Kevin Deshan Mabry v. L. Newton

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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12 KEVIN DESHAN MABRY Case No. 2:19-cv-10445-JLS (AFM)

13 Plaintiff,

ORDER DISMISSING COMPLAINT

v.

14 WITH LEAVE TO AMEND

15 L. NEWTON, et al.,

16 Defendants.

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18 On November 18, 2019, plaintiff, a state prisoner acting pro se, filed this civil

19 rights action pursuant to 42 U.S.C. § 1983 in the Southern District of California.

20 (ECF No. 1.) Plaintiff signed the Complaint on November 12, 2019. (Id. at 9.) The

21 action was transferred to the Central District on December 17, 2019, where venue is

22 proper. (ECF No. 3-4.) In his Complaint, plaintiff names as defendants Officer

23 McVay, Sergeant Flores, Sergeant Ellis, Lieutenant Coy, Officer Newton, and

24 Officer Purdy, all in their individual and official capacities. (ECF No. 1 at 2-3.)

25 Plaintiff seeks monetary damages. (Id. at 9.)

26 Plaintiff filed a Request to Proceed Without Prepayment of Filing Fees

27 (“Request”), which initially was incomplete. (See ECF Nos. 2, 7, 9, 15-18.) On

28 February 5, 2020 the Court granted plaintiff’s Request. (ECF No. 19.) On February

1 6, 2020, plaintiff was advised that the Court is screening the Complaint in this action

2 pursuant to 28 U.S.C. § 1915(e)(2). (ECF No. 20.) On February 20, 2020, plaintiff

3 filed a second Request to Proceed without Prepayment of Filing Fees (ECF No. 22,

4 “Second IFP Request”)1, and on February 21, 2020, plaintiff filed a notice of change

5 of address (ECF No. 23). Plaintiff is now incarcerated at the Salinas Valley State

6 Prison in Soledad, California.

7 In accordance with the terms of the Prison Litigation Reform Act of 1995

8 (“PLRA”), the Court has screened the Complaintprior to ordering service for purpose

9 of determining whether the action is frivolous or malicious; or fails to state a claim

10 on which relief may be granted; or seeks monetary relief against a defendant who is

11 immune from such relief. See 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(c)(1). The

12 Court’s screening of the pleading under the foregoing statutes is governed by the

13 following standards. A complaint may be dismissed as a matter of law for failure to

14 state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient

15 facts alleged under a cognizable legal theory. See, e.g., Kwan v. SanMedica Int’l,

16 854 F.3d 1088, 1093 (9th Cir. 2017); see also Rosati v. Igbinoso, 791 F.3d 1037,

17 1039 (9th Cir. 2015) (when determining whether a complaint should be dismissed

18 for failure to state a claim under the PLRA, the court applies the same standard as

19 applied in a motion to dismiss pursuant to Rule 12(b)(6)). In determining whether

20 the pleading states a claim on which relief may be granted, its allegations of material

21 fact must be taken as true and construed in the light most favorable to plaintiff. See,

22 e.g., Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the “tenet that

23 a court must accept as true all of the allegations contained in a complaint is

24 inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

25 Rather, a court first “discounts conclusory statements, which are not entitled to the

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1 The Court denies plaintiff’s Second IFP Request (ECF No. 22) as moot. The Court

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previously has granted plaintiff’s Request to Proceed Without Prepayment of Filing Fees. (ECF

28 No. 19.)

1 presumption of truth, before determining whether a claim is plausible.” Salameh v.

2 Tarsadia Hotel, 726 F.3d 1124, 1129 (9th Cir. 2013); see also Chavez v. United

3 States, 683 F.3d 1102, 1108 (9th Cir. 2012). Nor is the Court “bound to accept as

4 true a legal conclusion couched as a factual allegation or an unadorned, the-

5 defendant-unlawfully-harmed-me accusation.” Keates v. Koile, 883 F.3d 1228, 1243

6 (9th Cir. 2018) (internal quotation marks and citations omitted).

7 Since plaintiff is appearing pro se, the Court must construe the allegations of

8 the pleading liberally and must afford plaintiff the benefit of any doubt. See Hebbe

9 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); see also Alvarez v. Hill, 518 F.3d 1152,

10 1158 (9th Cir. 2008) (because plaintiff was proceeding pro se, “the district court was

11 required to ‘afford [him] the benefit of any doubt’ in ascertaining what claims he

12 ‘raised in his complaint’”) (alteration in original). Nevertheless, the Supreme Court

13 has held that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

14 relief’ requires more than labels and conclusions, and a formulaic recitation of the

15 elements of a cause of action will not do. . . . Factual allegations must be enough to

16 raise a right to relief above the speculative level . . . on the assumption that all the

17 allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp.

18 v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted, alteration in

19 original); see also Iqbal, 556 U.S. at 678 (To avoid dismissal for failure to state a

20 claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state

21 a claim to relief that is plausible on its face.’ . . . A claim has facial plausibility when

22 the plaintiff pleads factual content that allows the court to draw the reasonable

23 inference that the defendant is liable for the misconduct alleged.” (internal citation

24 omitted)).

25 In addition, Fed. R. Civ. P. 8(a) (“Rule 8”) states:

26 A pleading that states a claim for relief must contain: (1) a

short and plain statement of the grounds for the court’s

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jurisdiction . . .; (2) a short and plain statement of the claim

28 showing that the pleader is entitled to relief; and (3) a

1 demand for the relief sought, which may include relief in

the alternative or different types of relief.

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3 (Emphasis added). Further, Rule 8(d)(1) provides: “Each allegation must be simple,

4 concise, and direct. No technical form is required.” Although the Court must

5 construe a pro se plaintiff’s pleadings liberally, a plaintiff nonetheless must allege a

6 minimum factual and legal basis for each claim that is sufficient to give each

7 defendant fair notice of what plaintiff’s claims are and the grounds upon which they

8 rest. See, e.g., Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir.

9 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (a complaint must give

10 defendants fair notice of the claims against them). If a plaintiff fails to clearly and

11 concisely set forth factual allegations sufficient to provide defendants with notice of

12 which defendant is being sued on which theory and what relief is being sought against

13 them, the pleading fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d

14 1172, 1177-79 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671,

15 674 (9th Cir. 1981). A claim has “substantive plausibility” if a plaintiff alleges

16 “simply, concisely, and directly [the] events” that entitle him to damages. Johnson

17 v. City of Shelby, 574 U.S. 10, 12 (2014). Failure to comply with Rule 8 constitutes

18 an independent basis for dismissal of a pleading that applies even if the claims are

19 not found to be “wholly without merit.” See McHenry, 84 F.3d at 1179.

20 Following careful review of the Complaint, the Court finds that plaintiff’s

21 claims appear to be barred by the statute of limitations and the factual allegations are

22 insufficient to state a claim upon which relief may be granted. Further, the pleading

23 fails to comply with Rule 8 because it fails to state a short and plain statement of each

24 claim that is sufficient to give each defendant fair notice of what plaintiff’s claims

25 are and the grounds upon which they rest. Accordingly, the Complaint is dismissed

26 with leave to amend. See Rosati, 791 F.3d at 1039 (“A district court should not

27 dismiss a pro se complaint without leave to amend unless it is absolutely clear that

28 the deficiencies of the complaint could not be cured by amendment.”) (internal

1 quotation marks omitted).

2 If plaintiff desires to pursue this action, he is ORDERED to file a First

3 Amended Complaint no later than thirty (30) days after the date of this Order,

4 remedying the deficiencies discussed herein. Further, plaintiff is admonished that,

5 if he fails to timely file a FirstAmended Complaintor fails to remedy the deficiencies

6 of this pleading, the Court will recommend that this action be dismissed without

7 further leave to amend and with prejudice for failure to state a claim and failure to

8 follow the Court’s orders.2

9 A. Statute of Limitations

10 The Complaint references one incident date, August 21, 2016, when plaintiff

11 alleges that three unidentified firefighters from the Long Beach Fire Department and

12 Long Beach Police Officers Newton, Purdy, McVay, Flores, Ellis, and Coy used

13 excessive force during an incident at a grocery store. Plaintiff appears to allege that

14 he was subjected to a “false arrest” on that day and that the related police report was

15 falsified. (ECF No. 1 at 5.) Plaintiff also appears to raise claims under the “Fourth

16 and Fourteenth Amendments” for the use of excessive force, “cruel and unusual

17 punishment,” and “false arrest.” (Id. at 5-6.)

18 Federal civil rights claims brought pursuant to § 1983 are subject to the forum

19 state’s statute of limitations applicable to personal injury claims. See, e.g., Bird v.

20 Dep’t of Human Servs., 935 F.3d 738, 743 (9th Cir. 2019) (citing Wilson v. Garcia,

21 471 U.S. 261, 276 (1985)). Federal civil rights claims arising in California after 2003

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23 2 Plaintiff is advised that this Court’s determination herein that the allegations in the Complaint

are insufficient to state a particular claim should not be seen as dispositive of that claim.

24 Accordingly, although this Court believes that you have failed to plead sufficient factual matter in

your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not

25 required to omit any claim or defendant in order to pursue this action. However, if you decide to

pursue a claim in a FirstAmended Complaint that this Court has found to be insufficient, then this

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Court, pursuant to the provisions of 28 U.S.C. §636, ultimately may submit to the assigned District

27 Judge a recommendation that such claim be dismissed with prejudice for failure to state a claim,

subject to your right at that time to file Objections with the District Judge as provided in the Local

28 Rules Governing Duties of Magistrate Judges.

1 are subject to the two-year limitations period set forth in Cal. Civ. Proc. Code § 335.1.

2 See, e.g., Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). Federal law,

3 however, determines when a civil rights claim accrues. See McDonough v. Smith,

4 139 S. Ct. 2149, 2155 (2019)(“the time at which a § 1983claim accrues is a question

5 of federal law” (internal quotation marks omitted)). A cause of action typically

6 accrues under federal law as soon as a potential “plaintiff knows or has reason to

7 know of the injury which is the basis of the action.” See Bird, 935 F.3d at 743.

8 In addition, a federal court must give effect to a state’s tolling provisions. See

9 Hardin v. Straub, 490 U.S. 536, 539 (1989). Under California law, the continuous

10 incarceration of a plaintiff is a disability that tolls the statute of limitations for a

11 maximum of two years. See Cal. Civ. Proc. Code § 352.1; see, e.g., Jones v. Blanas,

12 393 F.3d 918, 927 (9th Cir. 2004) (California provides for statutory tolling for a

13 period of up to two years based on the disability of imprisonment); Elliott v. City of

14 Union City, 25 F.3d 800, 802 (9th Cir. 1994). Such tolling is applicable only if a

15 plaintiff was imprisoned “at the time the claim accrued.” Elliott, 25 F.3d at 802-03

16 (explaining that “actual, uninterrupted incarceration is the touchstone” for assessing

17 tolling for the disability of “post-arrest custody”) (citation omitted)).

18 Plaintiff’s federal civil rights claimsaccrued no later than the day on which the

19 events that gave rise to his claims took place. Even giving plaintiff the benefit of any

20 doubt as a pro se litigant, it does not appear that plaintiff was incarcerated at the time

21 of, or immediately following, the relevant incident. According to a document

22 attached to the Complaint that is entitled “Long Beach Police Department” and dated

23 August 21, 2016, plaintiff was “released not booked” on that date. After the incident

24 at the grocery store, plaintiff was taken to an emergency room where it was

25 determined that he required surgery. Officer Newton stated in the police report that

26 plaintiff was “released” to the medical center. (Id. at 11-14.)

27 Because plaintiff was not incarcerated when defendants are alleged to have

28 used excessive force andfalsely arrested plaintiff, heis not entitledto statutory tolling

1 for such claims. See Cal. Code Civ. Proc. § 352.1. Absent other grounds for tolling,

2 therefore, plaintiff only had until August 2018 to file his civil rights action. Because

3 plaintiff’s action herein was filed no earlier than November 12, 2019, the day on

4 which he signed his Complaint (ECF No. 1 at 9), any federal civil rights claims

5 arising from the incident on August 21, 2016, appear to be time-barred.

6 Accordingly, it appears to the Court that plaintiff’s “Count 1” and “Count 2”

7 are barred by the statute of limitations. A pleading may be dismissed on statute of

8 limitations grounds if “the statute of limitations issues are apparent on the face of the

9 complaint.” Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013).

10 B. Official Capacity Claims

11 Plaintiff names each defendant in his or her official capacity. (ECF No. 1 at

12 2-3.) The Supreme Court, however, has held that an “official-capacity suit is, in all

13 respects other than name, to be treated as a suit against the entity.” Kentucky v.

14 Graham, 473 U.S. 159, 166 (1985). Such a suit “is not a suit against the official

15 personally, for the real party in interest is the entity.” Id. at 166 (emphasis omitted).

16 In this case, defendants Newton, Purdy, McVay, Flores, Ellis, and Coy appear to be

17 employees of the Long Beach Police Department. (See ECF No. 1 at 5.)

18 Further, the Supreme Court held in Monell v. New York City Dep’t of Soc.

19 Servs., 436 U.S. 658, 694 (1978), that “a local government may not be sued under

20 §1983 for an injury inflicted solely by its employees or agents. Instead, it is when

21 execution of a government’s policy or custom, whether made by its lawmakers or by

22 those whose edicts or acts may fairly be said to represent official policy, inflicts the

23 injury that the government as an entity is responsible under § 1983.” Monell, 436

24 U.S. at 694; see also Connick v. Thompson, 563 U.S. 51, 60 (2011) (“under § 1983,

25 local governments are responsible only for their own illegal acts” (emphasis in

26 original, internal quotation marks omitted)). To state a claim arising from the

27 execution of a local entity’s policy or custom, plaintiff must set forth factual

28 allegations to show that the execution of a specific policy, regulation, custom or the

1 like was the “actionable cause” of any alleged constitutional violation. See, e.g., Tsao

2 v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (“a plaintiff must also

3 show that the policy at issue was the ‘actionable cause’ of the constitutional violation,

4 which requires showing both but-for and proximate causation”). Additionally, a

5 Monell claim may not be premised on an isolated or sporadic incident. See, e.g.,

6 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom

7 may not be predicated on isolated or sporadic incidents; it must be founded upon

8 practices of sufficient duration, frequency and consistency that the conduct has

9 become a traditional method of carrying out policy.”); Thompson v. Los Angeles, 885

10 F.2d 1439, 1443-44 (9th Cir. 1989) (“Consistent with the commonly understood

11 meaning of custom, proof of random acts or isolated events are insufficient to

12 establish custom.”), overruled on other grounds, Bull v. City & County of San

13 Francisco, 595 F.3d 964, 981 (9th Cir. 2010) (en banc).

14 Here, plaintiff’s claims against the defendants in their official capacities all

15 arise from a single incident in which plaintiff alleges that some Long Beach Police

16 Officers used excessive force and unlawfully arrested him. Claims arising from an

17 isolated event, even if not barred by the statute of limitations, fail to state a claim

18 against the City of Long Beach arising from the execution of an allegedly improper

19 custom or practice that was a “traditional method of carrying out policy” at the time

20 that plaintiff alleges his constitutional rights were violated. Plaintiff’s factual

21 allegations fail to raise a plausible inference that the City of Long Beach is liable for

22 any constitutional violation. See, e.g., Iqbal, 556 U.S. at 678. Therefore, plaintiff’s

23 claims against the defendants in their official capacities fail to raise a right to relief

24 above the speculative level.

25 C. Rule 8

26 To the extent plaintiff is raising any claims herein that are not barred by the

27 statute of limitations against any named defendant in his or her individual capacity,

28 the Complaint fails to allege a minimum factual and legal basis for each claim that is

1 sufficient to give each defendant fair notice of what plaintiff’s claims are and which

2 factual allegations give rise to each claim.

3 In his two “Counts,” plaintiff references what appear to be multiple claims and

4 fails to allege that any of the multiple defendants took a specific action that caused a

5 constitutional deprivation. For example, in his Count 1, plaintiff lists violations of

6 his civil rights including “freedom from cruel and unusual punishment, falsification

7 of police report, Fourth and Fourteenth Amendments.” (ECF No. 1 at 5.) Plaintiff

8 alleges that he went to a grocery store in Long Beach on August 21, 2016, and he

9 was asked by a security guard to leave his backpack at the front of the store. Plaintiff

10 alleges that he complied with this request. When he left, he asked the security guard

11 and “three firemen” where his bag was. Three “Doe” defendants “held [plaintiff]

12 down on the floor,” and defendant Newton placed plaintiff into handcuffs. (Id.)

13 Plaintiff does not allege that any other named defendant took any action, and he does

14 not allege that Officer Newton used any force against plaintiff.

15 In his “Count 2” plaintiff does not separately reference any civil rights

16 violations, but he alleges that he was assaulted. (Id. at 6.) In this claim, plaintiff

17 alleges that defendants Newton and Purdy “participated in detaining” plaintiff and

18 were aware of “the assault,” but the officers failed to “investigate” the firefighters.

19 (Id.) Plaintiff was injured, and Officer Newton took plaintiff to the hospital for

20 treatment. (Id.) Plaintiff alleges that McVay, Ellis, and Coy “contributed to

21 falsification of police report” and failed to properly investigate the incident, but he

22 fails to set forth any specific facts regarding the actions taken by each named

23 defendant. (Id.) Plaintiff additionally alleges in this claim that defendants Newton,

24 Purdy, McVay, Flores, Ellis, and Coy “contributed” to “cruel and unusual

25 punishment and false arrest.” (Id.)

26 To the extent that plaintiff purports to raise a claim under the Cruel and

27 Unusual Punishment Clause of the Eighth Amendment, the Eighth Amendment does

28 not apply to claims of a detainee who has not been convicted of a crime. See Bell v.

1 Wolfish, 441 U.S. 520, 535 n.16 (1979) (noting that “the Due Process Clause rather

2 than the Eighth Amendment” is relied on in considering claims of pretrial detainees

3 because “Eighth Amendment scrutiny is appropriate only after the State has complied

4 with the constitutional guarantees traditionally associated with criminal

5 prosecutions”). Accordingly, plaintiff’s allegations fail to state any claim under the

6 Cruel and Unusual Punishment Clause.

7 Claims arising from an arrest arise may under the Fourth Amendment. See,

8 e.g., Manuel v. City of Joliet, 137 S. Ct. 911, 914-15 (2017) (a plaintiff’s claims that

9 he was held in custody on fabricated evidence arose under the Fourth Amendment).

10 Plaintiff’s claims for the use of excessive force during his arrest fall under the Fourth

11 Amendment’s right to be free from unreasonable seizures. See, e.g., Graham v.

12 Connor, 490 U.S. 386, 396 (1989); Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th

13 Cir. 2001) (as amended) (“the force which is applied must be balanced against the

14 need for that force”). The Supreme Court has held that, in determining whether the

15 force used to effect a particular seizure is “reasonable” under the Fourth Amendment,

16 “the question is whether the officers’ actions are ‘objectively reasonable’ in light of

17 the facts and circumstances confronting them, without regard to their underlying

18 intent or motivation.” Graham, 490 U.S. at 397. As the Ninth Circuit has

19 emphasized, “the most important factor under Graham is whether the suspect posed

20 an immediate threat to the safety of the officers or others.” C.V. v. City of Anaheim,

21 823 F.3d 1252, 1255 (9th Cir. 2016) (internal quotation marks omitted). The

22 Complaint, however, fails to clearly identify which of the named defendants are

23 alleged to have used any force.

24 To state a federal civil rights claim against a specific defendant, plaintiff must

25 allege that the defendant deprived him of a right guaranteed under the United States

26 Constitution or a federal statute, and that the “deprivation was committed by a person

27 acting under color of state law.” See West v. Atkins, 487 U.S. 42, 48 (1988). “A

28 person deprives another ‘of a constitutional right, within the meaning of section 1983,

1 if he does an affirmative act, participates in another’s affirmative acts, or omits to

2 perform an act which he is legally required to do that causes the deprivation of which

3 [the plaintiff complains].’” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)

4 (emphasis and alteration in original). Further, the “under-color-of-state-law”

5 requirement excludes from the reach of § 1983 all “merely private conduct, no matter

6 how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

7 40, 50 (1999). A claim that arises under state law, such as “assault,” fails to allege a

8 deprivation of a federal constitutional right.

9 Plaintiff must set forth a separate, short, and plain statement of the actions that

10 each defendant is alleged to have taken, or failed to have taken, that caused each

11 violation of a right guaranteed under the federal Constitution or a federal statute. See

12 West, 487 U.S. at 48. Because plaintiff appears to raise several claims under multiple

13 legal grounds within each “Count,” and because all defendants named in this action

14 are not alleged to have participated in all parts of the alleged events, the Complaint

15 fails to meet the minimal requirement of Rule 8 that a pleading allow each defendant

16 to discern what he or she is being sued for. See McHenry, 84 F.3d at 1177; see also

17 Twombly, 550 U.S. at 555 (“[f]actual allegations must be enough to raise a right to

18 relief above the speculative level”). The Court is mindful that, because plaintiff is

19 appearing pro se, the Court must construe the allegations of the Complaint liberally

20 and must afford plaintiff the benefit of any doubt. That said, the Supreme Court has

21 made clear that the Court has “no obligation to act as counsel or paralegal to pro se

22 litigants.” Pliler v. Ford, 542 U.S. 225, 231 (2004). In addition, the Supreme Court

23 has held that, while a plaintiff need not plead the legal basis for a claim, the plaintiff

24 must allege “simply, concisely, and directly events” that are sufficient to inform the

25 defendants of the factual grounds for each claim. Johnson, 135 S. Ct. at 347. The

26 Complaint here does not meet these standards.

27 Accordingly, the Court finds that plaintiff’s Complaint violates Rule 8 because

28 it fails to set forth a simple, concise, and direct statement of the factual basis of each

1 of plaintiff’s claims against each defendant. If plaintiff wishes to state any federal

2 civil rights claim that is not barred by the statute of limitations against any named

3 defendant, plaintiff should set forth each claim separately, stating his factual

4 allegations foreach claim against each defendantunder the standards set forth above.

5 ************

6 If plaintiff still desires to pursue this action, he is ORDERED to file a First

7 Amended Complaint no later than thirty (30) days after the date of this Order,

8 remedying the pleading deficiencies discussed above. The FirstAmended Complaint

9 should bear the docket number assigned in this case; be labeled “First Amended

10 Complaint”; and be complete in and of itself without reference to the original

11 Complaint, or any other pleading or document.

12 Plaintiff is admonished that, irrespective of his pro se status, if plaintiff wishes

13 to proceed with this action, then he must comply with the Federal Rules of Civil

14 Procedure and the Local Rules of the United States District Court for the Central

15 District of California. See, e.g., Briones v. Riviera Hotel & Casino, 116 F.3d 379,

16 382 (9th Cir. 1997) (“pro se litigants are not excused from following court rules”);

17 including the Local Rules regarding the format of a pleading, such as L.R. 11-3.2,

18 which requires that the lines on each page be numbered and that no more than 28

19 lines of double-spaced text be on each page.

20 The clerk is directed to send plaintiff a blank Central District civil rights

21 complaint form, which plaintiff is encouraged to utilize. Plaintiff is admonished that

22 he must sign and date the civil rights complaint form, and he must use the space

23 provided in the form to set forth all of the claims that he wishes to assert in a First

24 Amended Complaint. Further, if plaintiff feels that any document is integral to any

25 ofhisclaims, then heshouldattach such document as an exhibit tothe First Amended

26 Complaint and clearly allege the relevance of each attached document within the

27 claims that he raises in the First Amended Complaint.

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1 In addition, if plaintiff no longer wishes to pursue this action, then he may

2 || request a voluntary dismissal of the action pursuant to Federal Rule of Civil

3 || Procedure 41(a). The clerk also is directed to attach a Notice of Dismissal form for

4 || plaintiff’s convenience.

5 Plaintiff is further admonished that, if he fails to timely file a First

6 || Amended Complaint, or if he fails to remedy the deficiencies of this pleading as

7 || discussed herein, then the Court will recommend that the action be dismissed

8 || prejudice on the grounds set forth above and for failure to diligently prosecute.

9 IT IS SO ORDERED.

10 || DATED: 3/9/2020 (Wy f<&—

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12 ALEXANDER F.MacKINNON

13 UNITED STATES MAGISTRATE JUDGE

Attachment: Form CV-066

14 Form CV-009

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