Wibberg v. Little, et al.
Filing
7
INITIAL REVIEW ORDER BY SCREENING JUDGE - The Complaint fails to state a claim upon which relief may be granted. Plaintiff has 60 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along wit h the amended complaint) a Motion to Review the Amended Complaint. Plaintiffs request for appointment of counsel (contained in the Complaint) is DENIED without prejudice. Plaintiff may renew the request for counsel in an amended complaint. Because an amended complaint is required for Plaintiff to proceed, Plaintiffs Request for Preliminary/Permanent Injunction and Restraining Order (contained in the Complaint) is DENIED AS MOOT. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JACOB WIBBERG,
Case No. 1:20-cv-00279-BLW
Plaintiff,
INITIAL REVIEW ORDER BY
SCREENING JUDGE
v.
BRAD LITTLE; IDAHO STATE
BOARD OF CORRECTION
GOVERNING MEMBERS; JOSH
TEWALT; JAY CHRISTENSEN;
LIEUTENANT GREENLAND; and
STATE OF IDAHO,
Defendants.
The Clerk of Court conditionally filed Plaintiff Jacob Wibberg’s Complaint as a
result of Plaintiff’s status as an inmate and in forma pauperis request.1 The Court now
reviews the Complaint to determine whether it should be summarily dismissed in whole
or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and
otherwise being fully informed, the Court enters the following Order directing Plaintiff to
file an amended complaint if Plaintiff intends to proceed.
1.
Screening Requirement
The Court must review complaints filed by prisoners seeking relief against a
governmental entity or an officer or employee of a governmental entity, as well as
1
This case was initially filed as a multi-plaintiff lawsuit but was then severed into separate lawsuits, with
Plaintiff Wibberg as the only plaintiff in this case.
INITIAL REVIEW ORDER BY SCREENING JUDGE - 1
complaints filed in forma pauperis, to determine whether summary dismissal is
appropriate. The Court must dismiss a complaint or any portion thereof that states a
frivolous or malicious claim, fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§§ 1915(e)(2)(B) & 1915A(b).
2.
Pleading Standard
A complaint 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). A complaint fails to state a claim
for relief under Rule 8 if the factual assertions in the complaint, taken as true, are
insufficient for the reviewing court plausibly “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “[D]etailed factual allegations” are not required, but a plaintiff must offer “more
than ... unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Id. (internal
quotation marks omitted). If the facts pleaded are “merely consistent with a defendant’s
liability,” or if there is an “obvious alternative explanation” that would not result in
liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at
678, 682 (internal quotation marks omitted).
A court is not required to comb through a plaintiff’s exhibits or other filings to
determine if the complaint states a plausible claim. Therefore, the “letter/affidavit”—as
well as other documents that are interspersed within the Complaint, such as a copy of a
page that was apparently filed in another lawsuit, Balla v. IBOC, Case No. 1:81-cv01165-BLW (see Compl., Dkt. 1, at 8)—will not be reviewed by the Court. See General
INITIAL REVIEW ORDER BY SCREENING JUDGE - 2
Order No. 342, In re: Procedural Rules for Prisoner Civil Case Filings and Prisoner EFiling Program, subsection A.1.c. (“No affidavits may be attached to a complaint or any
type of amended complaint.”).
3.
Factual Allegations
Plaintiff is a prisoner in the custody of the Idaho Department of Correction
(“IDOC”). Plaintiff challenges the conditions of confinement at the Idaho State
Correctional Center (“ISCC”).
Plaintiff alleges that the State of Idaho has failed to provide adequate funding for
the operation of ISCC, resulting in “enforced ildness [sic] and more prison violence, less
recreation, increased recidivism … [and] under staffing.” Compl. at 14. Plaintiff also
claims that the State
has failed to provide an effective alternative to incarceration
and has deliberately allowed the population of the ISCC and
IDOC as a whole, with the Commissions of Pardon and
Parole, to increase beyond the capacity for which ISCC
Blocks “B” “C” “H”, were originally built for, thereby
causing overcrowded conditions to exist and triple and
quadruple[] cubicles in blocks “B” “C,” and place cots in “H”
block.
Id. Specifically, B and C Blocks were designed for a total of 504 inmates, but IDOC
presently houses 824 prisoners in those blocks. Block H evidently was designed to be a
“worker building for prisoners.” Id.
Inmates at ISCC have complained of the alleged overcrowding issue to prison
officials by way of the administrative grievance process. For example, inmates have
informed prison officials that overcrowding has resulted in “a denial of equal protection
INITIAL REVIEW ORDER BY SCREENING JUDGE - 3
and a cruel and unusual punishment.” Id. at 15. Prison officials recognized that the
affected blocks are indeed crowded, but they have assured inmates that it is temporary.
Id. at 15–16. According to Plaintiff, ISCC staff in C Block “do not forward concern
forms related to overcrowding to maintenance.” Id. at 14.
Plaintiff also complains that overcrowding in the affected blocks creates a fire
hazard, as there are only four electrical outlets to service 24 inmates’ electric devices. Id.
at 14.
Prison officials also allegedly (1) fail to provide indigent inmates with “adequate
clothing including foot wear for the winter months,” (2) house inmates in blocks that are
over 150% capacity, and (3) fail “to maintain sanitary toilets and showers in the
overcrowded blocks.” Id. at 20. Plaintiff claims that prison officials have made “a
concerted and systematic effort” to deprive ISCC inmates of their constitutional rights.
Id. at 19.
4.
Discussion
Plaintiff has not alleged sufficient facts to proceed with the Complaint. The Court
will, however, grant Plaintiff 60 days to amend the Complaint. Any amended complaint
should take into consideration the following.
Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a
plausible civil rights claim, a plaintiff must allege a violation of rights protected by the
Constitution or created by federal statute proximately caused by conduct of a person
acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or
INITIAL REVIEW ORDER BY SCREENING JUDGE - 4
possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472
(2015). Negligence is not actionable under § 1983, because a negligent act by a public
official is not an abuse of governmental power but merely a “failure to measure up to the
conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 332 (1986).
Prison officials generally are not liable for damages in their individual capacities
under § 1983 unless they personally participated in the alleged constitutional violations.
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677
(“[E]ach Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.”). Section 1983 does not allow for recovery against an employer or
principal simply because an employee or agent committed misconduct. Taylor, 880 F.2d
at 1045.
However, “[a] defendant may be held liable as a supervisor under § 1983 ‘if there
exists ... a sufficient causal connection between the supervisor’s wrongful conduct and
the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). A plaintiff can establish this causal
connection by alleging that a defendant (1) “set[] in motion a series of acts by others”;
(2) “knowingly refus[ed] to terminate a series of acts by others, which [the supervisor]
knew or reasonably should have known would cause others to inflict a constitutional
injury”; (3) failed to act or improperly acted in the training, supervision, or control of his
subordinates”; (4) “acquiesc[ed] in the constitutional deprivation”; or (5) engag[ed] in
“conduct that showed a reckless or callous indifference to the rights of others.” Id. at
1205–09.
INITIAL REVIEW ORDER BY SCREENING JUDGE - 5
A claim that a supervisor or training official failed to adequately train subordinates
ordinarily requires that, “in light of the duties assigned to specific officers or
employees[,] the need for more or different training [was] so obvious, and the inadequacy
so likely to result in the violation of constitutional rights, that the [supervisor or training
official] can reasonably be said to have been deliberately indifferent to the need.” City of
Canton v. Harris, 489 U.S. 378, 390 (1989). That is, to maintain a failure-to-train claim,
a plaintiff must allege facts showing a “pattern of violations” that amounts to deliberate
indifference. Connick v. Thompson, 563 U.S. 51, 72 (2011).
Likewise, “a failure to supervise that is sufficiently inadequate may amount to
deliberate indifference” that supports a § 1983 claim, but there generally must be a
pattern of violations sufficient to render the need for further supervision obvious.
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks
omitted). That is, if a supervisory or training official had “knowledge of the
unconstitutional conditions” through such a pattern of violations—including knowledge
of the “culpable actions of his subordinates”—yet failed to act to remedy those
conditions, that official can be said to have acquiesced “in the unconstitutional conduct of
his subordinates” such that a causal connection between the supervisor and the
constitutional violation is plausible. Starr, 652 F.3d at 1208.
A plaintiff cannot simply restate these standards of law in a complaint. Instead, a
plaintiff must provide specific facts supporting the elements of each claim and must
allege facts showing a causal link between each defendant and Plaintiff’s injury or
INITIAL REVIEW ORDER BY SCREENING JUDGE - 6
damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at
679.
Plaintiff asserts claims under the Eighth and Fourteenth Amendments. Compl. at
19–20.2
A.
Eighth Amendment Claims
The Eighth Amendment to the United States Constitution protects prisoners
against cruel and unusual punishment. “[T]he Constitution does not mandate comfortable
prisons, and prisons … [that] house persons convicted of serious crimes[] cannot be free
of discomfort.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). However, although prison
conditions may be restrictive—even harsh—without violating the Eighth Amendment,
prison officials are required to provide prisoners with adequate food, clothing, shelter,
sanitation, medical care, and personal safety. Id. at 347; Hoptowit v. Ray, 682 F.2d 1237,
1246 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472
(1995).
To state a claim under the Eighth Amendment, prisoners must show that they are
“incarcerated under conditions posing a substantial risk of serious harm,” or that they
have been deprived of “the minimal civilized measure of life’s necessities” as a result of
the defendants’ actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation
marks omitted). An Eighth Amendment claim requires the plaintiff to satisfy both (1) an
2
Plaintiff also cites the Sixth Amendment. Compl. at 20. However, that amendment—which protects a
criminal defendant’s right to a speedy and public trial by an impartial jury, the right to confrontation
and compulsory process, and the right to the assistance of counsel—is not implicated by the allegations in
the Complaint.
INITIAL REVIEW ORDER BY SCREENING JUDGE - 7
objective standard, “that the deprivation was serious enough to constitute cruel and
unusual punishment,” and (2) a subjective standard, that the defendant acted with
“deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012),
overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014)
(en banc).
As for the objective prong of the analysis, “[n]ot every governmental action
affecting the interests or well-being of a prisoner is subject to Eighth Amendment
scrutiny.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Rather, the deprivation alleged
must be objectively sufficiently harmful or, in other words, sufficiently “grave” or
“serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991).
With respect to the subjective prong of an Eighth Amendment violation,
“deliberate indifference entails something more than mere negligence, [but] is satisfied
by something less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Farmer, 511 U.S. at 835. “To be cruel and unusual
punishment, conduct that does not purport to be punishment at all must involve more than
ordinary lack of due care for the prisoner’s interests or safety.” Whitley, 475 U.S. at 319.
To exhibit deliberate indifference, a defendant “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, 511 U.S. at 837. If a [prison official] should have
been aware of the risk, but was not, then the [official] has not violated the Eighth
Amendment, no matter how severe the risk.” Gibson v. Cty. of Washoe, 290 F.3d 1175,
1188 (9th Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833
INITIAL REVIEW ORDER BY SCREENING JUDGE - 8
F.3d 1060 (9th Cir. 2016). Moreover, even prison officials who did actually know of a
substantial risk to inmate health or safety will not be liable under § 1983 “if they
responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer,
511 U.S. at 844.
The fact that a prison is overcrowded or understaffed “has no constitutional
significance standing alone.” Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th
Cir. 1989). Rather, “[o]nly when overcrowding is combined with other factors such as
violence or inadequate staffing” does overcrowding rise to the level of an Eighth
Amendment violation. Id.; see also Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981)
(holding that double-celling inmates is not a per se constitutional violation).
More particularly, as the Ninth Circuit has explained:
In analyzing claims of Eighth Amendment violations, the
courts must look at discrete areas of basic human needs. An
institution’s obligation under the [E]ighth [A]mendment is at
an end if it furnishes sentenced prisoners with adequate food,
clothing, shelter, sanitation, medical care, and personal safety.
In assessing claims of Eighth Amendment violations, and
equally importantly, in tailoring a proper remedy, we must
analyze each claimed violation in light of these requirements.
Courts may not find Eighth Amendment violations based on
the totality of conditions at a prison. There is no Eighth
Amendment violation if each of these basic needs is
separately met. If a challenged condition does not deprive
inmates of one of the basic Eighth Amendment requirements,
it is immune from Eighth Amendment attack. A number of
conditions, each of which satisfy Eighth Amendment
requirements, cannot in combination amount to an Eighth
Amendment violation.
INITIAL REVIEW ORDER BY SCREENING JUDGE - 9
Hoptowit, 682 F.2d at 1246–47 (emphasis added) (internal citations, quotation marks and
alterations omitted). As a result, a prisoner cannot state a plausible Eighth Amendment
claim based simply on overcrowding.
Plaintiff’s Complaint does not state an Eighth Amendment claim upon which
relief may be granted. Plaintiff’s allegations plausibly establish only that certain housing
blocks at ISCC are overcrowded, which is insufficient to state a claim of cruel and
unusual punishment. As for the risk of fire resulting from a paucity of electrical outlets,
the allegations do not give rise to a reasonable inference that the fire hazard is substantial.
There are no allegations as to how many inmates use electrical outlets at any given time,
nor could a reasonable factfinder infer that prison officials have not instituted a policy
governing the use of such outlets so that the risk of fire may be reduced. Finally, Plaintiff
makes generalized accusations that ISCC is understaffed, that violence has increased, and
that the toilets and showers are unsanitary. But these allegations are simply too vague and
conclusory to support a reasonable inference that any Defendant has acted with deliberate
indifference to inmate health and safety.
For these reasons, Plaintiff may not proceed on an Eighth Amendment claim at
this time.
B.
Fourteenth Amendment Claims
i.
Due Process Claims
The Due Process Clause of the Fourteenth Amendment prohibits state action that
deprives a person of life, liberty, or property without due process of law. This clause
safeguards two rights. The right to procedural due process prohibits the government from
INITIAL REVIEW ORDER BY SCREENING JUDGE - 10
depriving an individual of a liberty or property interest without following the proper
procedures for doing so. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 558-66 (1974).
Within the prison context, liberty interests are “generally limited to freedom from
restraint which … imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
The right to substantive due process protects individuals from being deprived of
certain interests notwithstanding the procedures followed. Blaylock v. Schwinden, 862
F.2d 1352, 1354 (9th Cir. 1988). A substantive due process violation is one which
“shocks the conscience.” Wood v. Ostrander, 879 F.2d 583, 591 n.8 (9th Cir. 1989). It
occurs in a situation in which “the government’s action was clearly arbitrary and
unreasonable, having no substantial relation to the public health, safety, morals, or
general welfare.” Sinaloa Lake Owners Ass’n v. City of Simi Valley, 864 F.2d 1475, 1484
(9th Cir. 1989) (internal quotation marks omitted).
To the extent that Plaintiff’s due process claims are aimed at the overcrowding
issue—or any other conditions-of-confinement issue—they are more appropriately
analyzed under the Eighth Amendment, as the Court has done above. See Graham v.
Connor, 490 U.S. 386, 395 (1989) (holding that, where a particular constitutional
amendment “provides an explicit textual source of constitutional protection” against a
particular sort of government behavior, “that Amendment, not the more generalized
notion of ‘substantive due process,’ must be the guide for analyzing these claims”). To
the extent Plaintiff alleges a due process violation based on the alleged failure of prison
staff to forward overcrowding concern forms to maintenance, Plaintiff does not have a
INITIAL REVIEW ORDER BY SCREENING JUDGE - 11
liberty interest in a particular prison employee receiving his concern forms. Therefore,
Plaintiff’s due process claims are implausible.
ii.
Equal Protection Claims
The Fourteenth Amendment also includes the Equal Protection Clause, which
prohibits government officials from engaging in arbitrary discrimination. The purpose of
the Equal Protection Clause is “to secure every person within the State’s jurisdiction
against intentional and arbitrary discrimination, whether occasioned by express terms of a
statute or by its improper execution through duly constituted agents.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal citation and quotation marks
omitted). Under the Equal Protection Clause, “all persons similarly circumstanced shall
be treated alike” by governmental entities. F.S. Royster Guano Co. v. Virginia, 253 U.S.
412, 415 (1920). However, “[t]he Constitution does not require things which are different
in fact or opinion to be treated in law as though they were the same.” Tigner v. Texas,
310 U.S. 141, 147 (1940).
And, even where similarly situated persons are treated differently by the state,
“state action is presumed constitutional and ‘will not be set aside if any set of facts
reasonably may be conceived to justify it.’” More v. Farrier, 984 F.2d 269, 271 (9th Cir.
1993) (quoting McGowan v. Maryland, 366 U.S. 420, 426 (1961)). Absent evidence of
invidious discrimination, the federal courts should defer to the judgment of prison
officials. See id. at 277; Youngbear v. Thalacker, 174 F. Supp. 2d 902, 916 (D. Iowa
2001) (“There can be no ‘negligent’ violations of an individual’s right to equal
protection.... There is no evidence from which the court may infer that the defendants’
INITIAL REVIEW ORDER BY SCREENING JUDGE - 12
asserted reasons for delaying the construction of a sweat lodge at the [prison] were a
pretext for discrimination.”).
Equal protection claims alleging disparate treatment or classifications generally
are subject to a heightened standard of scrutiny if they involve a “suspect” or “quasisuspect” class, such as race, national origin, or sex, or when they involve a burden on the
exercise of fundamental personal rights protected by the Constitution. See, e.g., City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). Otherwise, equal
protection claims are subject to a rational basis inquiry, in which case “the Equal
Protection Clause requires only a rational means to serve a legitimate end.” Id. at 442.
Because inmates are not a protected class under the Equal Protection Clause, their
equal protection claims are subject to rational basis review. Webber v. Crabtree, 158 F.3d
460, 461 (9th Cir. 1998). In a rational basis analysis, the relevant inquiry is whether the
defendants’ action is “patently arbitrary and bears no rational relationship to a legitimate
governmental interest.” Vermouth v. Corrothers, 827 F.2d 599, 602 (9th Cir. 1987)
(quotation omitted). A plaintiff can prevail under rational basis review only if (1) he is
similarly situated with persons who are treated differently by a governmental official, and
(2) the official has no rational basis for the disparate treatment. Moreover, an additional
layer of deference to prison officials is required under Turner v. Safley, 482 U.S. 78, 8991 (1987), which holds that a prison regulation is constitutional so long as it is reasonably
related to a legitimate penological purpose. See Walker v. Gomez, 370 F.3d 969, 974 (9th
Cir. 2004) (“In the prison context, ... even fundamental rights such as the right to equal
protection are judged by a standard of reasonableness—specifically, whether the actions
INITIAL REVIEW ORDER BY SCREENING JUDGE - 13
of prison officials are reasonably related to legitimate penological interests.” (quotation
omitted)).
Plaintiff has not alleged a plausible equal protection claim. The Complaint shows
that prison officials are aware that some housing blocks are more crowded than others.
However, it does not constitute arbitrary and invidious discrimination, in violation of the
Equal Protection Clause, to temporarily house more inmates in certain housing blocks
while officials attempt to find a long-term solution to the problem.
5.
Standards for Amended Complaint
If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the
actions complained of have resulted in a deprivation of Plaintiff’s constitutional rights.
See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by
Kay v. Ehler, 499 U.S. 432 (1991). Plaintiff must also allege a sufficient causal
connection between each defendant’s actions and the claimed deprivation. Taylor, 880
F.2d at 1045; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and
conclusory allegations of official participation in civil rights violations are not sufficient
to withstand a motion to dismiss” or to survive screening under 28 U.S.C. §§ 1915 and
1915A. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see
also Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” (internal quotation marks and alteration
omitted)).
Rather, for each cause of action against each defendant, Plaintiff must state the
following: (1) the name of the person or entity that caused the alleged deprivation of
INITIAL REVIEW ORDER BY SCREENING JUDGE - 14
Plaintiff’s constitutional rights; (2) facts showing the defendant is a state actor (such as
state employment or a state contract) or a private entity performing a state function;
(3) the dates on which the conduct of the defendant allegedly took place; (4) the specific
conduct or action Plaintiff alleges is unconstitutional; (5) the particular federal
constitutional provision (or state law provision) Plaintiff alleges has been violated;
(6) facts alleging that the elements of the violation are met—for example, Plaintiff must
allege facts satisfying the elements of an Eighth Amendment or equal protection claim;
(7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief
Plaintiff is seeking from each defendant.
Further, any amended complaint must contain all of Plaintiff’s allegations in a
single pleading and cannot rely upon, attach, or incorporate by reference other pleadings
or documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether
filed as a matter of course or upon a motion to amend, must reproduce the entire pleading
as amended. The proposed amended pleading must be submitted at the time of filing a
motion to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.
1997) (“[An] amended complaint supersedes the original, the latter being treated
thereafter as non-existent.”), overruled in part on other grounds by Lacey v. Maricopa
County, 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard
Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court
erred by entering judgment against a party named in the initial complaint, but not in the
amended complaint).
INITIAL REVIEW ORDER BY SCREENING JUDGE - 15
Plaintiff must set forth each different factual allegation in a separate numbered
paragraph. The amended complaint must be legibly written or typed in its entirety, and it
should be clearly designated as the “First Amended Complaint.” Plaintiff’s name and
address should be clearly printed at the top left corner of the first page of each document
filed with the Court.
If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to
Review the Amended Complaint.” If Plaintiff does not amend within 60 days, or if the
amendment does not comply with Rule 8, this case may be dismissed without further
notice. See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant
knowingly and repeatedly refuses to conform his pleadings to the requirements of the
Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”).
ORDER
IT IS ORDERED:
1.
The Complaint fails to state a claim upon which relief may be granted.
Plaintiff has 60 days within which to file an amended complaint as
described above. If Plaintiff does so, Plaintiff must file (along with the
amended complaint) a Motion to Review the Amended Complaint. If
Plaintiff does not amend within 60 days, this case may be dismissed
without further notice. Alternatively, Plaintiff may file a Notice of
INITIAL REVIEW ORDER BY SCREENING JUDGE - 16
Voluntary Dismissal if Plaintiff no longer intends to pursue this case.3
2.
Plaintiff’s request for appointment of counsel (contained in the Complaint)
is DENIED without prejudice. Plaintiff may renew the request for counsel
in an amended complaint.
3.
Because an amended complaint is required for Plaintiff to proceed,
Plaintiff’s Request for Preliminary/Permanent Injunction and Restraining
Order (contained in the Complaint) is DENIED AS MOOT.
DATED: August 12, 2020
_________________________
B. Lynn Winmill
U.S. District Court Judge
3
A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for frivolity, for
maliciousness, or for failure to state a claim upon which relief may be granted and, therefore, does not
count as a “strike” under 28 U.S.C. § 1915(g).
INITIAL REVIEW ORDER BY SCREENING JUDGE - 17
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