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Ray v. MacDonald

United States District Court, Ninth Circuit

June 13, 2013

Edward Vincent Ray, Jr., Plaintiff,
v.
James MacDonald, et al., Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Plaintiff Edward Vincent Ray, Jr., who is a California inmate confined in the La Palma Correctional Center (LPCC)[1], a Corrections Corporation of America (CCA) facility in Eloy, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. [2] (Doc. 1, 2.) Plaintiff also filed a motion for injunctive relief, a declaration, and a motion to expedite his motion for injunctive relief. (Doc. 4, 5, 7.) The Court will dismiss the Complaint for failure to state a claim with leave to amend and will deny the motions.

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 , 129 S.Ct. 1937, 1949 (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 1950. 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 1951.

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). The Court will dismiss Plaintiff's Complaint 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 two counts for violation of his First Amendment mail rights. Plaintiff sues the following LPCC employees: Warden James MacDonald; Mailroom Supervisor Gary L. Ralston; Donald Justus, Jr.; and Ashlee Pratt. Plaintiff seeks injunctive, compensatory, and punitive relief.

Background

Plaintiff (Plaintiff or Ray Jr.) and his son, Edward V. Ray, III (Ray III), each filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the Northern District of California challenging their respective California state convictions. See Ray v. Cate, No. C-10-1582 (Ray Jr.); Ray v. Cate, No. C-11-1604 (Ray III). Both were convicted in some of the same robberies, but each was also convicted of offenses for which the other was not. See Ray, No. C-10-1582, doc. 27. On December 2, 2011, the District Court for the Northern District of California designated the habeas cases as related. Id.[3] Both habeas cases remain pending.

Except as otherwise indicated, Plaintiff alleges, or attachments to the Complaint or the motion for injunctive relief reflect, the following facts: on December 29, 2009, the CDCR authorized, via Form 1074, correspondence between Plaintiff and Ray III. (Doc. 5, Ex. B.) At the time, Plaintiff was incarcerated in Solano State Prison in Vacaville, California, and Ray III was incarcerated in the North Fork Correctional Facility in Sayre, Oklahoma. (Doc. 5 at 3.) On August 29, 2012, Ray III was transferred to LPCC. (See Doc. 5, Ex. D.) On November 6, 2012, Plaintiff was transferred to LPCC, but assigned to a different unit than his son. (Id.)

On November 19, 2012, Plaintiff submitted an "Inmate/Parolee Request for Interview, Item or Service" (Inmate Request) to LPCC mail room staff. (Doc. 5, Ex. D.) Plaintiff reported that his son was also at LPCC and that he believed that his mail was being mixed up with his son's and asked mail room staff to verify their inmate numbers to avoid mix-ups. (Id.)

On December 5, 2012, Plaintiff submitted another Inmate Request to mail room staff. In this Inmate Request, Plaintiff stated that he and his son had been approved to correspond via Form 1074 and that they had an "active pending case, " but that he was not receiving mail from his son.[4] (Doc. 5, Ex. E.) Plaintiff asked for an explanation for delays in receiving mail from his son, when they were both held at LPCC, and asserted that LPCC was violating California prison regulations. (Id.) About the same time, Plaintiff submitted another Inmate Request to Defendant Ralston's attention in which Plaintiff accused Ralston of violating Plaintiff's constitutional rights by intercepting his mail. (Doc. 5, Ex. F.) In a response dated December 7, 2012, Ralston told Plaintiff to submit another Form 1074, which he provided to Plaintiff. (Id.) It is unclear whether Ralston knew of the prior approval or whether that approval remained in effect despite Plaintiff's transfer from Solano.

On December 10, 2012, Plaintiff filed an Inmate Appeal concerning the Inmate Requests submitted on November 19 and December 5 and 7, 2012. (Doc. 5, Ex. G.) On December 19, 2012, Plaintiff submitted an Inmate Request to Warden MacDonald asking why MacDonald had not responded to his Inmate Appeal. (Doc. 1, Ex. 1; 5, Ex. G.) In a January 7, 2013 response, MacDonald stated that Plaintiff continued to violate policy by inserting "your son's mail into yours, " directed Plaintiff to stop the practice, and warned Plaintiff that he would lose his inmate-to-inmate mail privileges. (Doc. 1, Ex. 1.) On January 8, 2013, Plaintiff submitted a request for supervisor review stating that MacDonald's response made no sense and that Plaintiff had been sending his son documents pertaining to their related pending cases.[5] (Id.) Although not without ambiguity, MacDonald apparently referred to Plaintiff's inclusion of legal pleadings or filings with his correspondence.

On January 7, 2013, Plaintiff submitted an Inmate Request to D. Doty, which was referred to Ralston. (Doc. 1, Ex. 3.) In it, Plaintiff complained that California prison regulations required that mail be delivered to an inmate as soon as possible, but not later than seven days from receipt of the mail. (Id.) Plaintiff asserted that his "legal mail" from California had taken more than the seven days to be delivered and asked that the delay in delivery of mail be rectified. (Id.) On January 9, 2013, Ralston responded that legal mail was processed every day that it was received, that it had priority, and that it could take 3-5 days to receive mail from the post office. (Id.) Ralston also noted that delays before mail arrived at LPCC were beyond LPCC's control. (Id.) Plaintiff submitted a request for supervisor review claiming that Ralston was harassing him and disputing Ralston's contention that delays occurred prior to arrival of mail at LPCC.[6] (Id.)

On January 8, 2013, Plaintiff submitted an Inmate Request to Ralston. (Doc. 1, Ex. 2.) In it, Plaintiff stated that he was going to sue Ralston for failing to process mail between him and his son as co-litigants and approved correspondents. (Id.) On January 9, 2013, Ralston responded that Plaintiff was violating LPCC's policy for correspondence. (Id.) On January 10, 2013, Plaintiff submitted another request for supervisor review. (Id.)

Plaintiff generally contends that since his arrival at LPCC, correspondence sent by him to his son has been held and returned to him. He contends that coffee, or some other liquid, was spilled on one piece of returned correspondence, which damaged documents included in the correspondence. Plaintiff claims that he has not been afforded notice and an opportunity to appeal the "confiscation" of his outgoing mail to his son and that he has not remains distinct. received timely responses to his grievances regarding "seizures" of his mail to his son.[7] Plaintiff also generally alleges that correspondence from his son to him has been seized without notice and an opportunity to be heard or to appeal such seizure. Plaintiff contends that these acts violate prison regulations and state and federal law.

IV. Failure to State a Claim

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. Outlander , 879 F.2d 583, 587 (9th Cir. 1989). Negligence is not sufficient to state a claim under § 1983. Daniels v. Williams , 474 U.S. 327, 330-31 (1986). 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. Justus and Pratt

Plaintiff sues Donald Justus, Jr., and Ashlee Pratt. Plaintiff fails to allege their connection, if any, to LPCC.[8] Thus, it is unclear whether they may be properly sued under § 1983, i.e., that they acted under color of state law. Moreover, Plaintiff fails to allege any facts against either Justus or Pratt.

To state a claim against a defendant, "[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 v. Dep't of Soc. Servs. , 436 U.S. 658, 691 (1978); 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. In addition, where a defendant's only involvement in allegedly unconstitutional conduct is the denial of administrative grievances, the failure to intervene on a prisoner's behalf to remedy the alleged unconstitutional behavior does not amount to active unconstitutional behavior for purposes of § 1983. See Shehee v. Luttrell , 199 F.3d 295, 300 (6th Cir. 1999); accord Proctor v. Applegate , 661 F.Supp.2d 743, 765 (W.D. Mich. 2009); Stocker v. Warden, No. 1:07-CV-00589 , 2009 WL 981323, at *10 (E.D. Cal. Apr. 13, 2009); Mintun v. Blades, No. CV-06-139 , 2008 WL 711636, at *7 (D. Idaho Mar. 14, 2008); see also Gregory v. City of Louisville , 444 F.3d 725, 751 (6th Cir. 2006) (a plaintiff must allege that a supervisor defendant did more than play a passive role in an alleged violation or mere tacit approval thereof; a plaintiff must allege that the supervisor defendant somehow encouraged or condoned the actions of their subordinates). Because Plaintiff fails to allege any facts in his Complaint against Defendants Justus and Pratt, they will be dismissed.

B. Non-Compliance with Prison Regulations

Plaintiff in part appears to assert claims based on the alleged failure of Defendants to comply with prison regulations in the handling of mail or in connection with his grievances. Plaintiff fails to state a claim on either basis. "There is no legitimate claim of entitlement to a [prison] grievance procedure." Mann v. Adams , 855 F.2d 639, 640 (9th Cir. 1988); accord Ramirez v. Galaza , 334 F.3d 850 (9th Cir. 2003). And non-compliance with prison policies or grievance procedures, absent more, does not rise to the level of a constitutional violation. Id . Further, California prison regulations do not give rise to protected due process rights. Romero v. Katavich, No. 1:11cv0935, 2012 WL 484782, at *11 (E.D. Cal. Feb. 14, 2012).[9] Therefore, to the extent that Plaintiff seeks relief against Defendants for non-compliance with grievance procedures or prison regulations, he fails to state a claim.

C. Legal Mail

Plaintiff in part asserts a violation of his First Amendment mail rights. Specifically, he asserts that his First Amendment right to send mail to, and to receive mail from, his son, who is also an inmate, has been violated. Plaintiff refers to the correspondence to or from his son as "legal mail" on the basis that such mail concerns their respective habeas cases.

Under the First Amendment, only mail from an inmate's attorney, or prospective attorney, constitutes "legal mail" that, when appropriately labeled, is entitled to greater protection than other mail. See Wolff v. McDonnell , 418 U.S. 539, 576 (1974) (stating that legal mail must be specifically marked as originating from an attorney). Plaintiff and his son are each representing themselves in their respective habeas cases and neither is an attorney representing the other.[10] Therefore, mail from Plaintiff to his son or from his son to Plaintiff does not constitute "legal mail" entitled to greater protection under the First Amendment. Accordingly, Plaintiff fails to state a claim for interference with legal mail.

D. Non-Legal Mail

An inmate retains First Amendment rights not inconsistent with his status as a prisoner and with legitimate penological objectives of the corrections system. See Shaw v. Murphy , 532 U.S. 223, 231 (2001); Clement v. California Dep't of Corr. , 364 F.3d 1148, 1151 (9th Cir. 2004). Thus, an inmate has a First Amendment right to receive mail; however, that "right is subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security.'" Prison Legal News v. Lehman , 397 F.3d 692, 699 (9th Cir. 2005); Morrison v. Hall , 261 F.3d 896 (9th Cir. 2001); Prison Legal News v. Cook , 238 F.3d 1145 (9th Cir. 2001). A prisoner also has a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail has been withheld by prison authorities. Frost v. Symington , 197 F.3d 348, 353 (9th Cir. 1999). Nevertheless, jails and prisons may regulate the processing of inmate mail so long as those regulations further an important or substantial government interest other than the suppression of expression. See Procunier v. Martinez , 416 U.S. 396, 411-12 (1974), overruled on other grounds, Thornburgh v. Abbott , 490 U.S. 401, 412-414 (1989)); Valdez v. Rosenbaum , 302 F.3d 1039, 1048 (9th Cir. 2002) (jail personnel may regulate speech if a restriction is reasonably related to legitimate penological interests and an inmate is not deprived of all means of expression, citing Turner v. Safley , 482 U.S. 78, 92 (1986)). Thus, jails and prisons may regulate the processing of inmate mail so long as those regulations further an important or substantial government interest other than the suppression of expression. See Procunier , 416 U.S. at 411-12, 413-14. "Prevention of criminal activity and the maintenance of prison security are legitimate penological interests which justify the regulation of both incoming and outgoing prisoner mail." O'Keefe v. Van Boening , 82 F.3d at 326.

1. Damaged Mail

Plaintiff asserts that on one occasion, a piece of his outgoing mail, which contained documents, was returned to him and the documents were stained. Plaintiff fails to allege any facts to support that the staining was the result of anything other than negligence. He also fails to allege facts to connect any Defendant to the staining of the documents. Accordingly, Plaintiff fails to state a claim based on this allegation.

2. Incoming Mail from Plaintiff's Son

Plaintiff contends that prison officials have failed to deliver, or have seized or returned mail from Plaintiff's son to Plaintiff. Plaintiff wholly fails to allege facts to support these assertions. Although pro se pleadings are liberally construed, Haines v. Kerner , 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the Univ. of Alaska , 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id . Further, Plaintiff's son, rather than Plaintiff, may seek relief for asserted violations of his outgoing mail rights. Accordingly, these allegations will be dismissed.

3. Plaintiff's Outgoing Mail to his Son

Plaintiff primarily seeks relief for the return of outgoing mail to his incarcerated son. Plaintiff contends that several letters to his son were returned to him by prison officials. Attachments to Plaintiff's Complaint and motion indicate that Plaintiff failed to comply with prison or facility-specific rules concerning outgoing mail. California prison regulations provide that "[t]he maximum weight for a First-Class letter is 13 ounces." Cal. Code Regs., tit. 15, § 3133. Further, these regulations provide that an inmate's failure to comply with the law, policies, and regulations, or with "approved facility mail procedures may result in the temporary suspension or denial of correspondence between the persons involved." Cal. Code Regs., tit. 15, § 3132(a).

Plaintiff indicates that he enclosed documents in the mail to his son. (See Doc. 1 at 6) (referring to his right to send "motions, pleadings, evidence and any other legal document to assist each other..."). Plaintiff does not allege that the outgoing letters to his son complied with prison regulations concerning the weight, and other requirements, for such mail. But he alleges that letters to his son were returned to him for failure to comply with prison or facility regulations concerning such mail. Plaintiff does not allege that he was otherwise unable to communicate with his son, nor does he allege that he was disciplined for his alleged non-compliance with prison or facility regulations concerning such mail.[11] Because Plaintiff fails to state a claim for violation of his First Amendment rights, Counts I and II will be dismissed.

V. 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).

VI. Motion for Injunctive Relief

As noted above, Plaintiff has also filed a motion for injunctive relief and a motion to expedite seeking to enjoin Defendants from tampering with his mail to his son. Plaintiff seeks an injunction until he exhausts prison administrative remedies.

To obtain injunctive relief, 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, 22 (2008); Am. Trucking Assoc., Inc. v. City of Los Angeles , 559 F.3d 1046, 1052 (9th Cir. 2009). In addition, the "serious questions" version of the sliding scale test for preliminary injunctions remains viable after the Supreme Court's decision in Winter. Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1134-35 (9th Cir. 2011). Under that test, a preliminary injunction is appropriate when a plaintiff demonstrates that "serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor." Id . (citing Lands Council v. McNair , 537 F.3d 981, 987 (9th Cir. 2008) (en banc)). That approach requires that the elements of the preliminary injunction test be balanced, so that a stronger showing of one element may offset a weaker showing of another. "For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits." Alliance for the Wild Rockies , 632 F.3d at 1135. A plaintiff must also satisfy the other Winter factors, including the likelihood of irreparable harm. Id . The moving party has the burden of proof on each element of the test. Environmental Council of Sacramento v. Slater , 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000).

In addition, a temporary restraining order without notice may be granted only if "specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard" and the movant certifies to the court in writing any efforts made to give notice and the reasons that notice should not be required. Fed.R.Civ.P. 65(b). Further, "[t]he court may only issue a preliminary injunction on notice to the adverse party." Fed.R.Civ. P. 65(a)(1).

As discussed herein, Plaintiff fails to state a claim for violation of his constitutional rights against any Defendant. Moreover, Plaintiff has not set forth specific facts that clearly show that an immediate and irreparable injury, loss, or damage will result before the adverse parties may be heard. Nor has he certified in writing the efforts made to give notice or reasons why notice should not be required. For these reasons, Plaintiff's motion for injunctive relief and to expedite will be denied.

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 is granted. (Doc. 2.)

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

(4) 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 a "strike" under 28 U.S.C. § 1915(g).

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

(6) Plaintiff's motion for injunctive relief and to expedite are denied. (Doc. 5, 7.)


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