Anthony McDaniel Jr. v. SST. Alton

• Court: District Court, C.D. California
• Decided: April 10, 2023
• Docket: 2:23-cv-00878
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANTHONY MCDANIEL, JR., Case No. CV 23-0878 SB (PVC)

12 Plaintiff, ORDER DISMISSING COMPLAINT 13 v. WITH LEAVE TO AMEND 14 SST. ALTON, et al., 15 Defendants. 16 17 I. 18 INTRODUCTION 19 20 On January 31, 2023, Plaintiff Anthony McDaniel, Jr., a California state pretrial 21 detainee proceeding pro se, constructively filed a civil rights complaint pursuant to 42 22 U.S.C. § 1983.1 (“Complaint” or “Compl.,” Dkt. No. 1). Plaintiff filed a request to 23 proceed in forma pauperis (“IFP”) on March 20, 2023, (Dkt. No. 7), which was granted 24 on March 27, 2023. (Dkt. No. 8). 25

26 1 The “mailbox rule” announced by the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988), applies to section 1983 cases. See Douglas v. Noelle, 567 F.3d 1103, 1107 (9th 27 Cir. 2009). Pursuant to the mailbox rule, pro se prisoner legal filings are deemed filed on the date the prisoner delivers the document to prison officials for forwarding to the court 28 clerk. Id. The date in the signature block of the Complaint is January 31, 2023, which the 1 Congress mandates that district courts perform an initial screening of complaints in 2 civil actions where a prisoner seeks redress from a governmental entity or employee. 28 3 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, 4 before service of process if it concludes that the complaint (1) is frivolous or malicious, 5 (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief 6 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2); see also 7 Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). For the reasons 8 stated below, the Complaint is DISMISSED with leave to amend. 9 10 II. 11 ALLEGATIONS OF THE COMPLAINT 12 13 Plaintiff sues two Ventura County Sheriff’s Office (“VCSO”) employees at the 14 Ventura County Jail - Todd Road Facility: (1) Security Service Tech (“SST”) Alton, 15 badge number 3193; and (2) Senior Deputy Rawston, badge number 4554. (Compl. at 16 3).2 Both Defendants are sued in their individual capacities only. (Id.). 17 18 The Complaint broadly alleges that Alton and Rawston put Plaintiff’s health and 19 safety at risk of serious injury, including “premature death,” in violation of his Eighth 20 Amendment rights. (Id.). Plaintiff states that he is asthmatic and has in the past suffered 21 chest pains. (Id. at 5). Accordingly, it is important that he have the ability to contact jail 22 staff in the event of an emergency by use of the medical emergency call button. (Id.). 23 24 Plaintiff claims that on January 16, 2023, Alton turned off the emergency call 25 button so that he could not contact the service tech in charge. (Id.). Plaintiff states that he 26 knows this to be true because he attempted to get the attention of the shift on the morning 27 2 The Court will cite to the pages of the Complaint and its attachments as though they 28 were consecutively paginated, following the electronic page numbers assigned by the 1 of January 17, 2023 (Alton and his service tech partner, SST Kelsey, badge number 2725) 2 for over three hours. (Id.). Plaintiff ultimately had another inmate flag them down to 3 notify them that he had an issue. (Id.). 4 5 Two other service technicians, Lawrence and Hackworth, told Plaintiff that there is 6 no reason to disengage the emergency call button. (Id. at 6). Lawrence also told Plaintiff 7 that a tag had been placed on his emergency call button, but refused to “go into any 8 details” when Plaintiff asked him what the tag means. (Id.). 9 10 Plaintiff filed a grievance regarding the disengagement of the emergency call 11 button on January 16 and 17, 2023 in which he insisted that turning off the button put him 12 directly at risk because of his medical history. (Id. at 6, 9). Rawston responded to the 13 grievance on January 21, 2023. (Id. at 8). 14 15 Although Lawrence told Plaintiff that there is no reason to turn off an emergency 16 call button, thereby implying that it can be turned off, Rawston, in his response to 17 Plaintiff’s grievance, stated that “it is impossible for an SST to ‘turn off’ an emergency 18 call button.” (Id.; see also id. at 8 (copy of grievance response)). Plaintiff contends that 19 “by this statement, [Rawston] chose not to respond to my direct grievance in regards to 20 the violation, by his staff.” (Id. at 6). 21 22 In the copy of the grievance and the grievance resolution form attached as an 23 exhibit to the Complaint, Plaintiff claims that Alton turned off his emergency call button 24 on the morning of January 16, 2023 in retaliation for “us having words stemming from an 25 issue [Plaintiff] had with him during morning inspection.” (Id. at 9).3 Plaintiff further 26 3 When reviewing a pleading to determine whether it states a claim under Federal Rule of 27 Civil Procedure 12(b)(6), a court may consider not only the allegations in the complaint, but also “documents attached to the complaint, documents incorporated by reference in 28 the complaint, or matters of judicial notice.” United States v. Ritchie, 342 F.3d 903, 908 1 states: “Although I admit to using the call button to continue the conversation that I was 2 extremely irritated by, it’s still in it’s self [sic] on it’s face is [sic] unprofessional and 3 irresponsible to turn off the emergency com. for over the entire day and night . . . .” (Id.). 4 The grievance also alleges that even though Lawrence and Kelsey restored the emergency 5 button on the morning of the 17th, Plaintiff’s health and safety were at risk while the 6 button was inoperative. (Id.). 7 8 In the response to the grievance, Rawston states that Alton issued a minor write up 9 against Plaintiff on the date of the incident because Plaintiff was not fully dressed for the 10 morning cell inspection, in violation of the jail’s rules. (Id. at 8). The minor write up 11 resulted in a major write up only because Plaintiff had received three prior minor write 12 ups. (Id.). The response further states: “Instead of consistently and violating jail policy 13 [sic] by hitting the emergency button, for a non-medical emergency, you should have 14 saved your defense for the major disciplinary hearing you would have with a Senior 15 Deputy. That is the appropriate time to have a discussion about the major write up you 16 received.” (Id.). Rawston further asserted that it is impossible for an SST to turn off an 17 emergency call button. (Id.). Finally, he concluded that Alton was not retaliating against 18 Plaintiff and did not show any misconduct during the incident. (Id.). 19 20 In the prayer for relief, Plaintiff seeks monetary damages of $10,000 for the 21 violation of his Eighth Amendment rights. (Id. at 7). 22 23 III. 24 DISCUSSION 25 26 Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff’s Complaint 27

28 (9th Cir. 2022). Because Plaintiff’s grievance and Rawston’s response are put at issue in 1 due to defects in pleading. Pro se litigants in civil rights cases, however, must be given 2 leave to amend their complaints unless it is absolutely clear that the deficiencies cannot be 3 cured by amendment. See Lopez, 203 F.3d at 1128-29. Accordingly, the Court grants 4 leave to amend. 5 6 A. Eighth Amendment Cruel And Unusual Punishment Claims Against 7 Alton And Rawston 8 9 Although Plaintiff repeatedly asserts that Alton and Rawston violated his Eighth 10 Amendment rights, because he appears to be a pre-trial detainee who is not currently 11 incarcerated pursuant to a conviction, the constitutional claims he asserts arise under the 12 Due Process Clause of the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 13 393 & n.6 (1989) (Eighth Amendment’s prohibition of “cruel and unusual punishments” 14 applies only “after conviction and sentence”); Stone v. City of San Francisco, 968 F.2d 15 850, 857 n.10 (9th Cir. 1992) (“[P]retrial detainees . . . possess greater constitutional 16 rights than prisoners.”); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) 17 (“[P]retrial detainees are accorded no rights under the Eighth Amendment. Instead, their 18 rights arise under the Due Process Clause of the Fourteenth Amendment.”) (internal 19 citations omitted); Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018) (the “more 20 protective” Fourteenth Amendment standard applies to detainees who have not yet been 21 convicted of a crime). Accordingly, Plaintiff’s Eighth Amendment claims summarily fail. 22 23 To the extent that Plaintiff asserts that Defendants unconstitutionally put his health 24 and safety at unnecessary risk, the Ninth Circuit instructs that the elements of a pretrial 25 detainee’s Fourteenth Amendment claim are: 26 27 (i) the defendant made an intentional decision with respect to the conditions 28 under which the plaintiff was confined; (ii) those conditions put the 1 plaintiff at substantial risk of suffering serious harm; (iii) the defendant did 2 not take reasonable available measures to abate that risk, even though a 3 reasonable official in the circumstances would have appreciated the high 4 degree of risk involved -- making the consequences of the defendant’s 5 conduct obvious; and (iv) by not taking such measures, the defendant 6 caused the plaintiff’s injuries. “With respect to the third element, the 7 defendant’s conduct must be objectively unreasonable, a test that will 8 necessarily ‘turn[] on the facts and circumstances of each particular case.’” 9 [Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)] 10 (quoting [Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct. 2466, 2473 11 (2015)]; Graham v. Connor, 490 U.S. 386, 396 (1989)). The “‘mere lack 12 of due care by a state official’ does not deprive an individual of life, liberty, 13 or property under the Fourteenth Amendment.” Id. (quoting [Daniels v. 14 Williams, 474 U.S. 327, 330-31 (1986)). Thus, the plaintiff must “prove 15 more than negligence but less than subjective intent -- something akin to 16 reckless disregard.” Id. 17 18 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (parallel citations and 19 footnote omitted); see also Horton by Horton v. City of Santa Maria, 915 F.3d 592, 600 20 (9th Cir. 2019) (the Fourteenth Amendment provides “an entirely objective standard for 21 [claims by] pretrial detainees”). 22 23 Therefore, to state a due process claim, Plaintiff must allege facts showing that: 24 each Defendant, with respect to each incident, made an “intentional decision” about how 25 to handle Plaintiff’s health or safety; those decisions placed Plaintiff at substantial risk of 26 serious harm and were objectively unreasonable; and as a result, Plaintiff was actually 27 harmed. It is not enough for Plaintiff to complain that Defendants collectively provided 28 inadequate or substandard care or protection; Plaintiff must show that each Defendant 1 separately made an objectively unreasonable decision regarding his health and/or safety 2 that resulted in actual harm. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 3 (1986) (absent proof of actual injury, plaintiff in § 1983 lawsuit is not entitled to 4 compensatory damages). 5 6 Even if Plaintiff had alleged his claims under the Fourteenth Amendment instead of 7 the Eighth Amendment, they would still fail to state a claim. Plaintiff alleges that Alton 8 unconstitutionally turned off his emergency call button on January 16, 2023, and that 9 Plaintiff learned of the deactivation on the morning of January 17, 2023, when he tried to 10 use the emergency button for three hours to “get [the] attention of the shift.” (Compl. at 11 5). However, Plaintiff fails to plead any facts showing that he was harmed by Alton’s 12 alleged action. Plaintiff does not allege that he suffered an asthmatic episode on January 13 16 or 17, 2023 and required immediate medical attention, which he was unable to 14 summon because his emergency button did not work. Plaintiff does not even allege that 15 he knew about the alleged deactivation until the day after the emergency button was 16 allegedly turned off, when he wished to get the attention of the shift. Although the 17 Complaint does not expressly explain why Plaintiff wished to get the attention of staff on 18 the morning of January 17, 2023, based on the facts asserted in Plaintiff’s grievance, the 19 reason appears to have been to complain about the write up he was given by Alton, not a 20 medical emergency. Alton expressly admits in his grievance that he was “using the call 21 button to continue the conversation [with Alton] that [he] was extremely irritated by . . . .” 22 (Id. at 9). In sum, even accepting as true that Alton deactivated the emergency call button, 23 at most Plaintiff alleges that he might theoretically have been harmed by the deactivation 24 of the emergency call button if he had required medical assistance, even though he did not 25 in fact suffer a medical emergency while the button was inoperative. In the absence of 26 any actual medical emergency that was worsened by Plaintiff’s inability to contact staff 27 by use of the emergency call button, the Complaint fails to identify any actual harm 28 Plaintiff suffered. Instead, the facts alleged in the Complaint strongly suggest that 1 Plaintiff was abusing the emergency call button for a non-medical purpose. This fails to 2 state an actual injury for purposes of a due process claim. 3 4 Plaintiff also fails to allege that Rawston caused an actual injury. The only 5 allegations against Rawston concern his response to Plaintiff’s grievance. The grievance 6 itself was necessarily filed after the incident at issue in this action was over and Plaintiff’s 7 emergency call button had been reactivated. Accordingly, even if the deactivation of the 8 emergency call button had harmed Plaintiff, which it did not, Rawston’s response to the 9 grievance, served on Plaintiff days after the event, (see Compl. at 8), logically could not 10 have caused the injury. The only wrong Rawston allegedly committed is that he authored 11 a grievance response that Plaintiff found unsatisfactory, which fails to establish an actual 12 injury to Plaintiff’s health or safety. Furthermore, as the Court will explain in Part C 13 below, complaints about a facility’s grievance process fail to state a constitutional claim. 14 15 Plaintiff fails to state a Fourteenth Amendment claim against either Alton or 16 Rawston involving actual injuries to his health or safety. Accordingly, the Complaint is 17 dismissed, with leave to amend. 18 19 B. First Amendment Retaliation Claim Against Alton 20 21 Although Plaintiff does not expressly allege a First Amendment claim in the 22 Complaint, his grievance asserts that “Alton turned off [his] ‘emergency com. call button’ 23 in a manner of retaliation behind the two of us having words stemming from an issue I 24 had with him during morning inspection.” (Compl. at 9). To the extent that Plaintiff may 25 be attempting to assert a First Amendment retaliation claim, the claim fails. 26 27 The Ninth Circuit has set forth the minimum pleading requirements for a § 1983 28 claim alleging retaliation against an inmate for exercising a First Amendment right: 1 Within the prison context, a viable claim of First Amendment retaliation 2 entails five basic elements: (1) An assertion that a state actor took some 3 adverse action against an inmate (2) because of (3) that prisoner’s protected 4 conduct, and that such action (4) chilled the inmate’s exercise of his First 5 Amendment rights, and (5) the action did not reasonably advance a 6 legitimate correctional goal. 7 8 See Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 2005) (footnote omitted); 9 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009); Safouane v. Fleck, 226 F. App’x 10 753, 764 (9th Cir. 2007), as amended on denial of reh’g and reh’g en banc (July 26, 2007) 11 (“[W]e have applied the same standards for [pretrial] detainees as for prisoners in 12 considering First Amendment claims, since many of the same interests and principles 13 apply . . . .”) (internal citations omitted); Nyland v. Calaveras Cnty. Sheriff’s Jail, 688 F. 14 App’x 483, 485 (9th Cir. 2017) (applying Rhodes factors to pretrial detainee’s First 15 Amendment claim). The inmate must establish a specific link between the alleged 16 retaliation and the exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 17 807-08 (9th Cir. 1995); see also Wood v. Beauclair, 692 F.3d 1041, 1051 (9th Cir. 2012) 18 (“To establish a claim for retaliation, a prisoner must show that a prison official took some 19 adverse action against an inmate because of that prisoner’s protected conduct, that the 20 action chilled the inmate’s exercise of his constitutional rights, and the action did not 21 advance a legitimate correctional goal.”). 22 23 To the extent that Plaintiff may have been attempting to state a retaliation claim, 24 the claim fails because Plaintiff has not alleged facts showing that he was retaliated 25 against for having engaged in a constitutionally protected activity. Plaintiff alleges that 26 Alton retaliated against him because they exchanged “words” regarding the morning 27 inspection. However, Plaintiff does not say what those “words” were, describe whether 28 they included threats of violence or were permitted or prohibited by a prison regulation, or 1 otherwise establish that what he said to Alton was constitutionally protected speech. An 2 inmate retains First Amendment free speech rights not inconsistent with his status as a 3 prisoner or detainee and with the legitimate penological objectives of the corrections 4 system. See Shaw v. Murphy, 532 U.S. 223, 231 (2001); Clement v. California Dep’t of 5 Corr., 364 F.3d 1148, 1151 (9th Cir. 2004). However, jail personnel may regulate speech 6 if such restriction is reasonably related to legitimate penological interests and an inmate is 7 not deprived of all means of expression. Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th 8 Cir. 2002) (“While it is clear that the First Amendment right of free speech applies within 9 prison walls . . . [a] prison regulation that impinges on an inmate’s constitutional right ‘is 10 valid if it is reasonably related to legitimate penological interests.’”) (quoting Turner v. 11 Safley, 482 U.S. 78, 92 (1986)). Rawston’s grievance response suggests that the proper 12 time and place for Plaintiff to have raised any challenges to his major write up would have 13 been during the disciplinary hearing before a Senior Deputy. (Compl. at 8). 14 15 Plaintiff fails to allege facts establishing that his free speech rights were violated in 16 a way inconsistent with his status as a pretrial detainee and contrary to legitimate 17 penological objectives. As such, he fails to state a First Amendment violation. 18 Accordingly, the Complaint is dismissed, with leave to amend. 19 20 C. Fourteenth Amendment Grievance Claim Against Rawston 21 22 As noted above, Plaintiff’s sole allegations against Rawston concern his response 23 to Plaintiff’s grievance. Even though Plaintiff does not clearly allege why he was 24 dissatisfied with Rawston’s grievance response or describe the relief he was hoping to 25 receive, it would not have mattered if he did. Inmates simply do not have a constitutional 26 right to any particular grievance process, much less to any particular grievance outcome. 27 28 A prisoner must “exhaust his administrative remedies before filing a lawsuit 1 concerning prison conditions.” Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010) 2 (citing 42 U.S.C. § 1997e(a)). However, the denial of an administrative grievance or 3 claim, without more, is insufficient to establish a civil rights violation because there is no 4 constitutional right to a particular grievance process or outcome. See Mann v. Adams, 855 5 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance 6 procedure.”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (the denial of or failure 7 to respond to administrative grievances will not support a civil rights claim); Nelson v. 8 Giurbino, 395 F. Supp. 2d 946, 956 (S.D. Cal. 2005) (allegations regarding denial of 9 administrative appeal do not state a claim because “there is no legal entitlement to a 10 grievance procedure”). Accordingly, a plaintiff “cannot state a constitutional claim based 11 on his dissatisfaction with the grievance process. Where the defendant’s only 12 involvement in the allegedly unconstitutional conduct is ‘the denial of administrative 13 grievances or the failure to act, the defendant cannot be liable under § 1983.’” Grenning 14 v. Klemme, 34 F. Supp. 3d 1144, 1157 (E.D. Wash. 2014) (quoting Shehee, 199 F.3d at 15 300). 16 17 Plaintiff does not allege facts showing that Rawston had any involvement in the 18 incident at issue beyond denying Plaintiff’s grievance. That is an insufficient ground to 19 state a constitutional claim. Accordingly, the Complaint is dismissed, with leave to 20 amend. 21 22 IV. 23 CONCLUSION 24 25 For the reasons stated above, the Complaint is dismissed with leave to amend. If 26 Plaintiff still wishes to pursue this action, he must file a First Amended Complaint within 27 thirty (30) days from the date of this Order. In any amended complaint, Plaintiffs shall 28 cure the defects described above. If Plaintiff chooses to file a First Amended Complaint, 1 he must clearly designate on the face of the document that it is the “First Amended 2 Complaint.” The First Amended Complaint must bear the docket number assigned to this 3 case, and it must be retyped or rewritten in its entirety. Plaintiff shall not include new 4 defendants or allegations that are not reasonably related to the claims asserted in the 5 Complaint. See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 6 1990) (denial of leave to amend not abuse of discretion where proposed new claims would 7 have “greatly altered the nature of the litigation” and required defendants to undertake “an 8 entirely new course of defense”); Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th 9 Cir. 1990) (affirming denial of leave to amend where additional claims “advance different 10 legal theories and require proof of different facts”). In addition, the First Amended 11 Complaint must be complete in and of itself, without reference to the original Complaint, 12 or any other pleading, attachment, or document. 13 14 An amended complaint entirely takes the place of the preceding complaint. Ferdik 15 v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 16 any preceding complaint, including any exhibits attached to the preceding complaint, as 17 nonexistent. Id. If Plaintiff wishes the Court to consider any exhibits from the original 18 Complaint, he must re-attach them to the First Amended Complaint. Because the Court 19 grants Plaintiff leave to amend all the claims raised here, any claim raised in the original 20 Complaint is waived if it is not raised again in the First Amended Complaint. Lacey v. 21 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). 22 23 In any amended complaint, Plaintiff should confine his allegations to the essential 24 facts supporting each of his claims. Plaintiff is strongly encouraged to keep his statements 25 concise and to omit irrelevant details. Plaintiff is advised that pursuant to Federal Rule of 26 Civil Procedure 8(a), all that is required is a “short and plain statement of the claim 27 showing that the pleader is entitled to relief.” Plaintiff is strongly encouraged to use the 28 standard civil rights complaint form when filing any amended complaint, a copy of 1 which is attached. In any amended complaint, Plaintiff must describe, to the extent 2 possible, what each separate Defendant, including each separate Doe Defendant, if any, 3 did to violate his rights; where and when the wrongful conduct occurred; the harm that 4 Plaintiff suffered from the Defendant’s acts and omissions; and the constitutional right or 5 statute that each Defendant violated. It is not necessary for Plaintiff to cite case law, 6 include legal argument, or attach exhibits at this stage of the litigation. Plaintiff is also 7 advised to omit any claims for which he lacks a sufficient legal or factual basis. 8 9 The Court cautions Plaintiff that it generally will not be inclined to grant further 10 opportunities to amend if the First Amended Complaint continues to assert claims for 11 which relief cannot be granted for the reasons explained in this Order. “[A] district 12 court’s discretion over amendments is especially broad ‘where the court has already given 13 a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cnty. of Orange, 14 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (quoting DCD Programs, Ltd. v. Leighton, 15 833 F.2d 183, 186 n.3 (9th Cir. 1987)); see also Cafasso, 637 F.3d at 1058 (“[T]he district 16 court’s discretion to deny leave to amend is particularly broad where plaintiff has 17 previously amended the complaint.”) (internal quotation marks omitted). Thus, if Plaintiff 18 files a First Amended Complaint with claims that repeat the same pleading defects 19 addressed in this Order, the Court may recommend that the First Amended Complaint be 20 dismissed with prejudice for failure to state a claim. 21 22 Instead of filing a First Amended Complaint, Plaintiff may choose to stand on the 23 defective claims in the original Complaint, but must expressly notify the Court in writing 24 of his intention to do so by the same deadline for filing an amended complaint, i.e., thirty 25 days from the date of this Order. Plaintiff is cautioned, however, that when a plaintiff 26 chooses to stand on a defective complaint despite having been afforded the opportunity to 27 amend, the district court may dismiss any defective claims under Federal Rule of Civil 28 Procedure 12(b)(6) and allow the action to proceed only on the surviving claims, if any, 1 || that sufficiently state a claim. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th 2 || Cir. 2004). Plaintiff is advised that if he elects to stand on the defective claims in his 3 || original Complaint, the Magistrate Judge will recommend that the Court dismiss some or 4 || all of his claims for the reasons stated in this Order. See McCalden v. California Library 5 || Ass’n, 955 F.2d 1214, 1224 (9th Cir. 1992) (a plaintiff granted leave to amend a pleading 6 || “may elect to stand on her pleading and appeal’’); Edwards, 356 F.3d at 1065 (“When the 7 || plaintiff timely responds with a formal notice of his intent not to amend, the threatened 8 || dismissal merely ripens into a final, appealable judgment.”). 9 10 Accordingly, Plaintiff is ORDERED to file either a First Amended Complaint or a 11 || Notice of Intention to Stand on Defective Complaint within thirty days of the date of this 12 || Order. Plaintiff is explicitly cautioned that the failure to file either a First Amended 13 || Complaint or a Notice of Intention to Stand on Defective Complaint by the Court’s 14 || deadline will result in a recommendation that this action be dismissed with prejudice 15 || for failure to prosecute and obey court orders pursuant to Federal Rule of Civil 16 || Procedure 41(b). See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th 17 || Cir. 2019) (‘The failure of the plaintiff eventually to respond to the court’s ultimatum -- 18 || either by amending the complaint or by indicating to the court that it will not do so -- is 19 || properly met with the sanction of a Rule 41(b) dismissal.’”) (quoting Edwards, 356 F.3d 20 || at 1065) (emphasis in original). Plaintiff is further advised that if he no longer wishes to 21 || pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in 22 || accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is 23 || attached for Plaintiff’s convenience. 24 . 25 || DATED: April 10, 2023 huh MNt— 26 PEDRO V. CASTILLO 27 UNITED STATES MAGISTRATE JUDGE 28

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