October 21, 2013
Ryan E. Walker, Plaintiff,
Pinal County Jail Sheriff, et al., Defendants.
G. MURRAY SNOW, District Judge.
Plaintiff Ryan E. Walker, who is confined in the Pinal County Jail in Florence, Arizona, 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 requesting an amended civil rights complaint form, writing materials, legal envelopes, and an order allowing access to a law library (Doc. 5). The Court will dismiss the Complaint with leave to amend.
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, will dismiss the Complaint with leave to amend.
In his three-count Complaint, Plaintiff alleges claims for denial of medical care, denial of access to the courts, and denial of basic necessities. Plaintiff appears to sue the following Defendants: Pinal County Sheriff Paul Babeu; Pinal County Adult Detention Facility ("PCADF") and all PCADF Staff (although Plaintiff asserts this "do[es] not p[er]tain to all but is not limited to one"); Detention Officer K. Roderguz (sic); "Medical Staff/Provider" at PCADF; Detention Officer/Paralegal at PCADF; All Pinal County Correctional Health Services Healthcare Staff (although Plaintiff asserts this "do[es] not p[er]tain to all but is not limited to one"); and "Provider Health Care" "before the present provider of Health Care services but is not limited one (sic)." Plaintiff seeks the following relief: medical treatment and rehabilitation, and compensation for all present and future medical treatment, pain and suffering, stress, and treatment while grieving for his wife.
Although Plaintiff's facts are disjointed, he appears to allege the following in Count I: Plaintiff was working in the kitchen of the PCADF when his feet slipped out from under him. He fell back against a table and then to the floor. He was not taken to medical for two hours and it was closed when he arrived. Plaintiff saw a nurse who gave him 400 milligrams of ibuprofen. Plaintiff returned to work the following day. Three days later Plaintiff saw a medical office provider, who gave him ibuprofen for ten days. Plaintiff states that he had a three-inch by ten-inch bruise and after two months his skin was still discolored and he had a knot inside his skin. Plaintiff requested an x-ray "and picture" but his request was denied. He states that he likely had a cracked rib and "maybe a cracked coll[a]r bone too." Plaintiff did not say when these events occurred but states that he has had problems from the fall "going on 6 month[s]" and is now having pinched nerve and shoulder problems.
Plaintiff also asserts that on August 25, 2013 he lost his wife and was taken to a hospital where he was given a half-hour to be with her and then "pull the plug." When Plaintiff returned to the jail he asked to be put in lockdown so he could grieve. He apparently put this request in writing and thanked the medical staff and staff at the jail. Plaintiff alleges that "they took it wrong, " and stripped him naked and put him in a rubber room for four days. Plaintiff asserts, "At no time did I say I want or was think[ing] of hurting myself." Plaintiff alleges that after four days a mental health doctor released him and said "sorry for being held."
In Count II, Plaintiff alleges that a paralegal denied: "any and all assistance in preparing forms, including but not limited to this form"; "questions as to legal codes, procedures, proper information places, category"; "assistance in mailing forms and motions"; "a[c]quiring copies and notary serv[ic]es"; and "a[c]quiring names[, ] titles, address[e]s to courts."
In Count III, Plaintiff asserts that the water boiler supplying the jail failed on May 8, 2013 and was fixed on May 20, 2013. He alleges that he did not have hot water for bathing, clothing or bedding and that the lack of hot water was unsanitary for eating and living conditions.
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). 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. Sheriff Babeu
Plaintiff sues Pinal County Sheriff Babeu. While Babeu may be sued for constitutional violations, Plaintiff fails to state a claim against him. "Aplaintiff 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.
Plaintiff fails to allege any facts against Babeu. Plaintiff has not alleged facts to support that Babeu enacted or enforced a policy, custom, or practice that resulted in the denial of Plaintiff's constitutional rights. Plaintiff also has not alleged facts to support that Babeu directly violated his constitutional rights or that Babeu was aware that Plaintiff's rights were being violated but failed to act. For that reason, Plaintiff fails to state a claim against Babeu and he will be dismissed.
B. Pinal County Adult Detention Facility
Plaintiff sues PCADF; however, PCADF is not a proper defendant. 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 Ariz. Rev. Stat. §§ 11-251(8), 11-291(A), 11-441(A)(5), 31-101. PCADF 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 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). Accordingly, PCADF will be dismissed from this action.
C. Unnamed or Fictitiously Identified Defendants
Plaintiff purports to sue unspecified and unenumerated staff of PCADF and its healthcare provider without alleging how any particular unidentified defendant allegedly violated his federal constitutional or statutory rights. The use of anonymous type appellations to identify defendants is generally disfavored. 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)). Further, where the names of individual defendants are unknown at the time a complaint is filed, a plaintiff may refer to the individual unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, and allege facts to support how each particular Doe defendant violated the plaintiff's constitutional rights. The plaintiff may thereafter use the discovery processes to obtain the names of fictitiously-named defendants whom he believes violated his constitutional rights and seek leave to amend to name those defendants. Accordingly, in any amended complaint, Plaintiff should set forth how each fictitiously named Defendant allegedly violated his rights. Plaintiff should also identify different fictitious Defendants by different fictitious names, e.g., John Doe 1, John Doe 2, etc.
D. Detention Officer K. Roderguz
Plaintiff sues Detention Officer K. Roderguz; however, Plaintiff fails to allege how Roderguz violated his constitutional rights, including when, where, and how. At no point in the Complaint does Plaintiff allege any conduct by Roderguz. Accordingly, Plaintiff fails to state a claim against Roderguz and he or she will be dismissed.
E. Pinal County Correctional Health Services
While Arizona places responsibility for operating county jails by law upon the sheriff, see Ariz. Rev. Stat. §§ 11-141(A)(5), 31-101, Pinal County is responsible for the provision of medical care to inmates. Pinal County Correctional Health Services is an administrative creation of the County and is not a "person" amenable to suit under § 1983. Accordingly, Pinal County Correctional Health Services will be dismissed.
F. Medical Staff/Provider
Plaintiff sues "Medical Staff/Provider"; however, it is not clear if "Medical Staff/Provider" denotes an unnamed individual, an unnamed group of defendants, or is another way of denoting Pinal County Correctional Health Services. Moreover, Plaintiff fails to allege how Medical Staff/Provider violated his constitutional rights, including when, where, and how. Accordingly, Plaintiff fails to state a claim against Medical Staff/Provider and that person(s) or entity will be dismissed.
G. Medical Care
Plaintiff designates Count I as a claim for the denial of constitutionally adequate medical care. Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Id. at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corrs., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of "indifference, " "negligence, " or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105, 439 F.3d at 1096 (quotations omitted).
In addition to failing to identify any individuals responsible for the acts in Count I, Plaintiff fails to allege facts to support that any Defendant was deliberately indifferent to a serious medical need. Accordingly, Count I will be dismissed.
H. Access to Courts
Plaintiff alleges in Count II that he has been denied access to the courts. The right of meaningful access to the courts prohibits 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 ligate them effectively once filed with a court. Id. at 354. 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." Id. at 356. Further, the denial of access to a paralegal or use of a law library is not actionable if there is no claim of prejudice to an existing or future legal action. Id. at 351-53. That is, 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. Id. at 349. To show actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the defendants' conduct frustrated or impeded him from bringing to court a non-frivolous claim that he wished to present. Id. at 352-53. A plaintiff "must identify a non-frivolous, arguable underlying claim, " and this underlying claim "must be described in the complaint." Christopher v. Harbury, 536 U.S. 403, 414-15 (2002).
Plaintiff generally fails to allege specific facts regarding any alleged denial of access, including when and how he believes he was denied such access. Moreover, Plaintiff fails to allege facts to support that he has been actually injured with respect to any pending or prospective litigation. Clearly, Plaintiff was able to file this action. Nor has he identified a non-frivolous, arguable underlying claim. For these reasons, Plaintiff fails to state a claim in Count II for denial of access to the court and it and Defendant Detention Officer/Paralegal will be dismissed.
I. Denial of Basic Necessities
Plaintiff alleges in Count III that he was denied basic necessities in the form of hot water to cleanse and sanitize his body, clothing and bedding, apparently from May 8 through May 20, 2013. A claim for unconstitutional conditions of confinement arises under the Eighth Amendment's prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 and n.16 (1979). To state a claim for unconstitutional conditions, a plaintiff must allege an objectively "sufficiently serious" deprivation that results in the denial of "the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834; see Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994); Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). That is, a plaintiff must allege facts supporting that he is incarcerated under conditions posing a substantial risk of harm. Farmer, 511 U.S. at 834. Further, only deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to violate the Eighth Amendment. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). These are "deprivations of essential food, medical care, or sanitation" or "other conditions intolerable for prison confinement." Rhodes v. Chapman, 452 U.S. 337, 348 (1981). Whether a condition of confinement rises to the level of a constitutional violation may depend, in part, on the duration of an inmate's exposure to that condition. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). "The more basic the need, the shorter the time it can be withheld." Hoptowit v. Ray, 682 F.2d 1287, 1259 (9th Cir. 1982).
A plaintiff must also allege facts to support that a defendant had a "sufficiently culpable state of mind, " i.e., that the official acted with deliberate indifference to inmate health or safety. See Farmer, 511 U.S. at 837. In defining "deliberate indifference" in the prison context, the Supreme Court has imposed a subjective test: "the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. A plaintiff must also allege how he was injured by the alleged unconstitutional conditions. See, e.g., Lewis, 518 U.S. at 349 (doctrine of standing requires that claimant have suffered or will imminently suffer actual harm).
Plaintiff's claim fails for several reasons. First, Plaintiff fails to allege facts to connect any named Defendant to the alleged violations or to support that any named Defendant acted with deliberate indifference to an excessive risk to Plaintiff's health posed by those conditions. Plaintiff also fails to set forth facts to support that the alleged lack of hot water posed a substantial risk of harm to him. Finally, Plaintiff fails to allege how he was injured by the alleged violation or that he was imminent danger of injury. For these reasons, Plaintiff fails to state a claim for denial of basic necessities, and Count II will be dismissed.
In his Motion, Plaintiff requests (1) an amended civil rights complaint form, (2) writing materials, (3) legal envelopes, and (4) an order allowing access to a law library. Plaintiff states that he needs these items to conduct research and to prepare legal documents because county inmates do not get law library time, the paralegal will not provide independent research, and his requests for items 2, 3 and 4 have not been fulfilled.
Plaintiff's Motion is granted in part and denied in part. The Court will grant Plaintiff's Motion insofar as the Clerk of Court will provide a civil rights complaint form along with this Order. The Court will deny Plaintiff's other requests. Plaintiff clearly has access to writing materials and was able to write and submit his Complaint in this action, and he does not allege that he has been unable to communicate with the Court. Also, as noted above, there is no actionable claim from denial of access to a law library if there is no claim of prejudice to an existing or future legal action, that is, an actual injury. See Lewis, 518 U.S. at 351-53. Plaintiff has not made a claim of actual injury.
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.
If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo, 423 U.S. at 371-72, 377.
Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.
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).
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.
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) Plaintif'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) Plaintiff's Motion (Doc. 5) is granted in part and denied in part. The Motion is granted insofar as this Order requires the Clerk of Court to provide Plaintiff with a court-approved form for filing a civil rights complaint by a prisoner. The Motion is denied in all other respects.
(4) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(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 a "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.