Opinion
3:22-cv-00069-RCJ-CLB
12-27-2022
MICHAEL T. WILLIAMS, Plaintiff, v. MICHAEL MINEV, et al., Defendants.
SCREENING ORDER
Plaintiff, who is incarcerated in the custody of the Nevada Department of Corrections, has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983, and has filed an application to proceed in forma pauperis. (ECF Nos. 1, 1-1.) The matter of the filing fee will be temporarily deferred. The Court now screens Plaintiff's civil rights complaint under 28 U.S.C. § 1915A.
I. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, 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. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act (PLRA), a federal court must dismiss a prisoner's claim, if “the allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.
Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. SCREENING OF COMPLAINT
In his Complaint, Plaintiff sues multiple Defendants for events that took place while he was incarcerated at Lovelock Correctional Center (“LCC”). (ECF No. 1-1 at 1-4.) Plaintiff sues Defendants Medical Director Michael Minev, Director of Nursing R. Donnelly, Caseworker B. Egerton, Mental Health Coordinator A. Mejia, Warden Renee Baker, Associate Warden Sandy, and John Does 1-10. (Id.) Plaintiff brings two claims and seeks monetary, declaratory, and injunctive relief. (Id. at 5-10, 14-15.)
The Complaint alleges the following. During his incarceration at LCC, Plaintiff was assigned to the upper bunk in a two-man cell. (Id. at 5.) The bunk bed did not have a ladder, step, or handrail. (Id.) Thus, to reach the upper bunk, Plaintiff was required to climb six to ten feet while holding on to the bunk bed. (Id.) In addition to the bunk bed, Plaintiff's cell featured a “combination commode and wash basin” constructed of “hard-cast stainless steel.” (Id.)
While incarcerated at LCC, Plaintiff took various “psychotropic and sleeping medications,” including 200mg of Doxepin. (Id. at 6.) He typically received the medications at evening pill-call. (Id.) Plaintiff's medications “caused dizziness and induced sleep.” (Id.) These side effects exposed Plaintiff to the risk of falling from the bunk bed and “potentially striking his head against [both] the hard-steel fixtures” and the “hard concrete floor.” (Id.)
On June 13, 2018, Plaintiff submitted a medical kite noting that he had been experiencing panic attacks ever since his medication was “lowered.” (Id. at 38.) Thus,
Plaintiff requested that his medication be “put back where it was.” (Id.) He also sought, without elaboration, a “bottom bunk restriction.” (Id.) Mejia responded to the request: “[Y]our medications were lowered by medical. You must address the changes with them. . . . Bottom bunk must also be addressed with medical. Please send them a kite.” (Id.)
Almost two years later, on March 15, 2020, Plaintiff filed an informal grievance. (Id. at 29.) He explained that four days earlier, he had “fallen from his top bunk” and “injur[ed]” his “back and hip,” causing “extreme pain.” (Id.) Plaintiff stated that he had “spoken with medical” and the “mental health doctors” in an effort to “receive bottom bunk restrictions.” (Id. at 29, 32.) Plaintiff further explained that he had previously sought a bottom bunk restriction because of the “dizzy symptoms” caused by his “psych medication.” (Id. at 32.) Plaintiff concluded by asking for “a bottom bunk restriction” and “appropriate[ ]” treatment for the injuries he had sustained in the fall. (Id. at 34.) Egerton denied the grievance, stating: “I have reviewed your medical file. Nurses are not authorized to change an inmate[']s medical classification. This can only be done by a doctor. We currently do not have a doctor at LCC. If you would like to discuss this with one of the doctors in Carson City please submit a kite requesting an appointment.” (Id. at 28.)
On April 29, 2020, Plaintiff filed a first-level grievance. (Id. at 23.) This time, he claimed that it was “unconstitutional not to have adequate medical doctors at a prison facility.” (Id.) Plaintiff asked that “ladders be installed on the bunk beds for safety and security purposes.” (Id. at 26.) He also requested “bottom bunk restrictions . . . and $100,000 for injuries [he had] sustained falling from the bunk, due to the psych medications [he] must take.” (Id.) Donnelly denied this grievance, explaining that he would “forward[ ] to the ordering [p]sychiatrist” Plaintiff's concern that “the Doxepin 200mg that he takes at night puts him in danger of falling and [thus] he needs a bottom bunk.” (Id. at 22.)
On August 1, 2020, Plaintiff submitted a second-level grievance. (Id. at 17.) He stated that the dizziness caused by his “psych medication” had “subjected [him] to [an] extreme risk of injury.” (Id. at 17, 20.) This risk manifested itself, according to Plaintiff, when he fell from his upper bunk despite his “many request[s] for a bottom bunk restriction.” (Id. at 20.) Minev responded to this grievance, explaining that he had reviewed each of Plaintiff's grievances and found that Plaintiff had “been answered appropriately.” (Id. at 16.) Minev noted that Plaintiff's medical file “show[ed] that [he] [was] classed for a lower bunk on 4-2-2020.” (Id.) Minev further stated that if Plaintiff did “not have a lower bunk,” he should “check with [his] caseworker to look into [his] classification status.” (Id.)
Based on these allegations, Plaintiff asserts (i) an Eighth Amendment claim for deliberate indifference to serious medical needs, and (ii) state-law claims for negligence, gross negligence, and intentional infliction of emotional distress. (Id. at 5, 10.) The Court liberally construes the Complaint as also asserting a supervisory liability claim against Warden Baker and Associate Warden Sandy.
A. Eighth Amendment-Deliberate Indifference to Serious Medical Needs
The Eighth Amendment prohibits the imposition of cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard-deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
To establish the first prong, “the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (internal quotations omitted). When a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference”).
A difference of opinion between medical professionals concerning the appropriate course of treatment generally does not amount to deliberate indifference to serious medical needs. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Additionally, “[a] difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). To establish that a difference of opinion amounted to deliberate indifference, the prisoner “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances” and “that they chose this course in conscious disregard of an excessive risk to [the prisoner's] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
Plaintiff sufficiently alleges that he had serious medical needs-specifically, the dizziness caused by his medication, and the injuries he sustained during his fall from the upper bunk. Plaintiff fails, however, to allege facts showing that any Defendant was deliberately indifferent to these medical needs. Accordingly, the Court dismisses Plaintiff's Eighth Amendment claim without prejudice and with leave to amend.
1. Defendant Mejia
Plaintiff alleges that in June 2018, he submitted a medical kite seeking a “bottom bunk restriction.” (ECF No. 1-1 at 38.) In the kite, Plaintiff also noted that he had been having “panic attacks” ever since his mediation was “lowered.” (Id.) Mejia, a Mental Health Coordinator, responded to the kite: “[Y]our medications were lowered by medical. You must address the changes with them.... Bottom bunk must also be addressed with medical. Please send them a kite.” (Id.)
These allegations fail to show that Mejia was deliberately indifferent to Plaintiff's medical needs. Plaintiff's kite did not supply any basis to conclude that he faced a risk of injury from sleeping on an upper bunk. Plaintiff did not, for example, explain that he needed a bottom bunk restriction because his dizziness made the upper bunk unsafe. Moreover, Mejia did not disregard Plaintiff's requests. He instructed Plaintiff to send a kite to “medical,” which was responsible for medications and bunk-bed restrictions. (Id.) Because Plaintiff alleges no facts suggesting that Mejia acted in conscious disregard of his medical needs, he fails to state a colorable claim against Mejia.
It is unclear whether Plaintiff seeks to hold Mejia liable for failing to ensure that his medication was returned to its previous dosage. Any such claim would fail, because “[a] difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin, 662 F.2d at 1344.
2. Defendant Egerton
Plaintiff allegedly filed an informal grievance in March 2020, explaining that (i) he had recently “fallen from his top bunk” and “injur[ed]” his “back and hip,” and (ii) following the injury, he had “spoken with medical” and the “mental health doctors” in an attempt to “receive bottom bunk restrictions.” (Id. at 29, 32.) The grievance also sought “a bottom bunk restriction” and “appropriate[ ]” treatment for the injuries Plaintiff had sustained in the fall. (Id. at 34.) Egerton denied the grievance as follows: “I have reviewed your medical file. Nurses are not authorized to change an inmate[']s medical classification. This can only be done by a doctor. We currently do not have a doctor at LCC. If you would like to discuss this with one of the doctors in Carson City please submit a kite requesting an appointment.” (Id. at 28.)
Plaintiff's allegations fail to demonstrate that Egerton was deliberately indifferent to his medical needs. Egerton did not ignore Plaintiff's requests. Instead, Egerton reviewed Plaintiff's medical file and informed him that, although LCC did not have a doctor, he could submit a request for a doctor's appointment in Carson City. (Id.) To be sure, a prison official can be held liable for deliberate indifference to an inmate's medical needs if he “knowingly fail[s] to respond to an inmate's requests for help.” Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014). Nothing in the Complaint, however, suggests that Egerton knowingly disregarded Plaintiff's request for assistance. Accordingly, Plaintiff fails to state a colorable claim against Egerton.
3. Defendant Donnelly
Plaintiff alleges that in April 2020, he filed a first-level grievance (i) stating that it was “unconstitutional not to have adequate medical doctors at a prison facility,” (ii) asking that “ladders be installed on the bunk beds for safety and security purposes,” and (iii) requesting “bottom bunk restrictions . . . and $100,000 for injuries [he had] sustained falling from the bunk, due to the psych medications [he] must take.” (ECF No. 1-1 at 23, 26.) Although Donnelly denied this grievance, he also explained that he would relay “to the ordering [p]sychiatrist” Plaintiff's concern that “the Doxepin 200mg that he takes at night puts him in danger of falling and [thus] he needs a bottom bunk.” (Id. at 22.)
Donnelly's response to Plaintiff's first-level grievance does not plausibly suggest deliberate indifference to serious medical needs. The grievance sought a bottom bunk restriction and the installation of ladders on bunk beds. Donnelly did not disregard this request. Instead, he explained that he would tell the “ordering [p]sychiatrist” about Plaintiff's concerns. Plaintiff does not allege that Donnelly failed to inform the psychiatrist of his issues with the Doxepin or his requests concerning bunk beds. Moreover, although Plaintiff complains that Donnelly did not “address Plaintiff's pain and injuries,” the first-level grievance sought monetary compensation-not medical treatment-for those injuries. (Id. at 7-8.) Thus, Plaintiff fails to state a colorable claim against Donnelly.
4. Defendant Minev
Finally, in August 2020, Plaintiff allegedly submitted a second-level grievance stating that (i) he had been “subjected to [an] extreme risk of injury” from the dizziness caused by his “psych medication,” and (ii) he had fallen from his upper bunk despite his “many request[s] for a bottom bunk restriction.” (Id. at 17, 20.) Minev responded that, based on his review of all of Plaintiff's grievances, Plaintiff had “been answered appropriately.” (Id. at 16.) Furthermore, Minev noted that Plaintiff's medical file “show[ed] that [he] [was] classed for a lower bunk on 4-2-2020,” and explained that if Plaintiff did “not have a lower bunk,” he should “check with [his] caseworker to look into [his] classification status.” (Id.)
Minev's response to the second-level grievance does not plausibly suggest that he was deliberately indifferent to Plaintiff's medical needs. The grievance contained Plaintiff's request for a bottom bunk restriction. Minev responded that Plaintiff had already received a classification for a bottom bunk, and that if he still did not have a bottom bunk, he should speak to his caseworker. Nothing about this response suggests that Minev “knowingly failed to respond to [Plaintiff's] requests for help.” Peralta, 744 F.3d at 1086. For that reason, Plaintiff fails to state a colorable claim against Minev.
B. Supervisory Liability
A defendant is liable under 42 U.S.C. § 1983 “only upon a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under [§] 1983.” Id.; see also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”).
“A showing that a supervisor acted, or failed to act, in a manner that was deliberately indifferent to an inmate's Eighth Amendment rights is sufficient to demonstrate the involvement-and the liability-of that supervisor.” Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). “Thus, when a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held vicariously liable for the culpable action or inaction of his or her subordinates.” Id. at 1207. As such, “a plaintiff may state a claim against a supervisor for deliberate indifference based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her subordinates.” Id.
It appears that Plaintiff seeks to hold Warden Baker and Associate Warden Sandy liable as supervisors. (ECF No. 1-1 at 8-9.) The only allegations about these Defendants, however, are that they (i) failed to “install ladders” or “bedrails” on the bunk beds and (ii) did not provide Plaintiff with “the requested bottom bunk.” (Id. at 9.) These allegations are insufficient to plead a supervisory liability claim. Plaintiff alleges no facts suggesting that Baker or Sandy “participated in or directed the [alleged constitutional] violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. For example, there are no allegations that either Defendant knew that the dizziness Plaintiff experienced made the upper bunk unsafe for him. Nor are there any allegations that either Defendant was aware that Plaintiff had not received medical treatment for the injuries he sustained in his fall. Thus, the Court dismisses Plaintiff's supervisory liability claim without prejudice and with leave to amend.
C. State-Law Claims
Plaintiff asserts state-law claims for negligence, gross negligence, and intentional infliction of emotional distress. (ECF No. 1-1 at 10.) Under Nevada law, the State of Nevada has generally waived sovereign immunity for state tort actions in state court. Nev. Rev. Stat. § 41.031(1). In order to sue the State of Nevada or a state employee, the plaintiff is required to sue the State of Nevada or an appropriate political subdivision. Nev. Rev. Stat. §§ 41.031, 41.0337. “In any action against the State of Nevada, the action must be brought in the name of the State of Nevada on relation of the particular department, commission, board or other agency of the State whose actions are the basis for the suit.” Id. § 41.031(2).
In Craig v. Donnelly, 439 P.3d 413 (Nev. App. 2019), the Nevada Court of Appeals held that “while a plaintiff must name the State as a party to any state tort claims in order to comply with NRS 41.031 and NRS 41.0337, this statutory requirement does not apply to 42 U.S.C. § 1983 claims, even when brought in the same complaint as a plaintiff's state tort claims. Indeed, the State cannot be named as a party to a plaintiff's § 1983 civil rights claims.” Id. at 414. In Craig, the Nevada Court of Appeals addressed whether a plaintiff had to name the State as a party in a state court case. Id. at 413.
With respect to federal court cases, the State of Nevada does not waive its immunity from suit conferred by the Eleventh Amendment. Nev. Rev. Stat. § 41.031(3). Generally, the State of Nevada and arms of the state cannot be sued in federal court. See O'Connor v. State of Nev., 686 F.2d 749, 750 (9th Cir. 1982) (holding that “Nevada has explicitly refused to waive its immunity to suit under the eleventh amendment . . . The Supreme Court has made it clear that section 1983 does not constitute an abrogation of the eleventh amendment immunity of the states”). In Stanley v. Trustees of California State Univ., 433 F.3d 1129, (9th Cir. 2006), the Ninth Circuit held that 28 U.S.C. § 1367 does not abrogate state sovereign immunity for supplemental state law claims. Id. at 1133-34. Although the State of Nevada may consent to federal court jurisdiction for state law claims through removal, this is not a removed case. See Lapides v. Bd. of Univ. Sys. Of Ga., 535 U.S. 613 (2002) (holding that state's removal of suit to federal court constitutes waiver of its sovereign immunity).
For this reason, the Court finds that Plaintiff must raise his state-law claims in state court and dismisses those claims accordingly. See Hirst v. Gertzen, 676 F.2d 1252, 1264 (9th Cir. 1982) (holding that, where Montana law deemed governmental entities indispensable parties in a state tort claim against a county employee, the federal court had no supplemental jurisdiction over the state tort claim if it had no jurisdiction over the indispensable party).
D. Leave to Amend
Plaintiff is granted leave to file an amended complaint to cure the deficiencies of the Complaint. If Plaintiff chooses to file an amended complaint, he is advised that an amended complaint supersedes (replaces) the original complaint and, thus, the amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). Plaintiff's amended complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff should file the amended complaint on this Court's approved prisoner civil rights form, and it must be entitled “First Amended Complaint.”
The Court notes that if Plaintiff chooses to file an amended complaint curing the deficiencies, as outlined in this order, Plaintiff will file the amended complaint within 30 days from the date of entry of this order. If Plaintiff chooses not to file an amended complaint curing the stated deficiencies, the Court will dismiss this case without prejudice for failure to state a claim.
III. CONCLUSION
It is therefore ordered that a decision on the application to proceed in forma pauperis (ECF No. 1) is deferred.
It is further ordered that the Clerk of the Court file the Complaint (ECF No. 1-1).
It is further ordered that the Eighth Amendment claim for deliberate indifference to serious medical needs is dismissed without prejudice and with leave to amend.
It is further ordered that the supervisory liability claim is dismissed without prejudice and with leave to amend.
It is further ordered that the state-law claims for negligence, gross negligence, and intentional infliction of emotional distress are dismissed without prejudice but without leave to amend.
It is further ordered that, if Plaintiff chooses to file an amended complaint curing the deficiencies of the Complaint, as outlined in this order, Plaintiff will file the amended complaint within 30 days from the date of entry of this order.
It is further ordered that the Clerk of Court will send to Plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his Complaint (ECF No. 1-1). If Plaintiff chooses to file an amended complaint, he should use the approved form and he will write the words “First Amended” above the words “Civil Rights Complaint” in the caption.
It is further ordered that, if Plaintiff chooses to file an amended complaint, the Court will screen the amended complaint in a separate screening order. The screening process will take several months.
It is further ordered that, if Plaintiff fails to file an amended complaint curing the deficiencies outlined in this order, this action will be dismissed without prejudice for failure to state a claim.