Knox v. Rider et al

Filing 8

ORDER DENYING 7 MOTION TO APPOINT COUNSEL, DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 5/4/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
EVAN KNOX,
Plaintiff,
VS.
BO RIDER, ET AL.,
Defendants.

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No. 15-1133-JDT-egb

ORDER DENYING MOTION TO APPOINT COUNSEL,
DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On June 1, 2015, Plaintiff Evan Knox (“Knox”), who is currently an inmate at the
South Central Correctional Facility in Clifton, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983, accompanied by a motion to proceed in forma pauperis.
(ECF Nos. 1 & 2.)

The complaint concerns Knox’s previous incarceration at the

Northwest Correctional Complex (“NWCX”) in Tiptonville, Tennessee.

The Court

issued an order on June 2, 2015, granting leave to proceed in forma pauperis and
assessing the civil filing fee pursuant to the Prison Litigation Reform Act, 28 U.S.C.
§§ 1915(a)-(b). (ECF No. 4.) The Clerk shall record the Defendants1 as NWCX Officer

1

Knox purports to name the “Insurance Company Agency of all 3 parties” as a
defendant. (ECF No. 1 at 7.) However, service of process cannot be made on an unidentified
party. The filing of a complaint against an unknown defendant does not toll the running of the
statute of limitation against that party. See Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996);
Bufalino v. Mich. Bell Tel. Co., 404 F.2d 1023, 1028 (6th Cir. 1968).

Bo Rider; NWCX Officer Paul Boyd; Joseph Bishop, Director of the Office of
Investigations and Compliance (“OIC”) for the Tennessee Department of Correction
(“TDOC”);2 and C. Phillip Bivens, District Attorney for the Twenty-Ninth Judicial
District of Tennessee.
I. MOTION TO APPOINT COUNSEL
On April 18, 2016, Knox filed a motion for appointment of counsel. (ECF No. 7.)
Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any
person unable to afford counsel.” However, “[t]he appointment of counsel in a civil
proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.
2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs
were not entitled to have counsel appointed because this is a civil lawsuit.”); Lavado v.
Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel in a
civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no
constitutional or . . . statutory right to counsel in federal civil cases . . . .”). Appointment
of counsel is “a privilege that is justified only by exceptional circumstances.” Lavado,
992 F.2d at 606 (internal quotation marks and citation omitted). “In determining whether
‘exceptional circumstances’ exist, courts have examined the type of case and the abilities
of the plaintiff to represent himself. This generally involves a determination of the
complexity of the factual and legal issues involved.” Id. at 606 (internal quotation marks
and citations omitted).

Appointment of counsel is not appropriate when a pro se

2

In the complaint, Knox identifies Defendant Bishop as Director of Internal Affairs
(“IA”) for TDOC. However, the office is correctly designated as the OIC. See
www.tn.gov/news/32722.
2

litigant’s claims are frivolous or when his chances of success are extremely slim. Id.
(citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see also Cleary v.
Mukasey, 307 F. App’x 963, 965 (6th Cir. 2009) (same).
Knox has not satisfied his burden of demonstrating that the Court should exercise
its discretion to appoint counsel in this case. Nothing in Knox’s motion serves to
distinguish this case from the many other cases filed by pro se prisoners who are
indigent, are not trained attorneys, and have limited access to legal materials. Therefore,
the motion for appointment of counsel is DENIED.
II. THE COMPLAINT
Knox alleges that on May 30, 2014, the NWCX was on lockdown. (ECF No. 1 at
5.) The officers were conducting showers in housing Unit B and announced that the
inmates would have five minutes to shower. (Id.) Knox’s cellmate left to take his
shower, and Knox followed three to four minutes later. (Id.) On the way to the shower,
Knox had words with Defendant Boyd. (Letter to Def. Bishop, ECF No. 1-8.) Once
Knox got in the shower, Boyd told him he had three minutes to get out. (Id.; see also
ECF No. 1 at 5.) When Defendant Boyd knocked on the shower door and told Knox that
his time was up, Knox responded, “fuck you.” (ECF No. 1 at 5.) Defendant Rider, who
was standing behind the ice machine, then shot Knox with a pepper-ball gun even though
Knox allegedly had showed no sign of resistance or aggression. (Id.; see also Letter to
Def. Bishop, ECF No. 1-8.)

While he dried off, Knox was held at taser-point by

Defendant Boyd (ECF No. 1 at 5), who threatened to tase him if he did not get out of the
shower (Letter to Def. Bishop, ECF No. 1-8).
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Knox also contends he was refused medical attention (Grievance, ECF No. 1-3 at
2) and that he continues to have chronic back pain (ECF No. 1 at 5). He wrote letters to
Defendants Bishop and Bivens asking that the incident be investigated and that a criminal
charge of aggravated assault be filed against Defendant Rider. (Id.; see also Letter to
Def. Bishop, ECF No. 1-8; Letter to Def. Bivens, ECF No. 1-9.) Knox seeks monetary
compensation. (ECF No. 1 at 5-6.)
III. ANALYSIS
The Court is required to screen prisoner complaints and to dismiss any complaint,
or any portion thereof, if the complaint—
(1)
is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2)
such relief.

seeks monetary relief from a defendant who is immune from

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may
be granted, the court applies the standards under Federal Rules of Civil Procedure
12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010). “Accepting all well-pleaded allegations in the complaint as true, the
Court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly
suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)
(quoting Iqbal, 556 U.S. at 681) (alteration in original). “[P]leadings that . . . are no more
than conclusions . . . are not entitled to the assumption of truth. While legal conclusions
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can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule
8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.
Without some factual allegation in the complaint, it is hard to see how a claimant could
satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but
also ‘grounds’ on which the claim rests.”).
“A complaint can be frivolous either factually or legally. Any complaint that is
legally frivolous would ipso facto fail to state a claim upon which relief can be granted.”
Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for
relief. Statutes allowing a complaint to be dismissed as frivolous give
“judges not only the authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims whose factual
contentions are clearly baseless.” Neitzke, 490 U.S. at 327, 109 S. Ct. 1827
(interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a
claim, where a judge must accept all factual allegations as true, Iqbal, 129
S. Ct. at 1949-50, a judge does not have to accept “fantastic or delusional”
factual allegations as true in prisoner complaints that are reviewed for
frivolousness. Neitzke, 490 U.S. at 327-28, 109 S. Ct. 1827.
Id. at 471.
“Pro se complaints are to be held ‘to less stringent standards than formal pleadings
drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at
383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and
prisoners are not exempt from the requirements of the Federal Rules of Civil Procedure.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 095

2259, 2011 WL 285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se
complaint for failure to comply with “unique pleading requirements” and stating “a court
cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”) (quoting
Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in
original); Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming sua
sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, “[n]either
this court nor the district court is required to create Payne’s claim for her”); cf. Pliler v.
Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or
paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App’x 506, 510 (6th
Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause
of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it
would transform the courts from neutral arbiters of disputes into advocates for a
particular party. While courts are properly charged with protecting the rights of all who
come before it, that responsibility does not encompass advising litigants as to what legal
theories they should pursue.”).
Knox filed his complaint on the court-supplied form for actions under 42 U.S.C.
§ 1983. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was
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violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of Columbia.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) a
deprivation of rights secured by the “Constitution and laws” of the United States (2)
committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 150 (1970).
Knox has no cause of action against Defendant Bishop for failing to investigate or
take remedial measures to the extent he was aware of Knox’s complaints.

Although

failure to investigate may give rise to § 1983 supervisory liability, see Walker v. Norris,
917 F.2d 1449, 1457 (6th Cir. 1990) and Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir.
1985), the reasoning in Walker and the analysis in its progeny teach that evidence of a
failure to investigate can establish municipal liability only. In Dyer v. Casey, No. 945780, 1995 WL 712765, at *2 (6th Cir. Dec. 4, 1995), the Court stated that “the theory
underlying [Marchese] is that the municipality’s failure to investigate or discipline
amounts to a ‘ratification’ of the officer’s conduct.”
In Walker, the Sixth Circuit distinguished Marchese because the Court “imposed
the broad investigative responsibilities outlined in Marchese upon the Sheriff in his
official capacity.” Walker, 917 F.2d at 1457 (“The Sheriff is sued here in his official
capacity and in that capacity, he had a duty to both know and act.”). In 1998, the Sixth
Circuit affirmed the dismissal of a claim of supervisory liability based on the “failure to
investigate,” stating:

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Young’s claim against defendants McAninch and Goff is based solely on
their alleged failure to investigate defendant Ward’s behavior towards
Young. Although Young stated that defendants McAninch and Goff had
knowledge of his allegations against defendant Ward, this is insufficient to
meet the standard that they either condoned, encouraged or knowingly
acquiesced in the misconduct.
Young v. Ward, No. 97-3043, 1998 WL 384564, at *1 (6th Cir. June 18, 1998).
Knox apparently sues Defendant Bivins because he failed to prosecute Defendant
Rider for assault. However, “a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Linda R. S. v. Richard D., 410 U.S. 614, 619
(1973); see also Booth v. Henson, 290 F. App’x 919, 920 (6th Cir. 2008). The decision
of whether to institute state or federal criminal proceedings is a decision committed
wholly to the discretion of the State District Attorney or the United States Attorney. This
Court cannot order that Defendant Rider be charged with a crime.
Knox’s complaint addresses his treatment at the NWCX. For a convicted prisoner,
such claims arise under the Eighth Amendment, which prohibits cruel and unusual
punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991). “[T]he unnecessary
and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by
the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation
marks omitted).
Knox’s allegations of intimidation by Defendant Boyd amount to complaints of
mere threats or verbal abuse, which are insufficient to state an Eighth Amendment claim.
See, e.g., Pasley v. Conerly, 345 F. App’x 981, 984 (6th Cir. 2009); Jones Bey v.
Johnson, 248 F. App’x 675, 677-78 (6th Cir. 2007) (no Eighth Amendment claim for
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prison guard’s “use of racial slurs and other derogatory language”); Miller v. Wertanen,
109 F. App’x 64, 65 (6th Cir. 2004) (a guard’s verbal threat to sexually assault an inmate
“was not punishment that violated [the prisoner’s] constitutional rights”); Johnson v.
Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (“harassment and verbal abuse . . .
do not constitute the type of infliction of pain that the Eighth Amendment prohibits”);
Johnson v. Moore, 7 F. App’x 382, 384 (6th Cir. 2001) (“Allegations of verbal
harassment and verbal abuse by prison officials toward an inmate do not constitute
punishment within the meaning of the Eighth Amendment. Nor do allegations of verbal
harassment rise to the level of unnecessary and wanton infliction of pain proscribed by
the Eighth Amendment.” (citation omitted)); Owens v. Johnson, No. 99-2094, 2000 WL
876766, at *2 (6th Cir. June 23, 2000) (“The occasional or sporadic use of racial slurs,
although unprofessional and reprehensible, does not rise to a level of constitutional
magnitude. The petty exchanges of insults between a prisoner and guard do not amount
to constitutional torts.” (citation omitted)); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.
1987) (per curiam) (holding that verbal abuse or harassment does not constitute
punishment under the Eighth Amendment); Miles v. Tchrozynski, No. 2:09-CV-11192,
2009 WL 960510, at *1 (E.D. Mich. Apr. 7, 2009) (“Even verbal threats by a corrections
officer to assault an inmate do not violate an inmate’s Eighth Amendment rights. Verbal
threats and abuse made in retaliation for filing grievances are likewise not actionable.”
(citation omitted)).
Knox also alleges he was subjected to excessive force.

Where an inmate

challenges a use of force by prison guards, “the question whether the measure taken
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inflicted unnecessary and wanton pain and suffering ultimately turns on whether force
was applied in a good faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.” Id. at 320-21 (internal quotation
marks omitted); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (“The
‘core judicial inquiry’ [for an excessive force claim] was not whether a certain quantum
of injury was sustained, but rather whether force was applied in a good-faith effort to
restore discipline, or maliciously and sadistically to cause harm.” (internal quotation
marks omitted)).
A significant physical injury is not required to establish the objective component
of an Eighth Amendment claim. Wilkins, 559 U.S. at 1178-79 (“An inmate who is
gratuitously beaten by guards does not lose his ability to pursue an excessive force claim
merely because he has the good fortune to escape without serious injury.”); Hudson v.
McMillian, 503 U.S. 1, 7-9 (1992) (same). However, the Supreme Court has made clear
that trivial physical contact does not violate the Eighth Amendment:
That is not to say that every malevolent touch by a prison guard
gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d
[1028,] 1033 [(2d Cir. 1973)] (“Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chamber, violates a
prisoner’s constitutional rights”). The Eighth Amendment’s prohibition of
“cruel and unusual” punishments necessarily excludes from constitutional
recognition de minimis uses of physical force, provided that the use of force
is not of a sort repugnant to the conscience of mankind.
Id. at 9-10 (internal quotation marks omitted); see also Wilkins, 559 U.S. at 38 (“An
inmate who complains of a ‘push or shove’ that causes no discernible injury almost
certainly fails to state a valid excessive force claim.”).
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Applying Hudson, the Sixth Circuit has held that prison guards’ use of de minimis
force to return an inmate to his cell did not violate the Eighth Amendment. Johnson v.
Coolman, 102 F. App’x 460, 461 (6th Cir. 2004). The defendants in Johnson were
alleged to have “pushed [the prisoner] into his cell, pulled hard on the security strap
attached to his handcuffs, hurting his wrists, and then, while removing his cuffs,
attempted to bend his thumb back.” Id.; see also Tuttle v. Carroll Cnty. Detention Ctr.,
500 F. App’x 480, 482 (6th Cir. 2012) (allegation that deputy grabbed inmate’s privates
and squeezed them “really hard” during a search insufficient to state an Eighth
Amendment claim); Leary, 528 F.3d at 443 (allegation that deputy hit pretrial detainee on
the neck with no intention to hurt him, in “a karate chop kind of deal,” held to be a de
minimis use of force); Lockett v. Suardini, 526 F.3d 866, 875 (6th Cir. 2008) (holding that
officers “minimal application of force, together with Lockett’s admitted minor injuries,
did not rise to a level that is sufficient to sustain an Eighth Amendment claim”); Briggs v.
Miles, No. 1:13-cv-228, 2015 WL 1120132, at *12 (W.D. Mich. Mar. 12, 2015)
(allegation that officer “shoved” inmate inside transport van is “the very sort of de
minimis force that falls outside the scope of the Eighth Amendment”).
Knox complains that while he was taking a shower during a lockdown period, he
was shot by Defendant Rider with a pepper-ball gun. (ECF No. 1 at 5.) While Knox
asserted in his grievance that he showed no resistance or aggression (Grievance, ECF No.
1-3 a 2), in the complaint Knox admits that when Boyd told him to get out of the shower,
he responded by saying, “fuck you” (ECF No. 1 at 5). Further, there is no allegation that
Knox suffered any more than minor injury as a result of the incident. While he states that
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he “continue[s] to have chronic back pain” (id.), Knox does not state how his back came
to be injured or how being shot with the pepper-ball gun had any effect on his back.
Thus, Knox has failed to allege an Eighth Amendment claim for excessive force.
Knox also has not sufficiently stated an Eighth Amendment claim that the
Defendants denied him medical treatment after the incident with the pepper-ball gun. An
Eighth Amendment claim consists of both objective and subjective components. Farmer
v. Brennan, 511 U.S. 825, 834 (1994); Hudson, 503 U.S. at 8; Wilson, 501 U.S. at 298;
Williams v. Curtin, 631 F.3d at 383; Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010). The objective component requires that the deprivation be “sufficiently serious.”
Farmer, 511 U.S. at 834; Hudson, 503 U.S. at 8; Wilson, 501 U.S. at 298. In the context
of an Eighth Amendment claim based on a lack of medical care, the objective component
requires that a prisoner have a serious medical need. Blackmore v. Kalamazoo Cnty., 390
F.3d 890, 895 (6th Cir. 2004); Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994). “[A]
medical need is objectively serious if it is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would readily
recognize the necessity for a doctor’s attention.” Blackmore, 390 F.3d at 897 (internal
quotation marks omitted); see also Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005).
Knox does not allege that he ever asked the Defendants for medical treatment after
the incident. He also does not allege that his need for medical attention was so obvious
that it would have been readily recognized, even by a lay person. Blackmore, 390 F.3d at
897. Thus, he has not adequately alleged the objective component of a claim for denial
of medical care.
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To establish the subjective component of an Eighth Amendment violation, a
prisoner must demonstrate that the official acted with the requisite intent, that is, that he
had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson,
501 U.S. at 302-03.

The plaintiff must show that the prison officials acted with

“deliberate indifference” to a substantial risk that the prisoner would suffer serious harm.
Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303; Dominguez v. Corr. Med. Servs., 555
F.3d 543, 550 (6th Cir. 2009); Woods v. Lecureux, 110 F.3d 1215,1222 (6th Cir. 1997);
Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996); Taylor v. Mich. Dep’t of
Corr., 69 F.3d 76, 79 (6th Cir. 1995). “[D]eliberate indifference describes a state of mind
more blameworthy than negligence.” Farmer, 511 U.S. at 835. A prison official cannot
be found liable under the Eighth Amendment unless he subjectively knows of an
excessive risk of harm to an inmate’s health or safety and also disregards that risk. Id. at
837. “[A]n official’s failure to alleviate a significant risk that he should have perceived
but did not” does not state a claim for deliberate indifference. Id. at 838.
Knox does not allege that either Defendant Rider or Defendant Boyd was aware
there was an excessive risk to Knox’s health if he did not receive medical care following
the incident and then disregarded that risk. Therefore, Knox has also failed to adequately
allege the subjective component of a claim for denial of medical care.
IV. STANDARD FOR LEAVE TO AMEND
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716
F.3d 944, 951 (6th Cir. 2013); see also Brown v. R.I., No. 12-1403, 2013 WL 646489, at
13

*1 (1st Cir. Feb. 22, 2013) (per curiam) (“Ordinarily, before dismissal for failure to state
a claim is ordered, some form of notice and an opportunity to cure the deficiencies in the
complaint must be afforded.”). Leave to amend is not required where a deficiency cannot
be cured. Brown, 2013 WL 646489, at *1; Gonzalez-Gonzalez v. United States, 257 F.3d
31, 37 (1st Cir. 2001) (“This does not mean, of course, that every sua sponte dismissal
entered without prior notice to the plaintiff automatically must be reversed. If it is crystal
clear that the plaintiff cannot prevail and that amending the complaint would be futile,
then a sua sponte dismissal may stand.”); Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002) (“in forma pauperis plaintiffs who file complaints subject to dismissal
under Rule 12(b)(6) should receive leave to amend unless amendment would be
inequitable or futile”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree
with the majority view that sua sponte dismissal of a meritless complaint that cannot be
salvaged by amendment comports with due process and does not infringe the right of
access to the courts.”).

In this case, with the exception of Knox’s claims against

Defendants Bishop and Bivens, the Court cannot conclude that any amendment to Knox’s
complaint would be futile as a matter of law.
V. CONCLUSION
The Court DISMISSES Knox’s complaint for failure to state a claim on which
relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
However, leave to file an amended complaint as to Defendants Rider and Boyd is
GRANTED. Any amended complaint must be filed within thirty (30) days after the date
of this order. Knox is advised that an amended complaint will supersede the original
14

complaint and and must be complete in itself without reference to those prior pleadings.
The text of the amended complaint must allege sufficient facts to support any claims
without reference to any extraneous document. Any exhibits must be identified by
number in the text of the amended complaint and must be attached to the amended
complaint. If Knox fails to file an amended complaint within the time specified, the
Court will assess a strike pursuant to 28 U.S.C. § 1915(g) and enter judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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