UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
GARRETT MICHAEL McCOY, Case No. 1:24-cv-00455-DCN Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE
MISTY KING; JAROD AREHART; CHANTEL ROSE; MAKEYLA MARTINEZ; SHELLY BARNEY; JULIA BRYANT; BRANDON JARRDSY; KELSEY SPATEN; and their subordinates,
Defendants.
The Clerk of Court conditionally filed Plaintiff Garrett Michael McCoy’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. Accordingly, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff 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). 2. Factual Allegations
Plaintiff is an inmate currently confined in the Ada County Jail. Plaintiff sues various employees of the “Probation and Parole Districts” of Ada County and Canyon County. The entire factual basis of Plaintiff’s claims is as follows: Violated state federal laws, plus U.S. Idaho Constitution Protections, standard operating procedure Grievance Policy Retaliation Co-conspirating, perjury Hippa laws, Prea Protections, protection orders. Failed to serve & protect and Facilate success on a rehabilitated product of state property. Compl., Dkt. 3, at 2 (verbatim). 3. Discussion Plaintiff has stated no claim upon which Plaintiff can proceed with the vague allegations in the Complaint. The Court will, however, grant Plaintiff 28 days to amend the Complaint. Any amended complaint should take into consideration the following. In simplified terms, for each defendant, Plaintiff must include in the amended complaint the “who, what, when, where, why, and how” of each allegedly wrongful act that each defendant committed. A pleading is more understandable if it is organized by claim for relief and defendant, rather than asserting a broad set of facts at the beginning of a pleading that are unrelated to a list of defendants elsewhere in the pleading. For each particular constitutional violation against each defendant, Plaintiff must
state the following: (1) the name of the person or entity that caused the alleged deprivation of 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 provision
Plaintiff alleges has been violated; (6) facts alleging that the elements of the violation are met; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type of relief sought from the defendant. Plaintiff should do the same for each defendant, in turn. For any state law claims, Plaintiff also must set forth facts explaining the “who, what, when, where, why, and how” of each allegedly wrongful act that each defendant committed, showing that plausible facts exist to support the particular state law claim.
The Court now provides the following standards of law, which might or might not apply to Plaintiff’s claims. A. Section 1983 Claims Plaintiff brings 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, governmental 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 a defendant (1) set in motion a series of acts by others that violated the Constitution, or knowingly refused to terminate a series of such acts, which the supervisor “knew or reasonably should have known would cause others to inflict a constitutional injury”; (2) knowingly failed to act or acted improperly “in the training, supervision, or control of his subordinates”; (3) acquiesced in the constitutional
deprivation; or (4) engaged in conduct showing “a reckless or callous indifference to the rights of others.” Id. at 1205-09 (internal quotation marks omitted). 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 damage. Alleging “the mere possibility of misconduct” is not enough. Iqbal, 556 U.S. at 679. Plaintiff cites the First, Fifth, Eighth, and Fourteenth Amendments as bases for his federal constitutional claims. Compl. at 2. i. First Amendment Claims
The First Amendment protects, among other things, the right to free speech and to petition the government for redress of grievances. It also prohibits retaliation for exercising constitutional rights. A plaintiff asserting a retaliation claim must show the following: “(1) ... that a state actor took some adverse action against the inmate (2) because of (3) that prisoner’s
protected conduct, ... that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) [that] the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). “[B]are allegations” of a retaliatory motive are insufficient to support a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985); see also Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (“We have repeatedly held that mere speculation that defendants acted out of retaliation is not sufficient.”). Rather, when analyzing a
governmental official’s proffered reasons for allegedly retaliatory conduct, the Court must “afford appropriate deference and flexibility” to that official. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (internal quotation marks omitted). Not every retaliatory act taken by an official can be considered an adverse action that chills the exercise of protected speech. The proper inquiry asks whether the official’s
action “would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Envt’l Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (internal quotation marks omitted). If it would not, then “the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (internal quotation marks omitted). See also Morris v. Powell,
449 F.3d 682, 686 (5th Cir. 2006) (“The [de minimis] standard achieves the proper balance between the need to recognize valid retaliation claims and the danger of federal courts embroiling themselves in every disciplinary act that occurs in state penal institutions.”) (internal quotation marks and alteration omitted). A plaintiff asserting a retaliation claim under § 1983 also “must show a causal
connection between a defendant’s retaliatory animus and [the plaintiff’s] subsequent injury.” Hartman v. Moore, 547 U.S. 250, 259 (2006) (Bivens action). Retaliatory motivation is not established simply by showing an adverse action by the defendant after protected speech. Instead, the plaintiff must show a nexus between the two. Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (stating that a retaliation claim cannot rest on “the logical fallacy of post hoc, ergo propter hoc, literally, ‘after this, therefore because of this’”). Therefore, although the timing of an official’s action can constitute
circumstantial evidence of retaliation—if, for example, an adverse action was taken shortly after the official learned about a plaintiff’s exercise of protected conduct—there generally must be something more than mere timing to support an inference of retaliatory intent. Pratt, 65 F.3d at 808. ii. Fifth Amendment Claims
The Fifth Amendment guarantees the right to a grand jury in federal criminal cases. It also protects a person’s rights to be free from double jeopardy and from compelled self- incrimination. Finally, the Fifth Amendment protects against violations of due process by federal officials and against takings of private property without just compensation. None of these rights is implicated by the allegations in the Complaint.
iii. Eighth Amendment Claims The Eighth Amendment applies to convicted inmates and prohibits cruel and unusual punishments. That is, the amendment guarantees prisoners minimally adequate conditions of confinement. To state a claim under the Eighth Amendment, a prisoner must show that he is (or was) “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). 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); see Whitley, 475 U.S. at 319 (“After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”) (internal quotation marks and alteration omitted). 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, 833 F.3d 1060. 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. iv. Fourteenth Amendment Claims The Fourteenth Amendment prohibits the government from depriving an individual of life, liberty, or property without due process of law. The Due Process Clause does not
provide a convicted inmate with a right to rehabilitation. See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (no right to a particular security classification or to prison rehabilitative services); Bauman v. Arizona Dep’t of Corrs., 754 F.2d 841, 844 (9th Cir. 1985) (no constitutional right to work furlough classification); Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982) (no general right to rehabilitation), abrogated in part on
other grounds Sandin v. Conner, 515 U.S. 472 (1995). The Fourteenth Amendment also guarantees equal protection of the law. 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 quotation marks omitted). Equal protection claims alleging disparate treatment or classifications are subject to a heightened standard of scrutiny when they involve a “suspect” or “quasi-suspect” class, such as race or national origin, 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 Center, Inc., 473 U.S. 432, 440 (1985). Otherwise, equal protection claims are subject to a rational basis inquiry. See Heller v. Doe, 509 U.S. 312, 319-20 (1993).
Under the rational basis test, the relevant inquiry is whether the state 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). An inmate can prevail on this test only if (1) he or she is similarly situated with persons who are treated differently by the defendant, and (2) the defendant has no rational basis for the dissimilar treatment.
“[E]ven 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) (internal quotation marks omitted). Absent evidence of invidious discrimination, the federal courts should defer to the judgment of prison officials. Id. at 272; see also 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’ asserted reasons for delaying the construction of a sweat lodge at the [prison] were a pretext for discrimination.”). v. HIPAA Claims
Plaintiff may be asserting a claim under the Health Insurance Portability and Accountability Act (“HIPAA”), Pub. L. 104–191, 110 Stat. 1936 (codified as amended in scattered sections of Title 42 of the United States Code). However, HIPAA does not provide a private right of action. Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (affirming dismissal of HIPAA claim, asserted in a § 1983 complaint, based on the lack of a private right of action). Therefore, Plaintiff’s HIPAA claims are implausible and should be omitted from any amended complaint.
vi. PREA Claims Plaintiff also may be asserting a claim under the Prison Rape Elimination Act (“PREA”), 34 U.S.C. § 30302 et seq. PREA “was enacted to address the problem of rape in prison by creating and applying national standards to prevent, detect, and respond to prison rape, and by ensuring compliance of state and federal prisons by conditioning
eligibility for federal grant money on compliance with the standards.” Barber v. Cox, No. 1:17-CV-00318-BLW, 2019 WL 454090, at *1 n.1 (D. Idaho Feb. 5, 2019) (unpublished). However, like HIPAA, PREA does not provide a private right of action enforceable by individual inmates. Id.; see also Krieg v. Steele, 599 F. App’x 231, 232 (5th Cir. April 15, 2015) (per curiam) (unpublished) (collecting cases); Hill v. Hickman Cnty. Jail, 2015
WL 5009301 (M.D. Tenn. August 21, 2015) (unpublished) (dismissing PREA claim for lack of private right of action); Montgomery v. Harper, 2014 WL 4104163, at *3 (W.D. Ky. Aug. 19, 2014) (unpublished) (“[T]his Court concludes that the PREA creates no private right of action.”); Holloway v. Dep’t of Corr., 2013 WL 628648, at *2 (D. Conn. Feb. 20, 2013) (“There is nothing in the PREA that suggests that Congress intended it to
create a private right of action for inmates to sue prison officials for non-compliance to the Act.”). Therefore, Plaintiff’s PREA claims are implausible and should be omitted from any amended complaint. B. Section 1986 Claims 42 U.S.C. § 1986 provides that persons who negligently fail to prevent a wrongful conspiracy as described in § 1985 may be liable to the party injured. To state a claim under
§ 1985, a plaintiff must allege a racial or class-based discriminatory animus behind the conspirators’ actions. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989); see also A & A Concrete, Inc. v. White Mountain Apache Tribe, 676 F.2d 1330, 1333 (9th Cir. 1982) (§ 1985 claims require the element of class-based animus). Moreover, to state a plausible claim under § 1985 or § 1986, a plaintiff must offer more than a mere “bare allegation of
conspiracy,” and “a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.” Bell Atl. Corp., 550 U.S. at 556-57 (discussing pleading standards in context of a conspiracy claim under the Sherman Act). C. Bivens Claims Plaintiff also asserts claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Compl. at 1. In Bivens, the United States
Supreme Court recognized a cause of action for monetary damages against federal officials in their individual capacities for a violation of constitutional rights. 403 U.S. at 392–97. A Bivens action is the federal analog to an action brought under § 1983, and a plaintiff asserting a Bivens claim must show that the defendant was acting under color of federal law. Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982).
Plaintiff’s Bivens claims are implausible because he does not name a federal official as a defendant or otherwise allege that the named Defendants acted under color of federal law. D. State Law Claims In addition to federal claims, Plaintiff asserts claims under the Idaho State Constitution. Compl. at 2. As this Court has previously held, however, “Idaho does not
recognize a direct cause of action for violations of the Idaho Constitution.” Hill v. Cnty. of Benewah, No. 2:18-CV-00320-DCN, 2020 WL 1049905, at *7 (D. Idaho Mar. 4, 2020) (unpublished), aff’d, 843 F. App’x 975 (9th Cir. 2021). Therefore, Plaintiff’s state constitutional claims are implausible. 4. 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 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 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).
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 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 an “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. 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, failure to prosecute, or failure to comply with a Court order. See 28 U.S.C. §§ 1915 and 1915A; Fed. R. Civ. P. 41(b). 3. Because an amended complaint is required for Plaintiff to proceed, 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.
LE DATED: February 6, 2025 ie _ ~ ~ 2 LS A. alll } — □□ Zs David C. Nye Chief U.S. District Court Judge
' 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 - 16