Cole #371593 v. Ortega et al

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JL
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
John Anthony Cole,
Plaintiff,
v.
F. Ortega, et al.,
Defendants.
No. CV-26-00973-PHX-JAT (ASB)
ORDER
Plaintiff John Anthony Cole, who is confined in the Arizona State Prison Complex-
Eyman, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1), an
Application to Proceed In Forma Pauperis (Doc. 2), a Motion for Injunctive Relief and
Protective Order (Doc. 6), a Motion for Preservation of Evidence and/or Motion for Leave
to Conduct Limited Early Discovery (Doc. 7), and a Motion for Injunctive Relief and
Temporary Restraining Order (Doc. 8). The Court will grant the Application to Proceed;
deny the Motions without prejudice; order Defendants Simmons, Ortega, Sanchez, Meyers,
Rheem, Bachman, McCormick, Diaz, Benmen, Fulks, and Levine to answer portions of
the Complaint; and dismiss the remaining claims and Defendants without prejudice.
I. Application to Proceed In Forma Pauperis and Filing Fee
The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28
U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C.
§ 1915(b)(1). The Court will assess an initial partial filing fee of $35.49. The remainder
of the fee will be collected monthly in payments of 20% of the previous month’s income
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credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00.
28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate
government agency to collect and forward the fees according to the statutory formula.
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, fail to state a claim upon which
relief may be granted, or 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
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standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam)).
III. Complaint
In his 12-count Complaint, Plaintiff sues NaphCare and Health Administrator
Lauren Fulks; Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR)
Director Ryan Thornell; Associate Deputy Warden Rogers; Sergeant Benmen;
Correctional Officers (COs) II F. Ortega, Simmons, Chris Sanchez, Diaz, Meyers, Rheem,
Bachman, McCormick, and Levine; and John Does 1-10. (Doc. 1 at 1-2.) Plaintiff names
each Defendant in his or her individual and official capacities and brings claims of
excessive force, denial of constitutionally adequate medical care, retaliation, denial of
equal protection, and civil conspiracy. (Id. at 5-17, 20.) Plaintiff also brings state-law
claims of assault, battery, intentional infliction of emotional distress, medical negligence,
and conversion. (Id. at 18-19.) He seeks declaratory and monetary relief. (Id. at 21.)
In Count One, Plaintiff alleges that on February 22, 2025, Defendants Simmons,
Ortega, Sanchez, Meyers, Rheem, Bachman, McCormick, and three John Doe COs II
physically assaulted him while he was handcuffed behind his back and restrained with leg
shackles. (Id. at 5.) Plaintiff claims Defendant Ortega and one of the John Doe COs II
“initiated the initial assault” by slamming Plaintiff’s face into a concrete wall “and then
repetitively on the concrete floor.” (Id. at 6.) Plaintiff asserts that Defendants Sanchez and
Simmons simultaneously kicked and stomped on Plaintiff with their boots while he was
face down on the floor. (Id.) Plaintiff further alleges he was “compliant with all lawful
commands,” non[-]threatening, [and] non-combative” and that he remained composed and
non-resistant while he lay “limp in a vulnerable defenseless position.” (Id.) Plaintiff
alleges that Defendant John Doe #1 used his knee to kneel on Plaintiff’s neck; John Doe
#2 used his body weight and boot to stand on Plaintiff’s elbow; John Doe #3 used his body
weight to “suffocate/smo[]ther” Plaintiff; John Doe #4 twisted Plaintiff’s left pinky finger,
causing it to break; John Doe #5 “violently applied pressure” to Plaintiff’s left thumb “in
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an awkward position of opposite range of motion,” causing torn ligaments and tendons;
and John Doe #6 punched Plaintiff in the head. (Id.)
According to Plaintiff, Defendant Simmons stated, “Tell the other n*****s that we
got the ringleader writing the grievances and [Prison Rape Elimination Act (PREA)]
reports”; Defendant Ortega stated, “See if the n****r’s got on a chain” and “Take the
n****r’s new shoes”; and Defendant Bachman said, “Let me get a lick on the n****r.”
(Id.) Plaintiff also claims Defendant Benmen told Defendant Fulks that Plaintiff was
“good,” and no treatment was needed. (Id.)
Plaintiff alleges that all Defendants “collectively played a role in the unprovoked
assault . . . whether limited or exclusively active,” and each Defendant “simultaneously
aided, assisted, conspired, facilit[ated], or failed to intervene.” (Id. at 5.) As his injury,
Plaintiff claims he suffered a concussion, headaches, migraines, a broken left pinky finger,
broken right ribs, torn ligaments and tendons in his left thumb, body aches, pain, bruising,
nerve damage, difficulty sleeping and breathing, post-traumatic stress disorder (PTSD),
anxiety, panic attacks, and mental and emotional distress. (Id.)
In Count Two, Plaintiff alleges that on February 28, 2025, Defendants Diaz,
Simmons, Ortega, Meyers, Sanchez, Rheem, McCormick, and three John Doe COs II
physically assaulted him. (Id. at 7.) Plaintiff claims Defendants Diaz and Simmons
“initiated the unprovoke[d] attack” on Plaintiff, while he was bound and restrained with
handcuffs and leg shackles, by “aggressively and forcefully” pushing him face first into a
concrete wall. (Id.) Plaintiff asserts that Diaz “open-hand slapped Plaintiff’s right eye”
and “used a closed fist strike as an offensive weapon to punch Plaintiff in his left eye.”
Plaintiff further alleges that Defendants Simmons and Ortega “forcefully slammed [his]
body onto the concrete floor and repeated the action.” (Id.) According to Plaintiff,
Defendant John Doe #1 “used a barrage of close[d] fist strikes as offensive weapons to [hit]
Plaintiff’s head and body”; John Doe #2 used steel-toed boots to repeatedly kick Plaintiff
in the ribcage while he lay motionless on the floor; John Doe #3 used steel-toed boots to
kick Plaintiff’s body while he lay on the ground; John Doe #4 twisted Plaintiff’s left pinky
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finger until it broke1; and John Doe #5 violently applied pressure to Plaintiff’s left thumb
in an “awkward of opposite range of motion” causing ligaments and tendons to be torn.
(Id.)
Plaintiff asserts that he remained “compliant, composed, non[-]combative, non[-
]resistant, defenseless, and limp on his stomach” as Defendant Diaz stated, “Let’s give the
n****r a wedgie.” (Id. at 8.) Plaintiff also alleges that Diaz used his body weight to
suffocate Plaintiff, placed his hand between Plaintiff’s boxer shorts and bare buttocks, and
“violently snatched the waistband of Plaintiff’s boxer shorts from the top of his hips/waist
to the middle of Plaintiff’s back below his lower shoulder blades[,] causing discomfort and
bleeding from the anus/rectal skin being scrap[]ed, chaf[]ed, and torn.” (Id.) Plaintiff
claims Defendant Simmons stated, “Yeah since he likes to file PREA[]s, this is not sexual
assault, it’s payback bxxch.” (Id.) Plaintiff asserts that Defendant Ortega kicked Plaintiff
in his right ribs, and Simmons told Ortega, “Break the other ribs, stay away from the right
side.” (Id.) Plaintiff alleges that John Doe #5 reapplied Plaintiff’s handcuffs to cut into
his wrist and prevent circulation, causing numbness, pain, and nerve damage. (Id.)
Plaintiff further claims John Doe #4 “inappropriately applied” his leg shackles “in the same
manner described above.” (Id.) Plaintiff contends Defendant Levine “witnessed this
assault and refused to intervene.” (Id.)
Plaintiff asserts that Defendant Fulks was “cuddled up with” Defendant Benmen
when Plaintiff was escorted to the infirmary, where Plaintiff alleges that Benmen “made
the statement, ‘no evidence,’ implying the refusal of medical emergency triage.” (Id.)
Plaintiff alleges he was “refused medical.” (Id.)
Plaintiff alleges that each Defendant “collectively played a role in the unprovoked
violent assault” against him, “[w]hether limited or excessively aggressive,” and each
Defendant “actively aided, assisted, conspired, facilitated, or failed to intervene.” (Id. at
7.) As his injury, Plaintiff alleges he suffered head trauma, a concussion, headache,
migraine, body aches, pain, bruising, soreness, broken left ribs, a broken left pinky finger,
1 Plaintiff alleges his left pinky finger was broken in the February 22, 2025 incident.
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torn ligaments and tendons in his left thumb, difficulty breathing and sleeping, nerve
damage, numbness, hemorrhoids, anal/rectal tear, chafing, scrapes, PTSD, anxiety, panic
attacks, and mental and emotional distress. (Id.)
In Count Three, Plaintiff claims Defendant Diaz sexually assaulted him on
February 28, 2025, when Diaz placed his hand between Plaintiff’s boxer shorts and bare
buttocks and “forcefully and violently snatched the waistband of Plaintiff’s boxer shorts
from the top of his hips/waist to the middle of Plaintiff’s back below his lower shoulder
blades[.]” (Id. at 9.) Plaintiff alleges that Diaz “perpetuated this act of inappropriate sexual
contact while Plaintiff was face down on his stomach on the concrete ground” and
restrained by handcuffs, leg restraints, and the weight of multiple COs “in the form of feet,
knees, and forced hand pressure.” (Id.) Plaintiff asserts that no other Defendant named in
Count Two “intervened during the sexual assault.” (Id.)
In Count Four, Plaintiff alleges Defendants NaphCare, Fulks, Simmons, Ortega,
Sanchez, Meyers, Rheem, Benmen, Bachman, McCormick, and three John Doe COs II
denied him medical care, treatment, triage, examination, diagnosis, and aftercare. (Id. at
10.) Plaintiff asserts that Defendant Fulks intentionally denied him medical treatment,
although it was “obvious” that Plaintiff had visible injuries consistent with a physical
altercation. (Id.) Plaintiff claims he “conveyed to Fulks his need for medical attention,”
and when she asked how he sustained his injuries, Plaintiff told Fulks that the “ADCRR
CO[]s had caused the injuries.” (Id.) Plaintiff alleges that Defendant Benmen told Fulks,
“He’s good, no treatment needed.” (Id.) Plaintiff also claims the Defendants who allegedly
assaulted him, as described in Counts One and Two, should have known that his injuries
necessitated emergency medical treatment, and their “negligence” violated his Eighth
Amendment rights. (Id.)
In Count Five, Plaintiff repeats the allegation that during the February 22, 2025
incident, Defendant Simmons stated, “Tell the other n*****s that we got the ringleader
writing the grievances and PREA reports.” (Id. at 11.) Plaintiff asserts that he “took this
comment to [mean] that the sole reason, logic, and justification for the unprovoked assault
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was Plaintiff’s utilization of the administrative remedy process to report ADCRR employee
misconduct.” (Id.) According to Plaintiff, this “direct admission by Defendant Simmons
provides motive for the assault” and violates Plaintiff’s First Amendment rights. (Id.)
Plaintiff further claims that Defendants NaphCare and Fulks retaliated against
Plaintiff by refusing him emergency medical treatment/triage because Plaintiff “made
allegations to NaphCare that the injuries sustained were the result of ADCRR staff
misconduct.” (Id.)
In Count Six, Plaintiff alleges that he was denied equal protection during the
incidents on February 22 and 28, 2025. (Id. at 12.) Plaintiff claims that Defendants “used
racial animus in the form de[]ogatory speech designed to inflame, create hostility, terror,
intimidation, fear, and racial inferiority/superiority.” (Id.) Plaintiff contends “[t]his form
of racial animus in the commission of a violent crime violates [his] civil rights as a federal
hate crime being perpetrated against a minority victim” because he is African-American,
and none of the Defendants are African-American. (Id.)
In Count Seven, Plaintiff alleges that Defendants engaged in a civil conspiracy. (Id.
at 13.) Plaintiff asserts that on January 27, 2025, he submitted a PREA complaint against
a non-party CO. (Id.) Plaintiff claims the February 22, 2025 incident was a “preplanned
strategic attack calculated by” Defendants’ “conspiracy to retaliate against Plaintiff” for
submitting the grievance and PREA report. (Id. at 14.)
Plaintiff alleges that on February 21, 2025, Defendants “conspired to violently
attack, assault, kill, maim, hurt and injure” Plaintiff and gave “advanced forewarning
notice” about the incident that transpired the next day. (Id. at 13, 14.) Plaintiff claims
Defendant Ortega “taunted Plaintiff with chants of ‘Cell-9, Cole, go to rec.’” (Id. at 13.)
Plaintiff asserts Defendant Simmons stated, “Cole we got something for you . . . Don’t
bxxch out . . . Go to rec.” (Id.) Plaintiff alleges that Defendant Simmons threatened him
on four separate occasions on February 21, stating, “We will kill you and nobody will
care,” and “We’re going to smash you when you go to rec.” (Id.) Plaintiff claims he
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“documented these encounters” through the ADCRR injunction portal and the inmate
emergency hotline. (Id.)
Plaintiff asserts that on the morning of February 22, 2026, Defendant Bachman
came to Plaintiff’s cell and stated, “See you there n****r, don’t bxxch up!” (Id. at 14.)
According to Plaintiff, this was “in reference to going to outdoor recreation to expect to be
in a physical altercation.” (Id.) Plaintiff claims that after the “physical assault” began on
February 22, Defendant Simmons yelled, “Sarge, call Rogers tell him it’s done.” (Id.)
Plaintiff alleges that Defendant Rogers “obviously was awar[e] of the preplanned strategic
assault on Plaintiff,” as “confirmed” by Simmons’s statement. (Id.)
In Count Eight, Plaintiff alleges that after the February 28, 2025 incident,
Defendants NaphCare, Fulks, Diaz, Benmen, Simmons, Ortega, Sanchez, Meyers, Rheem,
Bachman, McCormick, and three John Doe COs II showed deliberate indifference to
Plaintiff’s serious medical needs. (Id. at 15.) Plaintiff claims that when he was taken to
the medical unit, Defendant Benmen was physically “cuddled up” with Defendant Fulks,
and Benmen told Fulks, “no evidence” while shaking his head “no,” to “suggest no medical
services.” (Id.) Plaintiff asserts Defendant Fulks refused Plaintiff medical services and
told a medical provider that she could not take photos of Plaintiff’s injuries. (Id.) Plaintiff
alleges the ADCRR COs “each used intimidation tactics to influence NaphCare medical to
refuse Plaintiff medical services by surrounding Plaintiff and blocking access, walkway,
pathway for medical personnel to effectively assess Plaintiff’s injuries.” (Id.)
In Count Nine, Plaintiff repeats his allegation that during the February 28, 2025
incident, Defendant Simmons stated, “Yeah since he likes to file PREA[]s, this is not sexual
assault, it’s payback bxxch.” (Id. at 16.) Plaintiff claims the assault on February 28 was
“motivated by” his use of the administrative remedy process and available PREA reporting
methods and that Defendant Ortega said Plaintiff had “lawyered up” with respect to the
February 22, 2025 incident. (Id.) Plaintiff further alleges that Defendants NaphCare and
Fulks retaliated against him by refusing him medical services for reporting ADCRR
employee misconduct. (Id.)
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In Count Ten, Plaintiff alleges that Defendant Levine knowingly and willingly
failed to intervene and prevent the assault against Plaintiff on February 28, 2025. (Id. at
17.)
In Count Eleven, Plaintiff asserts that Defendants committed the crimes of
aggravated assault, sexual assault, and unlawful sexual conduct. (Id. at 18.) Plaintiff also
asserts claims of conversion, medical negligence, and intentional infliction of emotional
distress. (Id. at 19.)
In Count Twelve, Plaintiff alleges that Defendant Rogers “used his position to
establish unwritten policies, practices, customs, and a culture of retaliation, systemic
targeting, threatening, intimidation, and physical brutality.” (Id. at 20.) Plaintiff asserts
that Rogers “fostered a culture of hostility with ag[g]ressive hands[-]on tactics utilizing
ADCRR CO[]s” to “execute his agenda of breaking inmates.” (Id.) Plaintiff claims he was
“targeted” by Defendant Rogers on multiple occasions with “documented” daily
harassment, sexual harassment, “physical/sexual assaultive violence,” and denial of
medical care. (Id.) Plaintiff contends Rogers was aware of these practices and had
“advance[] knowledge” of the February 22, 2025 incident. (Id.)
IV. Discussion of Complaint
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants
(2) under color of state law (3) deprived him of federal rights, privileges or immunities and
(4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir.
2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278,
1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury
as a result of the conduct of a particular defendant and he must allege an affirmative link
between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-
72, 377 (1976).
A. NaphCare
To state a claim under § 1983 against a private entity performing a traditional public
function, such as providing medical care to prisoners, a plaintiff must allege facts to support
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that his constitutional rights were violated as a result of a policy, decision, or custom
promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d
1128, 1138-39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (per
curiam). A plaintiff must allege the specific policy or custom and how it violated his
constitutional rights. A private entity is not liable merely because it employs persons who
allegedly violated a plaintiff’s constitutional rights. See Tsao, 698 F.3d at 1139; Buckner,
116 F.3d at 452.
Plaintiff does not allege that any of the conduct described in the Complaint was the
result of a specific policy or custom of Defendant NaphCare. Thus, the Court will dismiss
without prejudice Defendant NaphCare.
B. Official versus Individual Capacity
A suit against a defendant in his or her individual capacity seeks to impose personal
liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For a person
to be liable in his or her individual capacity, “[a] plaintiff must allege facts, not simply
conclusions, that show that an individual was personally involved in the deprivation of his
civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). By comparison,
a suit against a defendant in his or her official capacity represents only another way of
pleading an action against the entity that employs the defendant. Kentucky, 473 U.S. at
165. That is, the real party in interest is not the named defendant, but the entity that
employs the defendant. Id. To bring a claim against an individual in his official capacity,
a plaintiff must show that the constitutional deprivation resulted from the entity’s policy,
custom, or practice. Id.; Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Although Plaintiff has named Defendants in both their individual and official
capacities, Plaintiff’s allegations fail to plausibly show that any policy, practice, or custom
of any entity has resulted in his alleged injuries. Accordingly, the Court will construe
Plaintiff’s claims as directed against the Defendants in their individual capacities only and
will evaluate them accordingly.
. . . .
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C. Supervisory Liability
There is no respondeat superior liability under § 1983, and therefore, a defendant’s
position as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights
does not impose liability. Monell, 436 U.S. 658; Hamilton v. Endell, 981 F.2d 1062, 1067
(9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated
the Constitution.” Iqbal, 556 U.S. at 676.
Plaintiff has not alleged that Defendant Thornell personally participated in a
deprivation of Plaintiff’s constitutional rights, was aware of a deprivation and failed to act,
or formed policies that resulted in Plaintiff’s injuries. Rather, Plaintiff names Thornell
solely based on Thornell’s role as ADCRR Director. Thus, the Court will dismiss
Defendant Thornell.
With respect to Defendant Rogers, Plaintiff claims Rogers “targeted” Plaintiff with
“documented” daily harassment, sexual harassment, “physical/sexual assaultive violence,”
and denial of medical care. Such vague and conclusory allegations are not sufficient to
show that Rogers was personally involved in a deprivation of Plaintiff’s constitutional
rights, was aware of a deprivation and failed to act, or formed policies that resulted in
Plaintiff’s injuries. The Court will therefore dismiss Defendant Rogers.
D. Excessive Force
When an inmate claims that prison officials violated his Eighth Amendment rights
by using excessive physical force, the relevant inquiry is “whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). However, the Supreme Court has
made it clear that not every use of physical force violates the Eighth Amendment:
That is not to say that every malevolent touch by a prison guard
gives rise to a federal cause of action. See Johnson v. Glick,
481 F.2d [1028, 1033 (2nd Cir. 1973)] (“Not every push or
shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates a prisoner’s constitutional rights”).
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Id. at 9.
Liberally construed, Plaintiff has stated an excessive force claim in Count One
against Defendants Simmons, Ortega, Sanchez, Meyers, Rheem, Bachman, and
McCormick, and John Does 1-6 and in Count Two against Defendants Diaz, Simmons,
Ortega, Meyers, Sanchez, Rheem, McCormick, and John Does 1-5. The Court will require
Defendants Simmons, Ortega, Sanchez, Meyers, Rheem, Bachman, and McCormick to
answer Count One and order Defendants Diaz, Simmons, Ortega, Meyers, Sanchez,
Rheem, and McCormick to answer Count Two.
Although Plaintiff has stated a claim against Defendants John Does 1-6, the Court
will not require service on the Doe Defendants at this time because it is, in most instances,
impossible for the United States Marshal or his designee to serve a summons and complaint
upon an anonymous defendant.
The Ninth Circuit has held that where identity is unknown prior to the filing of a
complaint, the plaintiff should be given an opportunity through discovery to identify the
unknown defendants, unless it is clear that discovery would not uncover the identities, or
that the complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 F.3d
1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
The Court will allow Plaintiff 120 days in which to discover the actual name of Defendants
John Does 1-6, through subpoena or otherwise, and to substitute the Defendant’s actual
name by filing a “notice of substitution.” See Wakefield, 177 F.3d at 1163. The Court may
dismiss these Defendants without prejudice if Plaintiff fails to timely file a notice of
substitution, unless Plaintiff seeks and is granted an extension of time.
E. Failure to Intervene
In Count Ten, Plaintiff alleges that Defendant Levine witnessed the February 28,
2025 incident but failed to intervene. An officer’s failure to intervene in unconstitutional
conduct can support a claim where the officer has a realistic opportunity to intervene but
fails to do so. Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000); see also Lolli
v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003). Such a claim is dependent on the
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existence of an underlying claim against the officers who directly violated a plaintiff’s
constitutional rights. See, e.g., Perez v. City of Fresno, 591 F. Supp. 3d 725, 752 n.21 (E.D.
Cal. 2022); Valadez v. County of Los Angeles, No. 2:20-CV-03724-JWH-SKX, 2024 WL
3153207, at *16 (C.D. Cal. June 24, 2024).
Liberally construed, Plaintiff has stated a claim in Count Ten against Defendant
Levine. The Court will require Defendant Levine to answer Count Ten.
F. Sexual Assault
Physical sexual assault on a prisoner by a prison official violates the Eighth
Amendment, Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), and “prisoners
have a right to be free from sexual abuse,” Austin v. Terhune, 367 F.3d 1167, 1171 (9th
Cir. 2004). To state a claim, Plaintiff must allege that “a prison staff member, acting under
color of law and without legitimate penological justification, touched the prisoner in a
sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual
gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.”
Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020); see also Wood v. Beauclair,
692 F.3d 1041, 1050 (9th Cir. 2012) (sexually touching and harassing prisoner during a
strip search “in a manner designed to demean and humiliate” can state an Eighth
Amendment claim); Hill v. Rowley, 658 F. App’x 840, 841 (9th Cir. 2016) (prison officer’s
“gripping” a prisoner’s buttocks “intentionally to discriminate against him” stated claim
for sexual harassment under the Eighth Amendment).
Plaintiff fails to state a claim for sexual assault against Defendant Diaz. “The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force
is not of a sort ‘repugnant to the conscience of mankind.’” Hudson, 503 U.S. at 9 (citation
omitted); see, e.g., Watison v. Carter, 668 F.3d 1108, 1112-14 (9th Cir. 2012) (finding no
Eighth Amendment violation where officer allegedly rubbed his thigh against plaintiff’s
thigh while plaintiff was on toilet and began smiling before leaving cell laughing).
Plaintiff’s allegation that Defendant Diaz gave him a “wedgie” fails to state a claim under
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§ 1983 because it is “the sort of trivial use of force that falls below constitutional
recognition.” Morman v. Dyer, No. 16-cv-01523-SI, 2016 WL 5358592, at 3 (N.D. Cal.
Sept. 26, 2016); see also Walker v. Beshara, No. 1:20-cv-01050-JLT-HBK (PC), 2023 WL
8654745, at *6 (E.D. Cal. Apr. 4, 2023) (allegation that officer grabbed plaintiff’s pants
from the back and “forcefully yank[ed] the pants up into [the plaintiff’s] private area and
buttocks[,] causing excruciating pain,” did not state an Eighth Amendment excessive force
claim); Cooper v. Woodford, No. 1:07-cv-00214-AWI-GSA PC, 2008 WL 1734557, at *3,
(E.D. Cal. Apr. 11, 2008) (“Plaintiff’s allegations that Defendant Morales slammed him
into the wall and gave him a wedgie in an effort to provoke him fall short of supporting a
claim that Defendant inflicted upon him physical force which rose to the level of sadistic
and malicious.”). The Court will therefore dismiss Count Three.
G. Medical Care
Not every claim by a prisoner relating to inadequate medical treatment states a
violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show
(1) a “serious medical need” by demonstrating that failure to treat the condition could result
in further significant injury or the unnecessary and wanton infliction of pain and (2) the
defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th
Cir. 2006).
“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d
1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both
know of and disregard an excessive risk to inmate health; “the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate
indifference in the medical context may be shown by a purposeful act or failure to respond
to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett,
439 F.3d at 1096. Deliberate indifference may also be shown when a prison official
intentionally denies, delays, or interferes with medical treatment or by the way prison
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doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05
(1976); Jett, 439 F.3d at 1096.
As noted, 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. Cal. 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. Nev. 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.
Liberally construed, Plaintiff has stated Eighth Amendment claims against
Defendants Benmen and Fulks in Counts Four and Eight. The Court will require
Defendants Benmen and Fulks to answer Counts Four and Eight.
Plaintiff does not state medical care claims against the Defendants who allegedly
assaulted him on February 22 and 28, 2025. Plaintiff does not allege that Defendants Diaz,
Simmons, Ortega, Sanchez, Meyers, Rheem, Bachman, McCormick, or the John Doe COs
II delayed Plaintiff’s transport to the medical unit or otherwise prevented Plaintiff from
obtaining medical treatment.
H. Retaliation
A viable claim of First Amendment retaliation contains five basic elements: (1) an
assertion that a state actor took some adverse action against an inmate (2) because of
(3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise
of his First Amendment rights (or that the inmate suffered more than minimal harm) and
(5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408
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F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir.
1997) (retaliation claim requires an inmate to show (1) that the prison official acted in
retaliation for the exercise of a constitutionally protected right, and (2) that the action
“advanced no legitimate penological interest”). The plaintiff has the burden of
demonstrating that his exercise of his First Amendment rights was a substantial or
motivating factor behind the defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314
(9th Cir. 1989).
1. Count Five
Liberally construed, Plaintiff states a retaliation claim in Count Five against
Defendant Simmons. The Court will require Defendant Simmons to answer Count Five.
Plaintiff’s allegations in Count Five do not state a retaliation claim against the
remaining Defendants. Plaintiff does not allege that on February 22, 2025, Defendants
Benmen, Fulks, Diaz, Ortega, Sanchez, Meyers, Rheem, Bachman, McCormick, or the
John Doe COs II were aware that Plaintiff had submitted a grievance and PREA report
against the CO.
2. Count Nine
Liberally construed, Plaintiff states a retaliation claim in Count Nine against
Defendants Simmons and Ortega. The Court will require Defendants Simmons and Ortega
to answer Count Nine.
Plaintiff’s allegations in Count Nine do not state a retaliation claim against the
remaining Defendants. Plaintiff does not allege that on February 28, 2025, Defendants
Benmen, Fulks, Diaz, Sanchez, Meyers, Rheem, Bachman, McCormick, or the John Doe
COs II were aware that Plaintiff had submitted a grievance and PREA report against the
CO or that he had contacted a lawyer regarding the February 22, 2025 incident.
I. Equal Protection
“To state a § 1983 claim for violation of the Equal Protection Clause, a plaintiff
must show that he was treated in a manner inconsistent with others similarly situated, and
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that the defendants acted with an intent or purpose to discriminate against the plaintiff
based upon membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d
1158, 1166–67 (9th Cir. 2005) (internal quotations omitted). Plaintiff alleges he is African-
American, and during the February 22 and 28, 2025 incidents, Defendants Simmons,
Ortega, Bachman, and Diaz used racial slurs, suggesting their conduct was motivated by
racial bias.
Liberally construed, Plaintiff has stated an equal protection claim in Count Six
against Defendants Simmons, Ortega, Bachman, and Diaz. The Court will require
Defendants Simmons, Ortega, Bachman, and Diaz to answer Count Six.
Plaintiff fails to state an equal protection claim against the remaining Defendants
who were involved in the February 22 and 28, 2025 incidents. Plaintiff alleges no facts to
support that the other Defendants made any racially charged statements or exhibited any
other racial animus toward Plaintiff.
J. Civil Conspiracy
In Count Seven, Plaintiff purports to assert a claim for civil conspiracy under § 1983.
To state a conspiracy claim under § 1983, a plaintiff must allege specific facts showing two
or more persons intended to accomplish an unlawful objective of causing plaintiff harm
and took some concerted action in furtherance thereof. Gilbrook v. City of Westminster,
177 F.3d 839, 856–57 (9th Cir. 1999); Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998)
(to state claim for conspiracy under § 1983, plaintiff must allege facts showing an
agreement among the alleged conspirators to deprive him of his rights); Delew v. Wagner,
143 F.3d 1219, 1223 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff
must allege at least facts from which such an agreement to deprive him of rights may be
inferred). The Court “need not, however, accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended on other grounds, 275 F.3d
1187 (9th Cir. 2001); see also Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th
Cir. 1989) (conclusory allegations of conspiracy did not support a § 1983 claim); Karim-
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Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (“A mere allegation of
conspiracy without factual specificity is insufficient.”).
Plaintiff’s allegations do not state a claim for civil conspiracy. Plaintiff alleges no
facts to support that any Defendants made an agreement to deprive him of his rights. The
Court will therefore dismiss Count Seven.
K. State-Law Claims
As noted, in Count Eleven, Plaintiff purports to assert claims for the crimes of
aggravated assault, sexual assault, and sexual misconduct against Defendants. Neither
Plaintiff nor this Court may initiate criminal charges against any person.
Plaintiff also asserts claims for intentional infliction of emotional distress, medical
negligence, and conversion against Defendants NaphCare, Thornell, Simmons, Diaz,
Ortega, Sanchez, Meyers, Rheem, Benmen, Bachman, and Fulks. Plaintiff may not assert
more than one claim per count, but in Count Eleven, he has asserted five claims against
nine Defendants. Plaintiff’s vague and conclusory allegations in Count Eleven are
insufficient to state a claim. The Court will therefore dismiss Count Eleven.
V. Plaintiff’s Motions
A. Injunctive Relief
1. Plaintiff’s Allegations
In his first Motion for Injunctive Relief, Plaintiff seeks a “temporary and/or
permanent injunction or order of protection” against ADCRR “employees and policies that
have systematically targeted [him].” (Doc. 6.) Plaintiff alleges the following:
On February 12, 2026—two days after he filed the Complaint in this case—
Defendant Diaz and three other ADCCR officers who are not named in the Complaint
arrived at Plaintiff’s cell to escort him to recreation, although Plaintiff had not signed up
for recreation. (Doc. 6 at 2.) The officers “stated that they knew of the pending litigation
that had been submitted.” (Id.) Shortly thereafter, Plaintiff called the institutional medical
emergency line to make a mental health emergency request based on post-traumatic stress
disorder, anxiety, and panic attacks induced by the “harassment [and] intimidation tactics
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deployed by Defendant Diaz[]” and other officers who had knowledge of the Complaint.
(Id. at 2-3.)
Later that day, a sergeant returned to Plaintiff’s cell with Defendant Diaz and three
other COs. (Id. at 3.) The officers tried to “coerce” Plaintiff out of his cell for a shower.
(Id.) At the time, Plaintiff had not been out of his cell since January 19, 2026; had not had
a shower since January 4, 2026; and had not had recreation since October 18 or 19, 2025.
(Id.) Plaintiff “was questioned” and harassed about this case “mere hours” after it was
filed. (Id.) The sergeant threw Plaintiff’s medical prescription on the floor, and the officers
left. (Id.) The same day, the second shift “refused to issue the last meal,” per the sergeant.
(Id.)
On February 13, 2026, Plaintiff was denied three consecutive meals. (Id.) The next
day, Plaintiff again was denied three consecutive meals. (Id. at 3-4.) He also refused
outside recreation, a shower, and scheduled x-rays because he feared for his life, health,
safety, and security. (Id. at 4.) On one of those dates, the sergeant opened Plaintiff’s food
slot but “refused to feed” Plaintiff and instead “stole Plaintiff’s weekly toilet paper
allotment.” (Id.)
Between February 15 and 18, 2026, the “back end” shift rotation for Browning Unit
started and ended. (Id.) Plaintiff received all his meals with no issues. (Id.) No officer
on the “back end” shift is listed as a Defendant in this case. (Id.) On February 18, 2026,
Defendant Ortega “made an inappropriate gesture to mimic blowing a kiss and winking his
eye which is deemed to be sexual harassment” under ADCRR Department Order 501. (Id.)
While Defendant Ortega had his back to the surveillance camera, Plaintiff submitted a
PREA complaint and a complaint to the inmate emergency PREA institutional hotline.
(Id.) Plaintiff also made a call to the institutional emergency medical/mental health call
center seeking mental health treatment for PTSD, anxiety, and a panic attack “induced by”
Defendant Ortega. (Id. at 4-5.) Plaintiff submitted a message/complaint to the inmate
ombudsman and a complaint to the ADCRR injunction portal. (Id. at 5.) Plaintiff also
spoke with the Court Monitor “concerning issues listed in this statement of facts.” (Id.)
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On the evening of February 18, 2026, a sergeant refused to issue Plaintiff’s evening
meal with no justification. (Id.) The next morning, officers refused to issue Plaintiff’s
morning meal with no justification. (Id.) Plaintiff made complaints to the inmate
ombudsman, the institutional medical/mental health emergency hotline, and the injunction
portal. (Id.) Officers refused to issue Plaintiff’s noon meal that day, without justification.
(Id.)
In his second Motion for Injunctive Relief, Plaintiff “seek[s] relief in the form of an
injunction to keep” Defendants Ortega and Diaz “away from him” and an immediate
transfer to any other facility of the Browning Unit if Defendants “are unable to comply
with a court injunction.” (Doc. 8 at 14.) Plaintiff alleges the following:
On March 18, 2026, Plaintiff received an ADCRR Institutional Disciplinary Report,
which Defendant Rheem had issued on March 13, 2026. (Id. at 2.) According to Plaintiff,
the report is “fraudulent” and is “a form of retaliation designed to place [his] life, health,
safety, security and well[-]being in jeopardy by labeling him as a sex offender or a sexually
devi[a]nt predator in prison.” (Id.)
Plaintiff alleges that he is being “systematically targeted” by the Defendants he has
named in his cases in this Court, who “use physical intimidation tactics designed to create
a hostile environment by instilling fear into [him].” (Id. at 13.) Plaintiff asserts that
Defendants’ behavior “serves no legitimate penological interest and creates an unsafe,
unhealthy atmosphere” for him. (Id.) Plaintiff states that he “reserves the right to protect
and defend himself against any perceived threat upon his life, persons, or property by using
any and all force necessary including legal in an offensive or defensive manner to preserve
his life.”2
2 The Court construes this statement as a threat to ADCRR officers. The Court will
not tolerate threats of violence, and any further threats may result in dismissal of this case.
See Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991) (federal courts have the inherent
power to “fashion an appropriate sanction for conduct which abuses the judicial process”);
Ewing v. Freedom Forever, LLC, No.: 23-CV-1240 JLS (AHG), 2024 WL 4668144, at *3
(S.D. Cal. Nov. 4, 2024) (“Terminating sanctions are more than justified in situations of
repeated threats of violence.”).
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2. Discussion
Whether to grant or deny a motion for a temporary restraining order or preliminary
injunction is within the Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d
1130, 1132-33 (9th Cir. 1979).
a. Temporary Restraining Order
A temporary restraining order can be issued without notice
only if: (A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and (B) the movant’s attorney certifies
in writing any efforts made to give notice and the reasons why
it should not be required.
Fed. R. Civ. P. 65(b)(1) (emphasis added). See also LRCiv 65.1 (“Ex parte restraining
orders shall only issue in accordance with Rule 65, Federal Rules of Civil Procedure.”).
Plaintiff has not shown that he will suffer irreparable injury before Defendants can
be heard in opposition and has not certified the “efforts made to give notice and the reasons
why it should not be required.” Fed. R. Civ. P. 65(b)(1)(B). Because the request for a
temporary restraining order fails to comply with Rule 65(b)(1)(B), the Court, in its
discretion, will deny Plaintiff’s request for a temporary restraining order without prejudice.
See LRCiv 65.1.
b. Motion for Preliminary Injunction
To obtain a preliminary injunction, the moving party must show “that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The
moving party has the burden of proof on each element of the test. Envtl. Council of
Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).
Plaintiff has not shown that he is likely to suffer irreparable harm in the absence of
an injunction. See Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016)
(explaining that “[s]peculative injury does not constitute irreparable injury sufficient [to
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obtain a preliminary injunction]”). The Court will therefore deny his requests for
injunctive relief without prejudice.
B. Motion for Preservation of Evidence
In his Motion for Preservation of Evidence, Plaintiff asks the Court to order
Defendants and ADCRR to preserve security camera footage, body worn camera footage,
prison unit logs, and employee roster attendance records. The Court will deny Plaintiff’s
requests. As discussed, the Court will direct service on Defendants Simmons, Ortega,
Sanchez, Meyers, Rheem, Bachman, McCormick, Diaz, Benmen, Fulks, and Levine. After
one or more Defendants have been served, the Court will issue a scheduling order that sets
forth deadlines for discovery. Until then, any motions for discovery are premature and will
be denied.
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,
Rehabilitation & Reentry Complex or Private Facility subject to General Order 23-19,
Plaintiff can comply with Federal Rule of Civil Procedure 5(d) by including, with every
document Plaintiff files, a certificate of service stating that this case is subject to General
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Order 23-19 and indicating the date the document was delivered to prison officials for filing
with the Court. Plaintiff is not required serve Defendants with copies of every document
or provide an additional copy of every document for the Court’s use.
If Plaintiff is transferred to a facility other than one subject to General Order 23-19,
Plaintiff will be required to: (a) serve Defendants, or counsel if an appearance has been
entered, a copy of every document Plaintiff files, and include a certificate stating that a
copy of the filing was served; and (b) submit an additional copy of every filing for use by
the Court. See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in
the filing being stricken without further notice to Plaintiff.
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) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) As required by the accompanying Order to the appropriate government
agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee
of $35.49.
(3) Plaintiff’s Motions (Docs. 6, 7, and 8) are denied without prejudice.
(4) Counts Three, Seven, Eleven, and Twelve are dismissed without prejudice.
(5) Defendants NaphCare, Thornell, Rogers, and John Does 7-10 are dismissed
without prejudice.
(6) If Plaintiff attempts to amend to address the shortcomings identified in this
Order, the amended complaint must be filed on the court-approved form and retyped or
rewritten in its entirety (including those claims and Defendants that were not dismissed),
and Plaintiff must comply with Rule 15 of the Federal Rules of Civil Procedure and Rule
15.1 of the Local Rules of Civil Procedure.
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(7) Defendants Simmons, Ortega, Sanchez, Meyers, Rheem, Bachman, and
McCormick must answer Count One. Defendants Diaz, Simmons, Ortega, Meyers,
Sanchez, Rheem, and McCormick must answer Count Two. Defendants Benmen and Fulks
must answer Counts Four and Eight. Defendant Simmons must answer Count Five.
Defendants Simmons, Ortega, Bachman, and Diaz must answer Count Six. Defendants
Simmons and Ortega must answer Count Nine. Defendant Levine must answer Count Ten.
(8) 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 Simmons, Ortega, Sanchez, Meyers, Rheem,
Bachman, McCormick, Diaz, Benmen, Fulks, and Levine.
(9) Plaintiff must complete3 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.
(10) If Plaintiff does not either obtain a waiver of service of the summons or
complete service of the Summons and Complaint on a Defendant within 90 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).
(11) The United States Marshal must retain the Summons, a copy of the
Complaint, and a copy of this Order for future use.
(12) 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.
3 If a Defendant is an officer or employee of the Arizona Department of Corrections,
Rehabilitation & Reentry, Plaintiff must 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, Rehabilitation & Reentry unless
the officer or employee works there.
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(13) A Defendant who agrees to waive service of the Summons and Complaint
must return the signed waiver forms to the United States Marshal, not the Plaintiff, within
30 days of the date of the notice and request for waiver of service pursuant to Federal
Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service.
(14) 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, 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, 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.
(15) Defendants Simmons, Ortega, Sanchez, Meyers, Rheem, Bachman,
McCormick, Diaz, Benmen, Fulks, and Levine must answer the relevant portions of the
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.
(16) 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
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does not identify the specific Defendant by name on whose behalf it is filed.
(17) Within 120 days from the filing date of this Order, Plaintiff must file a
“Notice of Substitution,” substituting the John Doe Defendants’ actual names. The Court
may dismiss the John Doe Defendants if Plaintiff fails to timely file a notice of substitution,
unless Plaintiff seeks and is granted an extension of time.
(18) This matter is referred to Magistrate Judge Alison S. Bachus 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).
Dated this 14th day of April, 2026.
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