Opinion
2:22-cv-00034-RFB-VCF
12-22-2022
HAROLD E. MONTAGUE, Plaintiff, v. MAINWARNING, et al., Defendants.
SCREENING ORDER
RICHARD F. BOULWARE, II United States District Court
Plaintiff, who is incarcerated in the custody of the Nevada Department of Corrections (“NDOC”), has filed a proposed first amended complaint (“FAC”) (ECF No. 12-1) and an application to proceed in forma pauperis (ECF No. 12). The Court accepts the FAC as the operative complaint in this case. The matter of the filing fee will be temporarily deferred. Plaintiff has also filed a motion for appointment of counsel and a motion for discovery. (ECF Nos. 12-3, 12-4.) The Court will first screen the FAC under 28 U.S.C. § 1915A and then address Plaintiff's motions.
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 therefore 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 FAC
In the FAC, Plaintiff sues multiple Defendants for events that took place while Plaintiff was incarcerated at Lovelock Correctional Center (“LCC”). (ECF No. 12-1 at 1.) Plaintiff sues Defendants J. Baras, Martin, Mainwarning, Harroun, Preston, Caldwell-Barr, Belanger, Garret, and Daniels. (Id. at 1-4.) Plaintiff brings four counts and seeks monetary and injunctive relief. (Id. at 4-13.) The Court will consider Plaintiff's claims in turn.
A. Count I
In Count I, Plaintiff alleges that on December 14, 2020, Defendant Baras approached Plaintiff's cell window, which was covered with toilet paper. (ECF No. 12-1 at 6.) Baras knocked on the door, which knocked down the toilet paper, and Baras saw that Plaintiff had a ligature around his neck. (Id.) After Plaintiff failed to respond to him, Baras called for medical, and Defendants Baras, Martin, Mainwaring, and Harroun prepared to conduct a cell extraction. (Id., ECF No. 12-2 at 2.) Before the Defendants opened Plaintiff's cell door, he was able to remove the ligature and come to the cell window. (ECF No. 12-1 at 6)
The Court notes that, rather than listing the names of the officers involved in the cell extraction, Plaintiff states that the names are listed in his attached exhibit, which is a disciplinary report of the incident. (ECF Nos. 12-1 at 6, 12-2 at 2.) Plaintiff should include all factual allegations in the body of the complaint, without reference to the exhibits. The Court will not sift through exhibits to analyze Plaintiff's complaint. In the interest of judicial economy, the Court will accept names of the officers involved in the incident, which are clearly stated in the disciplinary report. (ECF No. 12-2 at 2.) This order, however, grants Plaintiff leave to file a second amended complaint. If Plaintiff chooses to do so, he must include all factual allegations in the body of the complaint, without reference to exhibits.
At this point, no use of force was necessary because it was clear that Plaintiff was no longer a danger to himself, and he was not a danger to officers. (Id.) The Defendants nonetheless commenced an extraction, which led to several injuries. (Id.) Alternative methods of persuasion were not used prior to the use of force. (Id.) Plaintiff does not describe his injuries in Count I, but in Count III, Plaintiff states that he suffered injuries to his neck and back, lacerations, and nerve damage from the simultaneous use of four tasers. (Id. at 9.)
Based on these allegations, Plaintiff brings an excessive force claim. When a prison official stands accused of using excessive physical force in violation of the cruel and unusual punishment clause of the Eighth Amendment, the question turns on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton and unnecessary, it may also be proper to consider factors such as the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7. Although an inmate need not have suffered serious injury to bring an excessive force claim against a prison official, the Eighth Amendment's prohibition on cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force. Id. at 9-10.
The Court finds that Plaintiff states a colorable excessive force claim. The Court liberally construes the FAC as alleging that Plaintiff covered his cell window with toilet paper and put a ligature around his neck. When Baras saw that Plaintiff had a ligature around his neck, he tried to get Plaintiff's attention, but Plaintiff was unresponsive. This led Baras to initiate the process for a cell extraction.
Before the extraction started, however, Plaintiff removed the ligature and was able to demonstrate that he was no longer a danger to himself or others. Rather than attempting a dialogue with Plaintiff at this point, or any other methods to resolve the situation, Baras, Martin, Mainwaring, and Harroun entered Plaintiff's cell using extreme force. All four Defendants simultaneously used tasers on Plaintiff, and Plaintiff suffered injuries to his neck and back, as well as lacerations.
Based on the allegations in the FAC, Baras appropriately called for an extraction team to prevent Plaintiff's apparent suicide attempt. The FAC, however, alleges that before the extraction took place, it was clear that no extraction was necessary or, alternatively, that an extraction could have been accomplished with significantly less force, or no force at all. For purposes of this preliminary screening, these allegations are sufficient to state a colorable excessive force claim. This claim will proceed against Defendants Baras, Martin, Mainwaring, and Harroun.
B. Count II
In Count II, Plaintiff alleges that, under NDOC regulations, inmates should have a mental health examination if at any time during a disciplinary hearing it is suspected that mental health was a substantial cause of the misconduct. (ECF No. 12-1 at 7.) Plaintiff was written up and sanctioned without a proper psychological evaluation. (Id.) Defendant Preston changed the sanctions on one write-up but not on the other write-ups. (Id.) Plaintiff filed a grievance about the issue, and he received an official response that Caldwell-Barr had conducted a psychological evaluation. (Id.) Caldwell-Barr determined that Plaintiff's actions on December 3, 2020, and December 14, 2020, did not reflect a “current impairment,” and that Plaintiff had not been diagnosed as seriously mentally ill. (Id.) Despite these findings, Plaintiff was transferred to NNCC, a medical prison, with a statement that Plaintiff was having a “mental health crisis.” (Id.) Based on these allegations, Plaintiff brings a Fourteenth Amendment due process claim. (Id.)
To state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Sandin v. Conner, 515 U.S. 472, 487 (1995). In Sandin, the Supreme Court held that a prisoner has a liberty interest when confinement “imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484. In Sandin, the Supreme Court focused on three factors in determining that the plaintiff possessed no liberty interest in avoiding disciplinary segregation: (1) disciplinary segregation was essentially the same as discretionary forms of segregation; (2) a comparison between the plaintiff's confinement and conditions in the general population showed that the plaintiff suffered no “major disruption in his environment;” and (3) the length of the plaintiff's sentence was not affected. Id. at 486-87.
When a protected liberty interest exists and a prisoner faces disciplinary charges, prison officials must provide the prisoner with (1) a written statement at least twenty-four hours before the disciplinary hearing that includes the charges, a description of the evidence against the prisoner, and an explanation for the disciplinary action taken; (2) an opportunity to present documentary evidence and call witnesses, unless calling witnesses would interfere with institutional security; and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff v. McDonnell, 418 U.S. 539, 563-70 (1974).
“When prison officials limit an inmate's efforts to defend himself, they must have a legitimate penological reason.” Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992). An inmate's right to present witnesses may legitimately be limited by “the penological need to provide swift discipline in individual cases . . . [or] by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff.” Ponte v. Real, 471 U.S. 491, 495 (1985). Jail officials “must make the decision whether to allow witnesses on a case-by-case basis, examining the potential hazards that may result from calling a particular person.” Serrano v. Francis, 345 F.3d 1071, 1079 (9th Cir. 2003). Despite this, an inmate has no right to cross-examine or confront witnesses in prison disciplinary hearings. See Wolff, 418 U.S. at 567-68.
“[T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board.” Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985). This standard, however, does not apply when a prisoner alleges that a prison guard's report is false. Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997).
The Court finds that Plaintiff fails to state a colorable due process claim. Plaintiff states that he received a disciplinary sanction, but he does not state what that sanction is. As such, plaintiff has not established the existence of a liberty interest in his disciplinary hearing. Without establishing the existence of a liberty interest, Plaintiff cannot state a colorable due process claim, and the Court dismisses this claim without prejudice and with leave to amend.
C. Count III
In Count III, Plaintiff alleges that following the cell extraction discussed in Count I, he was not provided adequate medical care. (ECF No. 12-1 at 9.) Plaintiff suffered multiple injuries to his neck and back, several lacerations, and significant nerve damage. (Id.) In the days and weeks following the incident, Plaintiff requested medical attention via the inmate emergency grievance process, but Plaintiff received a response that it was not an emergency. (Id.) Plaintiff has still not received any treatment for his injuries during the cell extraction. (Id.) Based on these allegations, Plaintiff claims that his right to receive medical care was violated. (Id.) The Court construes this as a claim of deliberate indifference to a serious medical need.
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”).
The Court finds that Plaintiff fails to state a colorable claim of deliberate indifference to a serious medical need. The FAC alleges that Plaintiff suffered severe injuries during his cell extraction, including to his neck, back, lacerations to his body, and significant nerve damage. Plaintiff alleges that, despite several requests, he has been denied medical treatment for these injuries. The FAC, however, does not include specific allegations about any of the Defendants. As such, the FAC does not support that any of the Defendants were deliberately indifferent to Plaintiff's medical needs, and the Court dismisses this claim without prejudice and with leave to amend.
D. Count IV
In Count IV, Plaintiff alleges that he was written up for making a threat in a kite that he sent to Defendant Belanger. (ECF No. 12-1 at 10.) According to the write-up, which Plaintiff attached as an exhibit, Plaintiff wrote in the kite, “When your next hair strain has fell, if I am not out of this cell, I will claim half your soul in Hell.” (ECF No. 12-2 at 28.) The write-up was later dismissed because the kite “showed that the inmate was not in a correct state of mind and did not directly threaten staff.” (Id.) Plaintiff alleges that the write-up was in retaliation for Plaintiff's use of the grievance process, and violated his right to practice satanism, a recognized religion. (ECF No. 12-1 at 10.)
Based on these allegations, Plaintiff brings a First Amendment retaliation claim, a free exercise of religion claim, and an Eighth Amendment claim. (Id.) As an initial matter, the FAC does not allege that any of the Defendants were responsible for the notice of charges. The FAC states that the notice of charges was regarding a kite sent to Defendant Belanger, but Plaintiff does not allege that Belanger initiated the notice of charges. Because the FAC does not allege that any of the Defendants were responsible for the notice of charges, the FAC cannot state a colorable claim against any Defendant based on the notice of charges. Therefore, the Court dismisses this claim without prejudice.
Furthermore, the Court notes that it appears that this claim is improperly joined in this case. Under the District of Nevada's Fifth Amended General Order No. 2021-05, a plaintiff may only bring claims against multiple defendants in a single complaint if the plaintiff meets the requirements of Federal Rule of Civil Procedure 20(a)(2). The requirements of joining multiple claims under Rule 18(a) or multiple parties under Rule 20(a)(2) are also discussed in the Court's instructions for filing a civil rights complaint by an incarcerated individual under 42 U.S.C § 1983.
A basic lawsuit is a single claim against a single defendant. Rule 18(a) allows a plaintiff to add multiple claims to the lawsuit when they are against the same defendant. Rule 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit where the right to relief arises out of the same “transaction, occurrence, or series of transactions” and “any question of law or fact common to all defendants will arise in the action.” However, unrelated claims that involve different defendants must be brought in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (holding that “[a] buckshot complaint that would be rejected if filed by a free person-say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions-should be rejected if filed by a prisoner”). These rules are not only intended to avoid confusion that arises out of bloated lawsuits, but also to ensure that inmates pay the required filing fees for their lawsuits and prevent inmates from circumventing the three strikes rule under the Prison Litigation Reform Act. 28 U.S.C. § 1915(g).
The claims in Count IV do not arise out of the incident on December 14, 2020, nor do they appear to be against any of the Defendants involved in that incident. As such, it appears that the claims in Count IV are not properly joined in this case. The Court will give Plaintiff leave to file a second amended complaint. If Plaintiff believes that the claims in Count IV are properly joined in this case, he may bring those claims in a second amended complaint. The Court, however, advises Plaintiff that each claim that is raised in any second amended complaint must be permitted by either Rule 18 or Rule 20.
Plaintiff may state a single claim against a single defendant. Plaintiff may then add any additional claims to his action that are against the same defendant under Rule 18. Plaintiff may also add any additional claims against other defendants if those claims arise from the same transaction, occurrence, or series of transactions as his original claim. Fed.R.Civ.P. 20(a)(2). Any attempt to join claims that are not permitted by the FRCP will result in those claims being dismissed as improperly joined.
E. Defendants Garrett and Daniels
Plaintiff lists warden Garrett and director Daniels as Defendants in this case, but the FAC does not include any allegations about these Defendants. It's possible that Plaintiff is attempting to hold these Defendants liable based on their roles as supervisors. A defendant is liable under 42 U.S.C. § 1983, however, “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 Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (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”).
The FAC does not allege that Garrett or Daniels either directed any of the alleged violations or were aware of the alleged violations and failed to intervene. Therefore, the FAC does not state a colorable supervisory claim against either Garrett or Daniels, and the Court dismisses any supervisory claims without prejudice.
III. LEAVE TO AMEND
Plaintiff is granted leave to file a second amended complaint to cure the deficiencies of the FAC. If Plaintiff chooses to file a second amended complaint, he is advised that a second amended complaint supersedes (replaces) the original complaint, and any previously filed amended complaints, and, thus, the second 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 second amended complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff should file the second amended complaint on this Court's approved prisoner civil rights form, and it must be entitled “Second Amended Complaint.”
The Court notes that if Plaintiff chooses to file a second amended complaint curing the deficiencies, as outlined in this order, Plaintiff will file the second amended complaint within 60 days from the date of entry of this order. If Plaintiff chooses not to file a second amended complaint curing the stated deficiencies, this action will proceed immediately on Plaintiff's excessive force claim against Defendants Mainwarning, Harroun, Martin, and Baras only.
IV. PLAINTIFF'S MOTIONS
A. Appointment of Counsel
Plaintiff filed a motion for appointment of counsel. (ECF No. 12-3.) A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford counsel.” The court, however, will appoint counsel for indigent civil litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional circumstances' exist, a court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. “Neither of these considerations is dispositive and instead must be viewed together.” Id. At this time, the Court does not find exceptional circumstances that warrant the appointment of counsel. The Court denies the motion for appointment of counsel without prejudice.
B. Discovery
Plaintiff filed a motion requesting that the Court “provide full discovery for this complaint.” (ECF No. 12-4.) It is not clear what Plaintiff is requesting that the Court do. In any event, this case is at a prescreening stage. As such, any motions regarding discovery are premature, and the Court denies the motion without prejudice.
V. CONCLUSION
For the foregoing reasons, IT IS ORDERED that a decision on the application to proceed in forma pauperis (ECF No. 12) is deferred.
IT IS FURTHER ORDERED that the Court accepts the proposed FAC (ECF No. 12-1) as the operative complaint in this case. The Clerk of the Court will file the FAC and send a courtesy copy of the FAC to Plaintiff.
IT IS FURTHER ORDERED that Plaintiff's excessive force claim in Count I will proceed against Defendants Mainwarning, Harroun, Martin, and Baras.
IT IS FURTHER ORDERED that Plaintiff's due process claim in Count II is dismissed without prejudice and with leave to amend.
IT IS FURTHER ORDERED that Plaintiff's claim of deliberate indifference to a serious medical need in Count III is dismissed without prejudice and with leave to amend.
IT IS FURTHER ORDERED that Plaintiff's claims in Count IV are dismissed without prejudice and with leave to amend.
IT IS FURTHER ORDERED that any supervisory liability claims against warden Garrett and director Daniels are dismissed without prejudice.
IT IS FURTHER ORDERED that Defendants Preston, Dr. Caldwell-Barr, Belanger, Garrett, and Daniels are dismissed from the entirety of the case without prejudice.
IT IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel (ECF No. 12-3) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff's motion for discovery (ECF No. 12-4) is denied without prejudice.
IT IS FURTHER ORDERED that, if Plaintiff chooses to file a second amended complaint curing the deficiencies of the FAC, as outlined in this order, Plaintiff will file the second amended complaint within 60 days from the date of entry of this order.
IT IS FURTHER ORDERED that the Clerk of the Court will send to Plaintiff the approved form for filing a § 1983 complaint and instructions for the same. If Plaintiff chooses to file a second amended complaint, he should use the approved form and he will write the words “Second 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 chooses not to file a second amended complaint curing the stated deficiencies of the complaint, this action will proceed immediately on Plaintiffs excessive force claim against Defendants Mainwarning, Harroun, Martin, and Baras only.