1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE HUNT, No. 2:18-cv-2130 MCE AC P 12 Plaintiff, 13 v. ORDER 14 C.J. LEWIS, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983, has filed a first amended complaint, ECF No. 22, and motion for a ninety-day stay, ECF 19 No. 26. 20 I. Statutory Screening of Prisoner Complaints 21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 24 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 25 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 26 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 28 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 1 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 2 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 3 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 4 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 5 Franklin, 745 F.2d at 1227-28 (citations omitted). 6 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 7 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 8 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 10 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 11 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 12 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 13 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 14 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 15 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 16 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 17 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 18 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 19 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 20 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 21 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 22 content that allows the court to draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 24 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 25 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the 26 light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 27 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 28 //// 1 II. Complaint 2 The first amended complaint alleges that defendants Lewis, Clain,1 Cimino, Ramsey, 3 Sharp, and Mossman violated plaintiff’s rights under the First, Eighth, and Fourteenth 4 Amendments.2 ECF No. 22. Specifically, plaintiff alleges that on August 3, 2017, he spoke with 5 Clain about a 2013 rules violation report (RVR) that had resulted in plaintiff having six points 6 taken from him. Id. at 10-11, ¶¶ 11-12. Plaintiff explained that he wanted the points restored 7 because the RVR was supposed to have been re-issued and re-heard, but after nearly five years it 8 had been neither re-issued nor re-heard, and he did not believe there was any reason he should not 9 get his points back. Id. at 11, ¶ 13. He then gave Clain a CDCR 22 form that quoted the 10 applicable part of the Department Operations Manual. Id. After reading the form, Clain 11 threatened plaintiff and said that she and her supervisor, Cimino, were “going to pull some 12 strings” so that the RVR would be reissued, and that plaintiff would be found guilty, so she did 13 not have to fix his points. Id., ¶ 14. Plaintiff was then kicked out of Clain’s office and over the 14 following days the shock of being threatened by Clain caused him to suffer anxiety, depression, 15 and nightmares where he relived being shot by officers. Id. at 11-13, ¶¶ 15-19. 16 About a week after plaintiff’s meeting with Clain, she came by his cell and asked him if 17 he had received the re-issued RVR. Id. at 13, ¶ 20. When plaintiff responded in the negative, she 18 said that she had gotten the associate warden involved and that Mossman would write up the 19 RVR and give it to plaintiff. Id., ¶¶ 20, 21. Plaintiff then submitted a CDCR 22 form to 20 Mossman asking why Mossman was being told to re-issue an RVR from another institution. Id. 21 at 14, ¶ 23. Mossman responded that it was not his idea to “bring it into the back door,” which 22 plaintiff took to mean the RVR was issued illegally. Id. Plaintiff further alleges that Clain and 23 Cimino contacted Lewis by phone, email, or through another official to have Lewis assist them in 24 issuing the RVR. Id., ¶ 25. 25 On September 25, 2017, Lewis gave plaintiff the re-issued RVR, written up by Mossman, 26 1 Plaintiff alleges that defendant Clain was formerly named Smith. ECF No. 22 at 8, ¶ 5. 27 2 Plaintiff also cites the Fourth Amendment, but this appears to have been a typographical error since he has identified it as an equal protection claim, ECF No. 22 at 21, which falls under the 28 Fourteenth Amendment. 1 for an incident that occurred on April 2, 2013. Id. at 16, ¶ 35. A month later, defendants Sharp 2 and Ramsey found him guilty of the charges. Id., ¶ 37. When plaintiff attempted to get a final 3 copy of the RVR, he was told it was not in the system, which plaintiff believes confirms the RVR 4 was illegal. Id. at 17, ¶ 40. He eventually received a copy of the RVR after submitting a 5 grievance. Id. at 20, ¶ 52. 6 III.
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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 TYRONE HUNT, No. 2:18-cv-2130 MCE AC P 12 Plaintiff, 13 v. ORDER 14 C.J. LEWIS, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983, has filed a first amended complaint, ECF No. 22, and motion for a ninety-day stay, ECF 19 No. 26. 20 I. Statutory Screening of Prisoner Complaints 21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 24 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 25 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 26 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 28 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 1 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 2 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 3 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 4 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 5 Franklin, 745 F.2d at 1227-28 (citations omitted). 6 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 7 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 8 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 10 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 11 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 12 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 13 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 14 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 15 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 16 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 17 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 18 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 19 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 20 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 21 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 22 content that allows the court to draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 24 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 25 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the 26 light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 27 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 28 //// 1 II. Complaint 2 The first amended complaint alleges that defendants Lewis, Clain,1 Cimino, Ramsey, 3 Sharp, and Mossman violated plaintiff’s rights under the First, Eighth, and Fourteenth 4 Amendments.2 ECF No. 22. Specifically, plaintiff alleges that on August 3, 2017, he spoke with 5 Clain about a 2013 rules violation report (RVR) that had resulted in plaintiff having six points 6 taken from him. Id. at 10-11, ¶¶ 11-12. Plaintiff explained that he wanted the points restored 7 because the RVR was supposed to have been re-issued and re-heard, but after nearly five years it 8 had been neither re-issued nor re-heard, and he did not believe there was any reason he should not 9 get his points back. Id. at 11, ¶ 13. He then gave Clain a CDCR 22 form that quoted the 10 applicable part of the Department Operations Manual. Id. After reading the form, Clain 11 threatened plaintiff and said that she and her supervisor, Cimino, were “going to pull some 12 strings” so that the RVR would be reissued, and that plaintiff would be found guilty, so she did 13 not have to fix his points. Id., ¶ 14. Plaintiff was then kicked out of Clain’s office and over the 14 following days the shock of being threatened by Clain caused him to suffer anxiety, depression, 15 and nightmares where he relived being shot by officers. Id. at 11-13, ¶¶ 15-19. 16 About a week after plaintiff’s meeting with Clain, she came by his cell and asked him if 17 he had received the re-issued RVR. Id. at 13, ¶ 20. When plaintiff responded in the negative, she 18 said that she had gotten the associate warden involved and that Mossman would write up the 19 RVR and give it to plaintiff. Id., ¶¶ 20, 21. Plaintiff then submitted a CDCR 22 form to 20 Mossman asking why Mossman was being told to re-issue an RVR from another institution. Id. 21 at 14, ¶ 23. Mossman responded that it was not his idea to “bring it into the back door,” which 22 plaintiff took to mean the RVR was issued illegally. Id. Plaintiff further alleges that Clain and 23 Cimino contacted Lewis by phone, email, or through another official to have Lewis assist them in 24 issuing the RVR. Id., ¶ 25. 25 On September 25, 2017, Lewis gave plaintiff the re-issued RVR, written up by Mossman, 26 1 Plaintiff alleges that defendant Clain was formerly named Smith. ECF No. 22 at 8, ¶ 5. 27 2 Plaintiff also cites the Fourth Amendment, but this appears to have been a typographical error since he has identified it as an equal protection claim, ECF No. 22 at 21, which falls under the 28 Fourteenth Amendment. 1 for an incident that occurred on April 2, 2013. Id. at 16, ¶ 35. A month later, defendants Sharp 2 and Ramsey found him guilty of the charges. Id., ¶ 37. When plaintiff attempted to get a final 3 copy of the RVR, he was told it was not in the system, which plaintiff believes confirms the RVR 4 was illegal. Id. at 17, ¶ 40. He eventually received a copy of the RVR after submitting a 5 grievance. Id. at 20, ¶ 52. 6 III. Claim Which Will Require a Response 7 A viable First Amendment claim for retaliation must establish the following five 8 elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) 9 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 10 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 11 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and 12 citations omitted). Plaintiff need not prove that the alleged retaliatory action, in itself, violated a 13 constitutional right. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (to prevail on a retaliation 14 claim, plaintiff “need not establish an independent constitutional interest” was violated); Hines v. 15 Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (“[P]risoners may still base retaliation claims on harms 16 that would not raise due process concerns.”). 17 Plaintiff alleges that Clain had the RVR re-issued and re-heard in retaliation for plaintiff 18 submitting a complaint about his points not being returned. ECF No. 22 at 15, ¶ 28. Liberally 19 construed, plaintiff’s allegations state a claim for retaliation and Clain will be required to respond 20 to the complaint. However, while it appears that plaintiff is also attempting to allege a retaliation 21 claim against the other defendants, ECF No. 22 at 20-21, ¶¶ 54-59, he does not allege facts 22 showing that the conduct of any defendant other than Clain was motivated by the complaint he 23 filed and therefore fails to state a retaliation claim against any other defendant. 24 IV. Failure to State a Claim 25 A. Personal Involvement 26 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 27 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 28 362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and 1 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 2 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 3 Although plaintiff alleges that Clain told him she would get assistance from defendant 4 Cimino, he has failed to identify any involvement by Cimino beyond a speculative allegation that 5 he contacted Lewis and conclusory assertions that he was deliberately indifferent and treated 6 plaintiff unequally. ECF No. 22 at 11, 14-15, 18 ¶¶ 14, 25, 30, 44. These vague and conclusory 7 allegations are insufficient to state a claim for relief against Cimino. 8 B. Deliberate Indifference 9 “[A] prison official violates the Eighth Amendment only when two requirements are met. 10 First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or 11 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer 12 v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, 13 the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate 14 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The 15 official is not liable under the Eighth Amendment unless he “knows of and disregards an 16 excessive risk to inmate health or safety.” Id. at 837. Then he must fail to take reasonable 17 measures to lessen the substantial risk of serious harm. Id. at 847. Negligent failure to protect an 18 inmate from harm is not actionable under § 1983. Id. at 835. 19 Plaintiff alleges that all defendants “acted dispicably [sic], knowingly, willfully, sadisticly 20 [sic], maliciously, or with reckless or callous disregards for plaintiff’s federal protected rights,” 21 ECF No. 22 at 17-18, ¶¶ 41-46, but fails to allege any facts showing that defendants were 22 deliberately indifferent to his health or safety. While plaintiff claims to have suffered severe 23 anxiety and depression after Clain kicked him out of her office, there are no allegations that she 24 knew plaintiff would have such a reaction. Furthermore, plaintiff’s conclusory assertions that 25 defendants were deliberately indifferent to his safety, id. at 23, ¶¶ 66-68, and subjected him to 26 cruel and unusual punishment, id. at 24-25, ¶¶ 71-74, are insufficient to state a claim for relief 27 against any defendant. 28 //// 1 C. Equal Protection 2 The Fourteenth Amendment’s Equal Protection Clause requires the State to treat all 3 similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 4 (1985) (citation omitted). “To state a claim for violation of the Equal Protection Clause, a 5 plaintiff must show that the defendant acted with an intent or purpose to discriminate against him 6 based upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th 7 Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Alternatively, a 8 plaintiff may state an equal protection claim if he shows similarly situated individuals were 9 intentionally treated differently without a rational relationship to a legitimate government 10 purpose. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations omitted). 11 Plaintiff does not allege membership in a protected class and instead alleges that all 12 defendants treated him differently than other similarly situated inmates without any rational 13 reason. ECF No. 22 at 15-16, ¶¶ 29-34. However, although plaintiff states that he has never 14 heard of another prisoner at High Desert State Prion receiving an RVR four years later, id. at 19, 15 ¶ 49, it is unclear whether that is because inmates whose RVRs were not re-issued within a 16 certain timeframe had the RVRs cancelled or because there were no other inmates whose RVRs 17 failed to get re-issued within the appropriate timeframe. Because the allegations are too 18 conclusory and do not establish disparate treatment of similarly situated inmates, plaintiff fails to 19 state an equal protection claim. 20 D. Due Process 21 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full 22 panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 23 U.S. 539, 556 (1974) (citation omitted). Rather, with respect to prison disciplinary proceedings 24 that include the loss of good-time credits, an inmate must receive (1) twenty-four-hour advanced 25 written notice of the charges against him, id. at 563-64; (2) “a written statement by the factfinders 26 as to the evidence relied on and reasons for the disciplinary action,” id. at 564 (internal quotation 27 marks and citation omitted); (3) an opportunity to call witnesses and present documentary 28 evidence where doing so “will not be unduly hazardous to institutional safety or correctional 1 goals,” id. at 566; (4) assistance at the hearing if he is illiterate or if the matter is complex, id. at 2 570; and (5) a sufficiently impartial fact finder, id. at 570-71. A finding of guilt must also be 3 “supported by some evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). 4 The complaint alleges that plaintiff lost good-time credits and was therefore entitled to the 5 due process protections outlined in Wolff. However, plaintiff does not allege that he was denied 6 any of the protections set forth in Wolff. Instead, he claims that his due process rights were 7 violated because they “issued plaintiff a new illegal RVR without first fixing the old RVR.” ECF 8 No. 22 at 25, ¶ 77. Since plaintiff has not alleged that he was denied any of the due process 9 required by Wolff, his due process claim fails. 10 V. Leave to Amend 11 For the reasons set forth above, the court finds that the complaint does not state any 12 cognizable claims other than a retaliation claim against defendant Clain. However, it appears that 13 plaintiff may be able to allege facts to remedy this and he will be given the opportunity to amend 14 the complaint if he desires. 15 Plaintiff may proceed forthwith to serve defendant Clain on his retaliation claim, or he 16 may delay serving any defendant and amend the complaint. 17 Plaintiff will be required to complete and return the attached notice advising the court how 18 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 19 file an amended complaint. If plaintiff elects to proceed on his retaliation claim against defendant 20 Clain without amending the complaint, the court will proceed to serve the complaint. A decision 21 to go forward without amending the complaint will be considered a voluntarily dismissal without 22 prejudice of all claims against defendants Lewis, Cimino, Ramsey, Sharp, and Mossman and all 23 claims against defendant Clain except for the retaliation claim. 24 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 25 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 26 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 27 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 28 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 1 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 2 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 3 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 4 268 (9th Cir. 1982) (citations omitted). 5 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 6 his amended complaint complete. Local Rule 220 requires that an amended complaint be 7 complete in itself without reference to any prior pleading. This is because, as a general rule, an 8 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 9 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 10 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 11 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 12 the original complaint no longer serves any function in the case. Therefore, in an amended 13 complaint, as in an original complaint, each claim and the involvement of each defendant must be 14 sufficiently alleged. 15 VI. Motion for Stay 16 On April 20, 2020, the court received plaintiff’s request for a ninety-day stay of the 17 proceedings because he was scheduled to attend state court on May 6, 2020. ECF No. 26. The 18 motion will be denied as moot since it has been more than ninety days since plaintiff’s hearing 19 date. 20 VII. Plain Language Summary of this Order for a Pro Se Litigant 21 Some of the allegations in the complaint state claims against the defendants and some do 22 not. You have stated a claim for retaliation against defendant Clain. You have not alleged facts 23 to state any additional claims against Clain or any other defendant. You must allege more 24 specific facts about what each defendant did or did not do. 25 You have a choice to make. You may either (1) proceed immediately on your retaliation 26 claim against defendant Clain and voluntarily dismiss all other claims and defendants or (2) try to 27 amend the complaint. If you want to go forward without amending the complaint, you will be 28 voluntarily dismissing without prejudice all claims and defendants except your retaliation claim 1 | against defendant Clain. If you choose to amend your complaint, the amended complaint must 2 || include all of the claims you want to make, including the ones that have already been found to 3 || state a claim, because the court will not look at the claims or information in the original 4 | complaint. Any claims and information not in the amended complaint will not be 5 || considered. You must complete the attached notification showing what you want to do and 6 || return it to the court. Once the court receives the notice, it will issue an order telling you what 7 || you need to do next (i.e. file an amended complaint or wait for defendants to be served). 8 In accordance with the above, IT IS HEREBY ORDERED that: 9 1. Plaintiffs request for a ninety-day stay, ECF No. 26, is DENIED as moot. 10 2. Except for the retaliation claim against defendant Clain, the complaint does not state 11 || any claims for which relief can be granted. 12 3. Plaintiff has the option to proceed immediately on his retaliation claim against 13 || defendant Clain as set forth in Section III above, or to amend the complaint. 14 4. Within fourteen days of service of this order, plaintiff shall complete and return the 15 || attached form notifying the court whether he wants to proceed on the screened complaint or 16 || whether he wants to file a first amended complaint. If plaintiff does not return the form, the court 17 || will assume that he is choosing to proceed on the complaint as screened and will recommend 18 | dismissal without prejudice of all claims except the retaliation claim against defendant Clain. 19 | DATED: March 29, 2021 ~ 20 Htttenr— Lhor—e_ ALLISON CLAIRE 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE HUNT, No. 2:18-cv-2130 MCE AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 C.J. LEWIS, et al., 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his retaliation claim against defendant Clain 19 without amending the complaint. Plaintiff understands that by going forward without 20 amending the complaint he is voluntarily dismissing without prejudice all other claims 21 against defendant Clain and all claims against defendants Lewis, Cimino, Ramsey, Sharp, 22 and Mossman pursuant to Federal Rule of Civil Procedure 41(a). 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________
27 Tyrone Hunt Plaintiff pro se 28