(PC) Hayde v. Zamora ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC RYAN HAYDE, No. 2:19-cv-00432 DB P 12 Plaintiff, 13 v. ORDER 14 E. ZAMORA, et al., 15 Defendants. 16 Plaintiff, an inmate proceeding pro se and in forma pauperis, seeks relief pursuant to 42 17 U.S.C. § 1983. Plaintiff claims defendant Edwardo Zamora retaliated against the plaintiff in 18 violation of his First Amendment rights and that defendant Zamora, along with defendant A. 19 Santo, violated plaintiff’s Fourteenth Amendment due process and equal protection rights. 20 Before the court is plaintiff’s first amended complaint (“FAC”) for screening (ECF No. 15) and 21 motion for extension of time (ECF No. 13). For the foregoing reason, plaintiff’s motion for 22 extension of time will be denied as moot and plaintiff will be given the option to either proceed 23 on the cognizable claims in his FAC or to submit an amended complaint. 24 MOTION FOR EXTENSION OF TIME 25 Plaintiff filed the initial complaint in this action on March 11, 2019. (ECF No. 1.) On 26 October 21, 2020, plaintiff notified the court that he wished to amend the complaint and filed a 27 motion requesting a forty-day extension of time to file an amended complaint. (ECF Nos. 10, 28 1 11.) The court granted plaintiff’s motion for extension of time on November 3, 2020. (ECF No. 2 12.) On December 2, 2020, plaintiff filed a second motion for extension of time. (ECF No. 13.) 3 Before the court ruled on plaintiff’s second motion, plaintiff filed an amended complaint. (ECF 4 No. 15.) 5 As plaintiff has filed an amended complaint, plaintiff’s motion for extension of time to file 6 an amended complaint will be denied as moot. 7 SCREENING 8 I. Legal Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 21 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 22 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 23 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 24 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must 26 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 27 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 28 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 1 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 2 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 3 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 6 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 7 or other proper proceeding for redress. 8 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 11 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 12 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 13 an act which he is legally required to do that causes the deprivation of which complaint is made.” 14 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 16 their employees under a theory of respondeat superior and, therefore, when a named defendant 17 holds a supervisorial position, the causal link between him and the claimed constitutional 18 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 19 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 20 concerning the involvement of official personnel in civil rights violations are not sufficient. See 21 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 22 II. Linkage Requirement 23 Under § 1983, a plaintiff bringing an individual capacity claim must demonstrate that each 24 defendant personally participated in the deprivation of his rights. See Jones v. Williams, 297 F.3d 25 930, 934 (9th Cir. 2002). There must be an actual connection or link between the actions of the 26 defendants and the deprivation alleged to have been suffered by plaintiff. See Ortez v. 27 //// 28 1 Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor v. List, 2 880 F.2d 1040, 1045 (9th Cir. 1989). 3 Government officials may not be held liable for the actions of their subordinates under a 4 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 5 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 6 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 7 violated the Constitution through his own individual actions by linking each named defendant 8 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 9 Id. at 676. 10 III. Allegations in the Complaint 11 Plaintiff was an inmate at Wasco State Prison-Reception Center (“WSP”) and, later, High 12 Desert State Prison (“HDSP”) during the events described in the FAC. (ECF No. 15 at 3-4.) The 13 FAC names as defendants Correctional Counselor Edwardo Zamora and Orange County Sheriff’s 14 Department (“OCSD”) Deputy Sheriff A. Santo. (Id. at 1.) Plaintiff alleges the defendants acted 15 under color of state law. (Id. at 5, 9.) 16 In his FAC, plaintiff alleges the following: On November 6, 2017, while located at WSP, 17 plaintiff met with defendant Zamora for a “pre-classification interview.” (Id. at 3.) Defendant 18 Zamora gave the plaintiff a document which “reflected 120 classification points.” (Id.) This was 19 higher than the plaintiff had anticipated. (Id.) Defendant Zamora informed the plaintiff that 20 defendant Santos had told defendant Zamora that plaintiff filed frivolous grievance appeals at the 21 Orange County Jail. (Id.) Defendant Zamora also stated that “plaintiff had not yet been at Wasco 22 Reception Center for 90 days and that the plaintiff was already putting his prison career in 23 jeopardy doing the same thing.” (Id.) Plaintiff asked if this was a threat and defendant Zamora 24 “smiled at the plaintiff as if this was amusing.” (Id.) Defendant Zamora told plaintiff “that out of 25 the 2 choices of prison assignments you’re going to one of the most violent prisons in California.” 26 (Id.) Defendant Zamora further told that defendant Santo had spoken with his supervisor, OCSD 27 Sergeant Merrill, who had been the plaintiff’s “classification handler” while at the Orange County 28 Jail. (Id.) Merrill told defendant Santo to “prepare his own list of disciplinary incident RVR’s 1 that go back for the past 12 months.” (Id.) It was indicated to the plaintiff that defendant Santo 2 told defendant Zamora that plaintiff was “well known and not well liked” in addition to the fact 3 that defendant Santo anticipated that “the plaintiff’s classification level would be high, and that he 4 could not wait to put the plaintiff on the bus to prison.” (Id. at 4.) 5 On November 18, 2017, plaintiff submitted a request for a copy of the “‘CDC Form 839’ 6 scoresheet that defendant Zamora used to calculate the plaintiff’s classification score.” (Id.) 7 Plaintiff was transferred to HDSP on November 20, 2017. (Id.) As he did not receive a response 8 to his request, plaintiff submitted an appeal on November 28, 2017. (Id.) On December 12, 9 2017, plaintiff received a response that included a copy of the requested CDC Form 839 10 completed by defendant Zamora as well as a copy of a 128-B “Chrono” that defendant Zamora 11 used to list fourteen disciplinary violations that occurred while plaintiff was in Orange County 12 Jail. (Id.) The incidents in these disciplinary violations are all “uncorroborated, false, and 13 unsupported by any evidence other than what defendant Zamora was prepared and proffered by 14 OC Sheriff Santo.” (Id.) Plaintiff indicates that the disciplinary violations used by defendant 15 Zamora came from the list of rules violations provided by defendant Santo. (Id.) Plaintiff also 16 believes that defendant Zamora violated “California Dept of Regulations, Dept Operations 17 Manuel, Section 61010.11” which plaintiff says required defendant Zamora to obtain the written 18 incident report for each rule violation used in calculating his placement score. (Id. at 5.) 19 Plaintiff alleges that defendant Zamora retaliated against the plaintiff for having filed 20 grievances by “grossly and improperly elevating” the plaintiff’s classification score. (Id.) 21 Plaintiff further alleges that he was not afforded the procedural due process required by Wolff v. 22 McDonnell, 418 U.S. 539 (1974) when defendant Santos created and provided a list of alleged 23 prior rules violations to defendant Zamora. (Id.) Finally, plaintiff claims defendant Zamora 24 “violated plaintiff’s 5th through his 14th amendment rights to procedural due process and equal 25 protection” by failing to request incident reports of the alleged rule violations and not ensuring 26 plaintiff received “Wolff protections.” (Id. at 8) 27 //// 28 //// 1 IV. Does Plaintiff State a Claim under § 1983? 2 A. Retaliation 3 Plaintiff alleges that defendant Zamora retaliated against the plaintiff filing grievances by 4 increasing his classification score in violation of his First Amendment rights. (Id.) 5 A viable First Amendment claim for retaliation must establish the following five 6 elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) 7 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 8 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 9 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 10 Plaintiff claims in the FAC that defendant Zamora acted against the plaintiff in the form of 11 raising his classification score. (ECF No. 15 at 4.) Plaintiff also claims that defendant took this 12 action in retaliation for plaintiff filing grievances. (Id.) It is well-established that inmates have a 13 right to file grievances against correctional officers. See Watison v. Carter, 668 F.3d 1108, 1114 14 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Thus, plaintiff 15 alleges that defendant Zamora took an adverse action against him in response to protected 16 conduct. (ECF No. 15 at 3-4.) An increase in an inmate’s placement score can result in housing 17 in a higher security level facility. Myron v. Terhune, 457 F.3d 996, 999-1000 (9th Cir. 2006). As 18 such, an increase in placement score is certainly sufficient to “chill or silence a person of ordinary 19 firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568-69. Based on the 20 allegations in the FAC, defendant Zamora’s actions were not intended to advance “a legitimate 21 correctional goal.” Id. 22 Given the above, plaintiff has alleged sufficient facts in the FAC to state a claim of 23 retaliation against defendant Zamora in violation of his First Amendment rights. 24 B. Due Process 25 Plaintiff claims that both defendant Zamora and defendant Santos violated plaintiff’s due 26 process rights under the Fourteenth Amendment. (ECF No. 15 at 8.) 27 //// 28 //// 1 1. Legal Standard for Fourteenth Amendment Due Process Claims 2 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 3 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 4 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In order to 5 state a cause of action for deprivation of procedural due process, a plaintiff must first establish the 6 existence of a liberty interest for which protection is sought. Id. 7 A state may “create liberty interests which are protected by the Due Process Clause.” 8 Sandin, 515 U.S. at 483-84. A prisoner has a liberty interest protected by the Due Process Clause 9 only where the restraint “‘imposes atypical and significant hardship on the inmate in relation to 10 the ordinary incidents of prison life.’” Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996) 11 (quoting Sandin, 515 U.S. at 484). A plaintiff must assert a dramatic departure from the standard 12 conditions of confinement before due process concerns are implicated. Sandin, 515 U.S. at 485- 13 86; Keenan, 83 F.3d at 1088-89. 14 Prisoners are entitled to be free from arbitrary actions by prison officials. Wolff v. 15 McDonnell, 418 U.S. 539, 558 (1974); Hanrahan v. Lane, 747 F.2 1137, 1140 (7th Cir. 1984) 16 (citing Wolff). In Wolff, the Supreme Court determined that a litigant has received adequate 17 procedural due process during prison disciplinary proceedings when he has been given the 18 following: (1) advance, written notice of violation; (2) provision of at least 24 hours to prepare for 19 committee appearance; (3) written statement of fact-finding; (4) the right to present witnesses and 20 evidence where it would not be unduly hazardous to institutional safety; (5) an impartial decision- 21 making body, and (6) assistance if inmate is illiterate or if issues are complex. Wolff, 418 U.S. at 22 564-70; See generally Hanrahan v. Lane, 747 F.2 1137, 1140 (7th Cir. 1984). These requirements 23 protect inmates from “arbitrary actions extinguishing their privileges.” Hanrahan, 747 F.2d at 24 1140 (citation omitted). 25 The Due Process Clause does not grant a broad right to be free from false or wrong 26 accusations. Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986). However, filing a false 27 disciplinary charge against an inmate is actionable under Section 1983 if procedural due process 28 protections are not provided. See Freeman, 808 F.2d at 951-52; Hanrahan, 747 F.2d at 1141. 1 2. Defendant Zamora 2 Plaintiff claims defendant Zamora violated his due process rights by failing to request 3 each of the incident reports of plaintiff’s alleged rule violations to confirm the information 4 provided by defendant Santos was accurate. (ECF No. 15 at 8.) Plaintiff also claims defendant 5 Zamora violated these rights because he “did not receive any ‘Wolff Protections’ before or after 6 the alleged investigations.” (Id.) These claims are not cognizable. 7 Defendant Zamora’s purported violation of prison regulations is not sufficient to state a 8 claim. The violation of a departmental regulation does not establish the existence of a federal 9 constitutional violation. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (citing Case v. 10 Kitsap County Sheriff's Dep't, 249 F.3d 921, 930 (9th Cir. 2001)) (citations omitted). As such, 11 even if defendant Zamora did not follow prison regulations, this does not show he violated 12 plaintiff’s due process rights. 13 Plaintiff also claims that defendant Zamora did not act with “due diligence” in 14 determining plaintiff’s classification. (ECF No. 15 at 8.) Institutional staff have discretion to 15 make classification decisions so long as that discretion is not exercised in an arbitrary or 16 capricious manner. Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994). Under the facts alleged, 17 defendant Zamora received a list of rules violations from defendant Santos and relied on those to 18 make a classification decision. (ECF No. 15 at 7-8.) Defendant Zamora’s reliance on this list in 19 helping to determine plaintiff’s classification score is neither arbitrary nor capricious. Thus, it 20 does not plaintiff’s due process rights. 21 Further, defendant Zamora did not violate due process if plaintiff did not receive “Wolff 22 protections” for the disciplinary violations provided by defendant Santos. The requirements 23 described by Wolff are specific to disciplinary hearings. Wolff, 418 U.S. at 564-70 (“The 24 procedures we have now required in prison disciplinary proceedings represent a reasonable 25 accommodation between the interests of the inmates and the needs of the institution.”). If 26 plaintiff was denied the procedural due process rights from Wolff for the disciplinary violations 27 relied on by defendant Zamora, the proper defendant would be the individuals who denied 28 plaintiff that right. See Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 1 423 U.S. 362 (1976). Defendant Zamora receiving a list of rules violations from defendant 2 Santos and using it to determine plaintiff’s classification score does not violate plaintiff’s due 3 process rights. 4 As such, plaintiff has stated sufficient facts to state a claim against defendant Zamora for 5 violation of his due process rights under the Fourteenth Amendment. For the reasons stated 6 above, this claim is without merit and plaintiff will not be permitted to amend these claims. See 7 Hartmann v. Calif. Dept. of Corrs. and Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district 8 court may deny leave to amend when amendment would be futile.”); accord Lopez v. Smith, 203 9 F.3d 1122, 1129 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a complaint 10 lacks merit entirely.”). 11 3. Defendant Santos 12 Plaintiff seems to allege that defendant Santos was responsible for the denial of plaintiff’s 13 Wolff protections for the rules violations that defendant Santos provided to defendant Zamora. 14 However, plaintiff does not allege sufficient facts to support this claim. The FAC does not 15 include any factual allegations related to the individual rule violations or, more importantly, the 16 due process protections afforded to the plaintiff when he was given each violation. 17 Accordingly, under the facts alleged plaintiff has failed to state a claim against defendant 18 Santos for violation of his due process rights. Plaintiff will be given the option of amending his 19 complaint. 20 C. Equal Protection 21 The FAC also claims that defendant Zamora violated the equal protection rights provided 22 to the plaintiff by the Fourteenth Amendment. (ECF No. 15 at 8.) 23 The Equal Protection Clause requires that persons who are similarly situated be treated 24 alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Hartmann, 707 F.3d at 25 1123; Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 26 891 (9th Cir. 2008). State prison inmates retain a right to equal protection of the laws guaranteed 27 by the Fourteenth Amendment. Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (citing Lee 28 v. Washington, 390 U.S. 333, 334 (1968)). An equal protection claim may be established by 1 showing that defendants intentionally discriminated against plaintiff based on his membership in 2 a protected class, Hartmann, 707 F.3d at 1123, or that similarly situated individuals were 3 intentionally treated differently without a rational relationship to a legitimate state purpose, 4 Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 601-02 (2008). 5 Plaintiff has not alleged any facts which show that he is a member of a protected class or 6 that he was discriminated against due to his membership in that class. Plaintiff states that he was 7 treated differently from “similarly situated pre-trial detainees.” (ECF No. 15 at 8.) However, 8 without alleging facts that show plaintiff is a member of a protected class and that his treatment 9 resulted from his membership in that protected class, these allegations are insufficient to state an 10 equal protection claim. Hartmann, 707 F.3d at 1123. 11 For these reasons, plaintiff’s claim is without merit.1 Plaintiff will not be permitted to 12 amend these claims. See Hartmann, 707 F.3d at 1130. 13 AMENDING THE COMPLAINT 14 This court finds above that plaintiff’s complaint states cognizable claims against 15 defendant Zamora for retaliation in violation of plaintiff’s rights under the First Amendment. 16 However, plaintiff will be given the option to proceed on his cognizable claims or to file an 17 amended complaint. An amended complaint may state claims against defendant Santos for 18 violation of his due process rights or state claims against any other defendant. Any amended 19 complaint must be complete in itself. The court cannot refer to a prior complaint to understand 20 the plaintiff’s claims. 21 If plaintiff chooses to file an amended complaint, he must address the problems with his 22 complaint that are explained above. In an amended complaint plaintiff must clearly identify each 23 defendant and the action that defendant took that violated his constitutional rights. The court is 24 not required to review exhibits to determine what plaintiff’s charging allegations are as to each 25 1 In its first screening order, the court determined that plaintiff’s equal protection claims were 26 without merit and did not permit plaintiff to amend them to state a claim. (ECF No. 7 at 12.) 27 This is again the case here. Plaintiff is warned that he must comply with all court orders and that failure to comply with a court order may result in a dismissal of this action. See Fed. R. Civ. P. 28 41(b). 1 named defendant. If plaintiff wishes to add a claim, he must include it in the body of the 2 complaint. The charging allegations must be set forth in the amended complaint, so defendants 3 have fair notice of the claims plaintiff is presenting. That said, plaintiff need not provide every 4 detailed fact in support of his claims. Rather, plaintiff should provide a short, plain statement of 5 each claim. See Fed. R. Civ. P. 8(a). 6 Any amended complaint must show the federal court has jurisdiction, the action is brought 7 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 8 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 9 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 10 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (stating that a person subjects another to the 11 deprivation of a constitutional right if he does an act, participates in another’s act, or omits to 12 perform an act he is legally required to do that causes the alleged deprivation). “Vague and 13 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 14 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 15 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 16 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 17 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 18 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 19 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 20 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 21 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 22 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 23 set forth in short and plain terms. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) 24 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 25 litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 26 An amended complaint must be complete in itself, without reference to any prior pleading. 27 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 28 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 1 | evidentiary support for his allegations, and for violation of this rule, the court may impose 2 | sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 3 CONCLUSION 4 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as 5 | follows: 6 1. Plaintiff's complaint states a cognizable First Amendment retaliation claim against 7 defendant Zamora. 8 2. Plaintiffs due process and equal protection claims against defendant Zamora are 9 dismissed without leave to amend. 10 3. Plaintiff's due process claims against defendant Santos are dismissed with leave to 11 amend. 12 4. Plaintiff may choose to proceed on his cognizable claims set out above or he may choose 13 to amend his complaint. 14 5. Within thirty days of the date of this order plaintiff shall notify the court of how he 15 wishes to proceed. Plaintiff may use the form included with this order for this purpose. 16 6. Plaintiff is warned that his failure to comply with this order will result in a 17 recommendation that this action be dismissed. 18 | Dated: July 20, 2021 20 1 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 DB:14 27 || DB:1/Orders/Prisoner/Civil Rights/S/hayd0432.sern2 28 12 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 ERIC RYAN HAYDE, No. 2:19-cv-0432 DB P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 12 E. ZAMORA, et al., 13 Defendants. 14 15 Check one: 16 17 _____ Plaintiff wants to proceed immediately on his First Amendment retaliation claim against 18 CDCR Correctional Officer E. Zamora. Plaintiff understands that by going forward 19 without amending the complaint he is voluntarily dismissing all other claims and 20 defendants. 21 22 ____ Plaintiff wants to amend the complaint. 23 24 25 DATED:_______________________ 26 Eric Ryan Hayde Plaintiff pro se 27 28