(PC) Flow-Sunkett v. Diaz

• Court: District Court, E.D. California
• Decided: March 11, 2020
• Docket: 2:19-cv-01009
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRITTNEY FLOW-SUNKETT, GLENN No. 2:19-cv-1009 KJM KJN P SUNKETT, 12 Plaintiffs, 13 ORDER v. 14 RALPH DIAZ, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiffs, a state prisoner and his wife, both proceeding pro se, filed this civil rights action 19 seeking relief under 42 U.S.C. § 1983, and the wife paid the court’s filing fee. Because the nature 20 of plaintiffs’ allegations concern prison conditions and seek relief from officers of a government 21 entity, this case was deemed to be a prisoner case, and the matter was referred to a United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On July 18, 2019, the undersigned recommended that this action be dismissed because this 24 action was duplicative of an action filed in the Fresno division of this court by the prisoner 25 plaintiff. However, since that time, plaintiffs’ Fresno action has been dismissed. Good cause 26 appearing, the findings and recommendations are vacated. 27 On June 6, 2019, plaintiffs’ complaint was dismissed, and plaintiffs were granted leave to 28 file a pleading bearing both their signatures. On June 19, 2019, plaintiffs filed a motion to amend 1 accompanied by an amended complaint bearing both signatures. Because plaintiffs were entitled 2 to amend under Rule 15(a) of the Federal Rules of Civil Procedure, plaintiffs’ motion to amend is 3 unnecessary and is denied as moot. This action proceeds on plaintiffs’ amended complaint. 4 As discussed below, the amended complaint is dismissed with leave to amend. 5 II. Screening Standards 6 A federal court must engage in a preliminary screening of any case in which a prisoner 7 seeks redress from a governmental entity or officer or employee of a governmental entity. See 8 28 U.S.C. § 1915A(a).1 In its review the court must identify any cognizable claims, and dismiss 9 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 17 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 18 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 19 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 20 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25

1 It is undisputed that plaintiff Glenn Sunkett is a state prisoner, and both plaintiffs challenge the 26 conditions of his confinement at Kern Valley State Prison, where Mr. Sunkett is housed. It is 27 unclear whether a court may screen a complaint brought jointly by a nonprisoner and where the nonprisoner paid the court’s filing fee. However, a district court may dismiss a complaint for 28 failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 1 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 2 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 3 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 4 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 5 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 6 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 7 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 8 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 9 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 10 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 12 right secured by the Constitution or laws of the United States was violated; and (2) that the 13 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 14 U.S. 42, 48 (1988). 15 III. Plaintiffs’ Amended Complaint 16 The gravamen of plaintiffs’ pleading is that plaintiffs have been wrongfully denied family 17 visits based on a July 30, 2009 Mendocino County Jail Disciplinary Report (ECF No. 12 at 16) 18 improperly issued against Mr. Sunkett.2 Plaintiffs argue that the Mendocino County Superior 19 2 Inmate applications for family visits are evaluated under 15 C.C.R. § 3177. Accord, CDCR 20 Department Operations Manual (“DOM”) § 54020.33.1. Title 15 C.C.R. § 3177 provides in pertinent part: 21 (b) Family visiting is a privilege. Eligibility for family visiting shall 22 be limited by the assignment of the inmate to a qualifying work/training incentive group as outlined in section 3044. 23 (1) Family visits shall not be permitted for inmates convicted of a 24 violent offense involving a minor or family member or any sex offense, which includes but is not limited to the following Penal 25 Code sections: 187 (when the victim is a family member as defined in Section 3000 or minor); 192 (when the victim is a family member 26 or minor); 243.4; 261; 261.5, 262; 264.1; 266c; 266j; 273a; 273d; 273.5; 273.6; 285; 286; 288; 288a; 288.2; 288.5; 289; 289.5; 311.1; 27 311.2; 311.3; 311.4; 313.1; 314; or 647.6. 28 //// 1 Court dismissed the attempted escape charges filed against Mr. Sunkett.3 Thus, the allegedly 2 incomplete Mendocino County Jail Disciplinary Report added to Mr. Sunkett’s central file by 3 county jail staff upon his transfer to state prison should not be used to preclude family visits under 4 California Code of Regulations, title 15, Section 3177. Plaintiffs allege violations of their First 5 (Free Exercise), Eighth (deliberate indifference) and Fourteenth (Due Process) Amendment 6 rights, as well as myriad violations of state law and regulations and the California Constitution. 7 IV. Discussion 8 Plaintiffs’ amended complaint suffers from several deficiencies as discussed below. 9 A. Federal Claims 10 First, the undersigned observes that any defendant’s reliance on an invalid jail disciplinary 11 or rules violation report to deny plaintiffs family visits under California Code of Regulations, title 12 15, Section 3177 does not, without more, support an actionable claim. Prisoners are not protected 13 from false charges or official reliance on such charges. See Buckley v. Gomez, 36 F. Supp. 2d 14 1216, 1222 (S.D. Cal. 1997) (prisoners have no constitutional right to be free from wrongfully 15 issued disciplinary reports), aff’d without opinion, 168 F.3d 498 (9th Cir. 1999). Prisoners do not 16

17 (A) Inmates may be prohibited from family visiting where substantial 18 documented evidence or information of the misconduct described in section 3177(b)(1) exists, without a criminal conviction. The 19 evidence or information appropriate for the purpose of this regulation shall include rule violation reports as well as the standard described 20 in section 3173.1. 21 . . . 22 (D) Family visiting shall be restricted as necessary to maintain order, the safety of persons, the security of the institution/facility, and 23 required prison activities and operations, pursuant to section 3170.

24 15 C.C.R. § 3177.

25 3 Mr. Sunkett’s criminal charges for attempted escape in Mendocino were dismissed, but plaintiffs do not allege that he was acquitted of attempted escape. Mr. Sunkett was found guilty 26 in the 2009 jail disciplinary, but it is unclear whether he challenged the 2009 disciplinary in state 27 or federal court because plaintiffs do not allege that the 2009 jail disciplinary was set aside or overturned by a state or federal court. In any event, none of the named defendants were involved 28 in the imposition or hearing of the 2009 jail disciplinary. 1 have a right to be free from false accusations of misconduct, so the mere falsification of a report 2 does not give rise to a claim under § 1983. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 3 1989) (“Sprouse’s claims based on the falsity of the charges and the impropriety of Babcock’s 4 involvement in the grievance procedure, standing alone, do not state constitutional claims.”); 5 Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986) (“The prison inmate has no 6 constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which 7 may result in the deprivation of a protected liberty interest.”); Hanrahan v. Lane, 747 F.2d 1137, 8 1141 (7th Cir. 1984) (“[A]n allegation that a prison guard planted false evidence which implicates 9 an inmate in a disciplinary infraction fails to state a claim for which relief can be granted where 10 the procedural due process protections . . . are provided.”). 11 In addition, prisoners generally have no due process right to a particular prison 12 classification. Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976). Alleged deprivations of rights 13 arising from prison officials’ classification decisions do not give rise to a federal constitutional 14 claim encompassed by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 569 15 (1972). State statutes and regulations give rise to an interest protected by the Fourteenth 16 Amendment only where the restraint on a prisoner’s liberty “imposes atypical and significant 17 hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 18 U.S. 472, 483 (1995). Inmates have no federal constitutional right to particular procedures 19 established by state law. Toussaint v. McCarthy, 801 F.2d 1080, 1096-97 (9th Cir. 1986), 20 abrogated in part on other grounds, Sandin, 515 U.S. at 472. 21 Second, “[i]t is well-settled that prisoners have no constitutional right while incarcerated 22 to contact visits or conjugal visits.” Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002) (en 23 banc) (citing, inter alia, Kentucky v. Department of Corrections v. Thompson, 490 U.S. 454, 460 24 (1989) (the Due Process Clause does not guarantee a right of unfettered visitation).) In Gerber, 25 the Ninth Circuit held that “while the basic right to marry survives imprisonment, . . ., most of the 26 attributes of marriage -- cohabitation, physical intimacy, and bearing and raising children -- do 27 not.” Gerber, 291 F.3d at 621; cf. Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003) (declining to 28 decide whether the right to intimate association survives incarceration because the “challenged 1 regulations bear a rational relation to legitimate penological interests.”). Thus, plaintiffs’ 2 contention that they have a constitutional right to family visits is unavailing because the benefits 3 of marriage do not survive incarceration.4 “The fact that California prison officials may choose to 4 permit some inmates the privilege of conjugal visits is simply irrelevant to whether there is a 5 constitutional right to conjugal visits . . . while in prison.” Gerber, 291 F.3d at 621-22 (emphasis 6 added) (§ 3177(b) states “[f]amily visiting is a privilege.”). 7 Third, the operative pleading fails to state a claim for interference with plaintiffs’ religious 8 practices. The Free Exercise Clause of the First Amendment provides, “Congress shall make no 9 law . . . prohibiting the free exercise” of religion U.S. Const., Amend. I. Any assertion that 10 § 3177 runs afoul of that clause is defeated by the U.S. Supreme Court’s decision in Employment 11 Division v. Smith, 494 U.S. 872 (1990). There, the Court held that generally-applicable laws that 12 incidentally burden a religious practice do not violate the Free Exercise Clause. Smith, 494 U.S. 13 at 878; Cutter v. Wilkinson, 544 U.S. 709, 714 (2005). Because section 3177 does not prohibit 14 conjugal visitation on the basis of religion, but rather based on crimes and other penological 15 security concerns, it does not violate the Free Exercise Clause. Turner v. Safley, 482 U.S. 78, 95 16 (1987) (holding that a prison inmate retains those constitutional rights that are not inconsistent 17 with his status as a prisoner or with the legitimate penological objectives of the correctional 18 system); Noguera v. Rowland, 1991 WL 148766 (9th Cir. July 29, 1991) (holding that a 19 condemned inmate’s claim to a right to conjugal visits under the Free Exercise Clause failed 20 because the inmate could not “show that the prison regulation prohibiting conjugal visits for 21 condemned inmates is not rationally related to a valid penological interest.”) 22 Fourth, construing plaintiffs’ claims under the Religious Land Use and Institutionalized 23 Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, also offers no relief. RLUIPA provides: “No 24 4 Plaintiff Mr. Sunkett retains the First Amendment right to free exercise of his religious faith, 25 but that right “is limited by institutional objectives and by the loss of freedom concomitant with incarceration.” Hartmann v. California Dep’t of Corrections and Rehab., 707 F.3d 1114, 1122 26 (9th Cir. 2013) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)). To state a 27 cognizable claim under the Free Exercise clause of the First Amendment, plaintiff Mr. Sunkett must allege facts which show that the challenged regulation is not valid or neutral with respect to 28 religion. 1 government shall impose a substantial burden on the religious exercise of a person residing in or 2 confined to an institution,” unless the government shows that the burden furthers “a compelling 3 governmental interest” by “the least restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2). 4 “Religious exercise” includes “any exercise of religion, whether or not compelled by, or central 5 to, a system of religious belief.” Id. § 2000cc-5(7)(A). For a RLUIPA claim, the prisoner must 6 show that the government has imposed a substantial burden on his religious exercise. A 7 “substantial burden” is one that imposes a significantly great restriction or onus on religious 8 exercise. San Jose Christian College v. Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). 9 The U.S. Supreme Court and the Court of Appeals for the Ninth Circuit have not 10 addressed whether a sincerely held religious belief requiring conjugal visits must be 11 accommodated under RLUIPA. But various lower courts have found that conjugal visits are 12 subject to substantial restriction due to incarceration and need not be accommodated under 13 RLUIPA. Owens v. Kernan, 2016 WL 3361885 (E.D. Cal. June 16, 2016) (screening out, for 14 failure to state a claim, challenge to § 3177 by prisoner serving life without parole); Martin v. 15 Cate, 2014 WL 348442, at *3 (E.D. Cal. Jan. 31, 2014) (holding denial of conjugal visits to 16 Christian prisoner based on status as a life prisoner was not cognizable under RLUIPA); Shields 17 v. Foston, 2013 WL 3456964 (E.D. Cal. Jul. 9, 2013) (surveying district court decisions and 18 finding § 3177 was narrowly tailored to accomplish the compelling government interest in 19 enhancing prison security); Lucas v. Tilton, 2010 WL 431737 (E.D. Cal. Feb. 2, 2010) (finding 20 the balance of equities did not support prisoner’s request for a preliminary injunction “because 21 the loss of intimate association is a well-known aspect of being imprisoned.”) 22 Here, plaintiffs allege that they are denied family visits based on an improperly issued jail 23 disciplinary report from the 2009 finding that Mr. Sunkett attempted an escape from the 24 Mendocino County Jail. Plaintiffs concede that the denial of conjugal visits was issued under 25 state regulations, including DOM section 54020.33.1, but argue the regulations were improperly 26 applied. (ECF No. 12 at 8-9, citing Ex. N; ECF No. 1 at 77 (Ex. N) (CDC 128-B dated Nov. 28, 27 2017).) The CDC 128-B issued thereafter confirms that family visits “shall be restricted as 28 necessary to maintain order, the safety of persons, the security of the institution/ facility, and 1 required prison activities and operations, pursuant to section 3170 and DOM section 54020.33.1.” 2 (ECF No. 1 at 77.) Thus, plaintiff’s allegations fail to state a claim for relief under RLUIPA 3 because “section 3177 is narrowly tailored to accomplish the compelling government objective of 4 enhancing prison security.” Shields, 2013 WL 345964, at *6. See also Cutter, 544 U.S. at 722 5 (“We do not read RLUIPA to elevate accommodation of religious observances over an 6 institution’s need to maintain order and safety. Our decisions indicate that an accommodation 7 must be measured so that it does not override other significant interests.”). Absent exceptional 8 circumstances not alleged here, the undersigned will not intervene in the day-to-day management 9 of prisons. See, e.g., Overton, 539 U.S. at 132 (“We must accord substantial deference to the 10 professional judgment of prison administrators”); Sandin, 515 U.S. at 482-83 (“federal courts 11 ought to afford appropriate deference and flexibility to state officials trying to manage a volatile 12 environment.”) 13 Fifth, the amended complaint fails to state a due process claim against persons who 14 processed or denied inmate appeals. There is no constitutional right to a prison or jail 15 administrative appeal or grievance system in California, and therefore no due process liability for 16 failing to process or decide an inmate appeal properly. See Ramirez v. Galaza, 334 F.3d 850, 860 17 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 18 Sixth, plaintiffs’ cause of action based on an alleged “failure to investigate” also does not 19 state a cognizable federal civil rights claim. “There is . . . no constitutional right to an 20 investigation by government officials.” Stone v. Dep’t of Investigation of New York, 1992 WL 21 25202, *2 (S.D. N.Y. Feb. 4, 1992), citing Gomez v. Whitney, 757 F.2d 1005, 1006 (1985) (“no 22 instance where the courts have recognized inadequate investigation as sufficient to state a civil 23 rights claim unless there was another recognized constitutional right involved.”); see also Page v. 24 Stanley, 2013 WL 2456798, at *8-9 (C.D. Cal. June 5, 2013) (dismissing Section 1983 claim 25 alleging that officers failed to conduct thorough investigation of former prisoner’s complaints 26 because he “had no constitutional right to any investigation of his citizen’s complaint, much less a 27 ‘thorough’ investigation or a particular outcome”). Absent an underlying violation of a 28 //// 1 constitutional right by named defendants, plaintiffs’ contentions that defendants fail or refuse to 2 investigate plaintiffs’ allegations do not state cognizable civil rights claims. 3 Seventh, to the extent plaintiffs attempt to raise a procedural due process challenge in 4 connection with the 2009 jail disciplinary, or to substantively challenge such disciplinary, such 5 challenges appear to be time-barred. The statute of limitations for a § 1983 claim filed in 6 California is two years, and it may be tolled for up to two years for the disability of imprisonment 7 for certain plaintiffs. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. 8 Code §§ 335.1, 352.1, 357. In addition, to the extent plaintiffs attempt to raise procedural due 9 process challenges in connection with subsequent classification procedures, plaintiffs are advised 10 that basic procedural due process protection requires notice and the opportunity to be heard “at a 11 meaningful time and in a meaningful manner” prior to deprivation of an established interest. 12 Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982); see also Barnett, 31 F.3d at 815 13 (prisoner only entitled to notice and an opportunity to be heard). So long as Mr. Sunkett was 14 provided notice of the reclassification procedure and afforded an opportunity to be heard, he was 15 provided adequate procedural due process. 16 Finally, plaintiffs raise a “deliberate indifference” claim, ostensibly under the Eighth 17 Amendment, based on their allegations that defendants “compelled” plaintiffs to undertake 18 hunger strikes. However, such allegations are unavailing because such hunger strikes were self- 19 imposed, and not conditions that were caused by defendants. 20 For all of the above reasons, the undersigned finds that plaintiffs fail to state cognizable 21 federal civil rights claims. 22 B. Potential State Law Claims 23 Many of plaintiffs’ claims are based on violations of prison regulations, state law, or the 24 California Constitution. (ECF No. 12, passim.) Any violation of state law, state regulations, or 25 rules and policies of the department of corrections, is not sufficient to state a claim for relief 26 under § 1983. As discussed above, to state a claim under § 1983, there must be a deprivation of 27 federal Constitutional or statutory rights. See Galen v. County of Los Angeles, 477 F.3d 652, 662 28 (9th Cir. 2007) (“Section 1983 requires [plaintiff] to demonstrate a violation of federal law, not 1 state law.”). The court may exercise supplemental jurisdiction over state law claims, but 2 plaintiffs must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. 3 Because this court has found that plaintiffs fail to state any cognizable federal claims, the court 4 will not exercise supplemental jurisdiction over plaintiffs’ putative state law claims. See 5 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (when federal claims are eliminated 6 before trial, district courts should usually decline to exercise supplemental jurisdiction). Such 7 dismissal does not preclude plaintiffs from pursuing such claims in state court. 8 V. Leave to Amend 9 In light of the authorities discussed above, it does not appear that plaintiffs can amend 10 their pleading to state cognizable federal civil rights claims based on the alleged deprivation of 11 family visiting under state regulations. However, in an abundance of caution, and because 12 plaintiffs are appearing pro se and have not had an opportunity to substantively amend their 13 pleading, plaintiffs are granted leave to amend should plaintiffs be able to allege facts 14 demonstrating a violation of their federal civil rights. 15 If plaintiffs choose to amend, plaintiffs must demonstrate how the conditions about which 16 they complain resulted in a deprivation of their rights under the United States Constitution or 17 other federal statute. See e.g., West, 487 U.S. at 48. Also, the complaint must allege in specific 18 terms how each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There 19 can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection 20 between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. 21 Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of 22 official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 23 266, 268 (9th Cir. 1982). 24 In addition, plaintiffs are informed that the court cannot refer to a prior pleading in order 25 to make plaintiff’s second amended complaint complete. Local Rule 220 requires that an 26 amended complaint be complete in itself without reference to any prior pleading. This 27 requirement exists because, as a general rule, an amended complaint supersedes the original 28 complaint. See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an 1 ‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’” 2 (internal citation omitted)). Once plaintiffs file a second amended complaint, the original 3 pleading no longer serves any function in the case. Therefore, in the second amended complaint, 4 as in an original complaint, each claim and the involvement of each defendant must be alleged. 5 In the alternative, plaintiffs may opt to voluntarily dismiss this action and pursue their 6 claims in state court. 7 VI. Defendants’ Motion to Dismiss 8 On July 11, 2019, defendants filed a motion to dismiss this action based on insufficient 9 service of process. Because the court has determined this case is a prisoner case, and has not yet 10 found plaintiffs stated a cognizable civil rights claim, defendants’ motion is premature and is 11 dismissed without prejudice to renewal at a later date, if appropriate. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The findings and recommendations (ECF No. 21) are vacated; 14 2. Plaintiffs’ motion to amend (ECF No. 11) is dismissed as moot; 15 3. Defendants’ motion (ECF No. 16) is dismissed without prejudice; 16 4. Plaintiffs’ amended complaint is dismissed; and 17 5. Within thirty days from the date of this order, plaintiffs shall complete the attached 18 Notice of Amendment and submit the following documents to the court: 19 a. The completed Notice of Amendment; and 20 b. An original and one copy of the Second Amended Complaint. 21 Plaintiffs’ second amended complaint shall comply with the requirements of the Civil Rights Act, 22 the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 23 must also bear the docket number assigned to this case and must be labeled “Second Amended 24 Complaint.” 25 //// 26 //// 27 //// 28 //// 1 Failure to file an amended complaint in accordance with this order may result in the 2 | dismissal of this action. In the alternative, plaintiffs may opt to voluntarily dismiss this action 3 | and pursue their claims in state court. 4 | Dated: March 11, 2020 Frese Arn 6 KENDALL J. NE /eunk0816.vact UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRITTNEY FLOW-SUNKETT, GLENN No. 2:19-cv-1009 KJM KJN P 11 SUNKETT,

12 Plaintiffs, NOTICE OF AMENDMENT 13 v. 14 RALPH DIAZ, et al., 15 Defendants. 16 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ Amended Complaint 20 OR 21 _____________ Plaintiffs opt to voluntarily dismiss this action and pursue 22 their claims in state court. DATED: 23

24 ________________________________ Plaintiff 25

26 ________________________________ Plaintiff 27 28