(PC) Blackwell v. Jenkins

• Court: District Court, E.D. California
• Decided: March 25, 2020
• Docket: 2:19-cv-00442
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODNEY KARL BLACKWELL, No. 2:19-cv-0442 TLN DB P 12 Plaintiff, 13 v. ORDER 14 A. JENKINS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with an action pursuant to 42 U.S.C. § 1983. 18 Plaintiff claims that defendants violated his rights under the Eighth and Fourteenth Amendments. 19 Presently before the court is plaintiff’s first amended complaint for screening. (ECF No. 22.) For 20 the reasons set forth below, the court will give plaintiff the option to proceed with the complaint 21 as screened or file an amended complaint. 22 SCREENING 23 I. Legal Standards 24 The court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 26 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 27 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 28 //// 1 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1) & (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 9 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 12 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 However, in order to survive dismissal for failure to state a claim a complaint must 14 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 15 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 16 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 17 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 18 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 19 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 20 The Civil Rights Act under which this action was filed provides as follows: 21 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 22 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 23 or other proper proceeding for redress.

24 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 25 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 26 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 27 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 28 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 1 omits to perform an act which he is legally required to do that causes the deprivation of which 2 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 3 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 4 their employees under a theory of respondeat superior and, therefore, when a named defendant 5 holds a supervisorial position, the causal link between him and the claimed constitutional 6 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 7 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 8 concerning the involvement of official personnel in civil rights violations are not sufficient. See 9 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 10 II. Allegations in the First Amended Complaint 11 A. Claim I 12 Plaintiff states the events giving rise to the claim occurred while he was incarcerated at 13 Mule Creek State Prison (MCSP). (ECF No. 22 at 1.) Plaintiff has named as defendants 14 correctional officers: (1) Jenkins; (2) Bartkiewicz; and (3) Prakash. (Id.) 15 Plaintiff claims that on December 30, 2018, Jenkins discovered plaintiff possessed a small 16 amount of alcohol and gave him a rules violation report (RVR). (Id. at 10.) Thereafter, plaintiff 17 filed a grievance claiming Jenkins planted false evidence. (Id. at 11.) After plaintiff named 18 Jenkins in the grievance, he began to verbally harass plaintiff, stare at plaintiff “with hateful 19 looks” to make him “uncomfortable,” and force plaintiff to submit to random searches. 20 Plaintiff claims that on February 2, 2019, Jenkins “sent” officers Barkiewicz and Prakash 21 to “harass, vex, annoy, and search[]” him. (Id. at 12.) Plaintiff states that Jenkins arrived and 22 took a “small Folgers 8 ounce container with Kool-aid, apple juice and water in it” stating they 23 suspected it was inmate manufactured alcohol. (Id. at 12.) Plaintiff requested that they test the 24 liquid. They refused and plaintiff requested that the lieutenant come to his cell with the test kit, 25 but they refused. Plaintiff requested a test kit a couple hours later and offered to pay to the have 26 the substance tested. However, he was informed that they officers disposed of the liquid. 27 Plaintiff also asked to submit to a urinalysis test but was told to return to his housing unit. 28 //// 1 Plaintiff alleges that shortly thereafter Jenkins came to his cell with legal mail and while 2 there kicked food items down the tier to Bartkiewicz. (Id. at 13-14.) Plaintiff wrote a grievance 3 claiming “theft, harassment, to incite violence.” (Id. at 14.) At a subsequent unspecified date 4 Jenkins took several packaged food items from plaintiff’s cell and claimed they were in front of 5 the cell. Plaintiff further claims that Jenkins falsified the cell search document. Plaintiff claims 6 that on August 8, 2019, he withdrew the complaint. (Id. at 15.) 7 Plaintiff states that on September 11, 2019, Jenkins entered plaintiff’s cell sat on the bunk, 8 watched the television, riffled through the lockers, and took two candy bars without leaving a cell 9 search document. (Id. at 15-16.) He also claims that Jenkins would stop inmates talking with 10 plaintiff and cause trouble with plaintiff’s cellmates informing them he was doing so because of 11 their association with plaintiff. (Id. at 16.) 12 Plaintiff claims that on November 10, 2019, Jenkins instructed officers Vaught and 13 Johnson to go to plaintiff’s cell and take as many items as they could. (Id. at 17-18.) He states 14 they took plaintiff’s Sony CD player even though plaintiff has documentation showing that he 15 purchased it. (Id. at 18.) Three days later Jenkins returned to plaintiff’s cell and took his 16 television. 17 On November 15, 2019, Jenkins approached plaintiff and tried to incite him by telling 18 plaintiff that he was giving plaintiff an RVR. Plaintiff demanded an explanation and Jenkins said, 19 “Your in prison I can do what I want. [T]his is ches[s] not checkers. Who you going to tell. I do 20 what I want.” (Id. at 19.) 21 B. Claim II and Claim III 22 Plaintiff claims Bartkiewicz and Prakash violated his rights by failing to test the liquid 23 confiscated from plaintiff on February 2, 2019. (ECF No. 22 at 24-27.) 24 III. Does Plaintiff State a Claim? 25 A. Conspiracy 26 1. Legal Standards 27 In the context of conspiracy claims brought pursuant to § 1983, a complaint must “allege 28 [some] facts to support the existence of a conspiracy among the defendants.” Buckey v. County 1 of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police 2 Department, 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff must allege that defendants conspired or 3 acted jointly in concert and that some overt act was done in furtherance of the conspiracy. Sykes 4 v. California, 497 F.2d 197, 200 (9th Cir. 1974). 5 A conspiracy claim brought under § 1983 requires proof of “‘an agreement or meeting of 6 the minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) 7 (quoting United Steel Workers of Am. V. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 8 1989) (citation omitted)), and an actual deprivation of constitutional rights, Hart v. Parks, 450 9 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 10 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the conspiracy need not know the 11 exact details of the plan, but each participant must at least share the common objective of the 12 conspiracy.’” Franklin, 312 F.3d at 441 (quoting United Steel Workers of Am., 865 F.2d at 13 1541). 14 Section 1985 proscribes conspiracies to interfere with an individual’s civil rights. To state 15 a cause of action under §1985(3), plaintiff must allege: (1) a conspiracy, (2) to deprive any person 16 or class of persons of the equal protection of the laws, (3) an act done by one of the conspirators 17 in furtherance of the conspiracy, and (4) a personal injury, property damage, or deprivation f any 18 right or privilege of a citizen of the United States. Gillispie v. Civiletti, 629 F.2d 637, 641 (9th 19 Cir. 1980); Giffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Section 1985 applies only where 20 there is a racial or other class-based discriminatory animus behind the conspirators’ actions. 21 Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). 22 The Ninth Circuit has held that a claim under § 1985 must allege specific facts to support 23 the allegation that defendants conspired together. Karim-Panahi, 839 F.2d at 626. A mere 24 allegation of conspiracy without factual specificity is insufficient to state a claim under 42 U.S.C. 25 § 1985. Id.; Sanchez v. City of Santa Anna, 936 F.2d 1027, 1039 (9th Cir. 1991). 26 2. Analysis 27 Plaintiff alleges that Jenkins, Bartkiewicz, and Prakash conspired to violate his rights. In 28 support of this allegation plaintiff states that they work together and that Jenkins is the head of 1 security on the yard. However, such allegations are not sufficient to show a conspiracy. To state 2 a claim plaintiff must plead facts showing which defendants conspired, how they conspired and 3 how the conspiracy led to a deprivation of his constitutional rights. See Harris v. Roderick, 126 4 F.3d 1189, 1196 (9th Cir. 1997). Accordingly, plaintiff’s conspiracy claim will be dismissed with 5 leave to amend. 6 B. Due Process – Testing 7 Plaintiff alleges that his due process rights were violated because the officers refused to 8 conduct a urinalysis or field test the substance officers identified as inmate manufactured alcohol. 9 (ECF No. 22 at 12.) Plaintiff cited a section of the California Department of Corrections and 10 Rehabilitation (CDCR) Title 15 that sets forth the methods for testing controlled substances or 11 alcohol. See Cal. Code Regs. tit. 15, § 3290(b), (c) (providing that field testing “may be 12 performed” and that urine samples “may be done” for certain specified reasons). At the outset, 13 the court notes that § 3290 states that field tests and urinalysis “may be performed.” Thus, testing 14 is permissive rather than mandatory. Additionally, plaintiff cannot state a claim under § 1983 15 based on defendants’ failure to comply with state laws or state regulations. Riley v. Vizcarra, No. 16 3:18-cv-2911 JAH BLM, 2019 WL 6497884 at *7 (E.D. Cal. Dec. 3, 2019) (finding plaintiff’s 17 allegation that officers violated prison regulations when they refused to conduct a urinalysis or 18 field test fails to state a due process claim). 19 In order to state a claim under 42 U.S.C. section 1983, the plaintiff must allege a violation 20 of a right secured by the federal constitution or federal law. See Parratt v. Taylor, 451 U.S. 527, 21 535 (1982), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); Haygood v. 22 Younger, 769 F.2d 1350, 1353-54 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). Mere 23 allegations of state law violations do not suffice to plead a section 1983 claim. See Cornejo v. 24 County of San Diego, 504 F.3d 853, 855 n.2 (9th Cir. 2007) (“a claim for violation of state law is 25 not cognizable under § 1983”) (citation omitted); Lowell v. Poway Unif. Sch. Dist., 90 F.3d 367, 26 370 (9th Cir. 1996) (“To the extent that the violation of a state law amounts to the deprivation of 27 a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 28 1983 offers no redress”) (citation omitted); Kitilya v. Calif. Dep’t of Corrections and 1 Rehabilitation, No. 2:18-cv-0672 JAM DB P, 2018 WL 3129816, at *2 (E.D. Cal. June 20, 2018) 2 (“Section 1983 provides no redress for prison officials’ mere violation of state prison 3 regulations.”) (citations omitted). 4 Accordingly, plaintiff’s allegation that officers refused to perform a field test or urinalysis 5 fails to state a claim under § 1983. 6 C. Due Process – Property Rights 7 1. Legal Standards 8 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 9 728, 730 (9th Cir. 1974). An unauthorized, intentional deprivation of property is actionable under 10 the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. 11 Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th 12 Cir. 1985). However, “an unauthorized intentional deprivation of property by a state employee 13 does not constitute a violation of the procedural requirements of the Due Process Clause of the 14 Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” 15 Hudson, 468 U.S. at 533. The availability of an adequate state post-deprivation remedy, e.g. a 16 state tort action, precludes relief because it provides adequate procedural due process. King v. 17 Massarweh, 782 F.2d 825, 826 (9th Cir. 1986). California law provides an adequate post- 18 deprivation remedy for any property deprivations. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th 19 Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). 20 2. Analysis 21 Plaintiff’s allegations involve an intentional confiscation of various items, which resulted 22 in its unauthorized deprivation. However, such a claim is not cognizable under § 1983 because 23 California law provides an adequate remedy. 24 D. Retaliation in Violation of the First Amendment 25 1. Legal Standards 26 Within the prison context, a viable claim of First Amendment retaliation entails five basic 27 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 28 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 1 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 2 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004) (footnote and 3 citations omitted). 4 “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he 5 suffered some other harm,” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), that is “more 6 than minimal,” Robinson, 408 F.3d at 568 n.11. Filing administrative grievances and initiating 7 civil litigation are protected activities, it is impermissible for prison officials to retaliate against 8 prisoners for engaging in these activities. Rhodes, 408 F.3d at 567. 9 2. Analysis 10 Plaintiff has alleged that after plaintiff exercised his First Amendment rights by filing a 11 grievance naming Jenkins, Jenkins took adverse action against him by engaging in verbal 12 harassment, conducting unnecessary cell searches, having other officers conduct unnecessary cell 13 searches, and confiscating his property. Such allegations are sufficient to state a retaliation claim 14 against Jenkins. 15 E. Eighth Amendment 16 1. Legal Standards 17 “The Constitution does not mandate comfortable prisons, but neither does it permit 18 inhumane ones.” Farmer, 511 U.S. at 832 (internal quotation marks and citation omitted). “[A] 19 prison official violates the Eighth Amendment only when two requirements are met. First, the 20 deprivation alleged must be, objectively, sufficiently serious, a prison official’s act or omission 21 must result in denial of the minimal civilized measure of life’s necessities.” Id. at 834 (internal 22 quotation marks and citations omitted). Second, the prison official must subjectively have a 23 sufficiently culpable state of mind, “one of deliberate indifference to inmate health or safety.” Id. 24 (internal quotation marks and citations omitted). The official is not liable under the Eighth 25 Amendment unless he “knows of and disregards an excessive risk to inmate health or safety; the 26 official must both be aware of facts from which the inference could be drawn that a substantial 27 risk of serious harm exists, and he must also draw the inference.” Id. at 837. Then he must fail to 28 //// 1 take reasonable measures to abate the substantial risk of serious harm. Id. at 847. Mere negligent 2 failure to protect an inmate from harm is not actionable under § 1983. Id. at 835. 3 “Verbal harassment or abuse . . . is not sufficient to state a constitutional deprivation 4 under 42 U.S.C. § 1983.” Oltarzewski, 830 F.2d at 139 (citation and internal quotation marks 5 omitted); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (stating that “verbal 6 harassment generally does not violate the Eighth Amendment”), amended on other grounds by 7 135 F.3d 1318 (9th Cir. 1998); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (a “mere naked 8 threat” from prison guards does not violate the Eighth Amendment). 9 “The Eighth Amendment protects prisoners from searches conducted only for ‘calculated 10 harassment.’” Vigliotto v. Terry, 873 F.2d 1201, 1202-03 (9th Cir. 1989) (quoting Hudson v. 11 Palmer, 468 U.S. 517, 530 (1984)). In applying Eighth Amendment principles to prison cell 12 searches, “court have determined that frequent and retaliatory cell searches which result ‘in the 13 violent dishevelment of [the prisoner’s] cell’ and cause the prisoner to suffer ‘fear anguish, and 14 misery’ constitute an Eighth Amendment violation.” Chevere v. Johnson, 38 F.3d 1220, (table) 15 (10th Cir. 1994) (quoting Scher v. Engelke, 943 F.2d 921, 924 (8th Cir. 1991), cert. denied, 503 16 U.S. 952 (1992). 17 Plaintiff has alleged that Jenkins conducted and instructed other officers to conduct cell 18 searches in retaliation for exercise of his First Amendment rights. Accordingly, the court finds 19 that plaintiff’s allegations are sufficient to state a potentially cognizable Eighth Amendment 20 claim. 21 IV. Amending the Complaint 22 As stated above, plaintiff has stated potentially cognizable First and Eighth Amendment 23 claims against defendant Jenkins. However, because the court found that plaintiff’s other 24 allegations failed to state a claim he will be given the opportunity to proceed with the complaint 25 as screened or file an amended complaint. 26 In any amended complaint, plaintiff must demonstrate how the conditions about which he 27 complains resulted in a deprivation of his constitutional rights. Rizzo, 423 U.S. at 370-71. Also, 28 the complaint must allege in specific terms how each named defendant is involved. Arnold v. 1 Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 2 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s action 3 and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Furthermore, “[v]ague and conclusory allegations of official participation in civil rights violations 5 are not sufficient.” Ivey, 673 F.2d at 268. 6 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 7 and the action that defendant took that violated his constitutional rights. The court is not required 8 to review exhibits to determine what plaintiff’s charging allegations are as to each named 9 defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The 10 charging allegations must be set forth in the amended complaint, so defendants have fair notice of 11 the claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in 12 support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See 13 Fed. R. Civ. P. 8(a). 14 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 15 R. Civ. P 10(b). The amended complaint must show the federal court has jurisdiction, the action 16 is brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It 17 must contain a request for particular relief. Plaintiff must identify as a defendant only persons 18 who personally participated in a substantial way in depriving plaintiff of a federal constitutional 19 right. Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional 20 right if he does an act, participates in another’s act or omits to perform an act he is legally 21 required to do that causes the alleged deprivation). 22 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 23 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 24 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 25 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 26 set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema 27 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 28 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 1 Plaintiff is informed that the court cannot refer to a prior pleading in order to make his 2 || amended complaint complete. An amended complaint must be complete in itself without 3 || reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all 4 || prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint, 5 || each claim and the involvement of each defendant must be sufficiently alleged. 6 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 7 || has evidentiary support for his allegations, and for violation of this rule the court may impose 8 || sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 9 CONCLUSION 10 For the foregoing reasons, IT IS HEREBY ORDERED that: 11 1. Plaintiff has stated potentially cognizable claims against defendant Jenkins as set forth 12 in Section HI above. The court finds that plaintiff has not stated any other cognizable 13 claims. Accordingly, plaintiff will be given the option to proceed with the complaint 14 as screened or amend the complaint. 15 2. Within sixty (60) days of the date of this order, plaintiff shall fill out and return the 16 attached form indicating how he would like to proceed in this action. 17 3. Plaintiff is warned that his failure to comply with this order will result in a 18 recommendation that this action be dismissed. 19 | Dated: March 24, 2020 20 21 22 BORAH BARNES 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 DLB:12 28 | DLB:1/Orders/Prisoner/Civil Rights/blac0442.sem3 11

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4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 RODNEY KARL BLACKWELL, No. 2:19-cv-0442 TLN DB P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 12 A. JENKINS, et al., 13 Defendants. 14 Check one: 15 _____ Plaintiff wants to proceed immediately on his First and Eighth Amendment claims 16 against defendant Jenkins. Plaintiff understands that by going forward without 17 amending the complaint he is voluntarily dismissing all other claims and defendants. 18

19 _____ Plaintiff wants to amend the complaint. 20

21 DATED:_______________________ 22

23 Rodney Karl Blackwell 24 Plaintiff pro se

27 28