(PC) Johnson v. Diaz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VANDELL JOHNSON, No. 2:22-cv-0606 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 RALPH DIAZ, 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 leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has requested clarification as to whether his applications to proceed in forma 21 pauperis have been received. ECF No. 11. The applications have been received and the 22 declarations make the showing required by 28 U.S.C. § 1915(a). ECF Nos. 7, 8. Accordingly, 23 the requests to proceed in forma pauperis will be granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 25 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 1 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 4 § 1915(b)(2). 5 II. Complaint 6 A. Statutory Screening of Prisoner Complaints 7 The court is required to screen complaints brought by prisoners seeking relief against “a 8 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 9 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 10 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 11 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 12 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 13 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 14 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 15 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 16 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 17 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 18 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 19 Franklin, 745 F.2d at 1227-28 (citations omitted). 20 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 21 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 22 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 23 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 25 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 26 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 27 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 28 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 1 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 2 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 3 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 4 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 5 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 6 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 7 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 8 content that allows the court to draw the reasonable inference that the defendant is liable for the 9 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 10 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 11 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 12 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 13 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 14 B. Allegations 15 The complaint is comprised of three claims and alleges that defendants Diaz, Moseley, 16 Hall, Cahayla, Carrillo, Pagan, O’Connor, Huston, Albin, Mejia, Montero, Rebeterano, Jennings, 17 Lee, Sanders, Lopez, Hinojosa, Foster, and Schubert violated plaintiff’s rights under the First, 18 Eighth, and Fourteenth Amendments. ECF No. 1. 19 In Claim One, plaintiff alleges that during a strip search on December 16, 2019, he 20 attempted to commit suicide by chewing on a bundle of heroin while already high from snorting 21 heroin earlier that day. Id. at 3-4. Although plaintiff showed signs of overdosing, Jennings and 22 Rebeterano failed to alert medical staff and refused to remove plaintiff for over thirty minutes. 23 Id. at 4. When medical was finally called, they ordered plaintiff to be removed from the cell 24 immediately and he was sent to the hospital. Id. at 4-5. 25 Claim Two alleges that plaintiff’s due process rights were violated in relation to 26 disciplinary proceedings that arose out of his overdose. Id. at 5-7. Plaintiff asserts that Jennings 27 tampered with evidence and that there is no explanation for the six-month delay in Pagan 28 submitting the evidence to the lab for a toxicology report. Id. at 5-6. Mejia then lied about 1 plaintiff being coherent at the time he was overdosing, in order to support a rules violation report 2 (RVR) for refusing to provide a urine sample. Id. at 6. Plaintiff was found guilty of refusing to 3 provide a sample, but the decision was reversed on appeal. Id. When plaintiff eventually gave a 4 urine sample, Lee mixed it with another inmate’s sample, resulting in a positive test. Id. Plaintiff 5 was issued an RVR for the positive test and was found guilty. Id. The guilty determination was 6 affirmed on appeal by Montero, Albin, Huston, and other individuals who are only identified by 7 their positions. Id. 8 Finally, in Claim Three, plaintiff appears to allege that the two RVRs he received were a 9 result of retaliation by Jennings and Rebeterano because of complaints filed by plaintiff’s wife. 10 Id. at 7. Cahayla signed off on the disposition of the RVRs and ignored plaintiff’s concerns about 11 retaliation upon release from administrative segregation and sent plaintiff back to the housing unit 12 where he had overdosed. Id. at 8-9. Sanders, the investigative employee assigned to the RVR for 13 refusing a urine test, allegedly reported to O’Connor, the hearing officer, that plaintiff believed 14 Jennings and Rebeterano had assisted with plaintiff’s suicide attempt by failing to properly 15 respond to his overdose and had conducted three retaliatory cell searches. Id. at 8. O’Connor 16 then found plaintiff guilty of refusing a urine test despite knowing that Jennings and Reberterano 17 had been fired as a result of their response to plaintiff’s overdose. Id. at 8-9. Plaintiff also 18 appears to allege that Sanders, Lopez, and Hinojosa had a conflict in participating in the RVR 19 investigations because they were union representatives, while Carillo, Cahayla, Hall, Moseley, 20 and Diaz’s acquiescence in the conduct was demonstrated by their responses to plaintiff’s 21 appeals. Id. at 8-9. Schubert and Foster allegedly brought charges against plaintiff for the heroin 22 he overdosed on despite the evidence tampering and firing of Jennings and Rebeterano and even 23 though the did not meet the prosecution referral criteria. Id. at 10. 24 C. Claims for Which a Response Will Be Required 25 Plaintiff’s allegations that Jennings and Reberterano failed to respond to his overdose or 26 call medical assistance for over thirty minutes are sufficient to state a claim for deliberate 27 indifference against these defendants. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (prison 28 official violates the Eighth Amendment when he “knows of and disregards an excessive risk to 1 inmate health or safety”). If plaintiff chooses to proceed on the complaint as screened, these 2 defendants will be required to respond to the complaint. 3 D. Failure to State a Claim 4 i. Personal Involvement 5 “Liability under § 1983 must be based on the personal involvement of the defendant,” 6 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing May v. Enomoto, 633 F.2d 7 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory allegations of official participation in civil 8 rights violations are not sufficient,” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) 9 (citations omitted). Plaintiff makes only vague and conclusory allegations against defendants 10 Diaz, Moseley, Hall, Carrillo, Lopez, and Hinojosa, which are insufficient to establish the 11 necessary personal involvement of these defendants. 12 Plaintiff also appears to name Cahayla, Huston, Albin, and Montero as defendants based 13 solely on their affirmation of plaintiff’s disciplinary charge on appeal. However, defendants’ 14 denial of plaintiff’s appeal does not establish the personal involvement necessary to subject them 15 to liability under § 1983. There are no facts showing that these defendants were aware of an 16 ongoing violation of plaintiff’s rights such that they had the opportunity to intervene or take some 17 other corrective action. As the Seventh Circuit has observed, “[r]uling against a prisoner on an 18 administrative complaint does not cause or contribute to the [constitutional] violation. A guard 19 who stands and watches while another guard beats a prisoner violates the Constitution; a guard 20 who rejects an administrative complaint about a completed act of misconduct does not.” George 21 v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (finding that only people who cause or participate 22 in constitutional violations are responsible). Furthermore, plaintiff has no claim for the “loss of a 23 liberty interest in the processing of his appeals . . . because inmates lack a separate constitutional 24 entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th 25 Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 26 ii. Due Process 27 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full 28 panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 1 U.S. 539, 556 (1974) (citation omitted). Rather, with respect to prison disciplinary proceedings 2 that include the loss of good-time credits, an inmate must receive (1) twenty-four-hour advanced 3 written notice of the charges against him, id. at 563-64; (2) “a written statement by the factfinders 4 as to the evidence relied on and reasons for the disciplinary action,” id. at 564 (internal quotation 5 marks and citation omitted); (3) an opportunity to call witnesses and present documentary 6 evidence where doing so “will not be unduly hazardous to institutional safety or correctional 7 goals,” id. at 566; (4) assistance at the hearing if he is illiterate or if the matter is complex, id. at 8 570; and (5) a sufficiently impartial fact finder, id. at 570-71. A finding of guilt must also be 9 “supported by some evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). 10 While plaintiff alleges that he lost good-time credits, and was therefore entitled to the 11 procedural protections outlined in Wolff, he does not allege that he was denied any of those 12 procedural protections. The fact that O’Connor found plaintiff guilty, without more, does not 13 demonstrate that O’Connor was not a sufficiently impartial fact finder. Furthermore, though 14 plaintiff appears to allege that Sanders, Lopez, and Hinojosa were not impartial because of their 15 positions as union representatives, they are not the individuals alleged to have presided over the 16 disciplinary hearing. 17 To the extent plaintiff appears to be alleging Jennings, Pagan, Mejia, and Lee falsified the 18 charges or evidence against him, these allegations do not support a claim under 42 U.S.C. § 1983. 19 See Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997) (“[T]here are no procedural safeguards 20 protecting a prisoner from false retaliatory accusations.”); accord, Sprouse v. Babcock, 870 F.2d 21 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986); Hanrahan v. 22 Lane, 747 F.2d 1137, 1141 (7th Cir. 1984). As long as prison disciplinary charges are supported 23 by “some evidence,” due process is satisfied. Hill, 472 U.S. at 454. 24 iii. Retaliation 25 In order to state a claim for retaliation, plaintiff must allege facts showing that the 26 defendants took adverse action against him and that they were motivated to do so by plaintiff’s 27 protected conduct. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (citation omitted). 28 Plaintiff alleges that defendants’ conduct was motivated by complaints made by his wife, not 1 plaintiff’s own complaints. Plaintiff provides no facts demonstrating that defendants’ conduct 2 was motivated by plaintiff’s own protected conduct, and he therefore fails to state a claim for 3 retaliation against any defendant. 4 iv. Defendants Foster and Schubert 5 Prosecutors are absolutely immune from liability when performing the traditional 6 functions of an advocate and acts that are “intimately associated with the judicial phase of the 7 criminal process.” Kalina v. Fletcher, 522 U.S. 118, 125 (1997) (quoting Imbler v. Pachtman, 8 424 U.S. 409, 430 (1976)). Since plaintiff’s claims against Foster and Schubert are based on their 9 conduct in prosecuting plaintiff in his criminal proceedings, these claims cannot proceed. 10 E. Leave to Amend 11 For the reasons set forth above, the court finds that the only cognizable claim in the 12 complaint is an Eighth Amendment claim against defendants Jennings and Reberterano based 13 upon their response to plaintiff’s overdose. However, it appears that plaintiff may be able to 14 allege facts to remedy the defects of other claims and he will be given the opportunity to amend 15 the complaint if he desires. Plaintiff may (1) proceed forthwith to serve defendants Jennings and 16 Reberterano on his Eighth Amendment claim based on their response to his overdose or (2) he 17 may delay serving any defendant and amend the complaint. 18 Plaintiff will be required to complete and return the attached notice advising the court how 19 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 20 file an amended complaint. If plaintiff elects to proceed on his Eighth Amendment claim against 21 defendants Jennings and Reberterano without amending the complaint, the court will proceed to 22 serve the complaint. A decision to go forward without amending the complaint will be 23 considered a voluntarily dismissal without prejudice of all other claims and defendants. 24 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 25 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 26 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 27 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 28 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 1 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 2 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 3 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 4 268 (9th Cir. 1982) (citations omitted). 5 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 6 his amended complaint complete. Local Rule 220 requires that an amended complaint be 7 complete in itself without reference to any prior pleading. This is because, as a general rule, an 8 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 9 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 10 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 11 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 12 the original complaint no longer serves any function in the case. Therefore, in an amended 13 complaint, as in an original complaint, each claim and the involvement of each defendant must be 14 sufficiently alleged. 15 III. Motion for Preliminary Injunction or Temporary Restraining Order 16 Plaintiff seeks a temporary restraining order or preliminary injunction to reinstate his 17 visitation privileges, which were suspended as sanctions for the RVR he received for having a 18 positive urine test. ECF No. 2. 19 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 20 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 21 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 22 Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). In order to prevail on a 23 motion for preliminary injunctive relief, the Ninth Circuit has also held 24 that there must be a relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the 25 underlying complaint. This requires a sufficient nexus between the claims raised in a motion for injunctive relief and the claims set forth 26 in the underlying complaint itself. The relationship between the preliminary injunction and the underlying complaint is sufficiently 27 strong where the preliminary injunction would grant “relief of the same character as that which may be granted finally.” De Beers 28 Consol. Mines[ v. United States], 325 U.S. [212,] 220, 65 S. Ct. 1130 1 [(1945)]. Absent that relationship or nexus, the district court lacks authority to grant the relief requested. 2 3 Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). The 4 standard for issuing a temporary restraining order is essentially the same as that for issuing a 5 preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 6 (9th Cir. 2001) (stating that the analysis for temporary restraining orders and preliminary 7 injunctions is “substantially identical”). 8 Because plaintiff has not stated any viable claims related to his RVRs, he cannot show any 9 likelihood of success on the merits relative to those claims. Moreover, the injunctive relief he 10 seeks is not sufficiently related to his cognizable claims to give the court authority to grant relief. 11 For these reasons, the motion for temporary restraining order or preliminary injunction should be 12 denied. 13 IV. Plain Language Summary of this Order for a Pro Se Litigant 14 Your request to proceed in forma pauperis is granted. That means you do not have to pay 15 the entire filing fee now. You will pay it over time, out of your trust account. 16 Some of the allegations in the complaint state claims against the defendants and some do 17 not. You have stated an Eighth Amendment claim against defendants Jennings and Reberterano 18 based upon their response to your overdose. You have not stated any other claims for relief 19 against these defendants or against any other defendant. 20 You have a choice to make. You may either (1) proceed immediately on your Eighth 21 Amendment claim against Jennings and Reberterano, and voluntarily dismiss the other claims or 22 (2) try to amend the complaint. If you want to go forward without amending the complaint, you 23 will be voluntarily dismissing without prejudice all claims against defendants Jennings and 24 Reberterano except for the Eighth Amendment claim based upon their response to your overdose, 25 and all claims against Diaz, Moseley, Hall, Cahayla, Carrillo, Pagan, O’Connor, Huston, Albin, 26 Mejia, Montero, Lee, Sanders, Lopez, Hinojosa, Foster, and Schubert. If you choose to file a first 27 amended complaint, it must include all claims you want to bring. Once an amended complaint is 28 filed, the court will not look at any information in the original complaint. Any claims and 1 information not in the first amended complaint will not be considered. You must complete 2 the attached notification showing what you want to do and return it to the court. Once the court 3 receives the notice, it will issue an order telling you what you need to do next (i.e. file an 4 amended complaint or wait for defendants to be served). 5 CONCLUSION 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s requests for leave to proceed in forma pauperis (ECF Nos. 7, 8) are 8 GRANTED. 9 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 10 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 11 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 12 appropriate agency filed concurrently herewith. 13 3. Plaintiff’s allegations against defendants Diaz, Moseley, Hall, Cahayla, Carrillo, 14 Pagan, O’Connor, Huston, Albin, Mejia, Montero, Lee, Sanders, Lopez, Hinojosa, Foster, and 15 Schubert do not state any claims for which relief can be granted. Plaintiff has also failed to state 16 any claims for relief against defendants Jennings and Rebeterano other than the Eighth 17 Amendment claim based upon their response to plaintiff’s overdose. 18 4. Plaintiff has the option to proceed immediately on his Eighth Amendment claim 19 against defendants Jennings and Rebeterano as set forth in Section II.C above, or to amend the 20 complaint. 21 5. Within fourteen days of service of this order, plaintiff shall complete and return the 22 attached form notifying the court whether he wants to proceed on the screened complaint or 23 whether he wants to file a first amended complaint. If plaintiff does not return the form, the court 24 will assume that he is choosing to proceed on the complaint as screened and will recommend 25 dismissal without prejudice of all claims against defendants Jennings and Reberterano except for 26 the Eighth Amendment claim based upon their response to plaintiff’s overdose and all claims 27 against Diaz, Moseley, Hall, Cahayla, Carrillo, Pagan, O’Connor, Huston, Albin, Mejia, Montero, 28 Lee, Sanders, Lopez, Hinojosa, Foster, and Schubert. 1 6. Plaintiffs motion for clarification (ECF No. 11) is GRANTED to the extent 2 || clarification has been provided above. 3 7. The Clerk of the Court shall randomly assign a United States District Judge to this 4 || action. 5 IT IS FURTHER RECOMMENDED that plaintiff's motion for a temporary restraining 6 || order or preliminary injunction (ECF No. 2) be DENIED. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 9 || after being served with these findings and recommendations, plaintiff may file written objections 10 || with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 11 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 12 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 13 | (9th Cir. 1991). 14 | DATED: January 3, 2023 “ 15 Chee ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 11 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 VANDELL JOHNSON, No. 2:22-cv-0606 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 12 RALPH DIAZ, et al., 13 Defendants. 14 15 Check one: 16 _____ Plaintiff wants to proceed immediately on his Eighth Amendment claim against 17 defendants Jennings and Reberterano based upon their response to plaintiff’s overdose 18 without amending the complaint. Plaintiff understands that by going forward without 19 amending the complaint he is voluntarily dismissing without prejudice all other claims 20 against Jennings and Reberterano and all claims against Diaz, Moseley, Hall, Cahayla, 21 Carrillo, Pagan, O’Connor, Huston, Albin, Mejia, Montero, Lee, Sanders, Lopez, 22 Hinojosa, Foster, and Schubert pursuant to Federal Rule of Civil Procedure 41(a). 23 24 _____ Plaintiff wants to amend the complaint. 25 26 DATED:_______________________ 27 Vandell Johnson Plaintiff pro se 28