Leo Olguin v. J. Gastelo

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LEE OLGUIN, Case No. 2:20-cv-06048-PA (MAA) 12 Plaintiff, 13 MEMORANDUM DECISION AND v. ORDER DISMISSING FIRST 14 J. GASTELO et al., AMENDED COMPLAINT WITH 15 LEAVE TO AMEND Defendants. 16 17

18 I. INTRODUCTION 19 On July 6, 2020, Plaintiff Lee Olguin (“Plaintiff”), a California state inmate 20 proceeding pro se, filed a Complaint alleging violations of his civil rights pursuant 21 to 42 U.S.C. § 1983 (“Section 1983”). (Compl., ECF No. 1.) That same day, 22 Plaintiff filed a Request to Proceed In Forma Pauperis (ECF No. 2), which the 23 Court granted on July 8, 2020 (ECF No. 4). On August 3, 2020, the Court screened 24 and dismissed the Complaint with leave to amend (“Order”). (Order, ECF No. 6.) 25 Plaintiff filed a First Amended Complaint (“FAC”) on October 5, 2020. (FAC, 26 ECF No. 10.) 27 The Court has screened the FAC as prescribed by 28 U.S.C. § 1915A and 28 28 U.S.C. § 1915(e)(2)(B). For the reasons stated below, the FAC is DISMISSED 1 WITH LEAVE TO AMEND. Plaintiff is ORDERED to, within thirty days after 2 the date of this Order, either: (1) file a Second Amended Complaint (“SAC”); or 3 (2) advise the Court that Plaintiff does not intend to pursue this lawsuit further and 4 will not file a SAC. 5 6 II. SUMMARY OF ALLEGATIONS AND CLAIMS1 7 The FAC is filed against: (1) Correctional Officer J. Cable (individual and 8 official capacities); (2) Correctional Officer Day (individual and official capacities); 9 and (3) Correctional Sargent Siordia (individual and official capacities) (each a 10 “Defendant” and collectively, “Defendants”). (Compl. 3.)2 Defendants were acting 11 under color of law as correctional officers. (Id. at 5.) 12 On February 24, 2019, Defendants Cable and Day approached Plaintiff’s cell 13 and asked him to “cuff up.” (Id.) Plaintiff complied. (Id.) When Plaintiff asked 14 what was happening, Defendants stated that he was “going to the program office to 15 be in route to ad-seg due to an enemy on the yard.” (Id.) Plaintiff never resisted or 16 became combative. (Id.) At the program office, Plaintiff asked to speak to an 17 “authority figure.” (Id.) Defendant Day said “Shut the f—k up,” pulled Plaintiff’s 18 arms up, twisted his hands to restrain Plaintiff, and slammed Plaintiff’s head into the 19 wall. (Id.) A bone in Plaintiff’s left hand broke. (Id.) Defendant Cable did nothing 20 to stop Defendant Day. (Id.) 21 Plaintiff reported the incident to “medical” and to Defendant Siordia. (Id.) 22 Defendant Siordia threatened Plaintiff and forced him to sign a paper stating that 23 Defendants Day and Cable never assaulted him. (Id.) 24 25 1 The Court summarizes the allegations and claims in the FAC. In doing so, the 26 Court does not opine on the veracity or merit of Plaintiff’s allegations and claims, 27 nor does the Court make any findings of fact.

28 2 Citations to pages in docketed documents reference those generated by CM/ECF. 1 Plaintiff suffered physical injuries requiring multiple operations, including a 2 plate and screws for reconstruction. (Id.) Plaintiff also has suffered mental and 3 emotional damage, requiring psychiatric hospitalization. (Id.) 4 Based on the foregoing, Plaintiff asserts claims for violations of the First, 5 Eighth, and Fourteenth Amendments, and seeks compensatory and exemplary 6 damages. (Id. at 5–6). 7 8 III. STANDARD OF REVIEW 9 Federal courts must conduct a preliminary screening of any case in which a 10 prisoner seeks redress from a governmental entity or officer or employee of a 11 governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma 12 pauperis (28 U.S.C. § Section 1915(e)(2)(B)). The court must identify cognizable 13 claims and dismiss any complaint, or any portion thereof, that is: (1) frivolous or 14 malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks 15 monetary relief from a defendant who is immune from such relief. 28 U.S.C. 16 §§ 1915(e)(2)(B), 1915A(b). 17 When screening a complaint to determine whether it fails to state a claim 18 upon which relief can be granted, courts apply the Federal Rule of Civil Procedure 19 12(b)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 20 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A); 21 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6) 22 standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). To survive a Rule 12(b)(6) dismissal, “a 23 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 24 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 25 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has 26 facial plausibility when the plaintiff pleads factual content that allows the court to 27 draw the reasonable inference that the defendant is liable for the misconduct 28 alleged.” Id. Although “detailed factual allegations” are not required, “an 1 unadorned, the-defendant-unlawfully-harmed-me accusation”; “labels and 2 conclusions”; “naked assertion[s] devoid of further factual enhancement”; and 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements” are insufficient to defeat a motion to dismiss. Id. 5 (quotations omitted). “Dismissal under Rule 12(b)(6) is appropriate only where the 6 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable 7 legal theory.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 8 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 9 1104 (9th Cir. 2008)). 10 In reviewing a Rule 12(b)(6) motion to dismiss, courts will accept factual 11 allegations as true and view them in the light most favorable to the plaintiff. Park 12 v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). Moreover, where a plaintiff is 13 appearing pro se, particularly in civil rights cases, courts construe pleadings 14 liberally and afford the plaintiff any benefit of the doubt. Wilhelm, 680 F.3d at 15 1121. “If there are two alternative explanations, one advanced by defendant and the 16 other advanced by plaintiff, both of which are plausible, plaintiff’s complaint 17 survives a motion to dismiss under Rule 12(b)(6).” Starr v. Baca, 652 F.3d 1202, 18 1216 (9th Cir. 2011). However, the liberal pleading standard “applies only to a 19 plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), 20 superseded by statute on other grounds, 28 U.S.C. § 1915. Courts will not “accept 21 any unreasonable inferences or assume the truth of legal conclusions cast in the 22 form of factual allegations.” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 23 2003). In giving liberal interpretations to complaints, courts “may not supply 24 essential elements of the claim that were not initially pled.” Chapman v. Pier 1 25 Imps. (U.S.), Inc., 631 F.3d 939, 954 (9th Cir. 2011) (quoting Pena v. Gardner, 976 26 F.2d 469, 471 (9th Cir. 1992)). 27 /// 28 /// 1 IV. DISCUSSION 2 A. Section 1983 3 Section 1983 provides a cause of action against “every person who, under 4 color of any statute . . . of any State . . . subjects, or causes to be subjected, any 5 citizen . . . to the deprivation of any rights, privileges, or immunities secured by the 6 Constitution and laws . . . .” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alteration in 7 original) (quoting 42 U.S.C. § 1983). The purpose of Section 1983 is “to deter state 8 actors from using the badge of their authority to deprive individuals of their 9 federally guaranteed rights and to provide relief to victims if such deterrence fails.” 10 Id. To state a claim under Section 1983, a plaintiff must allege: (1) a right secured 11 by the Constitution or laws of the United States was violated; and (2) the alleged 12 violation was committed by a person acting under color of state law. West v. 13 Atkins, 487 U.S. 42, 48 (1988). 14 Here, the FAC alleges that Defendants violated Plaintiff’s First, Eighth, and 15 Fourteenth Amendment rights. (FAC 5–6.) As discussed below, the Court 16 concludes that the FAC states an Eighth Amendment claim against Defendants 17 Cable and Day, but that it does not state any claims against Defendant Siordia, or 18 any claims pursuant to the First and Fourteenth Amendments. 19 20 B. Official Capacity Claims 21 While the Complaint only asserted claims against the defendants in their 22 individual capacities (see Compl. 3), the FAC adds claims against Defendants in 23 their official capacities (see FAC 3). A suit against a defendant in his or her 24 individual capacity “seek[s] to impose personal liability upon a government official 25 for actions he takes under color of state law . . . . Official-capacity suits, in contrast, 26 ‘generally represent only another way of pleading an action against an entity of 27 which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165 (1985) 28 (quoting Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 n.55 (1978)). The 1 FAC alleges that Defendants are employed at California Men’s Colony, a state 2 prison. (FAC 3.) As such, any official capacity claims against Defendants are 3 treated as claims against the State of California. See Leer v. Murphy, 844 F.2d 628, 4 631–32 (9th Cir. 1998) (explaining that a lawsuit against state prison officials in 5 their official capacities was a lawsuit against the state). 6 California is not a “person” subject to Section 1983, and the Eleventh 7 Amendment bars damages actions against state officials in their official capacity. 8 Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007); Nat. Res. Def. Council v. 9 Cal. DOT, 96 F.3d 420, 421 (9th Cir. 1996) (“State immunity extends to state 10 agencies and to state officers, who act on behalf of the state and can therefore assert 11 the state’s sovereign immunity.”). There are only three exceptions to state sovereign 12 immunity, none of which apply to the FAC: (1) waiver by the state, (2) abrogation 13 by Congress, and (3) the Ex parte Young doctrine. See Douglas v. Cal. Dep’t of 14 Youth Auth., 271 F.3d 812, 817 (9th Cir. 2001). “The State of California has not 15 waived its Eleventh Amendment immunity with respect to claims brought under 16 § 1983 in federal court, and the Supreme Court has held that § 1983 was not 17 intended to abrogate a State’s Eleventh Amendment immunity[.]” Brown v. Cal. 18 Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (alteration in original) (quoting 19 Dittman, 191 F.3d at 1025–26). Finally, the narrow Ex parte Young exception to 20 sovereign immunity does not apply because the FAC does not allege an ongoing 21 violation of federal law and does not seek prospective relief. See Miranda v. 22 Kitzhaber, 328 F.3d 1181, 1189 (9th Cir. 2003). 23 For these reasons, Plaintiff’s claims against Defendants in their official 24 capacities fail. If Plaintiff includes claims for damages against Defendants in their 25 official capacities in any amended complaint, such claims will be subject to 26 dismissal. 27 /// 28 /// 1 C. Individual Capacity Claims 2 1. Eighth Amendment Cruel and Unusual Punishment3 3 “[T]he treatment a prisoner receives in prison and the conditions under which 4 he is confined are subject to scrutiny under the Eighth Amendment,” which 5 prohibits cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 6 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). “When prison 7 officials use excessive force against prisoners, they violate the inmates’ Eighth 8 Amendment right to be free from cruel and unusual punishment.” Clement v. 9 Gomez, 298 F.3d 898, 903 (9th Cir. 2002). An Eighth Amendment claim against 10 prison officials must allege sufficient facts to satisfy a two-prong test: (1) an 11 objective standard—“the alleged wrongdoing was objectively harmful enough to 12 establish a constitutional violation”; and (2) a subjective standard—“a sufficiently 13 culpable state of mind.” Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th Cir. 2020) 14 (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). 15 16 a. Objective Standard 17 The objective component is contextual—that is, it depends upon the claim at 18 issue—and also is “responsive to ‘contemporary standards of decency.’” Hudson, 19 503 U.S. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). “[A] prisoner 20 asserting an Eighth Amendment claim ‘must objectively show that he was deprived 21 of something ‘sufficiently serious.’” Bearchild, 947 F.3d at 1141 (quoting Watison 22 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)). “That objective standard remains 23 constant, but what constitutes a sufficiently serious deprivation may evolve as ‘the 24 25 3 The FAC asserts that Defendants Cable and Day violated Plaintiff’s rights pursuant to both the Eighth and Fourteenth Amendments. (See FAC 6.) However, the 26 Fourteenth Amendment’s Due Process Clause protects pretrial detainees from 27 excessive force, while the Eighth Amendment’s Cruel and Unusual Punishment Clause protects convicted prisoners. See Castro v. County of Los Angeles, 833 F.3d 28 1060, 1069–70 (9th Cir. 2016). 1 basic mores of society change.’” Id. (quoting Kennedy v. Louisiana, 554 U.S. 407, 2 419 (2008)). 3 Here, the FAC alleges that Defendant Day pulled Plaintiff’s arms up, twisted 4 his hands to restrain Plaintiff, and slammed Plaintiff’s head into the wall. (FAC 5.) 5 As a result, a bone in Plaintiff’s left hand broke, requiring multiple operations, 6 including a plate and screws for reconstruction. (Id.) These allegations allege a 7 sufficiently serious deprivation, and thus satisfy the objective prong of the Eighth 8 Amendment. 9 10 b. Subjective Component 11 i. Defendant Day 12 “[T]he subjective inquiry for excessive force claims ‘turns on whether force 13 was applied in a good faith effort to maintain or restore discipline or maliciously 14 and sadistically for the very purpose of causing harm.’” Bearchild, 947 F.3d at 15 1140 (quoting Hudson, 503 U.S. at 6). Five factors are considered in making this 16 determination: “(1) the extent of injury suffered by an inmate; (2) the need for 17 application of force; (3) the relationship between that need and the amount of force 18 used; (4) the threat reasonably perceived by the responsible officials; and (5) any 19 efforts made to temper the severity of a forceful response.” Furnace v. Sullivan, 20 705 F.3d 1021, 1028–29 (9th Cir. 2013) (quoting Martinez v. Stanford, 323 F.3d 21 1178, 1184 (9th Cir. 2003)). When weighing the merits of excessive force claims, 22 “prison staff should be ‘accorded wide-ranging deference.’” Bearchild, 947 F.3d at 23 1140 (quoting Wood v. Beauclair, 692 F.3d 1041, 1050 (9th Cir. 2012)). 24 Here, the FAC alleges that, in response to Plaintiff’s request to speak with an 25 authority figure, Defendant Day said “Shut the f—k up,” pulled Plaintiff’s arms up, 26 twisted his hands to restrain Plaintiff, and slammed Plaintiff’s head into the wall. 27 (FAC 5.) The FAC asserts that Plaintiff was not combative or resistant. (Id.) As a 28 result of Defendant Day’s use of force, a bone in Plaintiff’s left hand broke, for 1 which he required multiple operations, including a plate and screws for 2 reconstruction. (Id.) These allegations are sufficient to satisfy the Eighth 3 Amendment’s subjective prong with respect to Defendant Day. 4 5 ii. Defendant Cable 6 “To violate the Cruel and Unusual Punishments Clause, a prison official must 7 have a ‘sufficiently culpable state of mind.’” Farmer, 511 U.S. at 823. “In prison- 8 conditions cases that state of mind is one of ‘deliberate indifference’ to inmate 9 health or safety.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 302–03 (1991)). 10 Deliberate indifference is met only if the prison official “knows of and disregards 11 an excessive risk to inmate health or safety; the official must both be aware of facts 12 from which the inference could be drawn that a substantial risk of serious harm 13 exists, and he must also draw the inference.” Id. at 834. “Deliberate indifference 14 entails something more than mere negligence . . . [but] is satisfied by something less 15 than acts or omissions for the very purpose of causing harm or with knowledge that 16 harm will result.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) 17 (alterations in original) (citing Farmer, 511 U.S. at 835). 18 Here, the FAC alleges that Defendant Cable was present throughout 19 Defendant Day’s use of excessive force on Plaintiff, yet Defendant Cable failed to 20 intervene and did nothing to stop Defendant Day. (FAC 5.) “Prison officials have a 21 duty to take reasonable steps to protect inmates from physical abuse.” Hoptowit v. 22 Ray, 682 F.2d 1237, 1250 (9th Cir. 1982). “[A] prison official can violate a 23 prisoner’s Eighth Amendment rights by failing to intervene.” Robins v. Meecham, 24 60 F.3d 1436, 1442 (9th Cir. 1995). The FAC satisfies the Eighth Amendment’s 25 subjective prong with respect to Defendant Cable. 26 27 For these reasons, the FAC sufficiently states Eighth Amendment claims 28 against Defendants Cable and Day in their individual capacities. 1 2. First Amendment Retaliation 2 “Within the prison context, a viable claim of First Amendment retaliation 3 entails five basic elements: (1) An assertion that a state actor took some adverse 4 action against an inmate (2) because of (3) that prisoner’s protected conduct, and 5 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 6 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 7 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). “[M]ere speculation that 8 defendants acted out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 9 904 (9th Cir. 2014). Because direct evidence of retaliatory intent rarely can be 10 pleaded in a complaint, circumstantial evidence—such as suspect timing, 11 inconsistent determinations based on the same evidence, and oral statements—may 12 suffice to infer retaliatory intent. See Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 13 2003). A plaintiff bears the initial burden of showing that the exercise of his First 14 Amendment rights was a “substantial” or “motivating” factor behind the defendant’s 15 conduct. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287 (1977); 16 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 17 The FAC alleges that after Plaintiff reported the incident to Defendant Siordia, 18 Defendant Siordia threatened Plaintiff and forced him to sign a paper saying that 19 Defendants Day and Cable never assaulted him. (FAC 5.) These allegations do not 20 satisfy any of the requirements of a First Amendment retaliation claim. In contrast, 21 the Court concluded that the Complaint sufficiently stated a First Amendment 22 retaliation claim against Defendant Siordia. (See Order 10–11.) However, the FAC 23 inexplicably omits the relevant allegations from the Complaint that successfully 24 stated a First Amendment claim against Defendant Siordia. (Compare Compl. with 25 FAC.) If Plaintiff includes a First Amendment retaliation claim against Defendant 26 Siordia in any amended complaint, he must correct these deficiencies or risk its 27 dismissal. 28 /// 1 3. Fourteenth Amendment Procedural Due Process 2 The Due Process Clause of the Fourteenth Amendment of the United States 3 Constitution prohibits the government from depriving “any person of life, liberty, or 4 property without due process of law.” U.S. Const. amend. XIV § 1. The Due 5 Process Clause “provides heightened protection against government interference 6 with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 7 521 U.S. 702, 720 (1997). To plead a procedural due process violation, a plaintiff 8 must allege two elements: (1) the plaintiff has a “liberty or property interest which 9 has been interfered with by the State”; and (2) the procedures employed to deprive 10 the plaintiff of liberty or property were constitutionally insufficient. Ky. Dep’t. of 11 Corr. v. Thompson, 490 U.S. 454, 460 (1989). 12 Here, the FAC alleges that Defendant Sioria forced Plaintiff to sign a paper 13 stating that Defendants Day and Cable never assaulted him. (FAC 5.) This 14 allegation can be construed as an assertion of a Fourteenth Amendment procedural 15 due process claim. However, the FAC does not satisfy either of the two required 16 elements for such a claim. First, procedural due process “protections adhere only 17 where the deprivation implicates a protected liberty interest.’” Brown v. Or. Dep’t 18 of Corr., 751 F.3d 983, 987 (9th Cir. 2014) (quoting Sandin v. Connor, 515 U.S. 19 472, 484 (1995)). The FAC does not allege a deprivation of a protected liberty 20 interest resulting from the statement. (See generally FAC.) Indeed, the FAC fails to 21 allege how the statement caused Plaintiff to suffer any harm at all, let alone a 22 constitutionally-protected liberty interest. (See generally id.) Second, the FAC does 23 not allege any procedural defects involving the statement. (See generally id.) 24 Indeed, the FAC does not allege that Plaintiff was subject to any procedural process 25 at all, with or without the statement. (See generally id.) 26 For these reasons, the FAC fails to state a Fourteenth Amendment procedural 27 due process claim. If Plaintiff includes such a claim in any amended complaint, he 28 must correct these deficiencies or risk its dismissal. 1 V. CONCLUSION 2 For the reasons stated above, the Court DISMISSES the FAC WITH 3 LEAVE TO AMEND. Plaintiff may have another opportunity to amend and cure 4 the deficiencies given his pro se status. Plaintiff is ORDERED to, within thirty 5 days after the date of this Order, either: (1) file a SAC, or (2) advise the Court that 6 Plaintiff does not intend to pursue this lawsuit further and will not file a SAC. 7 The SAC must cure the pleading defects discussed above and shall be 8 complete in itself without reference to the Complaint. See L.R. 15-2 (“Every 9 amended pleading filed as a matter of right or allowed by order of the Court shall be 10 complete including exhibits. The amended pleading shall not refer to the prior, 11 superseding pleading.”). This means that Plaintiff must allege and plead any viable 12 claims in the SAC again. Plaintiff shall not include new Defendants or new 13 allegations that are not reasonably related to the claims asserted in the FAC. 14 In any amended complaint, Plaintiff should confine his allegations to those 15 operative facts supporting each of his claims. Plaintiff is advised that pursuant to 16 Rule 8, all that is required is a “short and plain statement of the claim showing that 17 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the 18 standard civil rights complaint form when filing any amended complaint, a 19 copy of which is attached. In any amended complaint, Plaintiff should identify the 20 nature of each separate legal claim and make clear what specific factual allegations 21 support each of his separate claims. Plaintiff strongly is encouraged to keep his 22 statements concise and to omit irrelevant details. It is not necessary for Plaintiff to 23 cite case law, include legal argument, or attach exhibits at this stage of the litigation. 24 Plaintiff also is advised to omit any claims for which he lacks a sufficient factual 25 basis. 26 The Court explicitly cautions Plaintiff that failure to timely file a SAC, or 27 timely advise the Court that Plaintiff does not intend to file a SAC, will result in 28 a recommendation that this action be dismissed for failure to prosecute and/or | || failure to comply with court orders pursuant to Federal Rule of Civil Procedur 2 || 41(b). 3 Plaintiff is not required to file an amended complaint, especially since a 4 || complaint dismissed for failure to state a claim without leave to amend may count as 5 || astrike under 28 U.S.C. § 1915(g). Instead, Plaintiff may request voluntary 6 || dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a). A Notice 7 || of Dismissal form is attached for Plaintiff’?s convenience. 8 Plaintiff is advised that this Court’s determination herein that the allegations 9 || in the FAC are insufficient to state a particular claim should not be seen as 10 || dispositive of the claim. Accordingly, although the undersigned Magistrate Judge 11 || believes Plaintiff has failed to plead sufficient factual matter in the pleading, 12 || accepted as true, to state a claim for relief that is plausible on its face, Plaintiff is not 13 || required to omit any claim or Defendant in order to pursue this action. However, if 14 || Plaintiff decides to pursue a claim in an amended complaint that the undersigned 15 || previously found to be insufficient, then pursuant to 28 U.S.C. § 636, the 16 || undersigned ultimately may submit to the assigned District Judge a recommendatior 17 || that such claim may be dismissed with prejudice for failure to state a claim, subject 18 || to Plaintiffs right at that time to file objections. See Fed. R. Civ. P. 72(b); C.D. Cal 19 | L.R. 72-3. 20 IT IS SO ORDERED. 21 22 || DATED: October 22, 2020 po 73 Ly A. AUDERO UNITED STATES MAGISTRATE JUDGE 24 25 || Attachments 26 || Form Civil Rights Complaint (CV-66) 27 || Form Notice of Dismissal 28 13