Stallings v. Unknown Party

1 WO ASH 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Andre Stallings, No. CV 21-01328-PHX-JAT (JZB) 10 Plaintiff, v. ORDER Unknown Party, et al., Defendants.

15 Plaintiff Andre Stallings, 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) and an Application to Proceed In Forma Pauperis (Doc. 2). Plaintiff has also filed a Motion for Appointment of Counsel (Doc. 4). The Court will deny the Motion, order Defendants Giles and Villalonzo to answer the Complaint, and give Plaintiff 120 days to discover the identity of “CO II John Doe.”

21 I. Application to Proceed In Forma Pauperis and Filing Fee 22 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 23 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 $38.27. The remainder of the fee will be collected monthly in payments of 20% of the previous month’s income credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00.

27 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.

1 II. Statutory Screening of Prisoner Complaints 2 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).

8 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. 14 “[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.

23 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 27 U.S. 89, 94 (2007) (per curiam)).

28 . . . .

1 III. Complaint 2 In his three count Complaint, Plaintiff names Correctional Officer Giles, Sergeant Villalonzo, and an unknown officer referred to as “CO II John Doe” as Defendants.

4 Plaintiff seeks monetary relief, and punitive damages.

5 Plaintiff’s claims arise from a common core of operative facts, as follows: Plaintiff is Muslim, wears a beard as part of his spiritual practice, and has been permitted to do so without problem for many years while incarcerated. On July 31, 2020, despite being aware of Plaintiff’s faith and the centrality of his beard to it, and without issuing any disciplinary reports or other finding that Plaintiff’s beard was no longer permitted, Defendant CO II John Doe forcibly shaved off Plaintiff’s beard while Defendants Giles and Villalonzo watched. While doing so, Defendant CO II John Doe made statements such as “I’m going to teach you how we do sex offenders up here.” While cutting Plaintiff’s beard, Defendant John Doe cut Plaintiff’s face several times, and also “slammed” Plaintiff’s head against a wall. Defendants Giles and Villalobos did not intervene at any time.

15 Accordingly, Plaintiff alleges that Defendants violated his First Amendment right to freely exercise his religion (Count One), used excessive force against him in violation of the Eighth Amendment (Count Two), and violated his due process rights by failing to state any reason or provide Plaintiff any recourse before cutting his beard (Count Three).

19 Liberally construed, Plaintiff has sufficiently alleged claims against Giles and Villalonzo in all three counts, and those Defendants will thus be required to answer the Complaint.

21 However, the Court will not order service on “CO II John Doe” at this time. Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to include the names of the parties in the action. As a practical matter, it is impossible in most instances for the United States Marshal or his designee to serve a summons and complaint or amended 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)).

3 Accordingly, the Court will give Plaintiff 120 days from the filing date of this Order to discover, by subpoena or otherwise, the actual name of “CO II John Doe,” and to file a Notice with the Court substituting the actual name of CO II John Doe. The Clerk of Court will be directed to provide Plaintiff with a blank subpoena to assist him in doing so. IV. Motion for Counsel 8 There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, the court may request an attorney to represent any person unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional circumstances requires an evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these factors is dispositive and both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

18 Having considered both elements, it does not appear at this time that exceptional circumstances are present that would require the appointment of counsel in this case.

20 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will deny without prejudice Plaintiff’s Motion for Appointment of Counsel.

22 V. Warnings 23 A. Release 24 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.

1 B. Address Changes 2 If Plaintiff’s address changes, Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

6 C. Copies 7 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.

12 D. Possible Dismissal 13 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).

17 IT IS ORDERED: 18 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

19 (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 $38.27.

22 (3) Defendants Giles and Villalonzo must answer the Complaint.

23 (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 Giles and Villalonzo.

26 (5) Plaintiff must complete1 and return the service packet to the Clerk of Court If a Defendant is an officer or employee of the Arizona Department of Corrections, 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 within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.

3 (6) 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).

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

10 (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.

14 (9) 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.

18 (10) 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: 22 (a) personally serve copies of the Summons, Complaint, and this Order 23 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 24 and 25 (b) within 10 days after personal service is effected, file the return of 26 service for Defendant, along with evidence of the attempt to secure a waiver of 27 service of the summons and of the costs subsequently incurred in effecting service Arizona Department of Corrections unless the officer or employee works there.

1 upon Defendant. The costs of service must be enumerated on the return of service 2 form (USM-285) and must include the costs incurred by the Marshal for 3 photocopying additional copies of the Summons, Complaint, or this Order and for 4 preparing new process receipt and return forms (USM-285), if required. Costs of 5 service will be taxed against the personally served Defendant pursuant to Rule 6 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 7 Court.

8 (11) Defendants Giles and Villalonzo must answer 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.

11 (12) 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.

14 (13) Plaintiff is granted 120 days from the filing date of this Order in which to | discover by subpoena, or otherwise, the actual identity of “CO II John Doe,” and to file a 16| “notice of substitution” providing that Defendant’s actual name.

17 (14) The Clerk of Court must issue a subpoena in blank and send it to Plaintiff.

18 (15) _ If Plaintiff fails to file a “notice of substitution” within 120 days from the | filing date of this Order, the Clerk of Court must dismiss Defendant “CO II John Doe” | without prejudice and without further notice to Plaintiff.

21 (16) 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).

24 Dated this 28th day of September, 2021.

26 a 28 James A. Teil Org Senior United States District Judge