1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JASON DALKE, No. 2:22-cv-1842 DAD AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 SACRAMENTO CORRECTIONS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Currently before the court are plaintiff’s 18 first amended complaint and motion for preliminary injunction. ECF Nos. 26, 28. Plaintiff has 19 also filed a notice of voluntary dismissal that was immediately followed by a notice of withdrawal 20 of the voluntary dismissal. ECF Nos. 35, 36. 21 I. Notice of Voluntary Dismissal and Withdrawal 22 On November 20, 2023, the court received plaintiff’s notice of voluntary dismissal. ECF 23 No. 35. Two days later, the court received plaintiff’s notice that he wanted to continue the case. 24 ECF No. 36. In light of plaintiff’s notice that he wants to continue the case, the notice of 25 voluntary dismissal will be disregarded. Plaintiff is cautioned that he should not submit a notice 26 of voluntary dismissal unless he is serious about dismissing his case. Once this case is closed, it 27 is unlikely to be re-opened just because plaintiff has changed his mind about dismissal. 28 //// 1 II. Statutory Screening of Prisoner Complaints 2 The court is required to screen complaints brought by prisoners seeking relief against “a 3 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 4 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 5 “frivolous, malicious, or fail to state a claim upon which relief may be granted,” or that “seeks 6 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 7 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 10 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 11 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 12 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 13 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 14 Franklin, 745 F.2d at 1227-28 (citations omitted). 15 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 16 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 17 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 18 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 20 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 21 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 22 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 23 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 24 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 25 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 26 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 27 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 28 //// 1 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 3 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 4 content that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 6 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 7 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 8 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 9 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 10 III. First Amended Complaint 11 Plaintiff alleges that defendants Hyman, Ghosoph, McNair, Adams, and Moseley violated 12 his rights under the Eighth and Fourteenth Amendments. ECF No. 26. He asserts that Hyman 13 placed an “R” suffix on his file—indicating sex offender status—without proper documentation 14 and that it contributed to plaintiff being denied parole and has led to him being assaulted by other 15 inmates. Id. at 3, 8-9. Ghosoph labeled plaintiff as a deviant sexual predator based on false 16 information, which also caused plaintiff to be denied parole. Id. at 4. She also accused him of 17 lying when the information he provided her was different from that in his records. Id. Plaintiff 18 also alleges that he was denied parole based on charges of attempted escape with a deadly 19 weapon, even though he was never convicted, and that his conviction for sexual misconduct was 20 used against him during classification even though it does not require him to register as a sex 21 offender. Id. at 5. Adams incorrectly documented that plaintiff was required to register as a sex 22 offender, and it was Adams and McNair’s responsibility to ensure the information in his file was 23 accurate. Id. 24 IV. Failure to State a Claim 25 A. “R” Suffix Addition 26 Classifying an inmate as a sex offender implicates a protected liberty interest when the 27 “stigmatizing consequences” of being labeled a sex offender are coupled with some form of 28 mandatory behavior modification. Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (“[T]he 1 stigmatizing consequences of the attachment of the ‘sex offender’ label coupled with the 2 subjection of the targeted inmate to a mandatory treatment program whose successful completion 3 is a precondition for parole eligibility create the kind of deprivations of liberty that require 4 procedural protections.”). Where an inmate has been previously convicted of a sex offense after 5 formal criminal proceedings, he “has received the minimum protections required by due process” 6 and “[p]rison officials need do no more than notify such an inmate that he has been classified as a 7 sex offender because of his prior conviction for a sex crime.” Id. at 831.
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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 JOSHUA JASON DALKE, No. 2:22-cv-1842 DAD AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 SACRAMENTO CORRECTIONS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Currently before the court are plaintiff’s 18 first amended complaint and motion for preliminary injunction. ECF Nos. 26, 28. Plaintiff has 19 also filed a notice of voluntary dismissal that was immediately followed by a notice of withdrawal 20 of the voluntary dismissal. ECF Nos. 35, 36. 21 I. Notice of Voluntary Dismissal and Withdrawal 22 On November 20, 2023, the court received plaintiff’s notice of voluntary dismissal. ECF 23 No. 35. Two days later, the court received plaintiff’s notice that he wanted to continue the case. 24 ECF No. 36. In light of plaintiff’s notice that he wants to continue the case, the notice of 25 voluntary dismissal will be disregarded. Plaintiff is cautioned that he should not submit a notice 26 of voluntary dismissal unless he is serious about dismissing his case. Once this case is closed, it 27 is unlikely to be re-opened just because plaintiff has changed his mind about dismissal. 28 //// 1 II. Statutory Screening of Prisoner Complaints 2 The court is required to screen complaints brought by prisoners seeking relief against “a 3 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 4 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 5 “frivolous, malicious, or fail to state a claim upon which relief may be granted,” or that “seeks 6 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 7 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 10 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 11 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 12 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 13 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 14 Franklin, 745 F.2d at 1227-28 (citations omitted). 15 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 16 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 17 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 18 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 20 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 21 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 22 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 23 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 24 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 25 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 26 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 27 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 28 //// 1 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 3 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 4 content that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 6 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 7 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 8 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 9 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 10 III. First Amended Complaint 11 Plaintiff alleges that defendants Hyman, Ghosoph, McNair, Adams, and Moseley violated 12 his rights under the Eighth and Fourteenth Amendments. ECF No. 26. He asserts that Hyman 13 placed an “R” suffix on his file—indicating sex offender status—without proper documentation 14 and that it contributed to plaintiff being denied parole and has led to him being assaulted by other 15 inmates. Id. at 3, 8-9. Ghosoph labeled plaintiff as a deviant sexual predator based on false 16 information, which also caused plaintiff to be denied parole. Id. at 4. She also accused him of 17 lying when the information he provided her was different from that in his records. Id. Plaintiff 18 also alleges that he was denied parole based on charges of attempted escape with a deadly 19 weapon, even though he was never convicted, and that his conviction for sexual misconduct was 20 used against him during classification even though it does not require him to register as a sex 21 offender. Id. at 5. Adams incorrectly documented that plaintiff was required to register as a sex 22 offender, and it was Adams and McNair’s responsibility to ensure the information in his file was 23 accurate. Id. 24 IV. Failure to State a Claim 25 A. “R” Suffix Addition 26 Classifying an inmate as a sex offender implicates a protected liberty interest when the 27 “stigmatizing consequences” of being labeled a sex offender are coupled with some form of 28 mandatory behavior modification. Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (“[T]he 1 stigmatizing consequences of the attachment of the ‘sex offender’ label coupled with the 2 subjection of the targeted inmate to a mandatory treatment program whose successful completion 3 is a precondition for parole eligibility create the kind of deprivations of liberty that require 4 procedural protections.”). Where an inmate has been previously convicted of a sex offense after 5 formal criminal proceedings, he “has received the minimum protections required by due process” 6 and “[p]rison officials need do no more than notify such an inmate that he has been classified as a 7 sex offender because of his prior conviction for a sex crime.” Id. at 831. However, when an 8 inmate “has never been convicted of a sex offense and has never had an opportunity to formally 9 challenge the imposition of the ‘sex offender’ label in an adversarial setting,” he is entitled to the 10 same procedural protections outlined in Wolff v. McDonnell, 418 U.S. 539 (1974). Neal, 131 11 F.3d at 830-31. In other words, he is entitled to advance, written notification “of the reasons for 12 his classification as a sex offender without . . . having to request that information” and “a hearing 13 at which he must be allowed to call witnesses and present documentary evidence in his defense.” 14 Id. at 830-31 & n.14. He is also entitled to a written statement as to the evidence relied on and 15 reasoning for the decision, assistance at the hearing if he is illiterate or the matter is complex, and 16 a sufficiently impartial fact finder. Wolff, 418 U.S. at 564, 570-71. 17 Plaintiff does not allege facts sufficient to show that his classification as a sex offender 18 infringed on a protected liberty interest. There are no facts showing the classification was 19 coupled with mandatory behavior modification or imposed any other kind of atypical and 20 significant hardship. See Sandin v. Connor, 515 U.S. 472, 484 (1995) (liberty interest created 21 when prison regulation “imposes atypical and significant hardship on the inmate in relation to the 22 ordinary incidents of prison life”). To the extent plaintiff appears to allege that the addition of an 23 “R” suffix resulted in other inmates assaulting him, there are no facts demonstrating that other 24 inmates targeting him was due to the addition of the designation itself. Instead, it appears that the 25 assaults were the result of malicious conduct by unspecified non-defendants who told other 26 inmates he was a sex offender. See ECF No. 26 at 9, 19. 27 Moreover, even assuming the addition of an “R” suffix entitled plaintiff to due process 28 protections, he has not alleged facts showing that he was denied those protections. Plaintiff once 1 again appears to allege that his sexual misconduct conviction does not count as a sex offense 2 because the state in which he was convicted does not require him to register as a sex offender. Id. 3 at 3. Assuming plaintiff is correct that his conviction is not defined as a sex offense, and 4 therefore that he is entitled to all the protections outlined in Wolff—as opposed to just a 5 notification that he is being classified as a sex offender based on his sexual misconduct 6 conviction—he does not allege facts showing he was denied those protections. Instead, he argues 7 that Hyman added the “R” suffix without proper documentation. He also alleges that Adams 8 incorrectly noted he was a registered sex offender in New York and that Adams and McNair were 9 responsible for making sure the information was accurate. 10 To state a due process claim, plaintiff must allege facts showing that he was denied any of 11 the following: (1) advance, written notification of the reasons for classifying him as a sex 12 offender without having to ask; (2) a hearing where he is allowed to call witnesses and present 13 evidence; (3) a written statement as to the evidence relied on and reasoning for the decision; (4) 14 assistance at the hearing if he is illiterate or the matter is complex; or (5) a sufficiently impartial 15 fact finder. Since plaintiff has not alleged that he was denied any of these protections, he has not 16 stated a claim for relief. Moreover, the allegations against Adams and McNair fail to state a 17 claim because there are no allegations that they were involved in classifying him as a sex 18 offender, and the document noting he was a registered sex offender does not indicate that the 19 incorrect statement resulted in plaintiff’s classification as a sex offender and states that the 20 relevant records had been requested for review. ECF No. 26 at 10. 21 B. Parole Denial 22 Plaintiff appears to allege that Hyman’s addition of the “R” suffix and Ghosoph’s 23 determination that he was a deviant sexual predator resulted in the denial of parole. However, 24 there are no facts demonstrating that either of these labels precluded a grant of parole, and even if 25 they were a primary reason that plaintiff was denied parole, that fact would not create a basis for 26 liability. None of the named defendants appear to have been directly involved in the parole 27 review process, and “[u]nder California law, the parole board must consider ‘[a]ll relevant, 28 reliable information’ in determining suitability for parole.” Cal. Code Regs. tit. 15, § 2281(b)-(c) 1 (outlining information for consideration and circumstances tending to show unsuitability). The 2 named defendants cannot be held liable for a subsequent decision made by an independent body, 3 and their conduct described in the complaint cannot be considered the proximate cause of the 4 parole board’s decision. See Mendez v. County of Los Angeles, 897 F.3d 1067, 1076-77 (9th 5 Cir. 2018) (discussing proximate cause in the context of § 1983). 6 C. Failure to Protect 7 Prison officials “are under an obligation to take reasonable measures to guarantee the 8 safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). This responsibility 9 requires prison officials “to protect prisoners from violence at the hands of other prisoners,” 10 Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citation omitted), and identifying an inmate as a 11 sex offender in front of other inmates for the purpose of putting him at risk of assault states a 12 claim under Eighth Amendment, Valdez v. Marques, No. 21-cv-1500 MMA (RBM), 2021 WL 13 4690511, at *3-4, 2021 U.S. Dist. LEXIS 194474, at *9-10 (S.D. Cal. Oct. 7, 2021) (collecting 14 cases). 15 Plaintiff alleges no facts demonstrating how the addition of an “R” suffix resulted in other 16 inmates assaulting him. It appears that he may be attempting to claim that the addition of the “R” 17 suffix led to officers telling other inmates that he was a sex offender. ECF No. 26 at 9, 19. 18 However, plaintiff does not identify or name as defendants any individuals who told other 19 inmates of his sex offender status, and he also does not allege facts indicating the named 20 defendants were responsible for the conduct of the other officers or designated him a sex offender 21 knowing that other officers would purposely disclose plaintiff’s status. The complaint therefore 22 fails to state a viable claim for failure to protect. See Farmer, 511 U.S. at 837 (Eighth 23 Amendment failure to protect claim requires showing that “the official [knew] of and 24 disregard[ed] an excessive risk to inmate health or safety.”). 25 D. Personal Involvement 26 “Liability under § 1983 must be based on the personal involvement of the defendant,” 27 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing May v. Enomoto, 633 F.2d 28 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory allegations of official participation in civil 1 rights violations are not sufficient,” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) 2 (citations omitted). The complaint itself does not allege any conduct by defendant Mosely. 3 Although plaintiff indicates on an exhibit coversheet that Mosely denied his appeal regarding the 4 placement of an “R” suffix to his file (ECF No. 26 at 27), this is not sufficient to state a claim for 5 relief because “inmates lack a separate constitutional entitlement to a specific prison grievance 6 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 7 F.2d 639, 640 (9th Cir. 1988). As a result, the prison grievance procedure does not confer any 8 substantive constitutional rights upon inmates and actions in reviewing and denying inmate 9 appeals generally do not serve as a basis for liability under section 1983. Id.; George v. Smith, 10 507 F.3d 605, 609 (7th Cir.2007) (“Ruling against a prisoner on an administrative complaint does 11 not cause or contribute to the violation.”). 12 V. Leave to Amend 13 The first amended complaint does not state any cognizable claims for relief and plaintiff 14 will be given a final opportunity to amend the complaint. If plaintiff chooses to file a second 15 amended complaint, he must demonstrate how the conditions about which he complains resulted 16 in a deprivation of his constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Also, 17 the complaint must allege in specific terms how each named defendant is involved. Arnold v. 18 Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 19 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions 20 and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 21 Furthermore, “[v]ague and conclusory allegations of official participation in civil rights violations 22 are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 23 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 24 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 25 complete in itself without reference to any prior pleading. This is because, as a general rule, an 26 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 27 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 28 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 1 in subsequent amended complaint to preserve appeal). Once plaintiff files a second amended 2 complaint, all prior complaints no longer serve any function in the case. Therefore, in an 3 amended complaint, as in an original complaint, each claim and the involvement of each 4 defendant must be sufficiently alleged. 5 VI. Motion for Preliminary Injunction 6 Plaintiff seeks a preliminary injunction ordering prison officials to stop telling other 7 inmates he is a sex offender. ECF No. 28. 8 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 9 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 10 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 11 Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). In order to prevail on a 12 motion for preliminary injunctive relief, the Ninth Circuit has also held 13 that there must be a relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the 14 underlying complaint. This requires a sufficient nexus between the claims raised in a motion for injunctive relief and the claims set forth 15 in the underlying complaint itself. The relationship between the preliminary injunction and the underlying complaint is sufficiently 16 strong where the preliminary injunction would grant “relief of the same character as that which may be granted finally.” De Beers 17 Consol. Mines[ v. United States], 325 U.S. [212,] 220, 65 S. Ct. 1130 [(1945)]. Absent that relationship or nexus, the district court lacks 18 authority to grant the relief requested. 19 Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). 20 Because plaintiff has not stated any viable claims, he cannot show any likelihood of 21 success on the merits. Furthermore, a district court has no authority to grant relief in the form of 22 a preliminary injunction where it has no jurisdiction over the parties. Ruhrgas AG v. Marathon 23 Oil Co., 526 U.S. 574, 584 (1999) (“Personal jurisdiction, too, is an essential element of the 24 jurisdiction of a district . . . court, without which the court is powerless to proceed to an 25 adjudication.” (alteration in original) (citation and internal quotation omitted)). Plaintiff seeks 26 relief based on the conduct of unspecified, non-defendant prison officials, whose future conduct 27 he seeks to enjoin. The court does not have jurisdiction over those individuals unless plaintiff 28 provides facts showing that they are acting “in active concert or participation” with the 1 defendants. Fed. R. Civ. P. 65(d)(2); Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 2 112 (1969) (“[A] nonparty with notice cannot be held in contempt until shown to be in concert or 3 participation.”)). Plaintiff has failed to provide any such facts, and even if he had, no defendants 4 have been served. 5 For these reasons, the motion for temporary restraining order or preliminary injunction 6 should be denied. 7 VII. Plain Language Summary of this Order for a Pro Se Litigant 8 Your complaint will not be served because the facts you alleged are not enough to state a 9 claim. You have not alleged facts showing that you were entitled to due process before being 10 classified as a sex offender because you there are no facts showing it required any behavior 11 changes from you, such as mandatory treatment, or that it caused some other kind of hardship for 12 you outside the normal hardships of being in prison. Assuming you were entitled to due process, 13 you have not shown that you were denied such process when the “R” suffix was added to your 14 file. There are also no facts showing that any defendant was responsible for telling other inmates 15 you are a sex offender. Finally, there are no allegations showing what defendant Mosely did 16 other than denying your appeal. 17 You are being given one final opportunity to amend your complaint to try to fix these 18 problems. Be sure to provide facts that show exactly what each defendant did to violate your 19 rights or to cause a violation of your rights. If you choose to file a second amended complaint, it 20 must include all claims you want to bring. Once an amended complaint is filed, the court will not 21 look at any information in the original complaint. Any claims and information not in the first 22 amended complaint will not be considered. 23 CONCLUSION 24 In accordance with the above, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s notice of voluntary dismissal (ECF No. 35) is DISREGARDED. 26 2. The first amended complaint fails to state a claim upon which relief may be granted, 27 see 28 U.S.C. § 1915A, and will not be served. 28 //// 1 3. Within thirty days from the date of service of this order, plaintiff may file an amended 2 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 3 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 4 || number assigned this case and must be labeled “Second Amended Complaint.” Failure to file an 5 || amended complaint in accordance with this order will result in a recommendation that this action 6 || be dismissed. 7 4. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 8 | form used in this district. 9 IT IS FURTHER RECOMMENDED that plaintiff's motion for preliminary injunction 10 || (ECF No. 28) be DENIED. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 13 || after being served with these findings and recommendations, plaintiff may file written objections 14 || with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 15 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 16 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 17 | (9th Cir. 1991). 18 | DATED: November 28, 2023 - 19 Attu —Clone_ ALLISON CLAIRE 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 10