Opinion
Case No.: 2:20-cv-01868-JAD-VCF
2021-08-25
Rickie HILL, Plaintiff v. RHUDE, et al., Defendants
HDSP Law Library, for Plaintiff. Aaron D. Ford-AG, Douglas R. Rands, Nevada Attorney General, Carson City, NV, for Defendant Rhude. Douglas R. Rands, Nevada Attorney General, Carson City, NV, for Defendant Jesus Ruiz.
HDSP Law Library, for Plaintiff.
Aaron D. Ford-AG, Douglas R. Rands, Nevada Attorney General, Carson City, NV, for Defendant Rhude.
Douglas R. Rands, Nevada Attorney General, Carson City, NV, for Defendant Jesus Ruiz.
Order Screening Complaint and Granting Limited Leave to Amend by September 27, 2021
Jennifer A. Dorsey, United States District Judge
Pro se plaintiff Rickie Hill, an inmate at Nevada's High Desert State Prison, brings this civil-rights action under 42 U.S.C. § 1983, claiming that by disregarding the risks of COVID-19, correctional officer Rhude and his supervising lieutenant Ruiz violated Hill's First, Eighth, and Fourteenth Amendment rights. Because Hill applies to proceed in forma pauperis , I screen his complaint under 28 U.S.C. § 1915A and find that his Eighth Amendment claims for emotional harm may proceed as to punitive damages and injunctive relief but not as to compensatory damages. His Fourteenth Amendment equal-protection claim against Rhude also may proceed, but I dismiss with prejudice any Fourteenth Amendment claim against Ruiz. I also dismiss Hill's retaliation claims without prejudice and with leave to amend by September 27, 2021.
This is merely a summary of facts alleged in the complaint and should not be construed as findings of fact.
According to Hill, most staff at HDSP do not wear masks to prevent the spread of COVID-19, which is a constant threat to his health. On July 23, 2020, he sent an inmate request to Ruiz, alerting him that half of the correctional officers were not adhering to the Director of the Nevada Department of Corrections’ directive requiring all correctional officers to wear masks. Ruiz responded the next day, apologizing and noting that he had heard about "one specific officer" not wearing his mask and emphasizing that the directive "WILL BE ENFORCED."
ECF No. 1-1 at 6.
Id. at 11.
Neither Hill nor Ruiz named the "one specific officer." Id.
Three weeks later, Rhude came to Hill's cell without a mask. Hill reminded Rhude that, per the NDOC Director's directive, he was required to wear a face mask in the presence of inmates. Hill is Black, Jewish, and gay. Rhude, who is white, walked to the side of Hill's cell door and began blowing into the cell, stating that he had an "asymptomatic" COVID-19 infection and "hate[d] Gay Black/Jews," and that the next time he searched Hill's cell he would "throw away all [of Hill's] legal work." Hill twice felt spittle droplets when Rhude blew into his cell. Hill asked for a grievance, but Rhude denied it and stated, "you want a grievance? Why? You'll be dead in 2 weeks tops. I just blew COVID[-19] into your cell." Hill has since suffered from daily nightmares of dying from COVID-19, loss of sleep, depression, heightened anxiety, and mental anguish from the psychological pain.
Id. at 4.
Id.
Id.
Id.
Id. at 5.
Id.
Id. at 4–5.
Hill sues Rhude and Ruiz, alleging that Rhude discriminated against him based on race, religion, and sexual orientation; and retaliatorily denied him access to grievance procedures; and Ruiz failed to ensure that his subordinates wore masks and retaliated against Hill for filing grievances, all in violation of the First, Eighth, and Fourteenth Amendments. He seeks compensatory and punitive damages, as well as an injunction requiring the wearing of masks and the installation of security cameras.
See generally ECF No. 1-1.
Id. at 10.
Discussion
I. Screening standard
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous or malicious, or that fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. All or part of the complaint may be dismissed sua sponte if the prisoner's claims lack an arguable basis in law or fact. This includes claims based on legal conclusions that are untenable, like claims against defendants who are immune from suit or claims of infringement of a legal interest that clearly does not exist, as well as claims based on fanciful factual allegations or fantastic or delusional scenarios.
See 28 U.S.C. § 1915A(a).
See Neitzke v. Williams , 490 U.S. 319, 327–28, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ; see also McKeever v. Block , 932 F.2d 795, 798 (9th Cir. 1991).
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. In making this determination, the court takes all allegations of material fact as true and construes them in the light most favorable to the plaintiff. Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers, but the plaintiff must provide more than mere labels and conclusions. "While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations." "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."
See Morley v. Walker , 175 F.3d 756, 759 (9th Cir. 1999).
See Warshaw v. Xoma Corp. , 74 F.3d 955, 957 (9th Cir. 1996).
Hughes v. Rowe , 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) ; see also Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988) (recognizing that pro se pleadings must be liberally construed).
Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Id.
II. Screening Hill's claims
A. Fourteenth Amendment
Hill alleges that Rhude discriminated against him based on race, religion, and sexual orientation, violating the Fourteenth Amendment's Equal Protection Clause. The Clause protects prisoners "from invidious discrimination based on race," intentional discrimination based on religion, as well as disparate treatment based on sexual orientation. To state a colorable equal-protection claim, Hill must allege non-conclusory, non-speculative facts sufficient to show that a particular defendant intentionally discriminated against him because of his membership in a protected class. Government-official defendants cannot be held "vicariously liabl[e] for" their subordinates’ conduct under 42 U.S.C. § 1983 ; liability attaches "only upon a showing of personal participation by the defendant."
Wolff v. McDonnell , 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Freeman v. Arpaio , 125 F.3d 732, 737 (9th Cir. 1997), abrogated on other grounds by Shakur v. Schriro , 514 F.3d 878, 884–85 (9th Cir. 2008).
United States v. Windsor , 570 U.S. 744, 769–70, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).
Iqbal , 556 U.S. at 678–83, 129 S.Ct. 1937 ; see Washington v. Davis , 426 U.S. 229, 239–40, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ; Serrano v. Francis , 345 F.3d 1071, 1082 (9th Cir. 2003) ; Jeffers v. Gomez , 267 F.3d 895, 913–14 (9th Cir. 2001) ; Freeman v. Arpaio , 125 F.3d 732, 737 (9th Cir. 1997).
Iqbal , 556 U.S. at 676, 129 S.Ct. 1937 ; Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989).
I find that Hill states a colorable equal-protection claim against Rhude. Hill complains that Rhude said "I hate Gay Black/Jews" while blowing "COVID[-19]" into Hill's cell. Hill therefore alleges facts that might plausibly show that Rhude took that action because Hill is Black, Jewish, and gay. His equal-protection claim against Rhude may proceed.
However, Hill fails to allege an equal-protection claim against Ruiz because he alleges no facts at all to suggest that Ruiz discriminated against him, and Ruiz may not be held vicariously liable for Rhude's conduct. To the extent that Hill invokes the Fourteenth Amendment to allege a due-process claim against Ruiz for denied grievances or violations of state law or prison procedures, he cannot state a colorable claim. I therefore dismiss with prejudice any Fourteenth Amendment claim against Ruiz, as amendment would be futile.
See Mann v. Adams , 855 F.2d 639, 640 (9th Cir. 1988) (holding that a state's unpublished policy statements establishing a grievance procedure do not create a constitutionally protected liberty interest because there is no legitimate claim of entitlement to a grievance procedure); Patterson v. Kane , 2006 WL 3698654, at *1 (9th Cir. Dec. 13, 2006) (recognizing that denial of a grievance does not rise to the level of a constitutional violation); Swarthout v. Cooke , 562 U.S. 216, 222, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (holding that mere violation of state law does not constitute a violation of due process).
B. First Amendment retaliation
To state a viable First Amendment retaliation claim, a plaintiff must allege facts sufficient to show: "(1) a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Total chilling is not required; it is enough that an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. As with all § 1983 claims, personal participation in the retaliatory conduct, and not merely the existence of a supervisory relationship, is required to hold supervisors liable. A person does not become liable for retaliation merely because he or she knows of, is employed with, supervised by, or a supervisor of someone who engages in retaliation. Each defendant must be aware of the protected conduct and that conduct must give them a retaliatory motive that causes the chilling adverse conduct; mere speculation is insufficient.
Rhodes v. Robinson , 408 F.3d 559, 567–68 (9th Cir. 2004).
Id. at 568–69.
Iqbal , 556 U.S. at 676, 129 S.Ct. 1937 (holding that "[b]ecause 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"); Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989).
Cf. Iqbal , 556 U.S. at 677, 129 S.Ct. 1937 ; see also Heilman v. Wasko , 2012 WL 4468417, at *2 (E.D. Cal. Sept. 25, 2012).
Pratt v. Rowland , 65 F.3d 802, 808–09 (9th Cir. 1995).
Timing may sometimes provide some circumstantial evidence of retaliatory intent when adverse conduct takes place shortly after the plaintiff engages in protected conduct. But retaliatory intent is not established simply by showing adverse activity after the occurrence of protected speech, rather the plaintiff must allege a "nexus" between the two events. The plaintiff must also show the absence of legitimate correctional goals for the conduct of which he complains. In addition, retaliation claims brought by prisoners must be evaluated in light of concerns over "excessive judicial involvement in day-to-day prison management, which ‘often squander[s] judicial resources with little offsetting benefit to anyone.’ "
See Bruce v. Ylst , 351 F.3d 1283, 1288–89 (9th Cir. 2003) (suspect timing of adverse conduct soon after protected conduct, combined with statements by defendants and evidence of pretext created triable issue of fact concerning retaliatory motive).
Huskey v. City of San Jose , 204 F.3d 893, 899 (9th Cir. 2000) ; Pratt , 65 F.3d at 808 ("suspect timing" of inmate's transfer to different prison, without more, insufficient to support inference that the transfer was done in retaliation for inmate's exercise of First Amendment rights); Phillippi v. Patterson , 599 F. App'x 288, 289 (9th Cir. 2015) ; Rupe v. Beard , 2013 WL 6859278, at *7 (E.D. Cal. Dec. 24, 2013).
Pratt , 65 F.3d at 806.
Id. at 807 (quoting Sandin v. Conner , 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) ).
I find that Hill fails to state colorable retaliation claims against Rhude or Ruiz. Hill alleges that Rhude retaliated against him for filing lawsuits and grievances against the NDOC. But Hill does not allege facts that could be sufficient to show that Rhude was aware of a specific grievance or lawsuit that provided Rhude with a retaliatory motive and caused him to engage in retaliatory adverse conduct. So, I dismiss without prejudice the retaliation claim against Rhude. Similarly, Hill claims that Ruiz retaliated against him for filing grievances against Ruiz's subordinates and lawsuits against the NDOC without alleging any facts that would show any adverse conduct by Ruiz. Although Hill contends that Ruiz was aware that a staff member had not been wearing a mask a few weeks earlier and had vowed to enforce the mask requirement, he does not allege facts sufficient to show that Ruiz knew that Rhude was going to not wear a mask and blow into Hill's cell, let alone facts sufficient to show that Ruiz authorized it and did so in retaliation for Hill's protected conduct. Merely alleging that Hill filed grievances and lawsuits and that something adverse subsequently happened is insufficient to state a claim for retaliation. So, I also dismiss without prejudice the retaliation claim against Ruiz.
If Hill chooses to amend the retaliation claims, for both Rhude and Ruiz, he must allege true facts that would be sufficient to show that each defendant engaged in specified retaliatory, adverse, and chilling conduct because of specified protected conduct. Merely asserting that adverse conduct took place after protected conduct will not be sufficient, and neither will conclusory, vague, and speculative allegations.
C. Eighth Amendment conditions-of-confinement claim
1. Against Rhude
Hill appears to allege that Rhude violated his Eighth Amendment rights by coming to his cell without a mask and blowing on him through a crack by his cell door, resulting in spittle landing on him. Hill does not complain that he contracted COVID-19 and got sick because of Rhude's conduct. Rather, he alleges that he felt depressed and anxious due to this incident.
Under 42 U.S.C. § 1997e(e), absent a more-than-de minimis physical injury or a sexual act, a prisoner may recover injunctive relief and punitive damages, but not compensatory damages, for mental or emotional injuries. So, to the extent that Hill seeks compensatory damages for emotional harm only, he cannot pursue such a claim. But because Hill also seeks punitive damages in this action, his claim for emotional harm may proceed if it has a colorable Eighth Amendment basis.
42 U.S.C. § 1997e(e) ; Oliver v. Keller , 289 F.3d 623, 626–30 (9th Cir. 2002) (holding that a prisoner could not bring a claim for emotional harm when he alleged only that he suffered from a painful canker sore and from back and leg pain resulting from sitting and sleeping on benches and the floor); Young v. Levert , 2021 WL 1546959, at *8–9 (C.D. Cal. Apr. 20, 2021) (holding that a prisoner could not seek damages for emotional harm resulting from failure to provide him with a mask and exposing him to COVID-19 because he alleged that he suffered emotional injuries but did not allege that he suffered any physical harm); Kaiser v. Steuben Cty. Jail , 2021 WL 1380035, at *1 (N.D. Ind. Apr. 12, 2021) (holding that a prisoner, who alleged that five jail guards did not wear masks, could not pursue claims premised on emotional harm where he did not allege that he contracted COVID-19 or suffered physical injury because of the guards’ actions).
Generally, "while deplorable," spitting on a prisoner does not constitute an Eighth Amendment claim. Here, however, Hill appears to allege that it is not merely Rhude's spit that is the basis of the claim, but the risk of Hill contracting and dying from COVID-19 if Rhude had the virus. I therefore construe it as an Eighth Amendment conditions-of-confinement claim.
Zavala v. Barnik , 545 F. Supp. 2d 1051, 1059 (C.D. Cal. 2008), aff'd sub nom. Zavala v. Bartnik , 348 F. App'x 211 (9th Cir. 2009).
The "treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. To challenge the conditions of confinement under the Eighth Amendment, a plaintiff must meet both an objective and subjective test. The objective prong requires a showing that the deprivation was sufficiently serious or "extreme" to form the basis for an Eighth Amendment violation. Courts must analyze each condition to determine whether that specific condition, and the amount of time the prisoner was subjected to it, poses a substantial risk of serious harm and violates the Eighth Amendment. Speculative and generalized fears of harm are insufficient.
Helling v. McKinney , 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).
Rhodes v. Chapman , 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).
Johnson v. Lewis , 217 F.3d 726, 731 (9th Cir. 2000).
Id. ; Hudson v. McMillian , 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
Toussaint v. McCarthy , 801 F.2d 1080, 1107 (9th Cir. 1986) ; Hearns v. Terhune , 413 F.3d 1036, 1042 (9th Cir. 2005).
Williams v. Wood , 223 F. App'x. 670, 671 (9th Cir. 2007) (holding that a prisoner failed to state an Eighth Amendment claim when he asserted that prison officials were deliberately indifferent to his safety but did not allege that he had been assaulted or threatened with assault).
Under the subjective prong, prisoners must establish that prison officials’ were "deliberate[ly] indifferen[t]" to the unconstitutional conditions of confinement. To be deliberately indifferent, a prison "official [must know] of and disregard[ ] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference." Mere negligence is insufficient to show a violation of the Eighth Amendment. Prison officials who actually knew of a substantial risk to inmate health or safety may be found to have violated the Eighth Amendment only if they responded unreasonably to the risk, even if the harm ultimately was not averted.
Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
Id. at 837, 114 S.Ct. 1970.
Id. at 835–36, 114 S.Ct. 1970.
Id. at 844, 114 S.Ct. 1970 ; see also Hallinan v. Scarantino , 466 F. Supp. 3d 587, 606 (E.D.N.C. 2020) (recognizing that "[t]he fact that [prison officials’] response may prove inadequate to prevent the spread of COVID-19 does not establish that they were deliberately indifferent.").
Hill does not allege that Rhude infected him with COVID-19, rather, he alleges that Rhude was not wearing a mask and intentionally blew on him through a crack by the door. I assume that, if Rhude had COVID-19, he could have infected Hill with such conduct. It is questionable, however, whether that conduct meets the Eighth Amendment's objective prong and states a colorable claim. Out of an abundance of caution, because it is not clear whether the alleged condition would be a violation of the Eighth Amendment, I will permit this Eighth Amendment claim against Rhude to proceed past screening.
Compare Jones v. Burt , 2021 WL 2024705, at *10 (W.D. Mich. May 21, 2021) (permitting COVID-19-positive prisoner's Eighth Amendment claims to proceed past screening against four defendants who allegedly failed to comply with prison's COVID-19 prevention policies) with Burchfield v. Jones , 2021 WL 1976626, at *6 (W.D. Ark. May 18, 2021) (dismissing conditions of confinement claim alleging that prison officials exposed plaintiff to COVID-19 risk through inadequate testing, because prisoner did not allege injury resulting from the conditions); Ford v. Hutchinson , 2021 WL 1433204, at *3 (E.D. Ark. Apr. 6, 2021), report and recommendation adopted, 2021 WL 1432321 (E.D. Ark. Apr. 15, 2021) (dismissing Eighth Amendment claim for failure to meet either objective or subjective prong where prisoner alleged that prison officials did not follow CDC guidelines to protect inmates from COVID-19 but did not allege that he became sick or contracted the COVID-19 virus); see also Helling , 509 U.S. at 33–36, 113 S.Ct. 2475 ) (holding that a prisoner might state an Eighth Amendment claim for deliberate indifference to an ongoing and unreasonable risk of serious damage to his future health if the risk is one that society chooses not to tolerate, but prisoner would not be able to pursue his claim if he was not continuing to be subjected to that risk).
2. Against Ruiz
Hill also asserts that Ruiz failed to protect him by "not enforcing Rhude wearing his mask" in compliance with the NDOC Director's directive and that many staff members were not wearing masks. Hill does not allege that he actually contracted COVID-19 or got sick as a result of this conduct. Rather, he alleges that he has suffered emotional and mental harm such as depression, nightmares, and heightened anxiety. So, under § 1997e(e), to the extent Hill is seeking compensatory damages for emotional harm, he cannot pursue such a claim against Ruiz. But because Hill also seeks injunctive relief in this action, his claim for emotional harm may proceed if it has a colorable Eighth Amendment basis.
Hill does not appear to allege that Ruiz failed to protect him from the incident of Rhude blowing into the crack by his door. In any event, it is clear that he does not allege facts sufficient to show that Ruiz believed that Rhude would go to Hill's cell and blow through a crack in the door but failed to stop him. So, Hill does not allege facts that would be sufficient to show that Ruiz was deliberately indifferent with regard to Rhude allegedly blowing through the crack on the door.
Hill appears to allege that he was exposed to a risk of contracting COVID-19 because Ruiz failed to ensure that Rhude wore his mask. Hill previously informed Ruiz that many staff members were not wearing masks; Ruiz acknowledged that at least one officer had not been wearing a mask, but most staff members were not wearing masks even after Ruiz committed to enforcing the mask requirement. I construe this as an Eighth Amendment claim for deliberate indifference to a significant risk to future health.
Claims about prisoners’ health are not limited to situations in which a prisoner has already been harmed. The United States Supreme Court has held that a prisoner who is not currently suffering from serious medical needs may state an Eighth Amendment claim by alleging facts sufficient to show that prison officials are, with deliberate indifference, exposing him to conditions that pose an ongoing unreasonable risk of serious damage to his future health.
See Helling v. McKinney , 509 U.S. 25, 33, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (recognizing that prison officials may be considered deliberately indifferent to the exposure of inmates to a serious, communicable disease even if the complaining inmate shows no serious current symptoms; and noting that prison officials may not "ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year").
Helling , 509 U.S. at 35, 113 S.Ct. 2475.
Liberally construing his complaint, I find that Hill describes an ongoing objectively intolerable risk of serious future harm because he alleges that many staff members are not wearing masks. It is questionable whether Hill has alleged facts sufficient to show that Ruiz has been deliberately indifferent. The mere allegation that Ruiz's subordinate officers are not wearing masks is not sufficient to allege that Ruiz responded unreasonably and was deliberately indifferent to the risk. And a single past incident or series of isolated incidents by subordinates is not sufficient to find that a supervisor is deliberately indifferent to an ongoing risk of harm. However, because Hill notified Ruiz that his staff were not wearing masks, Ruiz acknowledged that he was aware and committed to enforcing the NDOC mask directive, but most staff continued to not wear masks, I find that Hill's complaint alleges facts that could plausibly show that Ruiz continues to be deliberately indifferent to an ongoing objectively intolerable risk of serious future harm. Hill's claim may proceed.
See Hill v. Page , 2021 WL 2231263, at *3 (E.D. Ark. May 11, 2021), report and recommendation adopted, 2021 WL 2227332 (E.D. Ark. June 2, 2021) (holding that the plaintiff did not state a claim against supervisor based on alleged conditions of confinement and exposure to COVID-19 where the plaintiff did not allege facts sufficient to show that the supervisor defendant was aware of a pattern of unconstitutional acts by subordinates and was deliberately indifferent to that pattern).
D. Leave to amend
I grant Hill leave to amend his retaliation claims. If Hill chooses to file an amended complaint, he is advised that an amended complaint replaces the original complaint, so the amended complaint must be complete in itself. He must file the amended complaint on this court's approved prisoner-civil-rights form, and it must be entitled "First Amended Complaint." Hill must follow the instructions on the form. In each count, he must allege true facts sufficient to show what each defendant did to violate his civil rights. Hill may not amend the complaint to add unrelated claims against other defendants. An amended complaint may not include new claims based on events that have taken place since the original complaint was filed. He must file the amended complaint by September 27, 2021.
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").
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 is directed to FILE the complaint [ECF No. 1-1] .
IT IS FURTHER ORDERED that:
• The Eighth Amendment claims for compensatory damages against Rhude and Ruiz, and any Fourteenth Amendment claim against Ruiz are DISMISSED with prejudice and without leave to amend;
• The First Amendment retaliation claims against Rhude and Ruiz are DISMISSED with leave to amend by September 27, 2021;
• The Eighth Amendment claim against Ruiz for punitive damages, the Eighth Amendment claim against Ruiz for injunctive relief, and the Fourteenth Amendment equal protection claim against Rhude MAY PROCEED .
IT IS FURTHER ORDERED that the Clerk of the Court is directed to SEND plaintiff the approved form for filing a § 1983 prisoner complaint, instructions for the same, and a copy of his original complaint [ECF No. 1-1]. If plaintiff chooses to file an amended complaint, he must use the approved form and he must write the words "First Amended" above the words "Civil Rights Complaint" in the caption. Any amended complaint will be screened in a separate screening order, and the screening process will take many months. If plaintiff does not file an amended complaint by September 27, 2021, this action will proceed immediately on the Fourteenth Amendment equal protection claim against Rhude, the Eighth Amendment claim against Rhude for punitive damages, and the Eighth Amendment claim against Ruiz for injunctive relief only.