prisoner's civil rights claim for damages attributable to an allegedly unconstitutional 

conviction or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid does not accrue until his sentence or fact of imprisonment 

has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

- 12 -

 

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 12 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

smart guy, YOU ARE DONE! . . . YOU WRITE NO MORE GRIEVANCES! . . . You’re 

going to get a LITTLE VISIT Tomorrow, and You’re going to find out you’re not as 

smart as you think!” (Id.) (emphasis in original). Plaintiff further alleges that on April 3, 

2015, Defendants Tenny, McKay, Wade, Bretado, and Cooper came to Plaintiff’s cell 

door and that Defendant Wade informed Plaintiff that he was on “Grievance Protocol” 

and would not be allowed copies of any of his grievances. (Id.). Defendant Wade 

allegedly wrote Plaintiff up for writing grievances, stripped Plaintiff of all privileges, and 

threatened Plaintiff with another “trip to the hole.” (Id.). Defendant Tenny allegedly left 

Plaintiff with an inmate who threatened to “shank” Plaintiff as punishment for writing the 

grievance on behalf of the inmate. (Id.). 

In Count Nine, Plaintiff alleges that in May 2015 he provided several inmates with 

legal assistance. (Id. at 21). Plaintiff states that on May 18, 2015, Defendants Wade and 

Copper gave Plaintiff a “‘Misconduct’ D.A.R. write-up” for assisting those inmates and 

was punished with “15 days full restrictions” and threatened with “another trip to the 

hole.” (Id.).

“While there is no personal right to be a jailhouse lawyer, to assure access to the 

courts, a prison must allow prisoners to assist one another unless there is available to 

prisoners a reasonable, alternative means of legal assistance.” Munz v. Nix, 908 F.2d 267, 

268 n.3 (8th Cir. 1990) (citing Johnson v. Avery, 393 U.S. 483, 490 (1969)). However, 

“it is far from clear that ‘the right to provide legal advice follows from a right to receive 

legal advice.’” Blaisdell v. Frappiea, 729 F.3d 1237, 1245 (9th Cir. 2013) (citing Shaw

v. Murphy, 532 U.S. 223, 231 n.3 (2001); cf. Thaddeus–X v. Blatter, 175 F.3d 378, 395 

(6th Cir. 1999) (“It is clear in this circuit that an inmate does not have an independent 

right to help other prisoners with their legal claims. . . . Rather, a ‘jailhouse lawyer’s’

right to assist another prisoner is wholly derivative of that prisoner’s right of access to the 

courts; prison officials may prohibit or limit jailhouse lawyering unless doing so 

interferes with an inmate's ability to present his grievances to a court.”).

- 13 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 13 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Here, Counts Seven and Nine do not contain facts from which the Court may 

plausibly infer that the inmates Plaintiff assisted had no reasonable, alternative means of 

legal assistance. Therefore, assuming arguendo that a prisoner has the right to provide 

legal assistance to another inmate who does not have alternative means of obtaining such 

assistance, Plaintiff has failed to state a claim. The undersigned therefore recommends 

that the Court dismiss Counts Seven and Nine of the Second Amended Complaint. 

H. Count Eight 

Plaintiff has not amended Count Eight of the First Amended Complaint. The 

undersigned recommends that the Court order Defendants San Martin and Anders to 

answer Count Eight of the Second Amended Complaint (Doc. 76 at 19) for the reasons 

set forth in the Court’s prior Order (Doc. 19 at 13).

I. Count Ten

Count Ten of the Second Amended Complaint claims that Petitioner received 

inadequate medical care. (Doc. 76 at 23). Not every claim by a prisoner relating to

inadequate medical treatment states a violation of the Eighth or Fourteenth

Amendment. To state a Section 1983 medical claim, a plaintiff must show that the

defendants acted with “deliberate indifference to serious medical needs.” Jett v.

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97,

104 (1976)). A plaintiff must show (1) a “serious medical need” by demonstrating that

failure to treat the condition could result in further significant injury or the

unnecessary and wanton infliction of pain and (2) the defendant’s response was

deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).

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

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

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

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

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

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

- 14 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 14 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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

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

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

way prison doctors respond to the prisoner’s medical needs. Estelle, 429 U.S. at 104-05; 

Jett, 439 F.3d at 1096.

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

due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor 

gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of

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.

In Count Ten, Plaintiff alleges that due to a diagnosed kidney disease, Plaintiff’s 

urologists have instructed Plaintiff to follow a renal diet and avoid oxalate rich foods. 

(Doc. 76 at 23). Plaintiff states that in December 2011, he was placed on the “Arpaio 

renal diet.” Plaintiff alleges that on or about December 20, 2011, a nurse warned 

Plaintiff that “Arpaio’s renal diet” is “all wrong” for Plaintiff’s type of kidney stone 

production. Plaintiff alleges that he started producing more stones on the diet because it 

was extremely high in oxalates. (Id.). Plaintiff, however, does not allege that he raised 

the issue to prison staff. Further, as noted in the Court’s prior Order (Doc. 19 at 15), 

Plaintiff has not alleged why, if he was instructed to avoid oxalate rich foods, he did not 

decline to eat the foods. The undersigned finds that Count Ten of the Second Amended 

Complaint fails to state a claim and recommends that it be dismissed. 

- 15 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 15 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

J. Count Eleven

Count Eleven presents Eighth and Fourteenth Amendment medical claims 

relating to kidney stone attacks occurring between December 12, 2010 and October 18, 

2013. (Doc. 76 at 25). As explained in the Court’s February 3, 2016 Order (Doc. 19 at 

16), claims relating to attacks that occurred prior to September 2013 are barred by the 

statute of limitations. Although Plaintiff asserts the “continuing wrongs rule,” each 

kidney stone attack is a discrete event. The undersigned recommends that the Court 

affirm its prior ruling that Plaintiff’s claims relating to attacks that occurred prior to 

September 2013 are time-barred. 

In Count Eleven, Plaintiff alleges that on October 18, 2013, he suffered

“prolonged extreme pain” due to a kidney stone attack and Defendant Steinhauser refused 

to provide Plaintiff with needed pain medication. (Doc. 76 at 25). Liberally construed, 

the undersigned finds that Plaintiff has adequately stated an Eighth and Fourteenth 

Amendment medical claim against Defendant Steinhauser and recommends that the 

Court require Defendant Steinhauser to answer Count Eleven of the Second Amended 

Complaint. 

Plaintiff also alleges in Count Eleven that on September 9, 2014, Plaintiff returned 

from the Emergency Room from an inmate assault and was in a wheelchair and unable to 

walk. (Id.). Plaintiff alleges that Defendant Burke refused to allow Plaintiff to use the 

“‘X-Duration’ wheelchair permit doctors had previously prescribed [Plaintiff]” and 

denied Plaintiff needed pain medication. (Id.). Liberally construed, the undersigned 

finds that Plaintiff has adequately stated an Eighth and Fourteenth Amendment medical 

claim against Defendant Burke and recommends that the Court require Defendant Burke 

to answer that claim. 

Finally, Count Eleven alleges that on March 13, 2015, Plaintiff had a “major stone

attack” and that Defendants Guta, Bernal-Fulford, and Baerg “trivialized” Plaintiff’s calls 

for help and said that Plaintiff’s stone attack was not a medical emergency despite 

allegedly witnessing Plaintiff “vomiting from intense pain, and passing dark, bloody 

- 16 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 16 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

urine.” (Id.). Plaintiff asserts that he received no pain medication or medical treatment 

for over twelve hours. Liberally construed, the undersigned finds that Plaintiff has 

adequately stated an Eighth and Fourteenth Amendment medical claim against 

Defendants Guta, Bernal-Fulford, and Baerg and recommends that the Court require 

those Defendants to answer the claim.

K. Count Twelve 

Count Twelve of the Second Amended Complaint alleges that Defendants 

Steinhauser and Alvarez, along with Deputy County Attorney Flaggman, created a false 

medical condition report in retaliation for Plaintiff’s “promises to sue both Steinhauser 

and Alvarez” for deliberate indifference to a serious medical need. (Id. at 27). Plaintiff 

has not alleged sufficient facts showing that the allegedly false report chilled Plaintiff’s 

exercise of his First Amendment rights or caused him to suffer more than minimal harm. 

Rhodes, 408 F.3d at 567-58. The undersigned does not find that Count Twelve of the 

Second Amended Complaint states a claim and recommends that the Court dismiss it. 

See Order (Doc. 19 at 17-18).

L. Count Thirteen

Plaintiff has not amended Count Thirteen of the First Amended Complaint. The 

undersigned recommends that the Court dismiss Count Thirteen of the Second Amended 

Complaint (Doc. 76 at 28) for the reasons set forth in its prior Order (Doc. 19 at 18-19).

M. Count Fourteen

In Count Fourteen of the Second Amended Complaint, Plaintiff alleges that 

Defendant Wade confiscated his medical grievances through June 2015 and violated his 

constitutional right to privacy by reading the grievances. (Doc. 76 at 29-30). Plaintiff 

alleges that Defendants Montgomery, Arpaio, and Alvarez also violated his constitutional 

right to privacy by refusing to return his medical grievances and requiring him to submit 

medical grievances to Defendant Arpaio’s staff. (Id. at 29). 

The Ninth Circuit has generally addressed a prisoner’s claim of a right to 

informational privacy in their medical records, if any, under the Fourteenth 

- 17 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 17 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Amendment. See Seaton v. Mayberg, 610 F.3d 530, 535-39 (9th Cir. 2010). But

“whatever privacy right [a prisoner has] may be overridden for legitimate penological 

reasons.” Seaton, 610 F.3d at 534. “Prisons need access to prisoners’ medical records to 

protect prison staff and other prisoners from communicable diseases and violence, and to 

manage rehabilitative efforts.” Id. at 535. In addition, a prisoner does not have a

protected liberty interest in prison grievance procedures. Mann v. Adams, 855 F.2d

639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance 

procedure.”); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“inmates lack a 

separate constitutional entitlement to a specific prison grievance procedure” and the 

actions of prison officials in reviewing his internal appeal cannot create liability under 42 

U.S.C. § 1983). 

Count Fourteen does not adequately allege that requiring Plaintiff to submit 

medical grievances to Defendant Arpaio’s staff does not serve a legitimate penological 

interest. The undersigned recommends that the Court dismiss Count Fourteen of the 

Second Amended Complaint for failure to state a claim.

N. Count Fifteen 

Count Fifteen presents a breach of contract claim under Arizona law. (Doc. 76 at 

31-32). Plaintiff alleges that he is a third party beneficiary of the contract between 

Maricopa County and his court-appointed trial counsel. Plaintiff asserts that his trial 

counsel breached “all five ‘effective representation’ stipulations of the ‘contractor’s 

responsibilities’ clause of the contract he signed” with Maricopa County. (Doc. 76 at 

31). 

The Court has supplemental jurisdiction over state law claims “that are so related

to claims in the action within such original jurisdiction that they form part of the same

case or controversy.” 28 U.S.C. § 1367(a). Under Arizona law, a person can recover

as a third-party beneficiary “only if (1) the contract itself indicates an intention to

benefit the third party, (2) the benefit contemplated is intentional and direct and (3) the

contracting parties intend to recognize the third party as the primary party in

- 18 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 18 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

interest.” Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d 879, 892 (9th Cir. 1992). “[I]t is

not enough that the contract may operate to [the alleged third-party beneficiary’s]

benefit but it must appear that the parties intended to recognize him as the primary party

in interest and as privy to the promise.” Armbruster v. WageWorks, Inc., 953 F. Supp.

2d 1072, 1076 (D. Ariz. 2013) (quoting Sherman v. First Am. Title Ins. Co., 38 P.3d

1229, 1232 (Ariz. Ct. App. 2002)). That is, “[f]or a third party to maintain an action 

on a contract, the contract must have been entered into for the express benefit of the third 

party; the party cannot be merely an incidental beneficiary.” Araiza v. U.S. West Bus. 

Resources, Inc., 904 P.2d 1272, 1278 (Ariz. Ct. App. 1995). The third person must be a 

real promissee. Basurto v. Utah Construction and Mining Company, 485 P.2d 859, 863

(Ariz. 1971) (“The promise must be made to him in fact although not in form and it is not 

enough that the contract may operate to his benefit but it must appear that the parties 

intended to recognize him as the Primary party in interest and as privy to the promise.”).

Here, Plaintiff fails to allege facts (i) to establish supplemental jurisdiction over 

this contract claim and (ii) to support that he was a third-party beneficiary of the contract

between his trial counsel and Maricopa County. Instead, his allegations reflect that he 

was, at most, an incidental beneficiary. Moreover, to the extent Plaintiff 

seeks damages under 42 U.S.C. § 1983 based on the alleged ineffective assistance of his 

trial counsel, his claim amounts to an attack on the validity of his 

underlying criminal proceedings, and as such, is not cognizable under 42 U.S.C. 

§ 1983 unless and until he can show that conviction has already been 

invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Accordingly, the 

undersigned recommends that the Court dismiss Count Fifteen of the Second Amended 

Complaint.

O. Count Sixteen

The Court liberally construed Count Sixteen of the First Amended Complaint and 

found that it stated a Fourteenth Amendment claim against Defendants Arpaio and 

- 19 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 19 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Tenny. (Doc. 19 at 20-21). The Court did not find that Count Sixteen stated a claim 

against Defendant Montgomery. (Id. at 21). 

In Count Sixteen of the Second Amended Complaint, Plaintiff claims his 

Fourteenth Amendment rights were violated when, from April 2015 through August 

2015, he was housed with a “known, severely mentally ill inmate-patient with a long 

history of violent assaults.” (Doc. 76 at 34). Plaintiff alleges that Defendants Arpaio, 

Alvarez, Tenny, and McKay intentionally placed the inmate in his cell, refused to take 

him out, and subjected Plaintiff “to sadistic, daily torture and intimidation—for 4 months 

. . . .” (Id.). Liberally construed, the undersigned finds that Plaintiff has adequately 

stated a Fourteenth Amendment claim against Defendants Arpaio, Alvarez, Tenny, and 

McKay and recommends that the Court require those Defendants to answer Count 

Sixteen of the Second Amended Complaint. The undersigned finds that Plaintiff has 

failed to state a claim against Defendant Montgomery for the reasons set forth in the 

Court’s February 3, 2016 Order (Doc. 19 at 21).

III. CONCLUSION

Based on the foregoing,

IT IS RECOMMENDED that the Court dismiss Plaintiff’s claims in Count One 

of the Second Amended Complaint regarding the alleged assaults that occurred on April 

7, 2010, August 6, 2010, and August 18, 2013. 

IT IS FURTHER RECOMMENDED that the Court order Defendants Garner, 

Brown, and Arpaio to answer the Eighth Amendment failure to protect claim pertaining 

to the alleged September 8, 2014 assault in Count One of the Second Amended 

Complaint. 

IT IS FURTHER RECOMMENDED that the Court dismiss the following 

counts of the Second Amended Complaint: Count Two, Count Three, Count Four, Count 

Seven, Count Nine, Count Ten, Count Twelve, Count Thirteen, Count Fourteen, and 

Count Fifteen.

- 20 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 20 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IT IS FURTHER RECOMMENDED that the Court order Defendant Feraru to 

answer Count Five of the Second Amended Complaint.

IT IS FURTHER RECOMMENDED that the Court order Defendants Arpaio, 

Tenny, McKay, Fisk, and Chavira to answer the First Amendment retaliation claim in 

Count Six of the Second Amended Complaint. It is further recommended that Plaintiff’s 

claims under 42 U.S.C. §§ 1985 and 1986 be dismissed. 

IT IS FURTHER RECOMMENDED that the Court order Defendants San 

Martin and Anders to answer Count Eight of the Second Amended Complaint.

IT IS FURTHER RECOMMENDED that the Court dismiss claims relating to 

incidents which occurred prior to September 2013 as time-barred and order Defendants 

Steinhauser, Burke, Guta, Bernal-Fulford, and Baerg to answer Count Eleven of the 

Second Amended Complaint regarding alleged Eighth and Fourteenth Amendment 

medical claims arising from incidents dated October 18, 2013, September 9, 2014, and 

March 13, 2015.

IT IS FURTHER RECOMMENDED that the Court order Defendants Arpaio, 

Alvarez, Tenny, and McKay to answer Count Sixteen of the Second Amended 

Complaint.

IT IS FURTHER RECOMMENDED that the Court dismiss without prejudice 

Defendants Maricopa County, Montgomery, Rada, Najera, Klages, Rubio, Shugart-LBJMcKay Team, Flannery, Carper, Acosta, Flaggman, Balaji, Wade, Bretado, Cooper, 

Odom, Logan, Cruz, Lee, Angry, Hughes, Bruner, Sminch, and Grange.

IT IS FURTHER RECOMMENDED that if the Court adopts this Report and 

Recommendation, the Court include the following language in its order:

1. The Clerk of Court shall send Plaintiff a service packet including the Second

Amended Complaint (Doc. 76), this Order, and a copy of the Marshal’s Process Receipt 

& Return form (USM-285) and Notice of Lawsuit & Request for Waiver of Service of 

Summons form for Defendants Baerg, Garner, McKay, Fisk, Chavira, Alvarez, Brown, 

Steinhauser, and Burke.

- 21 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 21 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. Plaintiff shall complete1 and return the service packet to the Clerk of Court 

within 21 days of the date of filing of this Order. The United States Marshal will not 

provide service of process if Plaintiff fails to comply with this Order.

3. If Plaintiff does not either obtain a waiver of service of the summons or 

complete service of the Summons and Second Amended Complaint on a Defendant 

within 90 days of the filing of the Second Amended Complaint or within 60 days of the 

filing of this Order, whichever is later, the action may be dismissed as to each Defendant 

not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).

4. The United States Marshal shall retain the Summons, a copy of the Second 

Amended Complaint, and a copy of this Order for future use.

5. The United States Marshal shall notify Defendants Baerg, Garner, McKay, Fisk, 

Chavira, Alvarez, Brown, Steinhauser, and Burke of the commencement of this action 

and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules 

of Civil Procedure. The notice to Defendants shall include a copy of this Order. The 

Marshal shall file waivers of service of the summons or requests for waivers that were 

returned as undeliverable as soon as they are received. If a waiver of service of summons 

is returned as undeliverable or is not returned by Defendants within thirty days from the 

date the request for waiver was sent by the Marshal, the Marshal shall:

(a) Personally serve copies of the Summons, Second Amended Complaint, 

and this Order upon Defendants pursuant to Rule 4(e)(2) of the Federal Rules of Civil 

Procedure; and

(b) Within ten days after personal service is effected, file the return of 

service for Defendants, along with evidence of the attempt to secure a waiver of service 

of the summons and of the costs subsequently incurred in effecting service upon 

1 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff shall list the address of the specific institution where the officer or 

employee works. Service cannot be effected on an officer or employee at the Central 

Office of the Arizona Department of Corrections unless the officer or employee works there.

- 22 -

 

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 22 of 24
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendants. The costs of service shall be enumerated on the return of service form 

(USM-285) and shall include the costs incurred by the Marshal for photocopying 

additional copies of the Summons, Second Amended Complaint, or this Order and for 

preparing new process receipt and return forms (USM-285), if required. Costs of service 

will be taxed against the personally served Defendants pursuant to Rule 4(d)(2) of the 

Federal Rules of Civil Procedure, unless otherwise ordered by the Court.

6. If Defendants agree to waive service of the Summons and Second Amended 

Complaint (Doc. 76), he or she shall return the signed waiver forms to the United 

States Marshal, not the Plaintiff.

7. Defendants shall answer the Second Amended Complaint or otherwise respond 

by appropriate motion within the time provided by applicable provisions of Rule 12(a) of 

the Federal Rules of Civil Procedure.

IT IS FURTHER RECOMMENDED that if the Court allows the Second 

Amended Complaint to proceed as to Defendants Arpaio, Tenny, and Baerg, the Court 

deny as moot (i) Defendants Arpaio and Tenny’s Motion for Summary Judgment (Doc.

53), which concerns the First Amended Complaint; (ii) Defendant Baerg’s “12(B)(5) 

Motion to Dismiss for Insufficient Service of Process” (Doc. 63); and (iii) Plaintiff’s 

“Motion to Extend Time for Service on Defendant Brendon Baerg” (Doc. 68).

EFFECT OF RECOMMENDATION

This Report and Recommendation is not an order that is immediately appealable to 

the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 

4(a)(1) should not be filed until entry of the District Court’s judgment. The parties shall 

have fourteen days from the date of service of a copy of this recommendation within 

which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. 

R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a 

response to the objections. Failure to file timely objections to the Magistrate Judge’s 

Report and Recommendation may result in the acceptance of the Report and 

Recommendation by the District Court without further review. Failure to file timely 

- 23 -

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 23 of 24
1

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

objections to any factual determinations of the Magistrate Judge may be considered a 

waiver of a party’s right to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge’s recommendation. See United States 

v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143,

1146-47 (9th Cir. 2007). 

Dated this 16th day of November, 2016. 

- 24 - 

Case 2:15-cv-01784-PGR-ESW Document 77 Filed 11/16/16 Page 24 of 24