(PC) Newsome v. Mohmand ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHELDON RAY NEWSOME, No. 2:23-cv-00151-CKD 12 Plaintiff, 13 v. ORDER 14 F. MOHMAND, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 2 1915(b)(2). 3 I. Motion to Appoint Counsel 4 Plaintiff requests that the court appoint counsel. District courts lack authority to require 5 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 6 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 7 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 8 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 9 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 10 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 11 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 12 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 13 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 14 common to most prisoners, such as lack of legal education and limited law library access, do not 15 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 16 Having considered the factors under Palmer, the court finds that plaintiff has failed to 17 meet his burden of demonstrating exceptional circumstances warranting the appointment of 18 counsel at this time. 19 II. Screening Standard 20 The court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 22 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 23 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 25 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 26 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 27 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 28 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 1 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 2 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 3 Cir. 1989); Franklin, 745 F.2d at 1227. 4 A complaint must contain more than a “formulaic recitation of the elements of a cause of 5 action;” it must contain factual allegations sufficient to “raise a right to relief above the 6 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 7 must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] 8 a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and 9 Procedure § 1216, pp. 235-35 (3d ed. 2004). “[A] complaint must contain sufficient factual 10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 11 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has 12 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 13 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 14 In reviewing a complaint under this standard, the court must accept as true the allegations 15 of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 16 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 17 the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969). 18 III. Allegations in the Complaint 19 At all times relevant to the allegations in the complaint, plaintiff was an inmate at the 20 California Medical Facility (“CMF”). Plaintiff sues the warden, associate warden, several 21 correctional officers as well as two medical doctors at CMF in their individual and official 22 capacities. 23 Plaintiff alleges that beginning on or about May 25, 2020, defendant Mohmand, a 24 correctional officer in the Outpatient Housing Unit (“OHU”), initiated a racist campaign of 25 retaliation against him because he befriended a Jewish inmate and was, therefore, a “bad 26 Muslim.” These acts of retaliation included issuing false disciplinary charges against plaintiff, 27 destroying boxes of his legal property, firing him from his porter job, refusing to let him out of 28 his dorm, and verbal abuse. The ultimate goal of defendant Mohmand was to get plaintiff 1 transferred out of the OHU. Defendant Rodriguez, another correctional officer in the OHU, 2 conspired with defendant Mohmand to issue plaintiff false disciplinary charges. Two days after 3 meeting with defendant Mohmand, Dr. Dhillon discharged plaintiff from the OHU without a 4 medical evaluation justifying this change. Plaintiff indicates that he notified the warden, 5 associate warden, and supervisory staff about defendant Mohmand’s racial retaliation by sending 6 them inmate grievances, but they did nothing. Defendant Mohmand’s wrongful conduct 7 continued. 8 By way of relief, plaintiff seeks a declaratory judgment as well as monetary and punitive 9 damages. 10 IV. Legal Standards 11 The following legal standards are being provided to plaintiff based on his pro se status as 12 well as the nature of the allegations in his complaint. 13 A. Linkage 14 The civil rights statute requires that there be an actual connection or link between the 15 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 16 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 17 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 18 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 19 in another's affirmative acts or omits to perform an act which he is legally required to do that 20 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 21 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 22 link each named defendant with some affirmative act or omission that demonstrates a violation of 23 plaintiff's federal rights. 24 B. Supervisory Liability 25 Government officials may not be held liable for the unconstitutional conduct of their 26 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 27 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 28 each Government official, his or her title notwithstanding is only liable for his or her own 1 misconduct.”). When the named defendant holds a supervisory position, the causal link between 2 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 3 plaintiff must allege some facts indicating that the defendant either personally participated in or 4 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 5 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 6 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 7 C. Official Capacity Claims 8 “Official-capacity suits… generally represent only another way of pleading an action 9 against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) 10 (internal quotation marks omitted); see also Community House, Inc. v. City of Boise, Idaho, 623 11 F.3d 945, 966-67 (9th Cir. 2010) (emphasizing the distinction between individual and official 12 capacity suits). Therefore, claims against defendants in their official capacity are functionally 13 claims against the State of California. See, e.g., Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 14 1250 (9th Cir. 2016) (“When a county official like Sheriff Arpaio is sued in his official capacity, 15 the claims against him are claims against the county.”). The Eleventh Amendment serves as a 16 jurisdictional bar to suits brought by private parties against a state or state agency unless the state 17 or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 18 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). 19 California has not waived its Eleventh Amendment immunity with respect to claims brought 20 under 42 U.S.C. § 1983 in federal court. Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 21 1999). Since CDCR is a state agency, defendants who are its employees, are immune from suit 22 for monetary damages in their official capacity. 23 D. Retaliation 24 “Within the prison context, a viable claim of First Amendment retaliation entails five 25 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 26 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 27 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 28 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted). 1 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 2 F.3d 1283, 1288 (9th Cir. 2003). A prison transfer may also constitute an adverse action. See 3 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (recognizing an arbitrary confiscation and 4 destruction of property, initiation of a prison transfer, and assault as retaliation for filing inmate 5 grievances); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (finding that a retaliatory prison 6 transfer and double-cell status can constitute a cause of action for retaliation under the First 7 Amendment). 8 E. Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) 9 RLUIPA prohibits prison officials from substantially burdening a prisoner's “‘religious 10 exercise unless the burden furthers a compelling governmental interest and does so by the least 11 restrictive means.’” Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2009) (internal quotations and 12 citations omitted). The plaintiff bears the initial burden of demonstrating that an institution's 13 actions have placed a substantial burden on plaintiff's free exercise of religion. To state a 14 cognizable claim under RLUIPA, plaintiff must specify how the defendant denied him access to 15 religious services. In this regard, plaintiff must link any RLUIPA claim to the defendant's 16 specific conduct. Plaintiff is advised that monetary damages are not available under RLUIPA 17 against state officials sued in their individual capacities. See Jones v. Williams, 791 F.3d 1023, 18 1031 (9th Cir. 2015) (“RLUIPA does not authorize suits for damages against state officials in 19 their individual capacities because individual state officials are not recipients of federal funding 20 and nothing in the statute suggests any congressional intent to hold them individually liable.”). 21 RLUIPA only authorizes suits against a person in his or her official or governmental capacity. 22 See Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). 23 F. Equal Protection 24 The Equal Protection Clause requires that persons who are similarly situated be treated 25 alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). A plaintiff 26 can establish an equal protection claim by showing that the defendant has intentionally 27 discriminated against him on the basis of the plaintiff's membership in a protected class, Lee v. 28 City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); Thornton v. City of St. Helens, 425 F.3d 1 1158, 1167 (9th Cir. 2005), or that similarly situated individuals were intentionally treated 2 differently without a rational relationship to a legitimate state purpose. Village of Willowbrook 3 v. Olech, 528 U.S. 562, 564 (2000). 4 “In the prison context, however, even fundamental rights such as the right to equal 5 protection are judged by a standard of reasonableness, specifically whether the actions of prison 6 officials are “reasonably related to legitimate penological interests.” Walker v. Gomez, 370 F.3d 7 969, 974 (9th Cir.2004), citing Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison 8 regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably 9 related to legitimate penological interest.”). However, to the extent plaintiff's claims are based on 10 racial discrimination, any legitimate penological interests are irrelevant to his claim. See Johnson 11 v. California, 543 U.S. 499, 510 (2005). The deferential standard of review that allows the Court 12 to consider whether the actions of prison officials are reasonably related to legitimate penological 13 interests does not apply to classifications based on race; such classifications remain subject to 14 strict scrutiny. Id. 15 While use of the offending words does not itself state an Equal Protection claim, Freeman 16 v. Arpaio, 125 F.3d 732, 737 (9th Cir.1997) (citation omitted), the abusive language nevertheless 17 suggests that the accompanying conduct may have been motivated by discriminatory intent. 18 G. Deliberate Indifference to a Serious Medical Need 19 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 20 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 21 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 22 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 23 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 24 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 25 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 26 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 27 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 28 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 1 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 2 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 3 existence of an injury that a reasonable doctor or patient would find important and worthy of 4 comment or treatment; the presence of a medical condition that significantly affects an 5 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 6 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. 7 Second, the plaintiff must show the defendant’s response to the need was deliberately 8 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 9 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 10 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 11 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 12 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 13 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 14 showing of merely negligent medical care is not enough to establish a constitutional violation. 15 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 16 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 17 a dispute between a prisoner and prison officials over the necessity for or extent of medical 18 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 19 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 20 medical treatment, “without more, is insufficient to state a claim of deliberate medical 21 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 22 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 23 prisoner must show that the delay caused “significant harm and that Defendants should have 24 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 25 H. Conspiracy 26 To state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must plead specific facts 27 showing an agreement or meeting of minds between the defendants to violate his constitutional 28 rights. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 1989). Plaintiff must also 1 show how an actual deprivation of his constitutional rights resulted from the alleged conspiracy. 2 Id. “‘To be liable, each participant in the conspiracy need not know the exact details of the plan, 3 but each participant must at least share the common objective of the conspiracy.’” Franklin v. 4 Fox, 312 F.3d 423, 441 (9th Cir. 2002) (quoting United Steel Workers of Am. V. Phelps Dodge 5 Corp., 865 F.2d 1539, 1541 (9th Cir. 1989) ). 6 The federal system is one of notice pleading, however, and the court may not apply a 7 heightened pleading standard to plaintiff's allegations of conspiracy. Empress LLC v. City and 8 County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of Santa 9 Clara, 307 F.3d 1119, 1126 (2002). Although accepted as true, the “[f]actual allegations must be 10 [sufficient] to raise a right to relief above the speculative level....” Bell Atl. Corp. v. Twombly, 11 550 U.S. 544, 555 (2007). A plaintiff must set forth “the grounds of his entitlement to relief[,]” 12 which “requires more than labels and conclusions, and a formulaic recitation of the elements of a 13 cause of action....” Id. 14 V. Analysis 15 The court has reviewed plaintiff’s complaint and, for the limited purposes of § 1915A 16 screening, finds that it states a cognizable claim First Amendment retaliation claim and 17 Fourteenth Amendment equal protection claim against defendant Mohmand in his individual 18 capacity only. See 28 U.S.C. § 1915A. However, plaintiff’s official capacity claims are barred 19 by the Eleventh Amendment. See Quern v. Jordan, 440 U.S. 332 (1979). The court further finds 20 that the complaint does not state a cognizable claim against defendants Cueva, Snelling, Ali, 21 Thurmon, and Leali based solely on their supervisory positions. Ashcroft v. Iqbal, 556 U.S. 662, 22 677 (2009). Nor does plaintiff adequately link defendant Osmond to any of the alleged 23 constitutional violations. Further, plaintiff’s allegations of defendant Rodriguez’s involvement in 24 a conspiracy are entirely conclusory. The complaint does not adequately allege an Eighth 25 Amendment deliberate indifference claim against defendant Dhillon for transferring plaintiff out 26 of the OHU because plaintiff does not describe what physical harm this caused him. Nor does it 27 allege a First Amendment retaliation claim against defendant Dhillon because plaintiff does not 28 indicate that the transfer decision was based on plaintiff’s protected conduct. For all these 1 reasons, the court finds that the allegations in the complaint fail to state a cognizable claim 2 against defendants Cueva, Snelling, Ali, Thurmon, Leali, Dhillon, Osmond, and Rodriguez. 3 To the extent that plaintiff contends that all defendants violated RLUIPA in count two, the 4 courts finds that these allegations do not state a claim because plaintiff does not identify how their 5 conduct prevented him from freely exercising his religion. Nor does RLUIPIA provide for 6 monetary damages which plaintiff seeks in this action. See Jones v. Williams, 719 F.3d 1023, 7 1031 (9th Cir. 2015). Based on these deficiencies with the remaining claims and defendants, 8 plaintiff may choose to proceed immediately on the First and Fourteenth Amendment claims 9 against defendant Mohmand, or he may attempt to cure these defects by filing a first amended 10 complaint. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (finding that 11 district courts must afford pro se litigants an opportunity to amend to correct any deficiency in 12 their complaints). If plaintiff elects to proceed with the cognizable claims against defendant 13 Mohmand, the court will construe plaintiff’s election as consent to dismiss the remaining claims 14 and defendants without prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. 15 VI. Leave to Amend 16 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 17 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 18 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how 19 each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there 20 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. 21 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 22 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory 23 allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board 24 of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 25 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 26 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 27 complaint be complete in itself without reference to any prior pleading. This is because, as a 28 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 1 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 2 longer serves any function in the case. Therefore, in an amended complaint, as in an original 3 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 4 VII. Plain Language Summary for Pro Se Party 5 The following information is meant to explain this order in plain English and is not 6 intended as legal advice. 7 Some of the allegations in the complaint state claims for relief against the defendants, and 8 some do not. You must decide if you want to (1) proceed immediately on the cognizable First 9 and Fourteenth Amendment claims against defendant Mohmand; or, 2) amend the complaint to 10 fix the problems identified in this order with respect to the remaining claims and defendants. 11 Once you decide, you must complete the attached Notice of Election form by checking only one 12 box and returning it to the court. 13 Once the court receives the Notice of Election, it will issue an order telling you what you 14 need to do next. If you do not return this Notice, the court will order service of the complaint 15 only on the claims found cognizable in this screening order and will dismiss the remaining claims 16 and defendants without prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. 17 In accordance with the above, IT IS HEREBY ORDERED that: 18 1. Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 7) is granted. 19 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 20 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 21 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 22 Director of the California Department of Corrections and Rehabilitation filed concurrently 23 herewith. 24 3. Plaintiff’s motion for the appointment of counsel (ECF No. 5) is denied without 25 prejudice. 26 4. Plaintiff has the option to proceed immediately on the First and Fourteenth 27 Amendment claims against defendant Mohmand. In the alternative, plaintiff may choose to 28 amend the complaint to attempt to fix the deficiencies identified in this order with respect to the 1 | remaining claims and defendants. 2 5. Within 21 days from the date of this order, plaintiff shall complete and return the 3 || attached Notice of Election form notifying the court whether he wants to proceed on the screened 4 || complaint or whether he wants time to file a first amended complaint. 5 6. If plaintiff elects to proceed with the claims found cognizable against defendant 6 || Mohmand, the court will construe plaintiffs election as consent to dismiss the remaining claims 7 || and defendants without prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. 8 7. If plaintiff fails to return the attached Notice of Election within the time provided, the 9 || court will construe this failure as consent to dismiss the deficient claims and proceed only on the 10 || cognizable claims identified above. MIG f- A. "2 CAROLYNK.DELANEY 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 12/news0151.B+31.docx 21 22 23 24 25 26 27 28 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SHELDON RAY NEWSOME, No. 2:23-cv-00151-CKD 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 F. MOHMAND, et al., 14 Defendants. 15 16 Check only one option: 17 _____ Plaintiff wants to proceed immediately on the First and Fourteenth Amendment claims 18 against defendant Mohmand. Plaintiff voluntarily dismisses the remaining claims and defendant; 19 or 20 _____ Plaintiff wants time to file a first amended complaint. 21 22 23 DATED: 24 25 _______________________________ 26 Plaintiff 27 28