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Medina v. Arpaio

United States District Court, Ninth Circuit

August 13, 2013

Manuel Luis Medina, Plaintiff,
v.
Joseph M. Arpaio, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Manuel Luis Medina, who is now confined in the Arizona State Prison Complex, Alhambra Unit, in Phoenix, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. [1] (Doc. 1, 2.) Plaintiff has also filed two motions for appointment of counsel. (Doc. 5, 6.) The Court will dismiss the Complaint with leave to amend and 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, 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). 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 threat to safety and denial of due process in connection with disciplinary proceedings. Plaintiff sues Maricopa County Sheriff Joseph M. Arpaio and the following current or former employees of the Sheriff's Office: Captain/Jail Commander Harmon; Head of Classification Personnel Rick Bailey; and Detention Officer Burke. Plaintiff seeks injunctive, compensatory, and punitive relief.

Plaintiff alleges the following facts: on March 2, 2012, Plaintiff was booked into the Fourth Avenue Jail and was initially housed on the Fourth Floor. Plaintiff worked his way down to an "(8) Hour Pod, " i.e., a pod in which pretrial detainees are allowed out of their cells for eight hours a day.

On or about January 17, 2013, after Plaintiff had been in an 8-hour pod for more than ten months, Jail Intelligence Unit staff informed Plaintiff that they had a recording of known Mexican Mafia gang members ordering a "hit" on Plaintiff's life. Plaintiff requested Protective Segregation (PS) status for his safety. Although the Lower Buckeye Jail (LBJ), had a PS unit where pretrial detainees were held and had the same privileges as General Population (GP) inmates, Plaintiff was told that he did not qualify for placement at LBJ due to his past history. Instead, Plaintiff was classified as a close custody (CC) inmate and housed on the Fourth Floor, Fox Run, Pod 1, cell 28 (4F1-28) of the Fourth Avenue Jail.

As a CC inmate at the Fourth Avenue Jail, Plaintiff was housed alone and allowed to leave his cell, alone, for an hour each day to clean, use the phone, shower, etc. Further, as a CC inmate at the Fourth Avenue Jail, Plaintiff lacked access to the privileges available to GP inmates at the Jail, including television and the ability to attend religious services. According to Plaintiff, the "mixture of people [in Pod 1 of Fox Run] consisted of GP pretrial detainees, GP gang-affiliated pretrial detainees, gang-affiliated ADC inmates, and mentally ill inmates. At least two inmates from the Arizona Department of Corrections (ADC), whom ADC had labeled as Security Threat Group members affiliated with the Mexican Mafia, were housed in Pod 1 of Fox Run. These ADC inmates, named Cruz and Lechuga, were thus members of the very gang that had ordered a hit on Plaintiff. These inmates barraged Plaintiff with constant verbal threats and abuse. In addition to the ADC inmates in Pod 1 of Fox Run, inmates being punished for disciplinary infractions and mentally ill inmates were also held in the Pod. The mentally ill inmates defecated or urinated in the hallways, which Jail staff left for days without having the hallways cleaned. Plaintiff and other inmates in the Pod had to endure the odor and walk through the uncleaned hallways on the way to shower.

On January 31, 2013, the doors in a pod were inadvertently opened, although it is unclear whether it was Plaintiff's pod. As a consequence, Mexican Mafia associates were able to attack Inmate Anthony German and injure him.

The week of February 3, 2013, ADC inmate Cruz was housed in 4F1-22, i.e., in Plaintiff's pod. In addition to being an STG member at ADC, Cruz had been housed in ADC's Security Management Unit, i.e., a maximum security unit. On February 11, 2013, an unidentified Jail detention officer told Plaintiff that Cruz was supposed to be housed behind "double doors" and not with CC inmates, but that Jail classification staff had failed to ensure that Cruz was properly classified. In cell 4Fl-30, ADC inmate Lechuga, another Mexican Mafia affiliate, was housed Plaintiff's pod.

On February 11, 2013, after officers had passed out meal trays to those in Plaintiff's pod, the doors for every cell in the pod simultaneously opened. Plaintiff, not realizing that all of the doors had opened, stepped out of his cell believing that the control room had mistakenly opened his door for time out of his cell. When Plaintiff realized that all of the doors in the pod had been opened, he looked towards the control room and saw that Defendant Detention Officer (DO) Burke, in the control room, was seated with his back to Plaintiff's pod. When Plaintiff looked to his right, he saw Cruz approaching an inmate and pushing other inmates out of his way. As Cruz attacked the inmate he had been approaching, Lechuga, two cells down from Plaintiff, came out of his cell and joined in an attack on a different inmate. After spotting Plaintiff, Lechuga rushed towards Plaintiff and hit him in the mouth. Plaintiff hurt his back and shoulder in attempting to defend himself. Other inmates then joined in the melee, which continued for five minutes before Defendant Burke noticed what was happening and summoned assistance. After assistance arrived, all of the inmates were ordered to return to their cells. All did so except for Lechuga and Cruz.[2]

Sometime later, nurses arrived to document injuries. Plaintiff told them about the injuries to his mouth, back, and shoulder and was given Ibuprofen. After medical staff left, a few officers waited while Cruz packed his belongings and was taken to a more secure location. Plaintiff's back and shoulder continued to be painful. Plaintiff contends that he was injured after being forced to defend himself from the very types of inmates from whom he was supposed to be segregated. He contends that Jail detention and classification staff acted negligently. Because a similar incident had occurred on January 31, 2013, Plaintiff contends that Fourth Avenue Jail officers were complicit in facilitating access by gang-members to PS inmates. Plaintiff contends that the Jail failed to segregate PS inmates from GP and STG inmates and that Fourth Avenue Jail administrative staff refused to send PS inmates to the Lower Buckeye Jail, which has a separate PS pretrial detainee pod that affords PS inmates the same privileges afforded to GP inmates. Plaintiff indicates that Fourth Avenue staff has stated that it is not feasible to move PS inmates to LBJ. Further, he contends that despite occasional instances of cell doors in the Close Custody pods being inadvertently opened, "they" still mix non-PS inmates with PS pretrial detainees.

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. Ostrander, 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. Defendants Arpaio, Harmon, and Bailey

Plaintiff seeks relief against Sheriff Arpaio, Captain Harmon, and Classification Head Bailey. While each of them may be sued under § 1983, Plaintiff fails to state a claim against any of them.

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).

Plaintiff predicates liability against Arpaio based solely on respondeat superior. That is not a basis for liability under § 1983. Plaintiff also predicates liability against Bailey on his position as head of classification at the Fourth Avenue Jail and asserts that Bailey was aware of classification problems, and potential risks to inmates, but failed to act to alleviate those risks. Plaintiff fails to set forth facts to support either of these assertions. Plaintiff fails to allege any facts against Harmon. Because Plaintiff fails to allege facts to support that any of these Defendants directly violated his constitutional rights or facts to support that any of them promulgated, endorsed, or condoned a policy resulting in violations of Plaintiff's constitutional rights, Plaintiff fails to state a claim against any of them and they will be dismissed.

B. Count I

Plaintiff designates Count I as a claim for threat to safety. To state a claim under § 1983 for failure to protect or threats to safety, an inmate must allege facts to support that he was incarcerated under conditions posing a substantial risk of harm and that jail officials were "deliberately indifferent" to those risks. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837. That is, "the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference." Id.

Plaintiff alleges that Defendant Burke negligently, or perhaps intentionally, caused all of the doors in Plaintiff's pod to open at once and that he was injured as a consequence. To the extent Burke acted negligently, Plaintiff fails to state a claim under § 1983 against Burke for threat to safety. Plaintiff otherwise fails to allege facts to support that Burke opened all of the doors in the pod despite knowledge that doing so posed an substantial threat to Plaintiff's safety. That is, Plaintiff fails to allege facts to support that Burke acted with deliberate indifference.

Plaintiff also alleges that classification staff erred in classifying ADC inmates, who were affiliated with the Mexican Mafia, to be held in a CC pod. Plaintiff does not identify the classification staff involved in Count I. Moreover, Plaintiff fails to allege facts to support that any classification staff member knew or should have known that classifying gang members to close custody was likely to pose a substantial threat to Plaintiff's safety. Accordingly, Plaintiff also fails to state a claim on this basis.

Plaintiff otherwise fails to allege facts against any other named Defendant in Count I. Accordingly, Count I will be dismissed as to all the Defendants.

C. Count II

Plaintiff designates Count II as a claim for denial of due process in connection with disciplinary proceedings. Pretrial detainees have a substantive due process right against restrictions that amount to punishment for criminal offenses. Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002) (citing United States v. Salerno, 481 U.S. 739, 746 (1987)); Bell v. Wolfish, 441 U.S. 520, 535 (1979); Redman v. County of San Diego, 942 F.2d 1435, 1440-41 (9th Cir.1991) ( en banc )). This right is violated if restrictions are "imposed for the purpose of punishment." Bell, 441 U.S. at 535. For particular governmental action to constitute punishment, the action must cause the detainee to suffer some harm or disability, and the purpose of the action must be to punish the detainee. Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004) (citing Bell, 441 U.S. at 538). Jail officials are entitled to impose restrictions to effect confinement, and detention will necessarily affect a detainee's ability to live as comfortably as he might like. A de minimis level of imposition is permissible.[3] Bell, 441 U.S. at 539 n.21. There is no constitutional infringement if restrictions are "but an incident of some other legitimate government purpose." Id. In such a circumstance, governmental restrictions are permissible. Salerno, 481 U.S. at 747.

Plaintiff fails to allege facts to support that his confinement in CC was without some legitimate government purpose other than as punishment for the criminal offenses with which he is charged. Indeed, he acknowledges that he requested more secure housing after being informed of threats made against him. He also fails to allege facts to support that placement in CC constituted punishment for a disciplinary infraction or facts to support that his placement in CC was intended to punish him. Rather, he was placed in CC for his protection. Accordingly, Plaintiff fails to state a claim for denial of due process based on his placement in a CC pod.

Plaintiff also appears to be attempting to assert a claim for denial of constitutionally adequate conditions of confinement and violation of equal protection where PS inmates at the Fourth Avenue Jail are treated differently and have fewer privileges than PS inmates at the LBJ Jail.

A pretrial detainee's claim for unconstitutional conditions of confinement arises under the Fourteenth Amendment Due Process Clause rather than the Eighth Amendment's prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 and n.16 (1979). Nevertheless, the same standards are applied. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

To state a claim for unconstitutional conditions of confinement, a plaintiff must allege that a defendant's acts or omissions have deprived the inmate of "the minimal civilized measure of life's necessities" and that the defendant acted with deliberate indifference to an excessive risk to inmate health or safety. Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (citing Farmer, 511 U.S. at 834); see Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). That is, a plaintiff must allege a constitutional deprivation that is objectively "sufficiently serious" to result in the denial of "the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834. Whether conditions of confinement rise to the level of a constitutional violation may depend, in part, on the duration of an inmate's exposure to those conditions. Keenan v. Hall, 83 F.3d 1083, 1089, 1091 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)).

A plaintiff must also allege facts supporting that the jail official had a "sufficiently culpable state of mind, " i.e., that the official acted with deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834. As already noted, deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Id. at 835. In addition, "[t]he circumstances, nature, and duration of a deprivation... must be considered in determining whether a constitutional violation has occurred.'" Hearns v. Terhune, 413, F.3d 1036, 1042 (9th Cir. 2005) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)).

Plaintiff alleges that he was held in a cell by himself, but that he was able to leave his cell for an hour each day to shower, clean his cell, make telephone calls and the like. He complains that mentally ill inmates sometimes defecated or urinated in the hallways and that it took days for staff to clean the hallways. Plaintiff does not allege how frequently such issues arose, nor does he allege that he brought the issue to the attention of any jail staff member. Plaintiff also complains of the noise caused by mentally ill inmates, but does not describe the frequency or duration of such noise. Assuming such conditions rose to the level of being unconstitutional, Plaintiff fails to allege facts to support that any named Defendant knew that such conditions posed an excessive risk to Plaintiff and that such Defendant nevertheless failed to act to alleviate the problem. Plaintiff thus fails to state a claim for unconstitutional conditions of confinement against any Defendant.

Plaintiff contends that PS inmates at the Fourth Avenue Jail were treated differently than PS inmates at the LBJ Jail, where PS inmates were afforded more privileges, which the Court construes as an attempt to allege an equal protection claim. Generally, "[t]o state a claim... for a violation of the Equal Protection Clause... [, ] a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged he is a member of a protected class.

The United States Supreme Court has also recognized "successful equal protection claims brought by a class of one, ' where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). Plaintiff also fails to state a claim under this standard. Plaintiff has failed to allege that he was treated differently than other similarly-situated individuals or that there was no rational basis for treating him differently. Plaintiff alleges that other PS pretrial detainees at the Fourth Avenue Jail were treated as he was. Further, Plaintiff acknowledges that he was ineligible for transfer to LBJ because of his own prior history, i.e., there was a rational basis for not transferring him to the PS unit at LBJ. Accordingly, Plaintiff also fails to state an equal protection claim.

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. Motions for Appointment of Counsel

As noted above, Plaintiff has filed two motions for the appointment of counsel due to his indigence, lack of legal training, inability to investigate, unfamiliarity with Latin, the importance of cross-examination, and the complexity of this case. There is no constitutional right to the appointment of counsel in a civil case. See Ivey v. Bd. of Regents of the Univ. of Alaska, 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)).

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. Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will deny without prejudice Plaintiff's motions for appointment of counsel.

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 motions for appointment of counsel are denied. (Doc. 5, 6.)


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