(PC) Wright v. Deforest ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ATHELSTAN A. WRIGHT, No. 2:24-cv-0420 CSK P 12 Plaintiff, 13 v. ORDER 14 M. DEFOREST, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is 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 is 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 is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 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 Screening Standards 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 16 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 17 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 18 1227. 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 20 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 24 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 25 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 26 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 27 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 28 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 1 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 2 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 3 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 4 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 5 The Civil Rights Act 6 To state a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal 7 constitutional or statutory right; and (2) that the violation was committed by a person acting under 8 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 9 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 10 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 11 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 12 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 13 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 14 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 15 (2009). The requisite causal connection between a supervisor’s wrongful conduct and the 16 violation of the prisoner’s constitutional rights can be established in a number of ways, including 17 by demonstrating that a supervisor’s own culpable action or inaction in the training, supervision, 18 or control of his subordinates was a cause of plaintiff’s injury. Starr v. Baca, 652 F.3d 1202, 19 1208 (9th Cir. 2011). 20 Discussion 21 The court reviewed plaintiff’s complaint and, for the limited purposes of § 1915A 22 screening, finds that it states the following potentially cognizable claims: 23 • retaliation claim against defendant Deforest in violation of the First Amendment 24 (claim one) based on plaintiff’s claim that Deforest authored a false rules violation 25 report (“RVR”) against plaintiff in retaliation for plaintiff filing administrative 26 grievances; 27 • an Eighth Amendment claim against defendant R. St. Andre based on plaintiff’s 28 placement and retention in administrative segregation in January 2023 until his 1 release in April 2023 (claim two); and 2 • retaliation and equal protection claims against defendants Jodin, Murphy and 3 Albrecht in violation of the First and Fourteenth Amendments, based on their 4 actions in September 2022 (claim three). 5 See 28 U.S.C. § 1915A. 6 For the reasons stated below, the court finds that the remainder of the complaint does not 7 state cognizable claims. 8 Claim One: “Defendants” 9 Aside from defendant Deforest, plaintiff includes no specific factual allegations as to the 10 remaining five defendants in connection with plaintiff’s claim that he was wrongfully housed in 11 administrative segregation in January 2023. (ECF No. 1 at 5-8.) Rather, plaintiff focuses on the 12 actions of defendant Deforest, but then refers generally to “defendants.” (ECF No. 1 at 8.) 13 Plaintiff also alleges that “a supervisor may be held personally responsible for the deprivation of 14 constitutional rights if, inter alia, the supervisor (a) is aware of deprivation and fails to remedy it; 15 or (b) created, or allowed to continue, a policy which unconstitutional practices occurred. Both of 16 which are the case in this claim.” (ECF No. 1 at 7.) Such claim is too vague and conclusory to 17 put each named defendant on notice as to what specific act or omission allegedly violated 18 plaintiff’s rights. In his complaint, plaintiff names six different defendants and includes 19 allegations concerning events in January 2023 and September 2022. In order to state a cognizable 20 civil rights claim, plaintiff must allege specific facts as to each defendant and make clear what 21 each named defendant did or did not do that violated plaintiff’s constitutional rights. 22 Further, if plaintiff is attempting to demonstrate that a supervisor is liable, plaintiff must 23 identify the defendant who was the supervisor. Also, alleging that a supervisor was “aware” is 24 insufficient, particularly if plaintiff is attempting to raise a retaliation claim.1 As set forth above, 25 1 Personal participation in the retaliatory conduct, and not merely the existence of a supervisory relationship, is required to hold supervisors liable. Ashcroft, 556 U.S. at 676 (holding that 26 “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each 27 Government-official defendant, through the official's own individual actions, has violated the Constitution”); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A person does not become 28 1 the sole cognizable claim presented in claim one is the retaliation claim against defendant 2 Deforest who personally authored the RVR. As to claim one, plaintiff is granted leave to amend 3 as to any remaining defendant who was involved in the January 2023 segregation placement. 4 Claim Two: Defendant R. St. Andre 5 Plaintiff’s second claim is not clear. Initially, plaintiff states that on September 14, 2022, 6 he filed a grievance to the High Desert State Prison Office of Appeal requesting that the hiring 7 authority defendant R. St. Andre, Warden, intervene on staff misconduct, informing defendant R. 8 St. Andre of the retaliation by Albrecht, Jodin, and M. Murphy, but St. Andre failed to ameliorate 9 or correct the actions of defendants Deforest, Griffith, Jodin, Murphy and Albrecht. (ECF No. 1 10 at 9.) However, based on such allegation, it is unclear how, or if, defendant St. Andre received 11 notice of such 2022 grievance. Plaintiff concedes that St. Andre did not commit the due process 12 violation but claims that St. Andre “became responsible for all named defendants when he failed 13 to correct subordinates in the course of his supervisory responsibility and affirmed [plaintiff’s] 14 segregation placement and disciplinary charges.” (ECF No. 1 at 9.) However, such vague and 15 conclusory statement is insufficient to state a claim against Warden St. Andre. See Ashcroft, 556 16 U.S. at 679. Moreover, the segregation placement was in January 2023, not September 2022, and 17 the alleged retaliation by defendants Jodin, Albrecht and Murphy took place in September 2022 18 (claim three). 19 Plaintiff then alleges that while he was in segregation for the extortion charges in 2023, he 20 wrote to defendant St. Andre on two separate occasions, putting St. Andre on notice of plaintiff’s 21 allegations and requesting that St. Andre correct the wrongful placement of plaintiff in 22 segregation. Thus, the Court finds that in claim two, plaintiff states a potentially cognizable civil 23 rights claim against defendant St. Andre as to the events in January 2023, but not as to the events 24 in September 2022. Plaintiff’s allegations in claim two based on defendant St. Andre’s acts or 25 omissions in September 2022 are dismissed with leave to amend. 26 liable for retaliation merely because he or she knows of, or is a supervisor of, someone who 27 engages in retaliation. Cf. Ashcroft, 556 U.S. at 677. Each defendant must be aware of the protected conduct and that conduct must give them a retaliatory motive that causes the chilling 28 adverse conduct; mere speculation is insufficient. Id. 1 Claims Three and Four: Defendant Griffith 2 In addition to the cognizable claims alleged against defendants Jodin, Albrecht and 3 Murphy in claim three, plaintiff includes a single allegation as to defendant Griffith: while 4 plaintiff was in segregation, Griffith authored a purportedly false RVR against plaintiff for 5 allegedly falsifying a document which plaintiff claims could affect his term. (ECF No. 1 at 17.) 6 In claim four, plaintiff alleges that on January 24, 2023, defendant Griffith knowingly entered 7 into “SOMS” a false report intending to cause plaintiff further harm and to cover up the 8 misconduct of other defendants. (ECF No. 1 at 19-20.) He claims that Griffith “conspired with 9 other defendants to take it upon themselves to fabricate reports knowing lodged reports would 10 cause plaintiff severe injury, loss of liberty.” (Id. at 20.) Plaintiff claims that defendant Griffith 11 violated the First, Eighth and Fourteenth Amendments by filing a false RVR which was not 12 supported by some evidence, and also violated California Penal Code Sections 2651, 2600 and 13 2650, and “strayed from prison regulations.” (Id.) Plaintiff alleges he was deprived of his due 14 process rights because of Griffith’s false RVR and targeted harassment. (Id.) Further, plaintiff 15 alleges that defendant Griffith is “in conflict of interest” because he was also involved in the 16 “incident package #51095, extortion of a peace officer” based on defendant Albrecht’s false 17 allegation. (ECF No. 1 at 21.) 18 Plaintiff’s allegations as to defendant Griffith fail to state a cognizable civil rights claim. 19 Plaintiff does not allege that defendant Griffith filed the false RVR based on plaintiff’s protected 20 conduct.2 Rather, plaintiff claims it was to harass plaintiff3 and to cover up the other defendants’ 21 2 “Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing 22 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the prison 23 context has five elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 24 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 25 3 Allegations of harassment, embarrassment, and defamation are not cognizable under section 26 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), aff’d sub nom. 27 Kush v. Rutledge, 460 U.S. 719 (1983); see also Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1982) (allegations of harassment with regards to medical problems not cognizable); 28 1 actions. Thus, plaintiff fails to state a retaliation claim against Griffith. To the extent plaintiff 2 attempts to raise a separate cover-up claim, such claim is premature. Allegations that officials 3 engaged in a cover-up state a constitutional claim only if the cover-up deprived a prisoner of the 4 right of access to courts by causing the prisoner to fail to obtain redress for the constitutional 5 violation that was the subject of the cover-up. Dell v. Espinoza, 2017 WL 531893, at *6-7 (E.D. 6 Cal. Feb. 7, 2017) (citing Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 625 (9th Cir. 7 1988) (cover-up “allegations may state a federally cognizable claim provided that defendants’ 8 actions can be causally connected to a failure to succeed in the present lawsuit.”)); Rose v. City of 9 Los Angeles, 814 F. Supp. 878, 881 (C.D. Cal. 1993). A cover-up claim is premature when, as 10 here, plaintiff’s action seeking redress for the underlying constitutional violations remains 11 pending. See Karim-Panahi, 839 F.2d at 625 (claim alleging police cover-up of misconduct was 12 premature when action challenging misconduct was pending); Rose, 814 F. Supp. at 881 13 (“Because the ultimate resolution of the present suit remains in doubt, [p]laintiff’s cover-up claim 14 is not ripe for judicial consideration.”) Therefore, plaintiff fails to state a claim against defendant 15 Griffith for an alleged cover-up. Because such claim is premature, plaintiff should not include 16 such claim in any amended complaint. 17 Also, plaintiff claims that defendant Griffith violated various sections of the California 18 Penal Code as well as prison regulations. However, criminal statutes do not give rise to civil 19 liability. Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006). In addition, absent 20 any constitutional violation, to the extent plaintiff claims defendant Griffith violated prison 21 regulations contained in Title 15 of the California Code of Regulations, such claims also fail, 22 because there is no independent cause of action for violation of those regulations. “To the extent 23 that the violation of a state law amounts to the deprivation of a state-created interest that reaches 24 beyond that guaranteed by the federal Constitution, [s]ection 1983 offers no redress.” Sweaney v. 25 Ada County, 119 F.3d 1385, 1391 (9th Cir. 1997), quoting Lovell v. Poway Unified Sch. Dist., 90 26 Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (Arkansas state prisoner does not have 27 cause of action under § 1983 for being called obscene name by prison employee); Batton v. North Carolina, 501 F. Supp. 1173, 1180 (E.D.N.C. 1980) (mere verbal abuse by prison officials does 28 not state claim under § 1983). 1 F.3d 367, 370 (9th Cir. 1996); see also Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) 2 (section 1983 claims must be premised on violation of federal constitutional right). Thus, such 3 claims should also not be included in any amended complaint. 4 Further, plaintiff’s conclusory statement that defendant Griffith conspired with other 5 defendants is insufficient. To state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must 6 “demonstrate the existence of an agreement or ‘meeting of the minds’ to violate constitutional 7 rights.” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1301 (9th Cir. 1999) 8 (citations omitted); Woodrum v. Woodward Cnty., 866 F.2d 1121, 1126 (9th Cir. 1989) (same). 9 The Court will not speculate as to who plaintiff believes defendant Griffith may have conspired 10 with or the manner in which they may have done so. See Bell Atlantic, 550 U.S. at 556 (“an 11 allegation of parallel conduct and a bare assertion of conspiracy will not suffice.”). 12 Finally, in the initial section of claim four, plaintiff also alleges, in conclusory form, a 13 violation of California Government Code Section 854.4 and “defamation and libel[ous] act.” 14 (ECF No. 1 at 19.) Plaintiff includes no factual allegations addressing such violations. 15 Moreover, it does not appear that section 854.4, which defines “mental illness or addiction” 16 applies. Cal. Gov’t Code § 854.4. Plaintiff’s references, without more, are unavailing. 17 In an abundance of caution, plaintiff is granted leave to amend as to defendant Griffith, 18 provided plaintiff can allege specific facts demonstrating that defendant Griffith violated 19 plaintiff’s federal or constitutional rights. 20 Plaintiff’s Options 21 First Option. Plaintiff may proceed forthwith to serve defendants M. Deforest, R. St. 22 Andre, and D. Jodin, M. Murphy and A. Albrecht and pursue his claims against only those 23 defendants, as set forth above, or he may delay serving any defendant and attempt to rectify the 24 deficiencies identified above. If plaintiff elects to proceed forthwith against defendants M. 25 Deforest, R. St. Andre, and D. Jodin, M. Murphy and A. Albrecht, against whom he stated 26 potentially cognizable claims for relief, then within thirty days plaintiff must so elect on the 27 appended form. In this event the court will construe plaintiff’s election as consent to dismissal of 28 defendant Griffith and the noncognizable claims against the remaining defendants identified 1 above without prejudice. Under this option, plaintiff does not need to file an amended complaint. 2 Other Option. Or, plaintiff may delay serving any defendant and attempt to state a 3 cognizable claim against defendant Griffith and attempt to state additional cognizable claims 4 against the remaining defendants. If plaintiff elects to attempt to amend his complaint, he has 5 thirty days to do so. Plaintiff is not granted leave to add new claims or new defendants. 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, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if 11 he does an act, participates in another’s act, or omits to perform an act he is legally required to do 12 that causes the alleged deprivation). 13 A district court must construe a pro se pleading “liberally” to determine if it states a claim 14 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an 15 opportunity to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are 16 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678 (citing Bell Atlantic, 550 U.S. 18 at 555). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to 19 relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic, 550 U.S. at 20 570). 21 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 22 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 23 more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a 24 defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. 25 26 Ashcroft, 566 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions 27 can provide the framework of a complaint, they must be supported by factual allegations, and are 28 not entitled to the assumption of truth. Id. 1 An amended complaint must be complete in itself without reference to any prior pleading. 2 Local Rule 220; see Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) 3 (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non- 4 existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original 5 pleading is superseded. Plaintiff is not granted leave to add new claims or new defendants.4 In 6 addition, because plaintiff is pursuing claims related to incidents that occurred in two different 7 years, plaintiff should specifically identify the date of the act or omission as to each named 8 defendant. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 11 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 12 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 13 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 14 Director of the California Department of Corrections and Rehabilitation filed concurrently 15 herewith. 16 3. The allegations in the complaint are sufficient at least to state potentially cognizable 17 claims against defendants M. Deforest (claim one), defendant R. St. Andre (claim two, 2023 18 allegations), and defendants Jodin, Murphy and Albrecht (claim three). See 28 U.S.C. § 1915A. 19 If plaintiff chooses to proceed solely as to such claims, plaintiff shall so indicate on the attached 20 form and return it to the court within thirty days from the date of this order. In this event, the 21 court will construe plaintiff’s election to proceed forthwith as consent to an order dismissing the 22 defective claims without prejudice. 23 4. Plaintiff’s claims against defendants St. Andre, Albrecht, Jodin, Griffith, and Murphy 24 4 A plaintiff may properly assert multiple claims against a single defendant. Fed. Rule Civ. P. 25 18. In addition, a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the 26 same transaction, occurrence, or series of transactions and occurrences” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated 27 claims against different defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended, in part, “to prevent the sort of morass [a 28 multiple claim, multiple defendant] suit produce[s].” Id. 1 |} (claim one), his claims against defendant St. Andre as to the 2022 events (claim two), and his 2 || claims against defendant Griffith (claims three and four) are dismissed with leave to amend. 3 || Within thirty days of service of this order, plaintiff may amend his complaint to attempt to 4 || remedy the above-described deficiencies. Plaintiff is not obliged to amend his complaint. 5 5. Failure to comply with this order will result in a recommendation that this action be 6 || dismissed. 7 || Dated: May 30, 2024 4 aA Aan Spe | CHI 500 KIM ? UNITED STATES MAGISTRATE JUDGE 10 |] AAvrig0420.140.csk 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 ATHELSTAN A. WRIGHT, No. 2:24-cv-0420 CSK P 9 Plaintiff, 10 v. NOTICE OF ELECTION 11 M. DEFOREST, et al., 12 Defendants. 13 14 15 Plaintiff elects to proceed as follows: 16 ______ Plaintiff opts to proceed with the following claims: (a) retaliation claim 17 against defendant Deforest in violation of the First Amendment (claim one) based on plaintiff’s claim that Deforest authored a false RVR against 18 plaintiff in retaliation for plaintiff filing grievances; (b) an Eighth Amendment claim against defendant R. St. Andre based on plaintiff’s 19 placement and retention in administrative segregation in January 2023 until his release in April 2023 (claim two); and (c) retaliation and equal 20 protection claims against defendants Jodin, Murphy and Albrecht in 21 violation of the First and Fourteenth Amendments, based on their actions in September 2022 (claim three). Under this option, plaintiff consents to 22 dismissal of plaintiff’s claims against defendants St. Andre, Albrecht, Jodin, Griffith, and Murphy (claim one), his claims against defendant St. 23 Andre as to the 2022 events (claim two), and his claims against defendant Griffith (claims three and four) without prejudice. 24 OR 25 _____ Plaintiff opts to file an amended complaint and delay service of process. 26 DATED: ______________ _______________________________ 27 Plaintiff 28