1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIRK JAONG BOUIE, No. 2:18-cv-2040 KJM AC P 12 Plaintiff, 13 v. ORDER 14 OSCAR SMITH, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff Dirk Jaong Bouie is a state prisoner currently incarcerated in the R.J. Donovan 19 Correctional Facility, under the authority of the California Department of Corrections and 20 Rehabilitation (CDCR). Plaintiff proceeds pro se with a civil rights complaint filed pursuant to 21 42 U.S.C. § 1983, which challenges conditions of his prior confinement at High Desert State 22 Prison (HDSP). Plaintiff paid the filing fee. 23 This action is referred to the undersigned United States Magistrate Judge pursuant to 28 24 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the undersigned: (1) 25 finds that the complaint states cognizable claims against defendants Smith, Rossi and Harwood, 26 but not against defendant Davis; (2) gives plaintiff the between proceeding on his complaint 27 against defendants Smith, Rossi and Harwood, OR filing an amended complaint in an attempt to 28 add a cognizable claim against defendant Davis. 1 II. Screening of Plaintiff’s Complaint 2 A. Legal Standards for Screening Prisoner Complaints 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 9 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 10 1984). 11 “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 12 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 13 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 14 106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) (“Pleadings shall be 15 so construed as to do justice.”). 16 B. Plaintiff’s Allegations 17 The complaint, ECF No. 1, sets forth the following allegations. On August 13, 2014, 18 plaintiff became agitated while talking with his assigned counselor in C Yard’s Building Four. 19 Defendant Correctional Officer (CO) Smith, who was accompanied by defendant CO Ross, told 20 plaintiff to shut up. Plaintiff told Smith to do the same. Smith confirmed with plaintiff’s 21 counselor that her interaction with plaintiff was completed, then told plaintiff to leave. Plaintiff 22 was housed in Building Three. He left Building Four, went to the C Yard patio door and told CO 23 Hunter (not a defendant), who was the tower officer, that he needed to see his psychiatrist; Hunter 24 allowed plaintiff onto the patio. CO Barron (not a defendant) spoke with plaintiff and instructed 25 him to stand in the painted square to wait for mental health services. 26 Two or three minutes later, defendants Smith and Ross walked up to plaintiff. Smith told 27 plaintiff to go to his cell. Plaintiff told Smith that he needed to speak with his psychiatrist 28 because he “felt like dying.” ECF No. 1 at 4. “Smith then said so what and that he did not care.” 1 Id. Plaintiff told Smith “do what you have to do, I faced the wall and placed my hands behind my 2 back. Smith put me in hand cuffs and took hold of my left arm and Rossi took my right arm.” Id. 3 Thinking that defendants “were following policy when an inmate voices suicide,” plaintiff 4 complied until defendants walked him past his psychiatrist’s office. Plaintiff then attempted to 5 fall on his knees in an effort to become prone, so that an emergency alarm would be activated and 6 additional staff would respond. Smith and Rossi put plaintiff up against the wall. Smith told 7 plaintiff that he would be returned to his cell. Plaintiff told Smith he felt suicidal and Smith again 8 said he didn’t care. When Smith pulled plaintiff from the wall, plaintiff succeeded in falling to 9 his knees. Smith and Rossi dragged plaintiff three or four feet from the patio door, “out of view 10 of other inmates,” and slammed plaintiff to the ground. Smith then “jumped on [plaintiff’s] head 11 and upper back with his knees and body weight” and ground plaintiff’s face into the gravel. Id. at 12 5. When plaintiff said he couldn’t breathe, Smith leaned close to plaintiff’s ear and said, “I don’t 13 care if you die.” Id. 14 Plaintiff sustained cuts to his face and wrists and other injuries to his head, jaw, ear, neck 15 and back. Defendant J. Harwood, the attending nurse, documented plaintiff’s injuries but 16 “refused to treat them and/or give [plaintiff] pain medication.” Id. at 5. Only after being placed 17 in Ad Seg and submitting a request for medical care did plaintiff receive treatment, more than 24 18 hours after sustaining his injuries. The attending nurse provided plaintiff medication, ointment 19 and dressing, and told him that it was the “responding nurse[’s] job . . . to make sure I was treated 20 the day prior.” Id. at 12. 21 Plaintiff was accused of battery on Smith and Rossi, though they had no injuries, and 22 plaintiff was transferred to Ad Seg. While still housed in Ad Seg in October, plaintiff had an 23 occasion to talk with Smith who allegedly failed to contradict plaintiff’s assertions that Smith had 24 lied. Id. at 6. 25 Claims I through V and VII allege, inter alia, violations of plaintiff’s Eighth Amendment 26 rights by defendants Smith, Rossi and Harwood. Plaintiff’s Claim VI alleges violation of due 27 process and retaliation by defendant Davis, who was plaintiff’s assigned investigative employee 28 for purposes of his disciplinary hearing. Id. at 11. In support of Claim VI, plaintiff alleges that 1 on August 27, 2014, prior to his disciplinary hearing, Davis told plaintiff to prepare questions for 2 witnesses Smith and Rossi. Davis returned on August 29, 2014; plaintiff told him he wanted to 3 pose the questions directly to defendants at the hearing. Davis said you can’t have both an 4 investigator and witnesses; plaintiff said he didn’t want an investigator. Davis said he would be 5 back with a form for plaintiff’s signature to remove Davis as his investigator, but he never 6 returned. Although plaintiff submitted a Form 22 documenting the problem, Davis proceeded to 7 prepare a “false” report, denying plaintiff’s “right against false statements [and] . . . right to due 8 process.” Id. 9 Against all defendants, plaintiff seeks damages based on his physical injuries and resulting 10 emotional distress. 11 C. Analysis 12 The allegations of the complaint state a cognizable Eighth Amendment claim against 13 defendant Smith for the use of excessive force. “In its prohibition of ‘cruel and unusual 14 punishments,’ the Eighth Amendment places restraints on prison officials, who may not ...
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIRK JAONG BOUIE, No. 2:18-cv-2040 KJM AC P 12 Plaintiff, 13 v. ORDER 14 OSCAR SMITH, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff Dirk Jaong Bouie is a state prisoner currently incarcerated in the R.J. Donovan 19 Correctional Facility, under the authority of the California Department of Corrections and 20 Rehabilitation (CDCR). Plaintiff proceeds pro se with a civil rights complaint filed pursuant to 21 42 U.S.C. § 1983, which challenges conditions of his prior confinement at High Desert State 22 Prison (HDSP). Plaintiff paid the filing fee. 23 This action is referred to the undersigned United States Magistrate Judge pursuant to 28 24 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the undersigned: (1) 25 finds that the complaint states cognizable claims against defendants Smith, Rossi and Harwood, 26 but not against defendant Davis; (2) gives plaintiff the between proceeding on his complaint 27 against defendants Smith, Rossi and Harwood, OR filing an amended complaint in an attempt to 28 add a cognizable claim against defendant Davis. 1 II. Screening of Plaintiff’s Complaint 2 A. Legal Standards for Screening Prisoner Complaints 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 9 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 10 1984). 11 “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 12 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 13 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 14 106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) (“Pleadings shall be 15 so construed as to do justice.”). 16 B. Plaintiff’s Allegations 17 The complaint, ECF No. 1, sets forth the following allegations. On August 13, 2014, 18 plaintiff became agitated while talking with his assigned counselor in C Yard’s Building Four. 19 Defendant Correctional Officer (CO) Smith, who was accompanied by defendant CO Ross, told 20 plaintiff to shut up. Plaintiff told Smith to do the same. Smith confirmed with plaintiff’s 21 counselor that her interaction with plaintiff was completed, then told plaintiff to leave. Plaintiff 22 was housed in Building Three. He left Building Four, went to the C Yard patio door and told CO 23 Hunter (not a defendant), who was the tower officer, that he needed to see his psychiatrist; Hunter 24 allowed plaintiff onto the patio. CO Barron (not a defendant) spoke with plaintiff and instructed 25 him to stand in the painted square to wait for mental health services. 26 Two or three minutes later, defendants Smith and Ross walked up to plaintiff. Smith told 27 plaintiff to go to his cell. Plaintiff told Smith that he needed to speak with his psychiatrist 28 because he “felt like dying.” ECF No. 1 at 4. “Smith then said so what and that he did not care.” 1 Id. Plaintiff told Smith “do what you have to do, I faced the wall and placed my hands behind my 2 back. Smith put me in hand cuffs and took hold of my left arm and Rossi took my right arm.” Id. 3 Thinking that defendants “were following policy when an inmate voices suicide,” plaintiff 4 complied until defendants walked him past his psychiatrist’s office. Plaintiff then attempted to 5 fall on his knees in an effort to become prone, so that an emergency alarm would be activated and 6 additional staff would respond. Smith and Rossi put plaintiff up against the wall. Smith told 7 plaintiff that he would be returned to his cell. Plaintiff told Smith he felt suicidal and Smith again 8 said he didn’t care. When Smith pulled plaintiff from the wall, plaintiff succeeded in falling to 9 his knees. Smith and Rossi dragged plaintiff three or four feet from the patio door, “out of view 10 of other inmates,” and slammed plaintiff to the ground. Smith then “jumped on [plaintiff’s] head 11 and upper back with his knees and body weight” and ground plaintiff’s face into the gravel. Id. at 12 5. When plaintiff said he couldn’t breathe, Smith leaned close to plaintiff’s ear and said, “I don’t 13 care if you die.” Id. 14 Plaintiff sustained cuts to his face and wrists and other injuries to his head, jaw, ear, neck 15 and back. Defendant J. Harwood, the attending nurse, documented plaintiff’s injuries but 16 “refused to treat them and/or give [plaintiff] pain medication.” Id. at 5. Only after being placed 17 in Ad Seg and submitting a request for medical care did plaintiff receive treatment, more than 24 18 hours after sustaining his injuries. The attending nurse provided plaintiff medication, ointment 19 and dressing, and told him that it was the “responding nurse[’s] job . . . to make sure I was treated 20 the day prior.” Id. at 12. 21 Plaintiff was accused of battery on Smith and Rossi, though they had no injuries, and 22 plaintiff was transferred to Ad Seg. While still housed in Ad Seg in October, plaintiff had an 23 occasion to talk with Smith who allegedly failed to contradict plaintiff’s assertions that Smith had 24 lied. Id. at 6. 25 Claims I through V and VII allege, inter alia, violations of plaintiff’s Eighth Amendment 26 rights by defendants Smith, Rossi and Harwood. Plaintiff’s Claim VI alleges violation of due 27 process and retaliation by defendant Davis, who was plaintiff’s assigned investigative employee 28 for purposes of his disciplinary hearing. Id. at 11. In support of Claim VI, plaintiff alleges that 1 on August 27, 2014, prior to his disciplinary hearing, Davis told plaintiff to prepare questions for 2 witnesses Smith and Rossi. Davis returned on August 29, 2014; plaintiff told him he wanted to 3 pose the questions directly to defendants at the hearing. Davis said you can’t have both an 4 investigator and witnesses; plaintiff said he didn’t want an investigator. Davis said he would be 5 back with a form for plaintiff’s signature to remove Davis as his investigator, but he never 6 returned. Although plaintiff submitted a Form 22 documenting the problem, Davis proceeded to 7 prepare a “false” report, denying plaintiff’s “right against false statements [and] . . . right to due 8 process.” Id. 9 Against all defendants, plaintiff seeks damages based on his physical injuries and resulting 10 emotional distress. 11 C. Analysis 12 The allegations of the complaint state a cognizable Eighth Amendment claim against 13 defendant Smith for the use of excessive force. “In its prohibition of ‘cruel and unusual 14 punishments,’ the Eighth Amendment places restraints on prison officials, who may not ... use 15 excessive physical force against prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing 16 Hudson v. McMillian, 503 U.S. 1 (1992)). “[W]henever prison officials stand accused of using 17 excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is ... 18 whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 19 and sadistically to cause harm.” Hudson, 503 U.S. at 6-7 (citing Whitley v. Albers, 475 U.S. 312 20 (1986)). 21 The allegations of the complaint also state a cognizable failure-to-protect claim against 22 defendant Rossi under the Eighth Amendment. A “failure to protect” claim under the Eighth 23 Amendment requires a showing that “the official [knew] of and disregard[ed] an excessive risk to 24 inmate . . . safety.” Farmer, 511 U.S. at 837. “Whether a prison official had the requisite 25 knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, 26 including inference from circumstantial evidence, ... and a factfinder may conclude that a prison 27 official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842 28 (citations omitted). 1 Plaintiff’s allegations also state cognizable claims against both Smith and Rossi for 2 deliberate indifference to plaintiff’s serious mental health needs, by interfering with and denying 3 plaintiff mental health treatment, and deliberately engaging in conduct that exacerbated his fears. 4 “In the Ninth Circuit, the test for deliberate indifference consists of two parts. First, the plaintiff 5 must show a serious medical need by demonstrating that failure to treat a prisoner’s condition 6 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 7 the plaintiff must show the defendant’s response to the need was deliberately indifferent. This 8 second prong ... is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s 9 pain or possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 10 1091, 1096 (9th Cir. 2006) (internal citations, punctuation and quotation marks omitted). 11 Under the same standards, plaintiff’s allegations state a cognizable claim against 12 defendant Harwood for deliberate indifference to plaintiff’s serious physical medical needs. 13 However, plaintiff’s allegations against defendant Davis, his assigned investigative 14 employee (IE), do not state a cognizable claim. Under state prison regulations, a 15 prisoner is entitled to an IE under specified circumstances.1 The prisoner is entitled to waive the 16
17 1 Cal. Code Regs. tit. 15, § 3315 provides in pertinent part: 18 (d) An inmate shall be assigned an employee to assist in the investigation of matters pertaining to a disciplinary action when the 19 chief disciplinary officer or designee determines the necessity based on the following criteria. 20 (1) ... (A) An investigative employee, as described in section 3318(a), 21 shall be assigned when the staff designated to classify the serious rule violation determines that: 22 1. The complexity of the issues require further investigation. 23 2. The housing status makes it unlikely the charged inmate can 24 collect and present the evidence necessary for an adequate presentation of a defense. 25 3. A determination has been made that additional information is 26 necessary for a fair hearing. 27 4. The behavior may present a nexus with a Security Threat Group. 28 Cal. Code Regs. tit. 15, § 3315(d)(1)(A). 1 assistance of an IE,2 or request the assignment of another IE,3 and may request the attendance of 2 both adverse and friendly witnesses at the disciplinary hearing.4 3 //// 4 2 “The inmate may choose to waive the assignment of an investigative employee . . . . The 5 inmate’s request to waive assistance of an investigative employee . . . will be indicated in the 6 ‘waived by inmate’ checkbox on the RVR . . . and signed and dated by the inmate. The classifying official may choose to un-assign the investigative employee based on the inmate’s 7 signed waiver on the RVR.” Cal. Code Regs. tit. 15, § 3315(d)(1)(B). 3 “The inmate may not select the investigative employee, but may object to the one assigned and 8 provide, in writing to the classifying official, the reasons for the objection. The classifying official shall evaluate the inmate’s objection(s) and, if determined to be reasonable, assign an 9 alternate investigative employee to complete the investigation. If the classifying official 10 determines that the inmate’s objections are not reasonable, the original investigative employee shall complete the investigation. . . . ” Cal. Code Regs. tit. 15, § 3315(d)(1)(D). 11 4 Cal. Code Regs. tit. 15, § 3315 provides in pertinent part: 12 (e) Witnesses. An inmate may request that friendly and adverse witnesses attend the hearing. 13 (1) Requested witnesses shall be called unless the official conducting 14 the hearing denies the request for one of the following reasons: 15 (A) The appearance would endanger the witness. 16 (B) The official determines that the witness has no relevant or additional information. 17 (C) The witness is unavailable. 18 (2) If an inmate’s request for a witness is denied, the reasons shall be 19 documented on the RVR. 20 (3) Whether or not the inmate requests a witness, witnesses may be called if the official conducting the hearing determines the witnesses 21 may have information necessary to the finding of fact. 22 (4) The reporting employee shall attend the disciplinary hearing or be available for questioning via speakerphone if requested by the 23 inmate. 24 (5) Under the direction of the official conducting the disciplinary hearing, the inmate has the right to ask questions of all witnesses 25 called. The SHO will screen all questions to ensure they are relevant to the violation charged. 26 (6) Nothing in this section shall preclude making a witness available 27 by speaker phone for a disciplinary hearing. 28 Cal. Code Regs. tit. 15, § 3315(e). 1 However, under federal law, only the following minimum procedural requirements must 2 be met in prison disciplinary proceedings: (1) written notice of the charges; (2) at least 24 hours 3 between the time the prisoner receives written notice and the time of the hearing, so that the 4 prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they 5 rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in 6 his defense, when permitting him to do so would not be unduly hazardous to institutional safety 7 or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the 8 issues presented are legally complex. Wolff v. McDonnell, 418 U.S. 539, 563-71 (1974). 9 In the instant case, plaintiff alleges a denial of due process on the ground that he was 10 unable to call and question adverse witnesses Smith and Rossi, who apparently were also the 11 reporting employees. Plaintiff informed Davis that he wanted to question Smith and Rossi at the 12 disciplinary hearing and declined to provide Davis with his proposed questions ahead of time. 13 Davis reportedly told plaintiff that he couldn’t have “both an investigator and witnesses,” so 14 plaintiff said he didn’t want an investigator. Davis said he would return to obtain plaintiff’s 15 signature on the appropriate form to remove Davis as his IE, but Davis did not return, instead 16 filing a “false” report. These allegations are insufficient to fully assess plaintiff’s due process 17 claim. The complaint does not identify how Davis’ investigative report was “false,” nor what 18 took place at the hearing. Although CDCR regulations require that reporting employees attend 19 the hearing and answer questions upon the inmate’s request, Cal. Code Regs. tit. 15, § 3315(e)(4), 20 federal law requires only that the inmate be permitted to call witnesses only in his defense, Wolff, 21 418 U.S. at 566. Defendants Smith and Rossi were not defense witnesses, and plaintiff does not 22 assert that he requested other witnesses. As framed, plaintiff’s allegations do not state a due 23 process claim. 24 Plaintiff also asserts a First Amendment retaliation claim against Davis based on his 25 “false” report. “Within the prison context, a viable claim of First Amendment retaliation entails 26 five basic elements: (1) An assertion that a state actor took some adverse action against an inmate 27 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 28 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 1 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (fn. and citations 2 omitted). “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he 3 suffered some other harm” as a retaliatory adverse action. Brodheim v. Cry, 584 F.3d 1262, 1269 4 (9th Cir. 2009) (citing Rhodes, 408 F.3d at 568, n.11). Plaintiff’s allegations do not identify what 5 constitutionally protected conduct he engaged in that allegedly motivated Davis’ retaliation. 6 These allegations are insufficient to state a retaliation claim. 7 For the reasons set forth above, the court finds that the complaint states cognizable claims 8 against defendants Smith, Rossi and Harwood but not against defendant Davis. Therefore 9 petitioner may either (1) proceed on his original complaint against defendants Smith, Rossi and 10 Harwood, and agree to voluntarily dismiss defendant Davis, OR (2) plaintiff may submit a 11 proposed amended complaint that repeats his allegations against defendants Smith, Rossi and 12 Harwood, and attempts to state a cognizable claim against Davis. Plaintiff should consider the 13 legal standards set forth above in determining whether to again attempt to state a claim against 14 defendant Davis. 15 III. Optional Leave to Amend 16 As explained above, the court finds that the complaint states cognizable claims against 17 defendants Smith, Rossi and Harwood but not against defendant Davis. Plaintiff may either (1) 18 proceed forthwith to serve process of the original complaint on defendants Smith, Rossi and 19 Harwood, voluntarily dismissing defendant Davis, OR (2) he may delay serving any defendant 20 and amend the complaint in an attempt to add a cognizable claim against Davis. Plaintiff must 21 inform the court of his decision by completing and filing the attached “Notice of Election” within 22 thirty (30) days after service of this order. 23 If plaintiff chooses to file a First Amended Complaint (FAC), the complaint must allege in 24 specific terms how each named defendant violated plaintiff’s specific constitutional rights. Rizzo 25 v. Goode, 423 U.S. 362, 371 (1976). There can be no liability under Section 1983 unless there is 26 some affirmative link or connection between a defendant’s actions and the claimed deprivation. 27 Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). Vague and conclusory allegations of 28 //// 1 official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 2 F.2d 266, 268 (9th Cir. 1982). 3 Local Rule 220 requires that an amended complaint be complete in itself without 4 reference to any prior pleading. See also Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (an 5 amended complaint supersedes the prior complaint). Therefore, in a FAC, each claim and the 6 involvement of each defendant must be sufficiently alleged. 7 IV. Later Service of Process on Defendants 8 Because plaintiff paid the filing fee, he will be responsible for serving process on 9 defendants. If plaintiff decides to proceed on his original complaint, he will be required to serve 10 process on defendants Smith, Rossi and Harwood. After filing his Notice of Election, the court 11 will instruct plaintiff how to seek waivers of service from these defendants rather than attempt 12 personal service. 13 Should plaintiff wish to apply for in forma pauperis status – which, if granted, would 14 entitle plaintiff to the immediate assistance of the court and the United States Marshall to effect 15 service – he may do so by completing and filing the in forma pauperis application included with 16 this order, together with a copy of his prison trust account statement for the six-month period 17 preceding the filing of this order. The completed application must be filed with the Notice of 18 Election. 19 IV. Plain Language Summary for Pro Se Litigant 20 The court has screened your complaint and found that it states the following Eighth 21 Amendment claims: (1) excessive force against defendant Smith; (2) failure-to-protect against 22 defendant Ross; (3) deliberate indifference to your serious mental health needs against defendants 23 Smith and Rossi; and (4) deliberate indifference to your serious physical medical needs against 24 defendant Harwood. 25 The court has found that your allegations against defendant Davis do not show that your 26 rights were violated. You have not identified anything Davis did that denied you the due process 27 protections guaranteed by the U.S. Supreme Court in Wolff v. McDonnell, 418 U.S. 539 (1974). 28 Your retaliation claim fails because you have not shown that (1) you were doing something 1 constitutionally protected, and (2) Davis treated you badly because you were exercising your 2 constitutional rights. 3 You are being given the choice between (1) proceeding on your original complaint against 4 defendants Smith, Rossi and Harwood, and voluntarily dismissing defendant Davis, OR (2) filing 5 an amended complaint that tries to fix your claim against Davis while repeating your allegations 6 and claims against defendants Smith, Rossi and Harwood. If you file an amended complaint, the 7 court will screen it under 28 U.S.C. § 1915A. You do not have to file an amended complaint. 8 You must return the attached Notice of Election, telling the court what you want to do. 9 Because you paid the filing fee in this case, you are responsible for serving process on the 10 defendants. Once it is clear what complaint needs to be served, the court will tell you how to 11 request waivers of service from the defendants instead of trying to personally serve them. 12 If you wish to apply for in forma pauperis status, you must complete and submit the 13 enclosed application to proceed in forma pauperis together with your Notice of Election. If you 14 qualify for in forma pauperis status, the court and the United States Marshall will assist with 15 serving process on the defendants. The court would initially direct CDCR to attempt electronic 16 service of process on defendants. 17 V. Conclusion 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. In accordance with 28 U.S.C. § 1915A, the Court has screened plaintiff’s complaint 20 and finds that it states cognizable claims against defendants Smith, Rossi and Harwood, but not 21 against defendant Davis. 22 2. Plaintiff may either (1) proceed immediately on his claims against defendants Smith, 23 Rossi and Harwood, voluntarily dismissing defendant Davis; OR (2) file a First Amended 24 Complaint (FAC) that attempts to add a cognizable claim against Davis. 25 3. Within thirty (30) days after service of this order, plaintiff shall complete and return 26 the attached Notice of Election form notifying the court whether he wants to proceed on his 27 original complaint, as screened by the court, OR proceed on a FAC. 28 MADE 6 LOU VEY CUTTING INIT EN RAMU Ia ee PAY tt OV te
1 4. If plaintiff chooses to proceed on a FAC, it must be submitted with his Notice of 2 || Election form, comply with the requirements set forth herein, bear the docket number assigned 3 || this case, and be labeled “First Amended Complaint.” 4 5. Should plaintiff fail to timely file the Notice of Election, the undersigned will 5 || recommend that this action be dismissed without prejudice. 6 6. The Clerk of Court is directed to send plaintiff the following documents: (a) a copy of 7 | this order; (b) a blank form complaint used by prisoners in this district to pursue a civil rights 8 || action under 42 U.S.C. § 1983; and (c) an application to proceed in forma pauperis used by 9 || prisoners in this district. 10 IT IS SO ORDERED. 11 | DATED: July 16, 2020 ~ 12 Chthien—Chare ALLISON CLAIRE 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
1 2 3 4
5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 10 DIRK JAONG BOUIE, No. 2:18-cv-2040 KJM AC P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 OSCAR SMITH, et al., 14 Defendants. 15 In compliance with the court’s order filed ___________________, plaintiff elects to: 16 17 __________ Proceed on his original complaint against defendants Smith, Rossi and 18 Harwood, AND voluntarily dismiss defendant Davis.
19 OR
20 __________ Proceed on a First Amended Complaint (FAC), submitted herewith. 21 22 _________ In addition, plaintiff DOES / DOES NOT (circle one) seek in forma 23 pauperis status; if so, plaintiff’s application and supporting documents are submitted herewith. 24
_____________________________ ______________________________ 26 Date Plaintiff 27 28