Sammy Lee Morris v. E. Burrkhouse

• Court: District Court, C.D. California
• Decided: May 11, 2020
• Docket: 2:19-cv-05839
• Status: Unknown

Opinion

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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 SAMMY LEE MORRIS, Case No. CV 19-5839-SVW (KK) 11 Plaintiff, 12 v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AND 13 E. BURRKHOUSE, ET AL., DENYING DEFENDANTS’ MOTION TO DISMISS AS MOOT 14 Defendants. 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Sammy Lee Morris (“Plaintiff”), proceeding pro se and in forma 20 pauperis, has filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”). The 21 sole remaining claim in the Complaint appears to be an Eighth Amendment claim 22 against defendants E. Burrkhouse, C. King, M. Rosales, D. Schumacher, J. Anderson, 23 J. Curiel, and Dr. Scott (“Defendants”). Defendants have filed a Motion to Dismiss 24 the Complaint. As discussed below, the Court dismisses the Complaint with leave to 25 amend and denies Defendants’ Motion to Dismiss as MOOT. 26 /// 27 /// 1 II. 2 BACKGROUND 3 On June 30, 2019, Plaintiff constructively filed1 the Complaint pursuant to 4 Section 1983. Dkt. 1, Compl. The Complaint appeared to set forth the following 5 claims under two “cause of action” headings: (1) violation of Plaintiff’s Eighth 6 Amendment right to privacy by defendants Burrkhouse, King, Rosales, Schumacher, 7 and Anderson; (2) violation of Plaintiff’s Fourth Amendment right to privacy by 8 defendants Burrkhouse, King, Rosales, Schumacher, and Anderson; (3) violation of 9 Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment by 10 all Defendants based on requiring him to wear a control jumpsuit identifying him as a 11 “sexual predator-offender” and subjecting him to “degrading name calling” and 12 “threats of violence and death”; and (4) violation of Plaintiff’s Fourteenth 13 Amendment right to equal protection by all Defendants. Id. at 14-17. Additionally, 14 as discussed below, the Court now offers Plaintiff the opportunity to clarify whether 15 he seeks to bring a claim for a violation of Plaintiff’s First Amendment rights based 16 on retaliation by defendant Curiel. 17 On August 28, 2019, the Court issued an Order Dismissing the Complaint with 18 Leave to Amend. Dkt. 10. 19 On September 4 and 5, 2019, as one document, see dkt. 11, Plaintiff 20 constructively filed a “Notice of Dismissal” voluntarily dismissing his privacy and 21 equal protection claims from the Complaint, indicating “notice of dismissal (1) (2) (4) 22 from Complaint”, id. at 1, and a First Amended Complaint (“FAC”), id. at 2-8, stating 23 Plaintiff was requesting to “[p]roceed on the remaining violation of his Eighth 24 Amendment Right to be free from cruel and unusual punishment by all Defendants . . 25 . Plaintiff sues defendants E. Burrkhouse, C. King, M. Rosales, D. Schumacher, J. 26 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading 27 to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Douglas v. Noelle, 1 Anderson, J. Curiel, and Dr. Scott each in their individual capacity”, id. at 7, and 2 “Plaintiff voluntarily dismiss[es] the action without prejudice pursuant to Federal Rule 3 of Civil Procedure 41(a) Notice of Dismissal (1) (2) (4) from Complaint,” id. at 6. 4 On September 18, 2019, the Court issued an Order construing Plaintiff’s filing 5 as “voluntarily dismiss[ing] the claims identified as deficient in the Court’s August 26, 6 2019 Order and seek[ing] to proceed with his Eighth Amendment claim against all 7 Defendants set forth in the Original Complaint”. Dkt. 13. The Court instructed, “If 8 Plaintiff disagrees with the Court’s construction, he shall file a statement clarifying his 9 intent no later than fourteen (14) days from the date of this Order. If Plaintiff does 10 not respond to this Order, the Court will construe the Original Complaint as the 11 operative complaint alleging a single Eighth Amendment Claim against Defendants 12 and will order service of the Original Complaint on Defendants.” Id. Plaintiff did 13 not respond. 14 On March 5, 2020, Defendants filed a Motion to Dismiss the Complaint, 15 arguing (a) Plaintiff fails to state an Eighth Amendment claim; (b) Defendants are 16 entitled to qualified immunity; and (c) the Complaint violates Rule 8 of the Federal 17 Rules of Civil Procedure.2 Dkt. 41. On March 16, 2020, Plaintiff constructively filed 18 an Opposition. Dkt. 45. Defendants did not file a Reply. 19 III. 20 ALLEGATIONS IN THE COMPLAINT 21 In the Complaint, Plaintiff alleges that on May 17, 2018, while Plaintiff was an 22 inmate at California State Prison – Los Angeles County (“CSP-LAC”), defendant 23 Burrkhouse falsely accused Plaintiff of indecent exposure, resulting in a rules violation 24 report. Dkt. 1 at 11. Plaintiff alleges defendant Rosales reviewed the report with 25 defendant Burrkhouse and “conspired to push the report forward” to convince 26 defendant Schumacher (a lieutenant) to have defendant Anderson (a captain) classify 27 1 the rules violation as “serious” despite knowing that neither the “factual nor the legal 2 elements” were sufficient to sustain defendant Burrkhouse’s accusation. Id. Plaintiff 3 alleges that as a result of the rule violation report and the “sexual abuse and arbitrary 4 actions of Defendants,” he was placed in administrative segregation with a yellow 5 placard covering his cell window to identify him as a “sex offender” and was forced to 6 wear a special jumpsuit whenever he left his cell, including to therapy groups, medical 7 and dental appointments, the exercise yard, “where other inmates viewed him as a 8 sexual offender, calling him nasty names, and placing a target on him to be attacked 9 because known sex offenders are usually attacked, and often fatally killed.” Id. at 11- 10 12. Plaintiff specifically alleges he was subjected to “threats of violence and death . . . 11 each time he would leave his cell being exposed in the jumpsuits in front of others.” 12 Id. at 15. Plaintiff alleges “known sexual predators offenders are always subjected to 13 violence even death by other inmates.” Id. 14 Plaintiff further alleges he was ultimately placed in an “indecent exposure pilot 15 program at California State Prison Corcoran [‘CSP-Corcoran’] for 4 months,” which 16 “made him more of a ‘target’ with inmates and staff,” and he was “attacked again.” 17 Id. at 13. Although unclear as to when,3 Plaintiff alleges he was sent to Salinas Valley 18 State Prison (“SVSP”) because defendant Scott “conspired with defendant[] 19 Burrkhouse to take [Plaintiff] for treatment and send [Plaintiff] to a war zone at SVSP 20 Facility B yard.” Id. at 12-13. 21 Plaintiff asserts he was ultimately “found not guilty of the Rule violation.” Id. 22 at 13. 23

24 3 It is unclear whether this occurred before or after the May 17, 2018 incident. Plaintiff’s timeline of events in the Complaint is difficult to discern, but it appears 25 from Plaintiff’s allegations that the May 17, 2018 incident occurred shortly after his return from SVSP and resulted in his transfer to the CSP-Corcoran pilot program. 26 Plaintiff alleges, however, that “at all times relevant to this civil action Plaintiff was incarcerated at CSP- Los Angeles” and that all Defendants were employed at CSP- 27 LAC. Complaint at 9-10. Thus, the Court construes these statements in the Complaint to indicate that Plaintiff is challenging the May 17, 2018 rules violation 1 IV. 2 STANDARD OF REVIEW 3 Where a plaintiff is incarcerated and/or proceeding in forma pauperis, a court 4 must screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to 5 dismiss the case at any time if it concludes the action is frivolous or malicious, fails to 6 state a claim on which relief may be granted, or seeks monetary relief against a 7 defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see 8 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 9 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 10 “short and plain statement of the claim showing that the pleader is entitled to relief.” 11 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for 12 screening purposes, a court applies the same pleading standard as it would when 13 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 14 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 15 A complaint may be dismissed for failure to state a claim “where there is no 16 cognizable legal theory or an absence of sufficient facts alleged to support a 17 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 18 considering whether a complaint states a claim, a court must accept as true all of the 19 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 20 2011). However, the court need not accept as true “allegations that are merely 21 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 22 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 23 need not include detailed factual allegations, it “must contain sufficient factual matter, 24 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 25 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 26 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it 27 “allows the court to draw the reasonable inference that the defendant is liable for the 1 underlying facts to give fair notice and to enable the opposing party to defend itself 2 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 3 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 4 however inartfully pleaded, must be held to less stringent standards than formal 5 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). 6 However, liberal construction should only be afforded to “a plaintiff’s factual 7 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 8 339 (1989), and a court need not accept as true “unreasonable inferences or assume 9 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 10 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 11 If a court finds the complaint should be dismissed for failure to state a claim, 12 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 13 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it 14 appears possible the defects in the complaint could be corrected, especially if the 15 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 16 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 17 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 18 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 19 V. 20 DISCUSSION 21 A. PLAINTIFF FAILS TO STATE AN EIGHTH AMENDMENT CLAIM 22 AGAINST DEFENDANTS KING, SCOTT, AND CURIEL 23 1. Applicable Law 24 “The Eighth Amendment imposes a duty on prison officials to protect inmates 25 from violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050 26 (9th Cir. 2015). To maintain an Eighth Amendment claim, a prisoner must show that 27 prison officials were deliberately indifferent to a substantial risk of harm to his health 1 2d 811 (1994); Harris v. Roberts, 719 F. Supp. 879, 880 (N.D. Cal. 1989) (“Allegations 2 that [prison] officials were deliberately indifferent to the threat of serious harm or 3 injury to a prisoner may provide a basis for relief.” (citing Gillespie v. Civiletti, 629 4 F.2d 637, 642 (9th Cir. 1980))). Deliberate indifference requires a showing of both 5 objective and subjective components. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 6 2002). The objective component requires a prisoner demonstrate “he was deprived of 7 something sufficiently serious.” Foster v. Runnells, 554 F.3d 807, 812 (9th Cir. 2009) 8 (quoting Farmer, 511 U.S. at 834). The risk must be “substantial,” but it is well settled 9 “a prisoner need not wait until he is actually assaulted before obtaining relief.” 10 Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993); see 11 also Farmer, 511 U.S. at 845. 12 The subjective component requires prison officials acted with the culpable 13 mental state, which is “deliberate indifference” to the inmate’s health or safety. 14 Farmer, 511 U.S. at 837-38; Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. 15 Ed. 2d 251 (1976) (stating deliberate indifference “constitutes the unnecessary and 16 wanton infliction of pain proscribed by the Eighth Amendment” (citation omitted)). 17 “[A] prison official cannot be found liable under the Eighth Amendment for denying 18 an inmate humane conditions of confinement unless the official knows of and 19 disregards an excessive risk to inmate health or safety; the official must both be aware 20 of facts from which the inference could be drawn that a substantial risk of serious 21 harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837-38. “A 22 fact-finder may infer subjective awareness from circumstantial evidence.” Wilk v. 23 Neven, No. 17-17355, 2020 WL 1949281, at *3 (9th Cir. Apr. 23, 2020) (citations 24 omitted). 25 2. Analysis 26 Here, Plaintiff does not sufficiently allege facts to state an Eighth Amendment 27 Claim against defendants King, Scott, or Curiel. In the Complaint’s “cause of action” 1 Rosales, Schumacher and Anderson) “had known or should have known [defendant 2 Burrkhouse’s] allegations did not contain the factual nor legal elements to sustain the 3 charges” of an indecent exposure charge, and “joined in to impose further harm, pain 4 and suffering upon Plaintiff resulting in his ad-seg placement, yellow window 5 covering, and control jumpsuit placement . . . for no legitimate, just cause, but 6 purposely to cause harm.” Dkt. 1 at 16. However, while Plaintiff sets forth 7 additional, specific allegations against defendants Rosales, Schumacher and Anderson, 8 id. at 11, Plaintiff’s allegations that defendants King, Scott and Curiel knew of the 9 rules violation issued by defendant Burrkhouse and “joined in” to impose harm are 10 conclusory and not supported by any facts. Plaintiff’s allegations that defendant Scott 11 “conspired with defendant[] Burrkhouse to take [Plaintiff] for treatment and send 12 [Plaintiff] to a war zone at SVSP Facility B yard” are similarly conclusory. 13 Additionally, Plaintiff fails to demonstrate how defendant Scott’s alleged participation 14 in a decision to send Plaintiff to SVSP, which appears to have occurred before the 15 May 17, 2018 indecent exposure incident, is related to the other allegations in the 16 Complaint, or constitutes deliberate indifference to a substantial risk of serious harm. 17 Id. at 12-13. 18 Accordingly, the Eighth Amendment cruel and unusual punishment claims 19 against defendants King, Scott and Curiel are subject to dismissal. 20 B. TO THE EXTENT PLAINTIFF SEEKS TO STATE A FIRST 21 AMENDMENT RETALIATION CLAIM AGAINST DEFENDANT 22 CURIEL THIS CLAIM FAILS 23 1. Applicable Law 24 “Prisoners have a First Amendment right to file grievances against prison 25 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 26 1108, 1114 (9th Cir. 2012) (citation omitted); Soranno’s Gasco, Inc. v. Morgan, 874 27 F.2d 1310, 1314 (9th Cir. 1989). To state a viable First Amendment retaliation claim, 1 some adverse action against an inmate (2) because of (3) that prisoner’s protected 2 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 3 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 4 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see Pratt v. Rowland, 65 5 F.3d 802, 808 (9th Cir. 1995) (observing prisoner “must show that there were no 6 legitimate correctional purposes motivating the actions he complained of”). 7 Adverse action is action that “would chill a person of ordinary firmness” from 8 engaging in that activity. Pinard v. Clatskanie School District, 467 F.3d 755, 770 (9th 9 Cir. 2006). Though an adverse action need not be an independent constitutional 10 violation, inconsequential or de minimis harms do not constitute adverse actions. 11 Watison, 668 F.3d at 1114 (to support a claim, a harm must be “more than minimal”). 12 2. Analysis 13 It does not appear based on the structure of the Complaint that Plaintiff seeks 14 to raise a First Amendment retaliation claim at this time. However, out of an 15 abundance of caution, to the extent Plaintiff seeks to raise a First Amendment claim 16 for retaliation against defendant Curiel, this claim is subject to dismissal.4 17 Plaintiff alleges defendant Curiel, the “appeal coordinator,” withheld a 18 grievance5 Plaintiff had submitted “for 6 months then screen[ed] it all and tr[ied] to 19 4 The First Amendment retaliation allegations against defendant Curiel are not set 20 forth under the “cause of action” headings, nor did Plaintiff ever assert a First Amendment retaliation claim when responding to the Court’s orders. See, e.g., dkt. 21 11 (Plaintiff’s request to “[p]roceed on the remaining violation of his Eighth Amendment Right to be free from cruel and unusual punishment by all Defendants”); 22 dkt. 13 (Order warning Plaintiff, who did not respond to the Order, “If Plaintiff does not respond to this Order, the Court will construe the Original Complaint as the 23 operative complaint alleging a single Eighth Amendment Claim against Defendants and will order service of the Original Complaint on Defendants.”). If Plaintiff wishes 24 to assert a First Amendment claim against defendant Curiel, he must clearly state so in his response to this Order. If Plaintiff responds by filing a First Amended Complaint, 25 the First Amended Complaint must clearly indicate Plaintiff is asserting a First Amendment claim against defendant Curiel, including supporting factual allegations. 26 If Plaintiff responds by notifying the Court he wishes to stand on the allegations in his Complaint, the Court will submit to the assigned district judge a recommendation that 27 the First Amendment claim against defendant Curiel discussed herein be dismissed with prejudice for failure to state a claim. 1 cancel it.” Id. at 13. Plaintiff asserts “Defendant J. Curiel – appeals coordinator – 2 retaliation and conspiracy to violate inmates’ first amendment right. The primary 3 problem concerts California Department of Corrections and Rehabilitation (CDCR) 4 conspiratorial practice to violate inmates First Amendment Rights, part of this 5 practice consists of manifold reprisals and deliberate disregard for rules and 6 regulations which govern their duty to receive, process and answer inmates 7 grievance[s] . . . .” Id. at 18. 8 Plaintiff’s conclusory allegations, however, do not establish defendant Curiel 9 took adverse action against Plaintiff because of any protected conduct by Plaintiff. 10 For instance, Plaintiff does not explain why defendant Curiel allegedly “withheld” and 11 tried to screen and cancel the grievance. Plaintiff also does not allege how such action 12 chilled the exercise of his First Amendment rights. Moreover, Plaintiff is not entitled 13 to any particular response to his grievances or to have his grievances “processed to 14 [his] liking.” See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no 15 legitimate claim of entitlement to a grievance procedure.”); Jordan v. Asuncion, No. 16 CV 17-1283 PSG (SS), 2018 WL 2106464, at *3 (C.D. Cal. May 7, 2018) (“[A] 17 prisoner [does not] have a constitutional right to any particular grievance outcome.”); 18 see also Carter v. Cannedy, No. 08 CV 2381 JCW, 2010 WL 3210856, at *3 (E.D. Cal. 19 Aug. 10, 2010) (noting “a prisoner’s right to petition the government is a right of 20 expression and ‘does not guarantee a response to the petition or the right to compel 21 government officials to act on’ the petition”). 22 Accordingly, to the extent Plaintiff seeks to bring a First Amendment 23 retaliation claim against defendant Curiel, the claim is subject to dismissal. 24 /// 25 /// 26 /// 27 1 VI. 2 LEAVE TO FILE FIRST AMENDED COMPLAINT 3 For the foregoing reasons, the Complaint is subject to dismissal. As the Court 4 is unable to determine whether amendment would be futile, leave to amend is granted. 5 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 6 advised that the Court’s determination herein that the allegations in the Complaint are 7 insufficient to state a particular claim should not be seen as dispositive of that claim. 8 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 9 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 10 face, Plaintiff is not required to omit any claim in order to pursue this action. 11 However, if Plaintiff asserts a claim in his First Amended Complaint that has been 12 found to be deficient without addressing the claim’s deficiencies, then the Court, 13 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned 14 district judge a recommendation that such claim be dismissed with prejudice for 15 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 16 the district judge as provided in the Local Rules Governing Duties of Magistrate 17 Judges. 18 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 19 service date of this Order, Plaintiff choose one of the following three options: 20 1. Plaintiff may file a First Amended Complaint to attempt to cure the 21 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank 22 Central District civil rights complaint form to use for filing the First Amended 23 Complaint, which the Court encourages Plaintiff to use. 24 If Plaintiff chooses to file a First Amended Complaint, he must clearly 25 designate on the face of the document that it is the “First Amended Complaint,” it 26 must bear the docket number assigned to this case, and it must be retyped or 27 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 1 asserted in the Complaint. In addition, the First Amended Complaint must be 2 complete without reference to the Complaint, or any other pleading, attachment, or 3 document. 4 An amended complaint supersedes the preceding complaint. Ferdik v. 5 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 6 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 7 leave to amend as to all his claims raised here, any claim raised in a preceding 8 complaint is waived if it is not raised again in the First Amended Complaint. 9 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 10 The Court advises Plaintiff that it generally will not be well-disposed toward 11 another dismissal with leave to amend if Plaintiff files a First Amended Complaint 12 that continues to include claims on which relief cannot be granted. “[A] district 13 court’s discretion over amendments is especially broad ‘where the court has already 14 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 15 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 16 1261. Thus, if Plaintiff files a First Amended Complaint with claims on which 17 relief cannot be granted, the First Amended Complaint will be dismissed 18 without leave to amend and with prejudice. 19 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 20 stand on the allegations in his Complaint. If Plaintiff chooses to stand on the 21 Complaint despite the deficiencies in the claims identified above, then the Court will 22 submit a recommendation to the assigned district judge that the deficient claims 23 discussed in this Order be dismissed with prejudice for failure to state a claim, 24 subject to Plaintiff’s right at that time to file Objections with the district judge as 25 provided in the Local Rules Governing Duties of Magistrate Judges. If the assigned 26 district judge accepts the findings and recommendations of the undersigned 27 Magistrate Judge and dismisses the deficient claims discussed in this Order, the Court 1 will issue a separate order regarding service of any claims remaining in the Complaint 2 at that time. 3 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 4 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 5 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 6 to use if he chooses to voluntarily dismiss the action. 7 Plaintiff is explicitly cautioned that failure to timely respond to this 8 Order will result in this action being dismissed with prejudice for failure to 9 state a claim, or for failure to prosecute and/or obey Court orders pursuant to 10 Federal Rule of Civil Procedure 41(b). 11

12 Dated: May 11, 2020

13 HONORABLE KENLY KIYA KATO United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27