1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMORY MCQUEEN, No. 2:17-cv-0378 WBS AC P 12 Plaintiff, 13 v. ORDER 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before the court is plaintiff’s Second Amended Complaint (“SAC”). See ECF No. 22. As 21 explained more fully below, the court finds that some of plaintiff’s allegations state claims against 22 some defendants and some do not. Plaintiff may elect to proceed immediately on the claims that 23 are found below to be viable, or he may amend for a final time. 24 I. Statutory Screening of Prisoner Complaints 25 The court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 28 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 1 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 2 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 3 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 4 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 5 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 6 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 7 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 8 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 9 Franklin, 745 F.2d at 1227-28 (citations omitted). 10 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 11 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 12 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 13 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 14 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 15 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 16 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 17 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 18 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 19 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 20 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 21 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 22 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 23 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 24 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 25 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 26 content that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 28 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 1 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 2 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 3 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 4 II. The Second Amended Complaint 5 Plaintiff, a former inmate at California Health Care Facility (“CHCF”), names as 6 defendants CHCF correctional officers S. Morton, G. Esquivel, M. Diaz, B. Barrett, J. Prado, J. 7 Rankins, L. Ma, K. Saetern, E. Fajardo, and N. Ny. ECF No. 22 at 2-3. The SAC alleges in sum 8 a follows. 9 In November 2016, plaintiff filed a CDCR Form 22 reporting that Officer Morton had 10 been harassing him and threatening to beat him. When Morton learned of plaintiff’s complaint 11 about his conduct, he became very upset and continued to verbally abuse and harass plaintiff. Id. 12 Plaintiff feared for his life and reported the ensuing campaign of harassment to a prison 13 psychiatrist, but the doctor could do nothing to help him. Plaintiff then covered his cell windows 14 in an attempt to bring attention to his situation and be moved away from officer Morton. On the 15 same day, December 27, 2016, Morton announced that he was “tired of this shit,” activated his 16 alarm, and entered plaintiff’s cell along with Officers Esquivel, Diaz, Prada, Barrett, Ma, Rankins 17 and Saetern. Plaintiff was pushed against the wall and then to the floor, handcuffed, and then 18 punched in the face and lower body and kicked all over. While the named officers were 19 assaulting plaintiff, Officers Fajardo and Ny failed to intervene. ECF No. 22 at 12-13. 20 Morton thereafter falsified his report about what had happened, and had plaintiff placed in 21 the administrative segregation unit on false charges of assault. This was to cover up Morton’s 22 own use of excessive force. Id. at 13. 23 III. Claims for Which a Response Will Be Required 24 A. Claim One: First Amendment Retaliation 25 Plaintiff’s First Cause of Action is for retaliation. ECF No. 22 at 14. It is well-established 26 that incarcerated persons have a First Amendment right to file prison grievances. Brodheim v. 27 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citations omitted). Adverse actions taken by 28 correctional officers in response to such protected activity can support a retaliation claim.
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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 SAMORY MCQUEEN, No. 2:17-cv-0378 WBS AC P 12 Plaintiff, 13 v. ORDER 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before the court is plaintiff’s Second Amended Complaint (“SAC”). See ECF No. 22. As 21 explained more fully below, the court finds that some of plaintiff’s allegations state claims against 22 some defendants and some do not. Plaintiff may elect to proceed immediately on the claims that 23 are found below to be viable, or he may amend for a final time. 24 I. Statutory Screening of Prisoner Complaints 25 The court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 28 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 1 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 2 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 3 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 4 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 5 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 6 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 7 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 8 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 9 Franklin, 745 F.2d at 1227-28 (citations omitted). 10 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 11 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 12 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 13 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 14 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 15 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 16 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 17 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 18 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 19 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 20 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 21 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 22 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 23 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 24 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 25 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 26 content that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 28 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 1 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 2 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 3 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 4 II. The Second Amended Complaint 5 Plaintiff, a former inmate at California Health Care Facility (“CHCF”), names as 6 defendants CHCF correctional officers S. Morton, G. Esquivel, M. Diaz, B. Barrett, J. Prado, J. 7 Rankins, L. Ma, K. Saetern, E. Fajardo, and N. Ny. ECF No. 22 at 2-3. The SAC alleges in sum 8 a follows. 9 In November 2016, plaintiff filed a CDCR Form 22 reporting that Officer Morton had 10 been harassing him and threatening to beat him. When Morton learned of plaintiff’s complaint 11 about his conduct, he became very upset and continued to verbally abuse and harass plaintiff. Id. 12 Plaintiff feared for his life and reported the ensuing campaign of harassment to a prison 13 psychiatrist, but the doctor could do nothing to help him. Plaintiff then covered his cell windows 14 in an attempt to bring attention to his situation and be moved away from officer Morton. On the 15 same day, December 27, 2016, Morton announced that he was “tired of this shit,” activated his 16 alarm, and entered plaintiff’s cell along with Officers Esquivel, Diaz, Prada, Barrett, Ma, Rankins 17 and Saetern. Plaintiff was pushed against the wall and then to the floor, handcuffed, and then 18 punched in the face and lower body and kicked all over. While the named officers were 19 assaulting plaintiff, Officers Fajardo and Ny failed to intervene. ECF No. 22 at 12-13. 20 Morton thereafter falsified his report about what had happened, and had plaintiff placed in 21 the administrative segregation unit on false charges of assault. This was to cover up Morton’s 22 own use of excessive force. Id. at 13. 23 III. Claims for Which a Response Will Be Required 24 A. Claim One: First Amendment Retaliation 25 Plaintiff’s First Cause of Action is for retaliation. ECF No. 22 at 14. It is well-established 26 that incarcerated persons have a First Amendment right to file prison grievances. Brodheim v. 27 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citations omitted). Adverse actions taken by 28 correctional officers in response to such protected activity can support a retaliation claim. To 1 state a viable claim of First Amendment retaliation, an inmate must plead facts showing that (1) a 2 state actor took some adverse action against the inmate (2) because of (3) that prisoner’s protected 3 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 4 (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 5 F.3d 559, 567-68 (9th Cir. 2005) (fn. and citations omitted). Allegation of a concrete harm from 6 the retaliatory conduct will satisfy the “chilling” requirement. Id. at 568, n.11. 7 The allegations of the SAC support a retaliation claim against Officer Morton. Plaintiff 8 contends in essence that Morton escalated his harassment of plaintiff and ultimately orchestrated 9 a beating in retaliation for plaintiff’s complaint about his previous misconduct. Morton is alleged 10 to have known about and been angered by the complaint, and the alleged facts thus adequately 11 support an inference of retaliatory intent. Accordingly, defendant Morton will be required to 12 respond to Claim One. 13 B. Claims Two and Three: Eighth Amendment Excessive Force 14 The SAC’s Second and Third Causes of Action assert that plaintiff’s due process and 15 Eighth Amendment rights were violated by the false report, administrative segregation placement, 16 and other disciplinary consequences. ECF No. 22 at 14-17. Plaintiff also seeks relief for the 17 alleged use of excessive force by Officers Morton, Esquivel, Diaz, Prado, Barrett, Rankins, Ma, 18 Saetern, Fajardo and Ny. Id. at 15-17. 19 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 20 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 21 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992)). 22 “[W]henever prison officials stand accused of using excessive physical force in violation of the 23 [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-faith 24 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 25 503 U.S. at 6-7. 26 The allegations of the SAC are sufficient to state an excessive force claim against 27 defendants Morton, Esquivel, Diaz, Prado, Barrett, Rankins, Ma, and Saetern. Plaintiff’s 28 allegations, liberally construed, establish that these individuals directly participated in punching 1 and kicking plaintiff while he was handcuffed on the floor, which would reflect the required 2 malicious intent. These defendants will be required to respond to that portion of Claims Two and 3 Three alleging the excessive use of force on December 27, 2016. 4 IV. Failure to State a Claim 5 A. Claim One (Retaliation) as to Defendants Other Than Morton 6 As noted above, plaintiff has alleged facts showing that Morton was aware of plaintiff’s 7 complaint against him, and behaved in a retaliatory manner. To the extent that plaintiff seeks to 8 hold Officers Esquivel, Diaz, Prado, Barrett, Rankins, Ma, Saetern, Fajardo and Ny liable for 9 retaliation, his allegations fail to state a claim against them. None of the other defendants is 10 alleged to have known about plaintiff’s complaint against Morton, expressed hostility to plaintiff 11 on that basis, participated in Morton’s campaign of harassment, or participated in the alleged 12 beating because of plaintiff’s protected First Amendment activity. Accordingly, Claim One of the 13 SAC does not state a viable retaliation claim against any defendant other than Morton. 14 B. Claims Two and Three (Excessive Force) as to Defendants Fajardo and Ny 15 Peace officers have an affirmative duty to intervene to protect those in custody from 16 constitutional abuses by their fellow officers. See United States v. Reese, 2 F.3d 870, 887-88 (9th 17 Cir. 1993); Ting v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991). Officers may be held 18 liable for failing to intercede if they had an opportunity to do so. See Cunningham v. Gates, 229 19 F.3d 1271, 1289 (9th Cir. 2000). However, plaintiff’s allegations that Officer Fajardo and Ny 20 failed to intercede are entirely conclusory. These defendants are not alleged to have entered 21 plaintiff’s cell with Morton and the others. There are no allegations specifying where Fajardo and 22 Ny were, what they were doing, or otherwise supporting an inference that they had a reasonable 23 opportunity to intercede. Accordingly, plaintiff has not stated a claim against them. 24 C. Claims Two and Three (Due Process) 25 In the SAC’s Second and Third Causes of Action, plaintiff contends that his Due Process 26 and Eighth Amendment rights were violated by the false report that Morton wrote about the use 27 of force incident, plaintiff’s initial placement in administrative segregation, and the 90-day credit 28 loss and SHU term he ultimately received on the basis of the false charges. ECF No. 22 at 14-17. 1 The Due Process Clause does not guarantee freedom from false accusations, and the filing 2 of a false disciplinary report against an inmate therefore is not actionable under Section 1983 3 where procedural due process protections were provided. See Freeman v. Rideout, 808 F.2d 949, 4 951-952 (2nd Cir. 1986); Hanrahan v. Lane, 747 F.2d 1137. 1141 (7th Cir. 1984). Plaintiff 5 cannot state a claim for relief based on the alleged falsity of the report or disciplinary charges. 6 Due process does require certain minimal procedural protections in the prison disciplinary 7 context. A prisoner must generally be provided with (1) written notice of the charges; (2) a 8 hearing with advance notice; (3) a written statement by the fact finders of the evidence relied on 9 and the reasons for taking disciplinary action; (4) the opportunity to call witnesses in his defense, 10 if doing so would not be unduly hazardous to institutional safety or correctional goals; and (5) 11 legal assistance if he is illiterate or the issues are particularly complex. Wolff v. McDonnell, 418 12 U.S. 539, 556-71 (1974). Plaintiff has provided no information about his disciplinary hearing, 13 and has alleged no facts showing that he was denied any of these procedural due process 14 protections. Accordingly, he has not stated a claim for the denial of procedural due process. 15 Finally, plaintiff cannot state a constitutional claim for placement in segregation because 16 due process is only implicated by restraint which imposes atypical and significant hardship on a 17 prisoner in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 18 483-84 (1995). The Ninth Circuit has held that administrative segregation does not meet this 19 standard, because it is contemplated by the inmate’s sentence. See May v. Baldwin, 109 F.3d 20 557, 565 (9th Cir. 1997). Disciplinary segregation, too, is generally contemplated by the 21 underlying sentence. See Resnick v. Hayes, 213 F.3d 443 (9th Cir. 2000). Plaintiff has pleaded 22 no facts showing that anything about his segregated confinement imposed “atypical and 23 significant hardship.” Nor has he alleged that he was subjected in administrative segregation or 24 in the SHU to specific conditions of confinement that amounted to “cruel and unusual 25 punishment” within the meaning of the Eighth Amendment. Accordingly, plaintiff has not stated 26 a claim for relief under either the Due Process Clause or the Eighth Amendment related to his 27 segregation. 28 //// 1 V. Leave to Amend 2 For the reasons set forth above, the court finds that the complaint does not state 3 cognizable claims based on the allegedly false report, disciplinary proceedings, credit loss, or 4 segregation. The court finds that plaintiff has stated a First Amendment retaliation claim against 5 defendant Morton only, and an excessive force claim against defendants Morton, Esquivel, Diaz, 6 Prado, Barrett, Rankins, Ma, and Saetern only. Neither of those two claims are sufficient against 7 any other defendants, however. Because it is possible that plaintiff could allege facts to remedy 8 the defects of some claims against some defendants, he will be provided an opportunity to 9 amend.1 In the alternative, he may proceed immediately on the claims that have been found 10 suitable for service, dismissing all other claims and defendants. 11 Plaintiff may proceed forthwith to serve defendants Morton on his First Amendment 12 retaliation claims, and defendants Morton, Esquivel, Diaz, Prado, Barrett, Rankins, Ma, and 13 Saetern on his excessive force claim, or he may delay serving any defendant and amend the 14 complaint. 15 Plaintiff will be required to complete and return the attached notice advising the court how 16 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 17 file an amended complaint. If plaintiff elects to proceed on his retaliation claim against Morton 18 and his excessive force claim against Morton, Esquivel, Diaz, Prado, Barrett, Rankins, Ma, and 19 Saetern without amending the complaint, the court will proceed to serve the complaint. A 20 decision to go forward without amending the complaint will be considered a voluntarily dismissal 21 without prejudice of all other claims and defendants. 22 If plaintiff chooses to file an amended complaint, it will take the place of plaintiff’s 23 original complaint. See Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) (stating 24 ////
25 1 Plaintiff is informed that, for the reasons explained above, the undersigned will recommend 26 dismissal of any claim included in a Third Amended Complaint that is based on (1) the allegedly false report and/or disciplinary charges; (2) the 90-day credit loss, unless plaintiff was denied a 27 disciplinary hearing as required by Wolff; or (3) plaintiff’s placement in segregation, unless something about the conditions in segregation independently violated Eight Amendment 28 minimum standards of confinement. 1 amended complaint supersedes original complaint). Any amended complaint filed should 2 observe the following: 3 An amended complaint must identify as a defendant only persons who personally 4 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. 5 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 6 constitutional right if he does an act, participates in another's act or omits to perform an act he is 7 legally required to do that causes the alleged deprivation). 8 An amended complaint must also contain a caption including the names of all defendants. 9 Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated 10 claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 11 Any amended complaint must be written or typed so that it is complete in itself without 12 reference to any earlier filed complaint. See E.D. Cal. L.R. 220. This is because an amended 13 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 14 earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375 F.2d 55, 15 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being treated 16 thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 17 (2012). 18 IV. Summary for Pro Se Plaintiff 19 The magistrate judge finds that you have stated a claim against Officer Morton for 20 retaliating against you, and against Officers Morton, Esquivel, Diaz, Barrett, Prado, Rankins, Ma, 21 and Saetern for excessive force. If you want to move forward on those claims right away and 22 drop your other claims, the court will order the Second Amended Complaint to be served on those 23 defendants. You could also choose to amend your complaint one last time, to try to fix some of 24 the claims that the court has found do not state a claim for relief. You have 14 days to let the 25 court know what you want to do. 26 If you want to amend the complaint, you will be given thirty days to do so. You should 27 keep in mind that (1) you cannot base a claim on a false report or false RVR charges, and (2) you 28 cannot base a claim on a disciplinary finding or punishment if you had a hearing that followed the 1 | rules. To state a retaliation claim against anyone other than Morton, you have to present facts 2 | showing that they acted against you because of the complaint you had filed about Morton. 3 CONCLUSION 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. The Second Amended Complaint has been screened as follows: 6 a. Plaintiffs First Cause of Action states a cognizable retaliation claim against 7 defendant Morton only, and does not state a claim for relief against any other defendant. 8 b. Plaintiffs Second and Third Causes of Action state a cognizable excessive 9 force claim against defendants Morton, Esquivel, Diaz, Barrett, Prado, Rankins, Ma, and 10 Saetern but not against defendants Fajardo and Ny. 11 c. The Second and Third Causes of Action do not state a claim for relief against 12 any defendant under the Due Process Clause or on any basis other than use of excessive 13 force. 14 2. Plaintiff has the option to proceed immediately on his First Amendment retaliation 15 | claim against defendant Morton and his Eighth Amendment excessive force claim against 16 || defendants Morton, Esquivel, Diaz, Barrett, Prado, Rankins, Ma, and as set forth in Section HI 17 || above, or to amend the complaint. 18 3. Within fourteen days of service of this order, plaintiff shall complete and return the 19 | attached form notifying the court whether he wants to proceed on the screened complaint or 20 || whether he wants to file a third amended complaint. If plaintiff does not return the form, the 21 || court will assume that he is choosing to proceed on the complaint as screened and will 22 || recommend dismissal without prejudice of all other claims and defendants. 23 || DATED: January 11, 2022 ~ 24 Chttt0n— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMORY MCQUEEN, No. 2:17-cv-0378 WBS AC P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 CHECK ONE: 17 Plaintiff would like to proceed immediately on his First Amendment retaliation claim 18 against Defendant Morton and his Eighth Amendment excessive force claim against Defendants 19 S. Morton, G. Esquivel, M. Diaz, B. Barrett, J. Prado, J. Rankins, L. Ma, and K. Saetern only. By 20 choosing to go forward without amending the complaint, plaintiff consents to the dismissal 21 without prejudice of the claims against the remaining named defendants pursuant to Federal Rule 22 of Civil Procedure 41(a)(1). 23 Plaintiff would like to amend the complaint. 24 DATED: 25 _______________________________ SAMORY MCQUEEN 26 Plaintiff Pro Se 27 28