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Parsons v. State

United States District Court, Ninth Circuit

May 23, 2013

John James Parsons, Plaintiff,
v.
State of Arizona, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, District Judge.

Plaintiff John James Parsons, who is confined in the Fourth Avenue Jail in Phoenix, Arizona, has filed a pro se civil rights Complaint (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). Plaintiff has also filed a request ("Motion") for the Court to refer to him as "John: of the Parsons family" and to order the jail where he is incarcerated to provide legal materials. (Doc. 5.) The Court will deny Plaintiff's Motion and dismiss the Complaint with leave to amend.[1]

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 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 not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory fee will be collected monthly in payments of 20% of the previous month's income 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, 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 )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's Complaint will be dismissed for failure to state a claim, but because the Complaint may possibly be saved by amendment, the Court will dismiss the Complaint with leave to amend.

III. Complaint

Plaintiff alleges one count in his Complaint-that his "rights as a sovereign freeman" have been violated. (Doc. 1 at 3.) Plaintiff asserts this claim pursuant to the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Fourteenth Amendments. Plaintiff names as Defendants the State of Arizona and Governor Jan Brewer, the Maricopa County Sheriff's Office ("MCSO") and Sheriff Joe Arpaio, the Arizona Department of Public Safety and its "Peace Officers, " and the City of Mesa Police Department and its "Peace Officers." ( Id. at 2.) Plaintiff does not allege any facts connecting any particular Defendant(s) to an alleged violation of his rights. Plaintiff merely claims he was "arrested and held without bond. [I] [h]ave had my personal property search[ed] and seized and forf[e]ited. I am being tried as a legal ficti[t]ious person, not as the flesh and blood sovereign human being." ( Id. at 3.) Plaintiff seeks an "acquit[t]al of all charges, " the return of his property, and $500, 000 in damages. ( Id. at 4.)

IV. Failure to State a Claim

Plaintiff filed his Complaint on the court-approved form for prisoner civil rights complaints, and he asserted that this Court has jurisdiction pursuant to the United States Constitution and the Bill of Rights. Because Plaintiff seeks relief against persons allegedly acting under color of state law, the Court construes the Complaint as brought under 42 U.S.C. § 1983. See Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (Section 1983 "is not itself a source of substantive rights, ' but merely provides a method for vindicating federal rights elsewhere conferred.'"); see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995) (Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the United States Constitution and federal law).

To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A plaintiff must also 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. State of Arizona and State Agencies

Plaintiff names the State of Arizona and the Arizona Department of Public Safety as Defendants. Ordinarily, under the Eleventh Amendment to the Constitution of the United States, neither a state nor a state agency may be sued in federal court without its consent. Pennhurst Sate Sch. & Hosp., 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Further, neither the State of Arizona nor any State agency is a "person" within the meaning of § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989) (holding that the term "person" as used in § 1983 did not include a State or State agency). For both reasons, the State of Arizona and the Arizona Department of Public Safety will be dismissed as Defendants in this case.

B. Governor Brewer

Plaintiff also sues Arizona Governor Brewer. Eleventh Amendment immunity bars suit for damages against Brewer in her official capacity for violations of federal law, but does not bar suit for declaratory or injunctive relief against her. See Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012). However, an "individual state official sued must have some connection with the enforcement of the act.'" Id. (quoting Ex parte Young, 209 U.S. 123, 157 (1908)). Further, "that connection must be fairly direct; a generalized duty to enforce state law or general supervisory power over persons responsible for enforcing the challenged provision will not subject an official to suit.'" Id. (quoting L.A. County Bar Ass'n v. Eu, 979 F.3d 697, 704 (9th Cir. 1992)).

Plaintiff fails to allege any facts connecting Brewer with the enforcement of any act. Therefore, Plaintiff fails to state a claim against her and she will be dismissed.

C. City of Mesa Police Department

Plaintiff sues the City of Mesa Police Department. A municipal police department is not a "person" within the meaning of § 1983. See, e.g., Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504 (D. Conn. 2008); Pahle v. Colebrookdale Twp., 227 F.Supp.2d 361 (E.D. Pa. 2002). However, a municipality is a "person" for purposes of § 1983, i.e., a municipality such as a city or county, may be sued. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). To state a claim against a municipality under § 1983, a plaintiff must allege facts to support that his constitutional rights were violated pursuant to a policy or custom of the municipality. Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001) (citing Monell, 436 U.S. at 690-91); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989)). Thus, a municipality may not be sued solely because an injury was inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Therefore, a § 1983 claim against a municipal defendant "cannot succeed as a matter of law" unless a plaintiff: (1) contends that the municipal defendant maintains a policy or custom pertinent to the plaintiff's alleged injury; and (2) explains how such policy or custom caused the plaintiff's injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant to Fed.R.Civ.P. 12(b)(6)).

The City of Mesa Police Department is not a proper Defendant and it will be dismissed. To the extent Plaintiff is suing the City of Mesa, he fails to allege facts to support that the City of Mesa maintained a policy or custom that resulted in the violation of Plaintiff's federal constitutional rights or to explain how his injuries were caused by any municipal policy or custom. Accordingly, Plaintiff fails to state a claim against the City of Mesa.

D. MCSO

Plaintiff sues the MCSO; however, it is not a proper defendant under § 1983. Claims under § 1983 are directed at "bodies politic and corporate." Monell, 436 U.S. at 688-89. Under the Civil Rights Act of 1871, Congress intended municipalities and other local government units to be included among those persons to whom § 1983 applies. Id. at 689-690. In Arizona, the responsibility for operating jails and caring for prisoners is placed by law upon the sheriff and the County. See A.R.S. §§ 11-251(8), 11-291(A), 11-441(A)(5), 31-101. MCSO is simply an administrative creation of the sheriff to allow him to carry out his statutory duties; it is not a "person" amenable to suit pursuant to § 1983. See, e.g., Petaway. 541 F.Supp.2d at 510; Pahle, 227 F.Supp.2d at 367. Accordingly, MCSO will be dismissed from this action as the Defendant.

E. Sheriff Arpaio

Plaintiff also sues Sheriff Arpaio. While Arpaio may be sued for constitutional violations, Plaintiff fails to state a claim against him.

"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). For an individual to be liable in his official capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or custom. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001). Further, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone who allegedly violated a plaintiff's constitutional rights does not make him liable. Monell, 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his individual capacity, "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045.

Plaintiff fails to allege any facts against Arpaio. He has not alleged facts to support that Arpaio enacted or enforced a policy, custom, or practice that resulted in the denial of Plaintiff's constitutional rights. He also has not alleged facts to support that Arpaio directly violated his constitutional rights or that Arpaio was aware that Plaintiff's rights were being violated but failed to act. Accordingly, Arpaio will be dismissed.

F. Count I

Plaintiff designates his claims as a violation of his rights "as a sovereign freeman" under the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Fourteenth Amendments. He alleges only that he has been arrested and held without bond. Have had my personal property search[ed] and seized and forfeited. I am being tried as a legal fictitious person, not as the flesh and blood sovereign human being."

In his claim, Plaintiff has failed to allege any facts showing that he suffered a specific injury as a result of the conduct of a particular Defendant or Defendants. Nor has he alleged an affirmative link between any injury he has sustained and the conduct of any Defendant responsible for the alleged injury. In essence, Plaintiff has not alleged facts to support when, where, how, and by whom his constitutional rights were allegedly violated. Therefore, Plaintiff fails to state a claim and this Complaint will be dismissed with leave to amend.

G. Fourth and Fifth Amendment Claims

Although far from clear, Plaintiff may be attempting to assert violations of the Fourth and/or Fifth Amendments where he alleges that his personal property was "search[ed] and seized and forf[e]ited."

The Fourth Amendment protects the "right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" absent a warrant supported by probable cause. U.S. Const. amend. IV. However, there are exceptions to the warrant requirement. See e.g., United States v. Jenkins, 876 F.2d 1085, 1088 (2d Cir. 1989) (consent); United States v. Soussi, 29 F.3d 565, 571-72 (10th Cir. 1994) (consent); Roberts v. Spielman, 643 F.3d 899 (11th Cir. 2011) (exigent circumstances); United States v. Singleton, 922 F.Supp. 1522 (D. Kan. 1996) (renter lacks reasonable expectation of privacy in rental unit following eviction). Here, Plaintiff fails to allege the most basic facts such as when the search and seizure occurred, who conducted the search and seizure, the property taken, and whether the search and seizure was conducted pursuant to a warrant. If there was a warrant, Plaintiff does not allege that the warrant was invalid or did not authorize the search and seizure of any property in question. Accordingly, to the extent that Plaintiff asserts a violation of his Fourth Amendment rights based on search or seizure, he fails to state a claim and it will be dismissed.

Plaintiff may also be attempting to assert a taking in violation of the Fifth Amendment. The Fifth Amendment's Takings Clause prohibits the taking of private property for public use without just compensation. U.S. Const. amend. V. "The takings clause of the Fifth Amendment protects private property from being taken for public use without just compensation." Gammoh v. City of La Habra, 395 F.3d 1114, 1122, amended in part on other grounds, 402 F.3d 875 (9th Cir. 2005); Schneider v. California Dep't of Corr. & Rehab., 151 F.3d 1194, 1198 (9th Cir. 1998). To prove that a "taking" has occurred in violation of the Fifth Amendment, a plaintiff must demonstrate that (1) the subject matter is property in which he has an interest and that (2) there has been a taking of that property for public use for which compensation is due. Engquist v. Oregon Dep't of Agric., 478 F.3d 985, 1002 (9th Cir. 2007); Allen v. Wood, 970 F.Supp. 824, 831 (E.D. Wash. 1997). Here, Plaintiff has not asserted any facts to support a Fifth Amendment takings violation such as the property in question, whether he has an interest in that property, or that compensation is due for a taking of that property. Accordingly, Plaintiff fails to state a Fifth Amendment takings claim.

H. Pre-Trial Detention

Plaintiff alleges in his Complaint that he has been "arrested and held without bond." To the extent that Plaintiff seeks to challenge his pre-trial detention, he must file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3), which provides that "the writ of habeas corpus [extends to persons who are]... in custody in violation of the Constitution or laws or treaties of the United States...." See McNeeley v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003); Carden v. State of Montana, 626 F.2d 82, 83 (9th Cir. 1980) ("district court had jurisdiction, under 28 U.S.C. § 2241, to issue [a] pretrial writ of habeas corpus"). However, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents a federal court in most circumstances from directly interceding in ongoing state criminal proceedings. The Younger abstention doctrine also applies while a case works its way through the state appellate process, if a prisoner is convicted. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369 (1989). Only in limited, extraordinary circumstances will the Younger doctrine not bar federal interference with ongoing (non-final) state criminal proceedings. Such circumstances include when a prisoner alleges that he is being subjected to double jeopardy. See Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992). Speedy trial claims may also be reviewed if a detainee is seeking to compel the state to bring him to trial, rather than seeking dismissal of the charges, and the detainee has exhausted all of his state court remedies. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-90 (1973); see In re Justices of Superior Court Dep't of Mass. Trial Court, 218 F.3d 11, 18 & n.5 (1st Cir. 2000).

To the extent Plaintiff is attempting to challenge his arrest and detention, Plaintiff must file a petition for writ of habeas corpus under 28 U.S.C. § 2241 and allege grounds that fall within the very limited circumstances in which a federal court may intercede in ongoing state criminal proceedings under the Younger doctrine. Plaintiff has not done so here. He does not assert a violation of the Fifth Amendment's Double Jeopardy Clause, or facts to support such violation, nor does he allege that his speedy trial rights have been violated for which he seeks to compel the state to bring him to trial. Thus, Plaintiff has not asserted a basis for a federal court to interfere in state criminal proceedings. Because Plaintiff's grounds for relief do not fall within the very limited circumstances in which a federal court may intercede in ongoing state criminal proceedings under the Younger doctrine, any such claim is dismissed.

V. Motion

Plaintiff's request for the Court to refer to him as "John: of the Parsons family" or "John: Parsons" is denied. A review of records available on-line reveal that Plaintiff is in custody and awaiting trial in Maricopa County Superior Court, cases ##CR2013-001106, 001, CR2012-100178-002, CR2012-106265-002, and CR2012-158145-001.[2] Plaintiff's name in those cases is "John J[.] Parsons"[3] or "John James Parsons."[4] Moreover, Plaintiff is being held in the Maricopa County jail under the name John James Parsons, and he may not receive mail addressed to any other name. Finally, because Plaintiff has presented no evidence that his legal name is "John: of the Parsons family" or "John: Parsons, " his request is denied.

Plaintiff also asserts in his Motion that Inmate Legal Services ("ILS") has either not provided documents he has requested or not provided documents in a timely manner. Plaintiff has received various responses to his requests from ILS, including the response that "ILS does not supply criminal case law to inmates with attorney[;] request criminal case law from your attorney." (Doc. 5 at 2.) Plaintiff asks the Court to "order those involved to supply what all of what is requested that they (I.L.S.) has access to and to lift my book and mail restrictions here so my family and friends may supply what is actually not physically available[.]" ( Id. )

The right of meaningful access to the courts prohibits state officials from actively interfering with inmates' attempts to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring petitions or complaints to federal court and not a right to discover such claims or even to litigate them effectively once filed with a court. Id. at 354; see also Cornett v. Donovan, 51 F.3d 894, 899 (9th Cir. 1995) ("The right of access is designed to ensure that a habeas petition or civil rights complaint of a person in state custody will reach a court for consideration.") The right "guarantees no particular methodology but rather, the conferral of a capability - the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis, 518 U.S. at 356.

As a matter of standing, for an access to courts claim, a plaintiff must show that he suffered an "actual injury" with respect to contemplated litigation; the plaintiff must demonstrate that the conduct of the defendants prevented him from bringing to court a nonfrivolous claim that he wished to present. Lewis, 518 U.S. at 351-53. An "actual injury" is "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a claim." Id. at 348.

A pre-trial detainee's right of access to the courts for the detainee's criminal prosecution is guaranteed by the state's offer of a criminal defense attorney. The Ninth Circuit and other courts have uniformly held that the right of access to the courts cannot be violated when an inmate is offered the assistance of court-appointed counsel. See United States v. Wilson, 690 F.2d 1267, 1271-72 (9th Cir. 1982) ("The offer of court-appointed counsel to represent [Defendant] satisfied the Fifth Amendment obligation to provide meaningful access to the courts."); accord Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996) ( per curiam ) ("having rejected the assistance of court-appointed counsel, [the defendant] had no constitutional right to access a law library in preparing the pro se defense of his criminal trial").

In this case, Plaintiff has not shown that he has suffered an "actual injury" with respect to contemplated litigation. Further, the state court record shows that Plaintiff is represented by counsel.[5] Therefore, Plaintiff has not been denied his right of access to the courts and his Motion is denied.

VI. Leave to Amend

For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.

Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.

A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

VII. Warnings

A. Release

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. 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

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.

D. Possible "Strike"

Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

E. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) 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 not assessed an initial partial filing fee.

(3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed file a first amended complaint in compliance with this Order.

(4) Plaintiff's Motion (Doc. 5) is denied.

(5) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as "strike" under 28 U.S.C. § 1915(g).

(6) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.


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