UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
ADAM ELI LEWIS, Case No. 1:25-cv-00405-AKB Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE
BONNEVILLE COUNTY JAIL; K. MEACHAM; COUNTY JAIL MEDICAL PROVIDER; CENTURION MEDICAL; and DR. WILKS,
Defendants.
The Clerk of Court conditionally filed Plaintiff Adam Eli Lewis’s Complaint because of Plaintiff’s status as an inmate and in forma pauperis request. A “conditional filing” means that a plaintiff must obtain authorization from the Court to proceed. Upon screening, the Court must dismiss claims that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Having reviewed the record, the Court concludes that the Complaint fails to state a claim upon which relief may be granted and contains frivolous claims. Accordingly, the Court enters the following Order directing Plaintiff to file an amended complaint if he intends to proceed. 1. Standards of Law for Screening Complaints 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). To state an actionable claim, a plaintiff must provide “enough factual matter (taken as true) to suggest” that the defendant committed the unlawful act, meaning that sufficient facts are pled “to raise a reasonable expectation that discovery will reveal evidence of illegal [activity].” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 US. at 678 (quoting Twombly, 550 U.S. at 555). The Court liberally construes the pleadings to determine whether a case should be dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for the absence of a cognizable legal theory. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (discussing Federal Rule of Civil Procedure 12(b)(6)), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Moreover, even if a complaint meets the pleading requirements, dismissal under §§ 1915 and 1915A is still appropriate if an affirmative defense, such as untimeliness, is an “obvious bar to securing relief on the face of the complaint.” Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1056 (9th Cir. 2016) (internal quotation marks omitted). 2. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction (“IDOC”), currently incarcerated at the Idaho State Correctional Center. Plaintiff alleges that, from September 2021 to August 2022, while he was being held in the Bonneville County Jail, he received inadequate medical treatment. Specifically, Plaintiff alleges that the medical providers at the jail did not follow Plaintiff’s “established medication” regimen. Additionally, Bonneville County Jail medical provider K. Meacham allegedly told Plaintiff he had AIDS in order to manipulate Plaintiff. Compl., Dkt. 3, at 5–7. Plaintiff also asserts claims of inadequate medical treatment, with respect to talar necrosis in Plaintiff’s right ankle, after he was transferred to prison. Specifically, Plaintiff alleges that, from 2023 to the present, Dr. Wilks, a medical provider with Centurion (the private entity that provides
Idaho inmates with medical treatment under contract with the IDOC), did not prescribe Norco for Plaintiff’s pain. Instead, Wilks prescribed Tylenol 3, which Plaintiff claims is insufficient to treat his pain. Id. at 3–4. Plaintiff sues Wilks and Meacham, as well as the Bonneville County Jail and Centurion. Plaintiff also sues an unidentified county jail medical provider. Compl. at 1. Plaintiff alleges that Defendants have violated his Eighth Amendment right to adequate medical treatment while incarcerated. Id. at 2–6. 3. Discussion Plaintiff has not stated a claim upon which relief may be granted. The Court will, however, grant Plaintiff 28 days to amend the Complaint. Any amended complaint should take into
consideration the following. A. Standards of Law Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. Compl. at 1. 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). A defendant causes a constitutional deprivation within the meaning of § 1983 “if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). That is, jail or prison officials and medical providers 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. To bring a § 1983 claim against a local governmental entity (such as the Bonneville County Jail) or a private entity performing a government function (such as Centurion), a plaintiff must allege that the execution of an official policy or unofficial custom inflicted the injury of which the plaintiff complains, as required by Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to private entities performing a government function). Under Monell, the requisite elements of a § 1983 claim against such an entity are the following: (1) the plaintiff was deprived of a constitutional right; (2) the entity had a policy or custom; (3) the policy or custom amounted to
deliberate indifference to plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110–11 (9th Cir. 2001). An entity also “may be held liable under § 1983 when the individual who committed the constitutional tort was an official with final policy-making authority” or when “such an official ratified a subordinate’s unconstitutional decision or action and the basis for it.” Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010), overruled in part on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016) (en banc). An unwritten policy or custom must be so “persistent and widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970)). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 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 damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679. The Eighth Amendment to the United States Constitution protects prisoners against cruel and unusual punishment and guarantees prisoners the right to minimally adequate conditions of confinement. To state a claim under the Eighth Amendment, a prisoner must plausibly allege that he is “incarcerated under conditions posing a substantial risk of serious harm,” or that he has 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 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). The Eighth Amendment includes the right to adequate medical treatment in prison. Prison officials or prison medical providers can be held liable if their “acts or omissions [were] sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Regarding the objective standard for prisoners’ medical care claims, “society does not expect that prisoners will have unqualified access to health care.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Therefore, “deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’” Id. The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner’s condition [that] could result in further significant injury or the unnecessary and wanton infliction of pain[;] . . . [t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain . . . .
McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992) (internal citations omitted), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). As to the subjective standard, “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. A prison official or prison medical provider acts with deliberate indifference “only if the [prison official or provider] knows of and disregards an excessive risk to inmate health and safety.” Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (internal quotation marks omitted), overruled on other grounds by Castro, 833 F.3d 1060. “Under this standard, the prison official must not only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837). In the medical context, deliberate indifference can be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104–05 (footnotes omitted). That is, a delay in medical treatment can violate an inmate’s right to adequate prison medical care. However, an inmate asserting an Eighth Amendment violation must establish that the delay caused further harm. McGuckin, 974 F.2d at 1060. Medical malpractice or negligence does not support a cause of action under the Eighth
Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per curiam). Additionally, there is no constitutional right to an outside medical provider of one’s own choice. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986) (“A prison inmate has no independent constitutional right to outside medical care additional and supplemental to the medical care provided by the prison staff within the institution.”). “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, 290 F.3d at 1188. Moreover, even prison officials or medical providers who did know of a substantial risk to an inmate’s health 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. If medical personnel have been “consistently responsive to [the inmate’s] medical needs,” and the plaintiff has not shown that the medical personnel had “subjective knowledge and conscious disregard of a substantial risk of serious injury,” there has been no Eighth Amendment violation. Toguchi, 391 F.3d at 1061. “There is not one proper way to practice medicine in a prison, but rather a range of acceptable courses based on prevailing standards in the field.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (internal quotation marks omitted). Accordingly, mere differences in judgment as to appropriate medical diagnosis and treatment between an inmate and prison medical providers—or, for that matter, among medical providers—are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard of an excessive risk’ to the prisoner’s
health.” Toguchi, 391 F.3d at 1058 (alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). Stated another way, a plaintiff must prove that medical providers chose one treatment over the plaintiff’s preferred treatment “even though they knew [the plaintiff’s preferred treatment] to be medically necessary based on [the plaintiff’s] records and prevailing medical standards.” Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1117 (N.D. Cal. 2015). To violate the Eighth Amendment, the choice of treatment must have been “so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.” Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998); see also Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018) (“[P]rison officials
do not act with deliberate indifference when they provide medical treatment even if it is subpar or different from what the inmate wants.”). Accordingly, prison medical providers do not act with deliberate indifference solely by disagreeing with an outside doctor’s treatment recommendation or by choosing a different treatment than that requested by an inmate. A court’s review of a prison medical provider’s choice of treatment must be especially deferential where the issue is the type or amount of pain medication an inmate should receive. In such cases, the court “is asked to pass judgment on the attempts by prison medical staff to navigate between” the risk of “debilitating pain” and the competing risk of addiction. Baker v. Stevenson, 605 F. App’x 514, 519 (6th Cir. 2015) (unpublished). Where a prison medical provider believes in good faith that a certain course of pain treatment might “create or enable” a risk of addiction, the provider’s decision not to provide that treatment “cannot be considered an act of deliberate indifference.” Id. B. The Complaint Fails to Allege Sufficient Factual Allegations to State a Plausible Eighth Amendment Claim The Complaint plausibly alleges, at most, that jail and prison medical providers disagreed with an outside doctor’s recommendation or with Plaintiff’s own requested treatment. Such disagreements do not constitute constitutional violations. See Sanchez, 891 F.2d at 242. The Complaint simply does not support a reasonable inference that Dr. Wilks, K. Meacham, or the unidentified medical provider chose a medically unacceptable course of treatment in conscious
disregard of an excessive risk to Plaintiff’s health. See Toguchi, 391 F.3d at 1058. Plaintiff’s claim that Defendant Meacham told Plaintiff he had AIDS in order to manipulate him is also implausible. Verbal harassment, abuse, or threats, without more, are not sufficient to state a claim under § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 137–39 (9th Cir. 1987) (allegations that correctional counselor told plaintiff that he would transfer him to a higher custody status unit if he tried to go to the law library and that he would be sorry if he filed a class action suit were not actionable under § 1983); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (allegations that defendant “personally informed plaintiff that if he never cut his hair and shaved his beard that he would lose what class he had and would have a bad time at Wrightsville” and that defendant “verbally abused and threatened him for filing grievances” did not constitute a
constitutional violation); McFadden v. Lucas, 713 F.2d 143, 147 (5th Cir. 1983) (“While twenty- two officers armed with sticks and threatening demeanor may arguably be excessive, we must, in the absence of physical abuse, concur with the lower court’s dismissal. The alleged conduct, absent more, cannot be said to rise to the level of conduct which ‘shocks the conscience’” (citation omitted)). Accordingly, the Complaint fails to state a colorable claim based on Meacham’s verbal statement to Plaintiff. Plaintiff’s claims against the Bonneville County Jail and Centurion are also implausible. The allegations in the Complaint do not support a reasonable inference that any decision on Plaintiff’s medical treatment was made pursuant to a policy, custom, or practice of either entity
Defendant. Rather, the “obvious alternative explanation” is that jail and prison medical providers exercised their independent medical judgment in determining how to treat Plaintiff’s serious medical needs. Iqbal, 556 U.S. at 682 (internal quotation marks omitted). For these reasons, Plaintiff’s claims must be dismissed for failure to state a claim upon which relief may be granted. C. Plaintiff’s Claims Against the Bonneville County Defendants Appear Legally Frivolous as Untimely The statute of limitation period for filing a § 1983 action in Idaho is two years. Idaho Code § 5-219; Wilson v. Garcia, 471 U.S. 261, 280 (1985), abrogated on other grounds by Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004). Though state law governs the limitations period for filing a § 1983 claim, federal law governs when that claim accrues, or arises. Elliott v. City of Union City, 25 F.3d 800, 801–02 (9th Cir. 1994). Under the “discovery rule,” a claim accrues “when the plaintiff knows or has reason to know of the injury” that is the basis of the claim. Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (internal quotation marks omitted). That is, the statute of limitations begins to run when the plaintiff becomes aware
of the actual injury—not “when the plaintiff suspects a legal wrong.” Id. at 1049. If a plaintiff cannot show that his claim accrued during the statute of limitations period, he still may file a lawsuit beyond the limitations deadline if he can show that the statute should have been tolled (or paused) for a certain period of time during the deadline period within which he should have filed the lawsuit. Pursuant to the Prison Litigation Reform Act (“PLRA”), the “statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process.” Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). In addition to tolling under the PLRA, state tolling law applies to § 1983 actions unless important federal policy will be undermined. See Johnson v. Railway Express Agency, Inc., 421
U.S. 454, 464-65 (1975). Idaho law allows for statutory tolling of the statute of limitations for a person’s juvenile status or insanity. Idaho Code § 5-230. However, because the Idaho Supreme Court has determined that “statutes of limitation in Idaho are not tolled by judicial construction but rather by the expressed language of the statute,” equitable tolling is not available in Idaho. Wilhelm v. Frampton, 158 P.3d 310, 312 (Idaho 2007). The doctrine of equitable estoppel, however, is available in Idaho. While it “does not ‘extend’ a statute of limitation,” equitable estoppel works in a similar manner to prevent a party who has falsely represented or concealed a material fact with actual or constructive knowledge of the truth “from pleading and utilizing the statute of limitations as a bar, although the time limit of
the statute may have already run.” J.R. Simplot Co. v. Chemetics Int’l, Inc., 887 P.2d 1039, 1042 (Idaho 1994), abrogated in part on other grounds by Day as Tr. of Tr. B of Donald M. Day & Marjorie D. Day Fam. Tr. v. Transp. Dep’t, 166 Idaho 293, 301, 458 P.3d 162, 170 (Idaho 2020). Equitable estoppel requires a showing of four elements: “(1) a false representation or concealment of a material fact with actual or constructive knowledge of the truth; (2) that the party asserting estoppel did not know or could not discover the truth; (3) that the false representation or concealment was made with the intent that it be relied upon; and (4) that the person to whom the representation was made, or from whom the facts were concealed, relied and acted upon the representation or concealment to his prejudice.” Id. at1041. Plaintiff’s claims against the Bonneville County Defendants arose in 2021 and 2022. Thus, any claim based on allegedly inadequate medical treatment in the Bonneville County Jail had to be filed no later than sometime in 2024. However, Plaintiff’s Complaint in this case was filed, at the earliest, on July 19, 2025.1 Therefore, Plaintiff’s claims against the Bonneville County Jail, K. Meachum, and the
unidentified county jail medical provider appear untimely, and time-barred claims are considered legally frivolous. See Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984) (affirming dismissal of a time-barred complaint as frivolous); Julian v. Crystal Springs Rehab. Ctr., 884 F.2d 1395 n.3 (9th Cir. 1989) (unpublished) (“We agree with the district court that an untimely complaint is frivolous and justifies sua sponte dismissal because a complete defense is obvious from the pleadings and the deficiency cannot be cured by amendment.”). These claims appear subject to dismissal on this additional basis. In any amended complaint, Plaintiff must allege facts showing that his claims against these Defendants are not barred by the statute of limitations. 4. Standards for Amended Complaint If Plaintiff chooses to amend the Complaint, he must demonstrate how the actions
complained of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980), abrogated on other grounds by Kay v. Ehrler, 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, 588 F.2d at 743. “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion
1 Prisoners are usually entitled to the benefit of the “mailbox rule,” which provides that a legal document is deemed filed on the date the prisoner delivers it to the prison authorities for filing by mail, rather than the date the clerk actually receives it. See Houston v. Lack, 487 U.S. 266, 270–71 (1988) (adopting mailbox rule in habeas case); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (applying the mailbox rule to civil rights action). 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 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 constitutional or statutory provision Plaintiff alleges has been violated; (6) facts alleging the elements of the violation are met; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief Plaintiff is seeking from each defendant. In addition, Plaintiff must include facts showing Plaintiff can meet the Monell requirements, if applicable (explained above). 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. See 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 Cnty., 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner & 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). 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 “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 28 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 28 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. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if Plaintiff no longer intends to pursue this case.2
2. If Plaintiff does not file a timely amended complaint, this case may be dismissed with prejudice and without further notice for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e) and 1915A(b). 3. Because an amended complaint is required for Plaintiff to proceed, Plaintiff’s request for appointment of counsel (contained in the Complaint) is DENIED
2 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). Spencer v. Barajas, 140 F.4th 1061, 1066 (9th Cir. 2025). without prejudice. Plaintiff may renew the request for counsel in an amended complaint.
ea DATED: October 2, 2025
WTC), Amanda K. Bailstord Vino U.S. District Court Judge
INITIAL REVIEW ORDER BY SCREENING JUDGE - 15