(PC) Johnson v. Mata ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOHNSON, No. 2:22-cv-0613 DAD KJN P 12 Plaintiff, 13 v. ORDER 14 LT. J. MATA, et al., 15 Defendants. 16 17 Plaintiff, a federal inmate formerly housed at the Federal Correctional Institution in 18 Herlong, California (“FCI Herlong”), filed this pro se civil rights action pursuant to Bivens v. Six 19 Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). On April 10, 2023, 20 the district court granted defendants’ motion to dismiss plaintiff’s first amended complaint 21 without leave to amend as to the Fifth Amendment claim, and with leave to amend as to the 22 Eighth Amendment claim. (ECF No. 61.) On April 12, 2023, the district court appointed counsel 23 to represent plaintiff for the limited purpose of determining whether or not the filing of an 24 amended complaint is appropriate. (ECF No. 62.) 25 On August 24, 2023, plaintiff’s counsel filed a notice that filing an amended complaint 26 would not be appropriate, she will not be filing an amended complaint, and requested leave to be 27 relieved from her appointment. (ECF No. 67.) 28 Good cause appearing, counsel’s motion to be relieved as counsel of record is granted. 1 | The parties are advised that this court makes no findings as to counsel’s investigation and 2 || decision not to file an amended complaint, and this order shall not be construed as such. Rather, 3 || at this point, plaintiff has two options. Plaintiff may choose to file a pro se second amended 4 || complaint limited to the Eighth Amendment grounds identified in the district court’s orders 5 || attempting to state a legally cognizable claim. (ECF Nos. 61, 62.)! Or, plaintiff may choose to 6 || voluntarily dismiss his Eighth Amendment claims without prejudice. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Counsel’s motion to be relieved as counsel for plaintiff (ECF No. 67) is granted; 9 2. The Clerk of the Court is directed to terminate counsel’s representation and return 10 | plaintiff to pro se status; and 11 3. Within thirty days from the date of this order, plaintiff shall file the appended Notice of 12 | Election form. If plaintiff chooses to amend, he must also provide his proposed second amended 13 | complaint limited to the Eighth Amendment grounds identified in the district court’s April 2023 14 || orders (ECF Nos. 61 & 62). 15 Plaintiff is cautioned that failure to comply with this order will result in a recommendation 16 || that his Eighth Amendment claims be dismissed without prejudice, and this action be terminated, 17 || and judgment entered. 18 || Dated: September 1, 2023 " Aectl Aharon 20 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 21 /john0613.rel 22 23 24 25 26 27 | | By signing an amended complaint, plaintiff certifies he made reasonable inquiry and has evidentiary support for his allegations, and for violation of this rule the court may impose 28 | sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOHNSON, No. 2:22-cv-0613 DAD KJN P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 LT. J. MATA, et al., 15 Defendants. 16 17 Plaintiff elects to proceed as follows: 18 ______ Plaintiff opts to file a second amended complaint limited to the Eighth 19 Amendment claims identified in the district court’s April 2023 orders (ECF No. 61 & 62), and the proposed second amended complaint is appended. 20 OR 21 _____ Plaintiff opts to dismiss the putative Eighth Amendment claims without 22 prejudice. 23 24 DATED: 25 26 ________________________________ 27 Plaintiff 28