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Dudley v. Mooney

United States District Court, D. Arizona

May 4, 2015

Damian Dudley, Plaintiff,
v.
Wayne Mooney, et al., Defendants.

ORDER

RANER C. COLLINS, Chief District Judge.

I. Background

On July 30, 2014, Plaintiff Damien Dudley, who is confined in the Arizona State Prison Complex-Lewis, filed a pro se civil rights Complaint in the Maricopa County Superior Court against Deputy Warden Wayne Mooney and the Arizona Department of Corrections (ADOC). On September 5, 2014, Plaintiff filed a "First Amended Special Action Complaint" in Maricopa County Superior Court against Deputy Warden Wayne Mooney and the State of Arizona. On September 11, 2014, the ADOC filed a Notice of Removal based on federal question jurisdiction and paid the $400.00 filing fee. Because Plaintiff's First Amended Special Action Complaint was filed outside the time frame allowed by Arizona Rule of Civil Procedure 15(a) and Plaitiff did not move to remand within thirty days of the Notice of Removal, the Court assumed the ADOC was a proper Defendant at the time of removal.[1]

After removal, Plaintiff filed a "First Amended Complaint." In a December 22, 2014 Order, the Court dismissed the First Amended Complaint for failure to state a claim and granted Plaintiff 30 days to file a Second Amended Complaint. On January 20, 2015, Plaintiff filed a Second Amended Complaint and an Affidavit in Support of his Second Amended Complaint. On January 21, 2015, Plaintiff filed a Notice of Supplemental Authority in Support of Second Amended Complaint. In a February 24, 2015 Order, the Court dismissed the Second Amended Complaint for failure to comply with Rule 3.4 of the Local Rules and Rule 8 of the Federal Rules of Civil Procedure and granted Plaintiff a final opportunity to craft a viable complaint.

On March 13, 2015, Plaintiff filed an Affidavit and a Third Amended Complaint (Doc. 14). The Court will order Defendants Vagara and Roberts to answer a portion of Count One of the Third Amended Complaint and will dismiss the remaining claims and Defendants without prejudice.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 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 )).

III. Third Amended Complaint

In his three-count Third Amended Complaint, Plaintiff names the following Defendants: Charles Ryan, Director of the ADOC; Vagara, Correctional Officer ("C.O.") II at Barchey Unit; Roberts, C.O.III at Barchey Unit; and John Doe, Disciplinary Sergeant at Barchey Unit. Plaintiff seeks injunctive relief and monetary damages.

In Count One, Plaintiff asserts a claim for retaliation and alleges the following facts: Between February and April 2013, Plaintiff was hired by Defendant Vagara to work in Barchey Unit's "clothing/sanitation" department. On April 4, 2013, Plaintiff filed an informal resolution with C.O. III Reatigui because Plaintiff was not receiving a minimum wage and was working approximately 30 per week, rather than the 40 hours per week required by Arizona Revised Statutes section 13-251. On April 12, 2013, Defendant Vagara allegedly told Plaintiff "if he wanted to keep his job he should drop his grievances about not getting 40 hours a week and minimum wage." Plaintiff told Defendant Vagara that he would not drop his grievances. Plaintiff contends that on April 15, 2013, Defendant Vagara "retaliated against Plaintiff for exercising his First Amendment right to file a grievance when [Defendant] Vagara removed Plaintiff's name from the work turn-out list."

On May 31, 2013, C.O. III DeLeon told Plaintiff that, because Plaintiff had been suspended from his job with Defendant Vagara, he could not apply for another job until July 12, 2013. On that same day, Plaintiff met with the "Worker Incentive Pay Plan ("WIPP") Supervisor, " Defendant Roberts, to discuss his suspension. Plaintiff informed Defendant Roberts that he had not received any paperwork regarding his suspension or termination. Defendant Roberts told Plaintiff "you know why you were suspended." Defendant Roberts also told Plaintiff that his grievances would go "nowhere" and that if Plaintiff wanted to work 40 hours per week and be paid minimum wage, he "should have stayed on the streets where [he] had freedom of choice." Defendant Roberts further told Plaintiff, "The next time an officer gives you a direct order to drop your grievance you will think of this ordeal with [Defendant] Vagara and follow his/her order." Defendant Roberts allegedly told Plaintiff that he has the power to hire, fire, or never allow an inmate to work and Plaintiff should "remember that the next time [Plaintiff] wants to grieve about 40 hours and minimum wage."

On July 1, 2013, Plaintiff began working in the prison library. On July 6, 2013, Plaintiff received an infraction for being out of place. At his disciplinary hearing, Defendant John Doe denied Plaintiff's request to call witnesses and for witness statement forms. Defendant Doe found Plaintiff guilty of the infraction without providing Plaintiff "a written disposition for denial of witnesses." Due to this infraction, Plaintiff lost 10 earned release credits. Plaintiff claims that Defendants Doe, Roberts, and Vagara "conspired against [him] because [Defendant] Doe told Plaintiff the next time this can be avoided if you obey the officer when they tell you to drop your grievances."

In Count Two, Plaintiff asserts a property claim against Defendant Ryan and contends that ADOC inmates are entitled to minimum wage under the Fair Labor Standards Act ("FLSA"). Plaintiff cites to the ADOC WIPP Department Order and does not allege any facts.

In Count Three, Plaintiff asserts a claim for the violation of his Fourteenth Amendment rights and alleges the following facts: Arizona Revised Statutes section 13-251 provides that "ADOC inmates shall work 40 h[ou]rs of hard labor a week." Plaintiff claims that ADOC gives each warden the discretion to determine how many hours each inmate will work at their respective prison. Plaintiff further claims that although some inmates work 40 hours per week, most inmates do not. Plaintiff worked 30 hours per week at each of his four jobs while housed at the Barchey Unit.

Plaintiff claims that he has been injured because he has lost wages and a loss of 10 earned release credits.

IV. 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 at 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.[2] 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. Count One and Defendant John Doe

In addition to his claim for retaliation, Plaintiff appears to be alleging a claim for the denial of due process in disciplinary proceedings in Count One. "[A] state prisoner seeking injunctive relief against the denial or revocation of good-time credits must proceed in habeas corpus, and not under § 1983." Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002). In addition, if a judgment for Plaintiff regarding the denial of due process in a prison disciplinary proceeding would invalidate or imply the invalidity of the deprivation of good-time credits, the claim is barred under Heck v. Humphrey, 512 U.S. 477 (1994), unless Plaintiff can show that the disciplinary conviction has been previously invalidated. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997); Heck, 512 U.S. at 486-87; Nonnette, 316 F.3d at 875. See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) ("[A] state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)- if success in that action would necessarily demonstrate the invalidity of confinement or its duration.").

Here, Plaintiff's claim, if decided in his favor, would either invalidate or imply the invalidity of the deprivation of his good-time credits. Because Plaintiff has not demonstrated that his prison disciplinary proceeding has been reversed, expunged, declared invalid, or called into question by a federal court's issuance of a writ of habeas corpus, his claim is barred by Heck. Therefore, the Court will dismiss Count One and Defendant John Doe.

B. Count Two and Defendant Ryan

Plaintiff fails to allege any facts against Defendant Ryan in Count Two. As discussed above, Plaintiff simply contends that ADOC inmates are entitled to a minimum wage under the FLSA. Plaintiff cites to the ADOC WIPP Department Order, but he fails allege any facts. Accordingly, the Court will dismiss Defendant Ryan and Count Two.

C. Count Three

In Count Three, Plaintiff alleges that his Fourteenth Amendment rights have been violated and appears to be asserting that he has a property interest in receiving a minimum wage under the FLSA. In Hale v. Arizona, 993 F.2d 1387, 1393-95 (9th Cir. 1993) (en banc), the Ninth Circuit Court of Appeals held that prisoners working for a prison in a program structured by the prison pursuant to state law, which required prisoners to work at hard labor, are not employees of the prison within the meaning of the FLSA, and thus, not entitled to be paid minimum wage under the FLSA. In this case, Plaintiff alleges that he was employed by the ADOC in the WIPP program, which is structured by the ADOC pursuant to state law and allows prisoners to work. Plaintiff has alleged no facts establishing that he is an employee within the meaning of the FLSA such that he would be entitled to minimum wage under the FLSA.

Plaintiff also appears to be asserting a violation of his due process rights and alleges that he worked 30 hour weeks when working the four jobs he had during all times relevant to this action. Plaintiff claims that, pursuant to Arizona Revised Statutes section 13-251, "ADOC inmates shall work 40 h[ou]rs of hard labor a week." "In general, parties claiming that their due process rights were violated must establish two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.'" Haggard v. Curry, 631 F.3d 931, 935 (9th Cir. 2010) (citations omitted). "Property interests... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Allen v. City of Beverly Hills, 911 F.2d 367, 370 (9th Cir. 1990) (citation omitted). "Whether an expectation of entitlement is sufficient to create a property interest will depend largely upon the extent to which the statute contains mandatory language that restricts the discretion of the [decisionmaker].'" Id. (alteration in original) (citation omitted).

Plaintiff appears to allege that Arizona Revised Statutes section 31-251 guarantees Plaintiff the right to work 40 hours of hard labor per week and, therefore, creates a property interest protected by the Due Process Clause. Arizona Revised Statutes section 31-251 provides that "[t]he director has the authority to require that each able-bodied prisoner under commitment to the state department of corrections engage in hard labor for not less than forty hours per week, except that not more than twenty hours per week of participation in an educational, training or treatment program may be substituted for an equivalent number of hours of hard labor." Ariz. Rev. Stat. Ann. § 31-251. This statute is couched in discretionary terms, giving the director authority, but not requiring the director to take any action. Moreover, Plaintiff has not alleged whether he is enrolled in an educational, training or treatment program in addition to his 30 hours of work per week. Accordingly, Plaintiff has failed to allege facts demonstrating that section 31-251 confers upon him a constitutionally protected property interest.

For the reasons discussed above, Plaintiff has failed to state a claim upon which relief can be granted in Count Three, and the Court will dismiss Count Three.

V. Claims for Which an Answer Will be Required

Liberally construed, Plaintiff has sufficiently stated a claim for retaliation against Defendants Vagara and Roberts in Count One, and the Court will require Defendants Vagara and Roberts to answer that portion of Count One.

VI. Warnings

A. Release

If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.

B. Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

C. Copies

Because Plaintiff is currently confined in an Arizona Department of Corrections unit subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy of every document he files or to submit an additional copy of every filing for use by the Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule of Civil Procedure 5.4. If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he will be notified of the requirements for service and copies for the Court that are required for inmates whose cases are not subject to General Order 14-17.

D. 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 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) Counts Two, Three, and the due process claim in Count One are dismissed without prejudice.

(2) Defendants Ryan and Doe are dismissed without prejudice.

(3) Defendants Vagara and Roberts must answer the retaliation claim in Count One.

(4) The Clerk of Court must send Plaintiff 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 Vagara and Roberts.

(5) Plaintiff must complete[3] 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.

(6) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Third Amended Complaint on a Defendant within 120 days of the filing of the 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)(ii).

(7) The United States Marshal must retain the Summons, a copy of the Third Amended Complaint, and a copy of this Order for future use.

(8) The United States Marshal must notify Defendants 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 must include a copy of this Order. The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must:

(a) personally serve copies of the Summons, Third Amended Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and
(b) within 10 days after personal service is effected, file the return of service for Defendant, 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 Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Third 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 Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court.

(9) A Defendant who agrees to waive service of the Summons and Third Amended Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff.

(10) Defendants must answer the Third Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.

(11) Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed.

(12) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1).

Visit our website at www.azd.uscourts.gov

5/4, 2015

Re: Service Packet for CV-14-2006-PHX-SMM (JZB):

Enclosed is a copy of the Court's Order directing the U.S. Marshal to effect service on your behalf. Also enclosed are U.S. Marshal service form(s) (USM-285), a Notice of Lawsuit & Request for Waiver of Service of Summons form(s) and a set of examples for your use and information. To complete service, you must prepare and return the following items:

• One copy of the Marshal's Process Receipt & Return Form USM-285 for each defendant ordered to be served;
•" One copy of the Notice of Lawsuit & Request for Waiver of Service of Summons form for each defendant ordered to be served.

DO NOT PREPARE ANY SERVICE FORMS FOR PARTIES DISMISSED FROM THE ACTION.

Upon receipt of the properly completed forms, your Complaint will be processed for service. FAILURE TO PROPERLY PREPARE AND SIGN YOUR SERVICE FORMS MAY RESULT IN DELAY IN EFFECTING SERVICE. A Notice of Availability of a United States Magistrate Judge Consent form is also included. This form is to be returned to our office ONLY after all parties have appeared and agreed to the consent.

Enclosures:

1 Copy of Court Order
USM 285 Form(s) w/example
Notice of Lawsuit & Request for Waiver Form(s) w/example
1 Consent Form

UNITED STATES DISTRICT COURT for the District of Arizona

Plaintiffs Name (CV - Case number)

NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS

To: (Name of Defendant or Agent of Corporate Defendant - List only one defendant per notice) (Name of the defendant or - if the defendant is a corporation, partnership, or association - an officer or agent authorized to receive service)

Why are you getting this?

A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached.

This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these expenses, you must return the signed waiver within _____ days (give at least 30 days, or at least 60 days if the defendant is outside any judicial district of the United States) from the date shown below, which is the date this notice was sent. Two copies of the waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid means for returning one copy. You may keep the other copy.

What happens next?

If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States).

If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service.

Please read the enclosed statement about the duty to avoid unnecessary expenses.

I certify that this request is being sent to you on the date below.

(Leave blank) (Sign your name) Printed name Address E-mail address Telephone number Plaintiff Defendant

NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS

To: ______________________________________________________________________________________________________________________________________________________ (Name of the defendant or - if the defendant is a corporation, partnership, or association - an officer or agent authorized to receive service)

Why are you getting this?

A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached.

This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these expenses, you must return the signed waiver within _____ days (give at least 30 days, or at least 60 days if the defendant is outside any judicial district of the United States) from the date shown below, which is the date this notice was sent. Two copies of the waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid means for returning one copy. You may keep the other copy.

What happens next?

If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States).

If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service.

Please read the enclosed statement about the duty to avoid unnecessary expenses.

I certify that this request is being sent to you on the date below.

Signature of the attorney or unrepresented party Printed name Address E-mail address Telephone number

NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION

In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P.73, you are hereby notified that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties voluntarily consent.

You may, without adverse substantive consequences, withhold your consent, but this will prevent the court's jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned.

An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court.

CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE

In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, order the entry of a final judgment, and conduct all post judgment proceedings.

ORDER OF ASSIGNMENT

IT IS HEREBY ORDERED that this case be assigned to __________________________ United States Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73 and the foregoing consent of the parties. All further documents filed with the court are to carry the following case number ___________________________.

NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.

Plaintiff Defendant

NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS

To:___________________________________________________________________________________________________________________________________________________________ (Name of the defendant or - if the defendant is a corporation, partnership, or association - an officer or agent authorized to receive service)

Why are you getting this?

A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached.

This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these expenses, you must return the signed waiver within __________ days (give at least 30 days, or at least 60 days if the defendant is outside any judicial district of the United States) from the date shown below, which is the date this notice was sent. Two copies of the waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid means for returning one copy. You may keep the other copy.

What happens next?

If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States).

If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service.

Please read the enclosed statement about the duty to avoid unnecessary expenses.

I certify that this request is being sent to you on the date below.

Signature of the attorney or unrepresented party Printed name Address E-mail address Telephone number

NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION

In accordance with the provisions of 28 U.S.C. 636(c) and Fed. R. Civ.P. 73, you are hereby notified that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties voluntarily consent.

You may, without adverse substantive consequences, withhold your consent, but this will prevent the court's jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned.

An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court.

CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE

In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.

ORDER OF ASSIGNMENT

IT IS HEREBY ORDERED that this case be assigned to ___________________________________ United States Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73 and the foregoing consent of the parties. All further documents filed with the court are to carry the following case number ________________________________.

NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.

FEDERAL RULES OF CIVIL PROCEDURE

Rule 4. Summons

1. (a) Contents; Amendments.

(1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff's attorney or - if unrepresented - of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal.

(2) Amendments. The court may permit a summons to be amended.

(b) Issuance.

On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons - or a copy of a summons that is addressed to multiple defendants must be issued for each defendant to be served.

(c) Service.

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom Any person who is at least 18 years old and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.

(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed; -

(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;

(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent - or at least 60 days if sent to the defendant outside any judicial district of the United States - to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent - or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country's law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

(g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and - if the agent is one authorized by statute and the statute so requires - by also mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

(1) United States. To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought - or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:

(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

(j) Serving a Foreign, State, or Local Government.

(1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.

(2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:

(A) delivering a copy of the summons and of the complaint to its chief executive officer; or

(B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.

(k) Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

(C) when authorized by a federal statute,

(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

(1) Proving Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

(n) Asserting Jurisdiction over Property or Assets.

(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

(2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant's assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

The Court and the Arizona Department of Corrections (ADC) have agreed to extend the following pilot project designed to reduce the cost of processing prisoner filings.

1. The Court will provide five digital senders for use in the five units of the ADC Eyman Complex: Cook, Meadows, Rynning, Browning, and SMU I. The Court will retain ownership of the digital senders.
2. ADC will provide scanners for use in six designated units of the ADC Lewis Complex: Bachman, Barchey, Buckley, Morey, Rast, and Stiner.
3. Eyman and Lewis Complex staff will scan to PDF and, after quality review, email to the Court all documents presented by prisoners for filing with the Court. The original documents will be returned to the prisoner. All documents submitted for filing by prisoners in the Eyman Complex and in the six designated units of the Lewis Complex must be emailed to the Court in a PDF format. Sealed cases are exempt from this pilot project.
4. The Court will receive and file the prisoners' documents electronically. After traditional service of the prisoner's complaint or petition and appearance by an opposing party, transmission of the Notice of Electronic Filing (NEF) to opposing parties who are Electronic Case Filing Registered Users constitutes service of the hyperlinked document for purposes of Rule 5(b)(3) of the Federal Rules of Civil Procedure. The Clerk of Court will mail a copy of the prisoner's electronically filed document to Nonregistered Users.
5. The Eyman Complex Units and the designated Lewis Complex Units will each establish an email address for receipt of NEFs of documents filed electronically. Staff in these Units will print the NEFs and the hyperlinked orders and other documents filed by the Court. Receipt of copies of the NEFs and hyperlinked documents by the prisoner constitutes service of the document on the prisoner. If the prisoner refuses delivery or is no longer at the designated Unit, Unit staff will indicate the reason for non-delivery on the NEF and email it to the Court.
6. Opposing parties must serve filings on Eyman and Lewis prisoners by means other than electronic filing as provided in Rule 5.5(h) of the Local Rules of Civil Procedure and Rule 5 of the Federal Rules of Civil Procedure. Eyman and Lewis staff will not provide to prisoners NEFs or the hyperlinked documents filed by opposing parties.
7. The Court or ADC may terminate the pilot project at any time. The Court and ADC must periodically evaluate the pilot project and determine whether it should be continued, terminated, modified or expanded.

This General Order supersedes General Order 14-14.

DATED this 22nd day of August, 2014

Visit our website at www.azd.uscourts.gov

Under General Order 14-17 you are required to participate in the Prisoner Electronic Filing Program. In order to avoid delays in the processing of your documents, please follow the below guidance.

1. Only documents intended for filing in your U.S. District Court case should be submitted to the librarian for scanning.

2. Documents intended for courts other than the U.S. District Court must not be submitted to the librarian for scanning. These documents must be mailed to the appropriate court.

3. Correspondence should be mailed to the court.

4. You must include your complete case number on your documents in the following format: CV-13-0000-PHX or CV-13-0000-TUC

5. Documents must be dark enough to be legible after the scanning process. If possible, use a dark ink pen. If an ink pen is not available, write as dark as possible with a pencil. Darken all areas of carbon copy forms that may not be legible.

6. If you are submitting multiple documents, they must be given to the librarian as separate documents.

7. Each page of every document must be clearly numbered in the order you wish to have them scanned. Begin page numbers anew with each separate document.

8. The notice of electronic filing (NEF) will include the number of pages filed.

9. Do not submit two-sided documents.

10. Do not submit copies of cases or prison policies. The Court has access to them, so you only need to cite them.


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