1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ALBERT HODGES, No. 2:20-cv-00896-CKD 12 Plaintiff, 13 v. ORDER AND 14 J. SEIBERT, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Requirement 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). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when 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). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was an inmate in the 28 Psychiatric Service Unit (“PSU”) at California State Prison-Sacramento (“CSP-Sac”). On 1 September 5, 2018, plaintiff reported feeling suicidal to Dr. Costa. ECF No. 1 at 3. Plaintiff had 2 an active plan to hang himself. ECF No. 1 at 3. Plaintiff was placed in handcuffs and leg irons 3 and transported to a holding cage for suicide watch. Id. Defendant J. Seibert was the first officer 4 assigned to plaintiff’s suicide watch. Id. Plaintiff and defendant Seibert exchanged words, and 5 the next thing that plaintiff remembers is waking up on a ventilator at U.C. Davis Medical Center. 6 Id. Plaintiff was informed by medical staff that he had hung himself and lost consciousness. Id. 7 As a result of this suicide attempt, plaintiff still experiences memory loss, migraine headaches, 8 and blurred vision. Id. 9 Plaintiff alleges that defendant Seibert was deliberately indifferent to his right to personal 10 safety in violation of the Eighth Amendment by not intervening in his suicide attempt. ECF No. 1 11 at 3. Plaintiff names three additional correctional officers at CSP-Sac as defendants in this action, 12 but he does not specify how they were involved in the alleged constitutional violation. 13 By way of relief, plaintiff seeks compensatory and punitive damages as well as 14 declaratory relief. ECF No. 1 at 7. 15 III. Legal Standards 16 The Eighth Amendment prohibits state actors from acting with deliberate indifference to 17 an inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825 (1994). A claim based on 18 deliberate indifference to health or safety has two elements. First, an inmate must show he was 19 “incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834. Second, the 20 inmate must show he was injured as a result of a defendant’s “deliberate indifference” to that risk. 21 Id. Under the deliberate indifference standard, plaintiff must demonstrate prison officials knew 22 he faced a substantial risk of serious harm and that they disregarded that risk by failing to take 23 reasonable measures to abate it. Id. at 847. 24 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 25 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 26 362 (1976). Vague and conclusory allegations of official participation in civil rights violations 27 are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 28 ///// 1 IV. Analysis 2 The court has reviewed plaintiff’s complaint and, for the limited purposes of § 1915A 3 screening, finds that it states a potentially cognizable Eighth Amendment deliberate indifference 4 claim against defendant Seibert.
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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 JAMES ALBERT HODGES, No. 2:20-cv-00896-CKD 12 Plaintiff, 13 v. ORDER AND 14 J. SEIBERT, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 I. Screening Requirement 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). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when 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). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was an inmate in the 28 Psychiatric Service Unit (“PSU”) at California State Prison-Sacramento (“CSP-Sac”). On 1 September 5, 2018, plaintiff reported feeling suicidal to Dr. Costa. ECF No. 1 at 3. Plaintiff had 2 an active plan to hang himself. ECF No. 1 at 3. Plaintiff was placed in handcuffs and leg irons 3 and transported to a holding cage for suicide watch. Id. Defendant J. Seibert was the first officer 4 assigned to plaintiff’s suicide watch. Id. Plaintiff and defendant Seibert exchanged words, and 5 the next thing that plaintiff remembers is waking up on a ventilator at U.C. Davis Medical Center. 6 Id. Plaintiff was informed by medical staff that he had hung himself and lost consciousness. Id. 7 As a result of this suicide attempt, plaintiff still experiences memory loss, migraine headaches, 8 and blurred vision. Id. 9 Plaintiff alleges that defendant Seibert was deliberately indifferent to his right to personal 10 safety in violation of the Eighth Amendment by not intervening in his suicide attempt. ECF No. 1 11 at 3. Plaintiff names three additional correctional officers at CSP-Sac as defendants in this action, 12 but he does not specify how they were involved in the alleged constitutional violation. 13 By way of relief, plaintiff seeks compensatory and punitive damages as well as 14 declaratory relief. ECF No. 1 at 7. 15 III. Legal Standards 16 The Eighth Amendment prohibits state actors from acting with deliberate indifference to 17 an inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825 (1994). A claim based on 18 deliberate indifference to health or safety has two elements. First, an inmate must show he was 19 “incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834. Second, the 20 inmate must show he was injured as a result of a defendant’s “deliberate indifference” to that risk. 21 Id. Under the deliberate indifference standard, plaintiff must demonstrate prison officials knew 22 he faced a substantial risk of serious harm and that they disregarded that risk by failing to take 23 reasonable measures to abate it. Id. at 847. 24 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 25 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 26 362 (1976). Vague and conclusory allegations of official participation in civil rights violations 27 are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 28 ///// 1 IV. Analysis 2 The court has reviewed plaintiff’s complaint and, for the limited purposes of § 1915A 3 screening, finds that it states a potentially cognizable Eighth Amendment deliberate indifference 4 claim against defendant Seibert. However, plaintiff has not stated a claim for relief against 5 defendants Brewer, Monroy, and Bevens because he has not connected them to the asserted 6 constitutional violation. In order to state a claim, plaintiff must allege with at least some degree 7 of particularity the overt acts which these defendants engaged in. Jones v. Community Redev. 8 Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff may elect to proceed immediately on the 9 Eighth Amendment claim against defendant Seibert or, in the alternative, he may elect to amend 10 his complaint to attempt to cure the deficiencies identified in this order with respect to the 11 remaining defendants. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 12 (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 13 their complaints). If plaintiff chooses to proceed on the Eighth Amendment claim found 14 cognizable in this screening order, the court will construe this as a request to voluntarily dismiss 15 defendants Brewer, Monroy, and Bevens pursuant to Rule 41(a)(1)(i) of the Federal Rules of 16 Civil Procedure. 17 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 18 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 19 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 20 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 21 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 22 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 23 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 24 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 25 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 26 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 27 complaint be complete in itself without reference to any prior pleading. This is because, as a 28 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 1 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 2 longer serves any function in the case. Therefore, in an amended complaint, as in an original 3 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 4 V. Pending Motions 5 On July 6, 2020, plaintiff filed a motion for early mediation. ECF No. 10. Plaintiff is 6 advised that the undersigned is referring all post-screening civil rights cases filed in prisoner 7 cases to the Post-Screening ADR (Alternative Dispute Resolution) Project in an effort to resolve 8 such cases more expeditiously and less expensively. However, before plaintiff’s case can be 9 referred to the ADR Project, defendant Seibert must be served and have filed an answer to the 10 complaint. Plaintiff’s case will automatically be referred to the ADR Project once this occurs. In 11 light of the procedural posture of this case, the court will deny plaintiff’s motion for early 12 mediation without prejudice as premature. 13 Plaintiff filed a letter on August 20, 2020 expressing concerns for his safety when he is 14 transferred back to CSP-Sacramento. ECF No. 12. The court will construe this letter as a request 15 for a temporary restraining order against defendants named in this action. In the letter, plaintiff 16 indicates that he has been told by two “inmates that happen to be sent to this facility for mental 17 health treatment” that defendants “are awaiting his return” to CSP-Sac in order to kill plaintiff. 18 ECF No. 12 at 1. Plaintiff further indicates that these same inmates told him that defendants are 19 going to have other inmates attack him because he filed a lawsuit against them. Id. As a result, 20 plaintiff has been experiencing extreme anxiety attacks. Id. at 2. Plaintiff asks that his brother be 21 contacted if he is killed. Id. 22 The court has also read and considered the information contained in a notice regarding 23 harassment and corruption that plaintiff filed on May 13, 2020. ECF No. 8. In this notice, 24 plaintiff states that he has been harassed by prison officers “for over a year now.” ECF No. 8 at 25 2. Plaintiff also indicates that he has not been able to obtain a copy of the CDCR suicide attempt 26 report or the detention segregation form placing him on suicide watch. ECF No. 8 at 3-4. 27 A temporary restraining order is an extraordinary measure of relief that a federal court 28 may impose without notice to the adverse party if, in an affidavit or verified complaint, the 1 movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the 2 movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The 3 standard for issuing a temporary restraining order is essentially the same as that for issuing a 4 preliminary injunction. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 5 (9th Cir. 2001) (analysis for temporary restraining orders and preliminary injunctions is 6 “substantially identical”). The proper legal standard for preliminary injunctive relief requires a 7 party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer 8 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, 9 and that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 10 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (internal 11 quotations omitted). In cases brought by prisoners involving conditions of confinement, any 12 preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the 13 harm the court finds requires preliminary relief, and be the least intrusive means necessary to 14 correct the harm.” 18 U.S.C. § 3626(a)(2). 15 A motion for preliminary injunction must be supported by “[e]vidence that goes beyond 16 the unverified allegations of the pleadings.” Fidelity Nat. Title Ins. Co. v. Castle, No. C-11- 17 00896-SI, 2011 WL 5882878, *3 (N.D. Cal. Nov. 23, 2011) (citing 9 Wright & Miller, Federal 18 Practice & Procedure § 2949 (2011)). The plaintiff, as the moving party, bears the burden of 19 establishing the merits of his or her claims. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 20 7, 20 (2008). 21 Plaintiff has not demonstrated that the threat of physical injury to him is more than 22 speculative. See Goldie's Bookstore, Inc. v. Superior Court of State of Cal., 739 F.2d 466, 472 23 (9th Cir. 1984) (“Speculative injury does not constitute irreparable injury.”). A presently existing 24 actual threat must be shown, although the injury need not be certain to occur. See Zenith Radio 25 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130–31 (1969); FDIC v. Garner, 125 F.3d 1272, 26 1279–80 (9th Cir. 1997). In this case, plaintiff is not in custody at CSP-Sac and does not identify 27 any date when he will be transferred back to that facility. Absent such information, the 28 allegations in plaintiff’s motion do not rise above the level of a speculative injury. 1 While it is not entirely clear what injunctive relief plaintiff is seeking, an order not to 2 transfer plaintiff back to CSP-Sac is beyond the scope of the case or controversy before this court. 3 See Benyamini v. Manjuano, 2011 WL 4963108, at 1 (E.D. Cal. Oct.18, 2011) (“The Court lacks 4 jurisdiction to issue an order requiring prison officials to transfer [plaintiff] based on retaliatory 5 acts occurring after this action was filed, because the Court does not have such a case or 6 controversy before it in this action.”). Plaintiff does not allege any acts of retaliation by 7 defendants in his complaint. Moreover, in Meachum v. Fano, 427 U.S. 215 (1976), the United 8 States Supreme Court explicitly held that prisoners do not have a constitutional right to be housed 9 at a particular prison within a state's prison system. See also Rizzo v. Dawson, 778 F.2d 527, 530 10 (9th Cir. 1985) (“An inmate's liberty interests are sufficiently extinguished by his conviction so 11 that the state may change his place of confinement even though the degree of confinement may be 12 different and prison life may be more disagreeable in one institution than in another.”). 13 For all these reasons, the undersigned recommends denying plaintiff’s motion for a 14 temporary restraining order without prejudice. 15 VI. Plain Language Summary for Pro Se Party 16 The following information is meant to explain this order in plain English and is not 17 intended as legal advice. 18 Some of the allegations in the complaint state claims for relief against defendants, and 19 some do not. You must decide if you want to (1) proceed immediately on the Eighth Amendment 20 claim against defendant Seibert; or, (2) try to amend the complaint to fix the problems identified 21 in this order with respect to the other defendants. Once you decide, you must complete the 22 attached Notice of Election form by checking only one of the appropriate boxes and return it to 23 the court. 24 Once the court receives the Notice of Election, it will issue an order telling you what you 25 need to do next (i.e. file an amended complaint or wait for the defendants to be served with a 26 copy of the complaint). If you do not return this Notice, the court will order service of the 27 complaint only on the claim found cognizable in this screening order and will recommend 28 dismissing the remaining defendants. 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. The Clerk of Court is directed to randomly assign this matter to a district court judge. 3 2. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 4 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 5 shall be collected and paid in accordance with this court’s order to the Director of the California 6 Department of Corrections and Rehabilitation filed concurrently herewith. 7 4. Plaintiff has the option to proceed immediately on the Eighth Amendment claim 8 against defendant Seibert or plaintiff may choose to amend the complaint to fix the deficiencies 9 identified in this order with respect to the remaining defendants. 10 5. Within 21 days from the date of this order, plaintiff shall complete and return the 11 attached Notice of Election form notifying the court whether he wants to proceed on the screened 12 complaint or whether he wants time to file a first amended complaint. 13 6. If plaintiff fails to return the attached Notice of Election within the time provided, the 14 court will construe this failure as consent to dismiss the deficient claims and proceed only on the 15 cognizable claim identified above. 16 7. Plaintiff’s motion for early mediation (ECF No. 10) is denied as premature as no 17 defendant has been served in this matter. 18 IT IS FURTHER RECOMMENDED that plaintiff’s August 20, 2020 letter regarding 19 concerns for his safety (ECF No. 12) be construed as a request for a temporary restraining order 20 and that the request, so construed, be denied without prejudice. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 ///// 27 ///// 28 ///// MASE 2 OU VEO SU EAINTT NS INES MAUI LO PON VOFEOEN v VI LY
1 | objections shall be served and filed within fourteen days after service of the objections. The 2 | parties are advised that failure to file objections within the specified time may waive the right to 3 | appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 | Dated: August 27, 2020 Pee a4 if / /, CAN fu fl. ay > CAROLYN K. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 12/hodg0896. 14+tro.docx 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10
11 JAMES ALBERT HODGES, 12 Plaintiff, No. 2:20-cv-00896-CKD 13 v. NOTICE OF ELECTION 14 J. SEIBERT, et al., 15 Defendants. 16
17 Check only one option: 18 _____ Plaintiff wants to proceed immediately on the Eighth Amendment claim against defendant 19 Seibert. Plaintiff voluntarily dismisses the remaining defendants; or, 20 _____ Plaintiff wants time to file a first amended complaint. 21
23 DATED: 24
26 ____________________ Plaintiff 27 28