United States District Court, D. Arizona
July 8, 2014
Manuel Luis Medina, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DIANE J. HUMETEWA, District Judge.
Plaintiff Manuel Luis Medina, who is now confined in the Arizona State Prison Complex, Buckley-Blue Unit, in Buckeye, Arizona, filed a pro se civil rights Complaint under 42 U.S.C. § 1983, which the Court dismissed for failure to state a claim with leave to amend. (Doc. 1, 8.) Plaintiff has filed a First Amended Complaint. (Doc. 14.) The Court will dismiss the First Amended Complaint for failure to state a claim with leave to amend.
I. 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 will dismiss Plaintiff's First Amended Complaint for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
II. First Amended 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: Disciplinary Facility Commander A4038; Rick Bailey, head of classification personnel; and Detention Officer Burke. Plaintiff seeks injunctive, compensatory, and punitive relief.
Portions of Plaintiff's First Amended Complaint, particularly page 3, are only partially legible. Omitting the illegible portions, Plaintiff alleges the following facts, which the Court summarizes chronologically: Plaintiff was booked into the Fourth Avenue Jail on March 2, 2012. (Doc. 14 at 3B.) On January 17, 2013, Plaintiff signed a waiver to be removed from General Population (GP) and to be placed into Protective Segregation (PS) after Plaintiff was informed by jail intelligence staff that a death threat had been made against him by known Mexican Mafia gang-members and upon the recommendation of jail intelligence staff. However, after further review, jail officials informed Plaintiff that he was not eligible for placement in Administrative Segregation (AS) at the Lower Buckeye Jail (LBJ), where PS inmates were typically held. The Fourth Avenue Jail, where Plaintiff was being held, did not have a PS pod. Therefore, Classification Officer Bailey raised Plaintiff's classification to Close Custody (CC) and Plaintiff was placed in a CC pod, specifically, pod 4F100. Each CC inmate was held in a one-person cell for 23 hours a day with an hour out of his cell alone for showers and other tasks; each CC inmate was supposed to be kept separate from other inmates, including other CC inmates. According to Plaintiff, most CC inmates were so designated because of disciplinary infractions that posed risks to other inmates and staff. In addition, at times relevant to Plaintiff's claims, inmates from the Arizona Department of Corrections (ADC) were also held in CC pods. Plaintiff contends that Defendants knew that placing a PS inmate in a CC pod could pose a risk to the PS inmate if the inmates were allowed out of their cells at the same time.
At some point prior to January 31, 2013, inmate Anthony German was in Pod 4F200, which was identical to Plaintiff's pod 4F100. An officer mistakenly simultaneously opened all of the cell doors in the pod, which enabled some of the CC inmates to assault German resulting in a severe spinal injury. On or about January 31, 2013, an officer, apparently Burke, mistakenly simultaneously opened all of the cell doors in Pod 4F100, although apparently no assaults occurred because of the error.
On February 3, 2013, ADC Inmate Cruz, who was a member of a Security Threat Group (STG), specifically the Mexican Mafia, arrived at the jail and was housed in Plaintiff's pod, 4F100. ( Id. at 3C.) Another inmate, Inmate Lechuga, who was also affiliated with the Mexican Mafia, was also housed in Plaintiff's pod. ( Id. at 3C-3D.)
On February 11, 2013, Burke again erroneously simultaneously opened all the cell doors in Pod 4F100 and immediately turned his attention away from Pod 4F100 to look at a computer. Plaintiff and other inmates in the pod began leaving their cells without realizing that all of the cells had been simultaneously opened. As they realized the error, some of the inmates attempted to alert Burke so that Burke would close the cell doors, but Burke, who was looking in another direction, did not see them. As this was occurring, Inmate Cruz, who had been in cell 4F22, began assaulting another inmate. Inmate Lechuga, who was two doors down from Plaintiff's cell, joined in the assault of that inmate. Lechuga then saw Plaintiff. Lechuga raised his hand to attack Plaintiff, but Plaintiff "defend[ed]" himself and prevented Lechuga from pushing Plaintiff back into his cell where Plaintiff might have been trapped with Lechuga. ( Id. at 3A.) At about this point, Burke saw what was happening in the pod and summoned back-up. Two or three minutes later, back-up officers arrived in force and used tasers to stop Cruz. Other officers came "running up the steps to subdue the remaining inmates, [and] inmate Lechuga was ordered to the [ground] as he did comply [sic]." ( Id. ) Plaintiff waited by his cell for the door to be re-opened. Plaintiff suffered injuries to his left shoulder, lower back, and face as well as post-traumatic stress disorder (PTSD). In response to grievances, Sergeant Mank told inmates that there was nothing that could be done about housing PS inmates in CC pods because there was no room to house PS inmates separately in the Fourth Avenue Jail. Plaintiff was apparently issued a disciplinary charge. Facility Commander A4038, who was in charge of disciplinary appeals, found Plaintiff guilty of fighting, although he acknowledged that the doors were not supposed to have been opened simultaneously. ( Id. at 3E-3F.)
Plaintiff contends that Burke knew of the risk of inmate assaults if all cells in the pod were simultaneously opened, based on prior assaults in such circumstances, and had been trained to open cell doors properly. According to Plaintiff, there are "a lot of intricate buttons to push to operate each door correctly and prevent assaults, deaths, and other incidents from occurring, " about which officers receive extensive training. ( Id. ) Plaintiff contends that Classification Officer Bailey knew that housing PS inmates in a CC pod could pose a serious risk of assault or injury to a PS inmate by CC inmates, if an opportunity arose. Plaintiff further contends that Bailey knew that PS inmates, such as German, had previously been assaulted by CC inmates when inadvertently allowed out of their cells at the same time as PS inmates. According to Plaintiff, Bailey allowed "high Close Custody inmates to be housed amongst [PS] inmates which created and still is a high risk of housing [PS] inmates with [CC] inmates[.]" ( Id. at 3D.)
Plaintiff contends that Arpaio is chief custodian and is responsible for providing safe conditions. Plaintiff contends that Facility Commander A4038 acknowledged that the doors should not have been opened simultaneously and knew of the risks to inmates when such occurrences happen, but failed to prevent the February 11, 2013 incident.
Plaintiff also asserts that he was subjected to the type of confinement ordinarily imposed for inmates being punished for disciplinary infractions, and that his placement in a CC pod, rather than a PS pod, resulted in restrictions of privileges afforded other PS and GP inmates. Plaintiff sought placement in a PS pod, but instead was placed in a CC pod because the Fourth Avenue Jail lacked a PS pod. Bailey increased Plaintiff's classification to CC, which resulted in Plaintiff being locked down 23 hours a day, celled alone, and denied privileges afforded to other PS and GP inmates. He contends that housing him in a CC pod with inmates who were being held there for disciplinary infractions amounted to punishment, where Plaintiff remained in the CC pod for six months. Plaintiff contends that he was denied due process before being placed in allegedly punitive conditions in the CC pod.
III. 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. Arpaio and Facility Commander A4038
Plaintiff seeks relief against Sheriff Arpaio and Facility Commander A4038. While each may be sued under § 1983, Plaintiff fails to state a claim against either.
To state a claim against a defendant, "[a] plaintiff must allege facts, not simply conclusions [to] 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. As discussed above, that is not a basis for liability under § 1983. Plaintiff predicates liability against Facility Commander A4038 based on the denial of Plaintiff's disciplinary appeal. Plaintiff fails to allege facts to support that Arpaio directly violated his constitutional rights or facts to support that Plaintiff's constitutional rights were violated pursuant to a policy, practice, or custom that was promulgated, endorsed, or condoned by Arpaio. As noted above, the denial of an appeal, absent more, is not sufficient to state a claim against A4038 and Plaintiff does not otherwise allege that his constitutional rights were violated pursuant to a policy, practice, or custom promulgated, endorsed, or condoned by Facility Commander A4038. For the above reasons, Plaintiff fails to state a claim against Arpaio or Facility Commander A4038 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 show 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 appears to contend that Bailey's classification of him to CC, rather than PS, posed a substantial threat to his safety where CC inmates sometimes were inadvertently simultaneously released from their cells. Plaintiff also appears to contend that the simultaneous opening of cell doors in CC pods posed a threat to his safety. Plaintiff describes three instances when CC pod doors were opened inadvertently. In one instance, Inmate German was allegedly severely injured. In the second, no inmate was injured. In the third, Inmate Lechuga allegedly assaulted Plaintiff. Plaintiff has not alleged facts to show that the risks of simultaneous, inadvertent opening of CC cell doors posed a substantial risk to Plaintiff's safety. While Plaintiff cites three occurrences during January and February 2013, Plaintiff does not allege any further occurrences during the six months that remained in CC at the Jail.
Even if Plaintiff sufficiently alleged facts to support a substantial threat to his safety, Plaintiff has not alleged facts to support that Bailey or Burke acted with deliberate indifference to that risk. Plaintiff has not alleged that Burke's opening of CC cell doors on February 11, 2013, or on any other occasion, was anything but inadvertent. Moreover, Plaintiff alleges no further occurrences after the February 11, 2013 incident.
Plaintiff also has failed to allege facts showing that Bailey's classification of Plaintiff to CC posed a substantial threat to his safety. For example, Plaintiff does not contend that he would have been safer in GP, and Plaintiff's preference to be held in PS does not override jail officials' responsibility to protect other PS inmates. Accordingly, Plaintiff fails to state a claim for threat to safety in Count I and it will be dismissed.
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). But 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. Bell, 441 U.S. at 539 n.21. There is no constitutional infringement, however, 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 alleges that after he requested assignment to PS based upon threats against him, he was denied PS based on his history. Bailey instead raised Plaintiff's classification to CC, which resulted in Plaintiff being housed separately from other inmates, which reduced the possibility of an assault on Plaintiff by other inmates. Plaintiff fails to allege facts to show that he was assigned to CC as punishment, rather than for legitimate detention purposes: Plaintiff's allegations reflect that he was placed in CC for his protection. While privileges for inmates held in CC were fewer than they would have been if he were eligible for placement in PS elsewhere, that did not convert his placement in CC into punishment. Accordingly, Plaintiff fails to state a claim against Bailey based on his placement in CC.
Plaintiff also alleges that he was charged with a disciplinary infraction for fighting stemming from the February 11, 2013 incident, which Plaintiff contends was merely self-defense. Plaintiff fails to allege whether or how he was sanctioned as a result of the disciplinary action. Plaintiff does not allege any change in the conditions to which he was already subject by virtue of his placement in the CC pod for his safety, nor does he allege that any such sanction rose to the level of punishment for the criminal offenses with which he was charged. Even if he had, Plaintiff fails to allege facts to support that he was denied any procedural protection prior to being found guilty of fighting. For these reasons, Plaintiff fails to state a claim for denial of due process based on his placement in CC or based on the subsequent disciplinary charge.
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 were treated differently and had 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, requiring proof that the defendant acted with deliberate indifference. 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. Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Id. at 835. In defining "deliberate indifference, " 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. at 837. "The 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 alone, was allowed 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 and that staff-member's response. Plaintiff also complains of the noise caused by mentally ill inmates, but he 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. 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 fails to state a claim under this standard. He does not allege facts to support that he was treated differently than other similarly-situated individuals or that there was no rational basis for treating him differently. Plaintiff acknowledges that other PS pretrial detainees were held in CC pods under analogous conditions to his own. He does not allege that other PS inmates with histories similar to his own were nevertheless held at LBJ, nor does he allege that other PS inmates in CC pods were afforded more privileges than Plaintiff. Plaintiff's allegations also reflect a rational basis for not placing him in PS at the LBJ facility, i.e., Plaintiff's history and potential threat posed if he were held at LBJ. Thus, Plaintiff also fails to state an equal protection claim.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's First Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second 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 "Second Amended Complaint." The second 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 or First Amended Complaint by reference. Plaintiff may include only one claim per count.
A second amended complaint supersedes the original Complaint and First Amended 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 the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint or first amended complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
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 First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second 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) The First Amended Complaint (Doc. 14) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.
(2) If Plaintiff fails to file a second 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).
(3) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.