# Marcus R. Ellington, Sr. v. California Dept. of Corr. and Reh., Secretary of

> District Court, C.D. California · January 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10040027

## Case

- **Court:** District Court, C.D. California
- **Decided:** January 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10040027

## How later opinions describe it (automated extraction)

- stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”
- holding “Under the Ex parte Young exception to that Eleventh Amendment bar, a party may 27 seek prospective injunctive relief against an individual state officer in her official capacity.”
- noting 11 that if joined plaintiffs fail to meet requirements of Rule 20(a), “the district court may 12 sever the misjoined plaintiffs, as long as no substantial right will be prejudiced by the 13 severance”

## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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10 MARCUS R. ELLINGTON, SR., Case No. CV 20-9116-CBM (KK)
11 Plaintiff,
12 v. ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
13 CALIFORNIA DEPT. OF CORR. &
REH., SECRETARY OF, ET AL.
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Defendants.
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I.
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INTRODUCTION
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Plaintiff Marcus R. Ellington, Sr. (“Plaintiff”), proceeding pro se and in forma
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pauperis, filed a Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 (“Section
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1983”) and 42 U.S.C. § 2000cc et seq. (“Religious Land Use and Institutionalized
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Person Act” or “RLUIPA”). For the reasons discussed below, the Court dismisses
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the Complaint with leave to amend.
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II.
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BACKGROUND
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On October 4, 2020, Plaintiff, who is currently an inmate at California State
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Prison – Los Angeles County in Lancaster, California (“CSP-LAC”), constructively
1 filed1 a Complaint pursuant to Section 1983 and RLUIPA against the following
2 defendants: (1) State of California, (2) Secretary of the Department of Corrections,
3 (3) J. Clark Kelso, (4) R.C. Johnson, (5) C. Galstian, (6) M. Lewis, (7) B. Ramos, (8) S.
4 Gates, (9), Ha/Haas, (10) S. John, (11) T. Lewandowski, (12) E. Lake, (13) D. Ulstad,
5 and (14) CSP-LAC Religious Review Committee/Does 1-10. ECF Docket No.
6 (“Dkt.”) 1. All individual defendants are sued in both their individual and official
7 capacities. Id. at 7-9. The allegations in the Complaint are divided into two sections:
8 “Denial of Medical Care” and “Substantial Burden of Religious Exercise.” Id. at 11-
9 16.
10 In the section of the Complaint entitled “Denial of Medical Care,” Plaintiff
11 alleges on May 17, 2019, he was evaluated by a neurosurgeon who diagnosed him with
12 “Severe Spinal Stenosis” and recommended a “Philadelphia type collar” and “Staged
13 surgery (spinal).” Id. at 11. Plaintiff claims defendants R.C. Johnson, Secretary of the
14 Department of Corrections, J. Clark Kelso, C. Galstian, M. Lewis, B. Ramos, S. Gates,
15 Ha/Haas, and nurse practitioner Oh2 “refuse the treatments recommended by the
16 Expert and the Ultram pain medication” prescribed at a January 17, 2020 telemedicine
17 consultation. Id. at 12. Plaintiff states “Defendants are basing their decision to not
18 give [P]laintiff the treatments RECOMMENDED by the expert on a Policy or rule
19 that CDCR has that gives itself the ultimate decision as to medical care for prisoner’s
20 (sic).” Id.
21 Plaintiff further states he receives “Amatryptaline” and “SULINDAC” for his
22 pain, “each of which does nothing to lessen his pain.” Id. Plaintiff claims he has
23 “advised Ha/Haas, OH and, the other defendant’s [sic] that these medications do not
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1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading
25 to mail to court, the court deems the pleading constructively “filed” on the date it is
signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted);
26 Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule
applies to § 1983 suits filed by pro se prisoners”).
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2 It is unclear whether Plaintiff seeks to name nurse practitioner Oh as a defendant.
1 lessen his pain.” Id. Plaintiff, therefore, concludes defendants are knowingly
2 permitting his pain to continue while “hav[ing] the record appear as though the
3 [P]laintiff is being treated.” Id.
4 Plaintiff also alleges defendants R.C. Johnson, Secretary of the Department of
5 Corrections, J. Clark Kelso, C. Galstian, M. Lewis, B. Ramos, S. Gates, Ha/Haas, and
6 nurse practitioner Oh “will not prescribe pain relief comparable to his level of pain”
7 and fail to provide a “cervical pillow” or “wedge pillow and mattresses to treat his
8 painful condition’s [sic].” Id. at 12-13. Without a pillow or mattress, Plaintiff is
9 “forced to sleep sitting up in his wheelchair . . . causing him sever [sic] pain in his
10 neck.” Id. at 12. “Plaintiff is being deprived of sleep and maintained in disabling pain
11 daily.” Id. Additionally, the pain in Plaintiff’s spine prevents him from “walking,
12 bending and twisting at the waist,” and “wip[ing] his bottom after using the toilet and
13 during showering,” resulting in “Staph infections due to being unable to keep clean
14 and being further crippled by inactivity due to inadequate pain relief.” Id.
15 In the section of the Complaint entitled “Substantial Burden of Religious
16 Exercise,” Plaintiff alleges during the month of January 2019, “Rabb[i] Lazar was
17 tasked with the telling the [P]laintiff that he was being removed [from] the Kosher
18 diet program due to [P]laintiff having purchased non-kosher items from the prison
19 canteen for another inmate.” Id. at 14. Plaintiff claims removal from the program
20 was “ordered by E. Lake and the Doe’s [sic] of the religious review committee
21 (RRC).” Id. Plaintiff states he has practiced Judaism for more than thirteen years and
22 is Hebrew by birth and is, therefore, being denied his right to practice his religion due
23 to the refusal to place him on the Kosher diet program.
24 Plaintiff seeks injunctive relief, including that he be provided Kosher meals and
25 “pain relief comparable to the level of pain [Plaintiff] is in, . . . [c]ervical and wedge
26 pillows, . . . the Philadelphia type collar ordered by the expert/specialist,” and surgery.
27 Id. at 17. Plaintiff also seeks compensatory and punitive damages. Id.
1 III.
2 STANDARD OF REVIEW
3 Where a plaintiff is a prisoner or proceeding in forma pauperis, a court must
4 screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to dismiss
5 the case at any time if it concludes the action is frivolous or malicious, fails to state a
6 claim on which relief may be granted, or seeks monetary relief against a defendant
7 who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see Barren v.
8 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
9 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a
10 “short and plain statement of the claim showing that the pleader is entitled to relief.”
11 FED. R. CIV. P. 8(a)(2). In determining whether a complaint fails to state a claim for
12 screening purposes, a court applies the same pleading standard as it would when
13 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See
14 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).
15 A complaint may be dismissed for failure to state a claim “where there is no
16 cognizable legal theory or an absence of sufficient facts alleged to support a
17 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In
18 considering whether a complaint states a claim, a court must accept as true all of the
19 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir.
20 2011). However, the court need not accept as true “allegations that are merely
21 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re
22 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint
23 need not include detailed factual allegations, it “must contain sufficient factual matter,
24 accepted as true, to state a claim to relief that is plausible on its face.” Cook v.
25 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
26 678 (2009)). A claim is facially plausible when it “allows the court to draw the
27 reasonable inference that the defendant is liable for the misconduct alleged.” Id. The
1 and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d
2 1202, 1216 (9th Cir. 2011).
3 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint,
4 however inartfully pleaded, must be held to less stringent standards than formal
5 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008).
6 However, liberal construction should only be afforded to “a plaintiff’s factual
7 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), and a court need not
8 accept as true “unreasonable inferences or assume the truth of legal conclusions cast
9 in the form of factual allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir.
10 2003).
11 If a court finds the complaint should be dismissed for failure to state a claim,
12 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith,
13 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it
14 appears possible the defects in the complaint could be corrected, especially if the
15 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106
16 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot
17 be cured by amendment, the court may dismiss without leave to amend. Cato, 70
18 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
19 IV.
20 DISCUSSION
21 A. THE RELIGIOUS EXERCISE CLAIMS ARE IMPROPERLY
22 JOINED WITH THE DENIAL OF MEDICAL CARE CLAIMS
23 1. Applicable Law
24 A basic lawsuit is a single claim against a single defendant. Federal Rule of
25 Civil Procedure 18(a) allows a plaintiff to add multiple claims to the lawsuit when they
26 are against the same defendant. FED. R. CIV. P. 18 (a). Federal Rule of Civil
27 Procedure 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit where the
1 transactions” and “any question of law or fact common to all defendants will arise in
2 the action.” FED. R. CIV. P. 20(a)(2).
3 “Under Federal Rule of Civil Procedure 20(a)(2), a plaintiff may bring a claim
4 against multiple defendants so long as (1) the claim against them arises out of the
5 same transaction or occurrence, or series of transactions and occurrences, and (2)
6 there are commons questions of law or fact as to all defendants.” Smith v. Trexler,
7 No. 13-CV-01052-SBA (PR), 2016 WL 925851, at *3 (N.D. Cal. Mar. 11, 2016). If
8 the test for permissive joinder is not satisfied, the court “may at any time, on just
9 terms, add or drop a party” and “may also sever any claim against a party.” FED. R.
10 CIV. P. 21; see also Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) (noting
11 that if joined plaintiffs fail to meet requirements of Rule 20(a), “the district court may
12 sever the misjoined plaintiffs, as long as no substantial right will be prejudiced by the
13 severance”).
14 2. Analysis
15 Here, Plaintiff’s religious exercise claims do not satisfy the requirements of
16 Rule 20(a) for permissive joinder with the claims arising out of Plaintiff’s alleged
17 denial of medical care. First, the religious exercise claims do not arise out of the same
18 “transaction, occurrence, or series of transactions” as the medical care claims, which
19 occurred five months apart and involved different defendants and unrelated alleged
20 harms. FED. R. CIV. P. 20(a)(2)(A). Second, the incidents do not appear to present
21 any “question of law or fact common to all defendants[.]” See FED. R. CIV. P.
22 20(a)(2)(B). Thus, neither prong of Rule 20(a)(2) is not satisfied. See Coughlin, 130
23 F.3d at 1351 (holding that claims “involv[ing] different legal issues, standards, and
24 procedures” do not involve common factual or legal questions). Hence, Plaintiff’s
25 unrelated claims against different defendants must be brought in separate lawsuits to
26 avoid confusion and prevent “the sort of morass [a multiple claim, multiple
27 defendant] suit produce[s].” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)
1 different lawsuits, in part to prevent prisoners from circumventing filing-fee
2 requirements and three-strikes rule under Prison Litigation Reform Act); Gonzalez v.
3 Maldonado, No. 1:11-cv-01774-SAB (PC), 2013 WL 4816038, at *2 (E.D. Cal. Sept. 9,
4 2013) (same).
5 Accordingly, Plaintiff’s religious exercise claims are improperly joined and must
6 be brought, if at all, in a separate lawsuit. The Court addresses Plaintiff’s Section 1983
7 denial of medical care claims below.
8 B. THE ELEVENTH AMENDMENT BARS ALL SECTION 1983
9 CLAIMS AGAINST THE STATE OF CALIFORNIA AND THE
10 INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITY
11 FOR MONEY DAMAGES
12 1. Applicable Law
13 “The Eleventh Amendment prohibits federal courts from hearing suits brought
14 against an unconsenting state.” Brooks v. Sulphur Springs Vall. Elec. Co-op., 951
15 F.2d 1050, 1053 (9th Cir. 1991) (citing Pennhurst State Sch. & Hosp. v. Halderman,
16 465 U.S. 89, 100 (1984)). This jurisdictional bar includes “suits naming state agencies
17 and departments as defendants,” and it applies whether a plaintiff “seek[s] damages or
18 injunctive relief.” Id.; Pennhurst State Sch. & Hosp., 465 U.S. at 102. “[A]n entity
19 with Eleventh Amendment immunity is not a ‘person’ within the meaning of § 1983.”
20 Howlett By & Through Howlett v. Rose, 496 U.S. 356, 365 (1990). Thus, “neither a
21 State nor its officials acting in their official capacities are ‘persons’ under § 1983.”
22 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
23 2. Analysis
24 Here, to the extent Plaintiff seeks to sue the State of California and individual
25 defendants in their official capacity for money damages3 pursuant to Section 1983,
26 such claims are barred under the Eleventh Amendment.
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3 Individual state official and employees may be sued in their official capacity for
1 Accordingly, Plaintiff’s Section 1983 claims against the State of California and
2 the individual defendants in their official capacity for money damages are subject to
3 dismissal.
4 C. THE COMPLAINT FAILS TO STATE A CLAIM FOR DELIBERATE
5 INDIFFERENCE TO SERIOUS MEDICAL NEEDS
6 1. Applicable Law
7 Section 1983 prohibits persons acting under color of law from depriving
8 individuals of their constitutional rights. 42 U.S.C. § 1983. To state a claim against a
9 defendant for violation of civil rights under Section 1983, a plaintiff must allege the
10 defendant deprived him or her of a right guaranteed under the Constitution or a
11 federal statute. See West v. Atkins, 487 U.S. 42, 48 (1988); Karim-Panahi v. Los
12 Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1998). A plaintiff must present
13 facts showing how a particular defendant was directly and personally involved in
14 inflicting the alleged injury. See Iqbal, 556 U.S. at 676. Moreover, although a
15 complaint need not include detailed factual allegations, it “must contain sufficient
16 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
17 Cook, 637 F.3d at 1004 (quoting Iqbal, 556 U.S. at 678).
18 Prison officials or private physicians under contract to treat state inmates
19 “violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to [a prisoner’s]
20 serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014)
21 (alterations in original) (citation omitted); Farmer v. Brennan, 511 U.S. 825, 828
22 (1994); West v. Atkins, 487 U.S. 42, 54 (1988). To assert a deliberate indifference
23 claim, a prisoner plaintiff must show the defendant (1) deprived him of an objectively
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25

26 Regents of the Univ. of California, 891 F.3d 1147, 1153 (9th Cir. 2018) (holding
“Under the Ex parte Young exception to that Eleventh Amendment bar, a party may
27 seek prospective injunctive relief against an individual state officer in her official
capacity.”)
1 serious medical need, and (2) acted with a subjectively culpable state of mind. Wilson
2 v. Seiter, 501 U.S. 294, 297 (1991).
3 “A medical need is serious if failure to treat it will result in ‘significant injury or
4 the unnecessary and wanton infliction of pain.’” Peralta, 744 F.3d at 1081. “A prison
5 official is deliberately indifferent to [a serious medical] need if he ‘knows of and
6 disregards an excessive risk to inmate health.’” Id. at 1082 (citation omitted). This
7 standard “requires more than ordinary lack of due care.” Colwell v. Bannister, 763
8 F.3d 1060, 1066 (9th Cir. 2014). The “official must both be aware of facts from
9 which the inference could be drawn that a substantial risk of serious harm exists, and
10 he must also draw the inference.” Id.
11 “Deliberate indifference ‘may appear when prison officials deny, delay, or
12 intentionally interfere with medical treatment, or it may be shown by the way in which
13 prison physicians provide medical care.’” Id. (citing Hutchinson v. United States, 838
14 F.2d 390, 394 (9th Cir. 1988)). In either case, however, the indifference to the
15 inmate’s medical needs must be purposeful and substantial; negligence, inadvertence,
16 or differences in medical judgment or opinion do not rise to the level of a
17 constitutional violation. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996),
18 cert. denied, 519 U.S. 1029 (1996); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.
19 2004) (negligence constituting medical malpractice is not sufficient to establish an
20 Eighth Amendment violation); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
21 Similarly, “[a] difference of opinion between a prisoner-patient and prison medical
22 authorities regarding treatment does not give rise” to a Section 1983 claim. Franklin
23 v. Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). A plaintiff “must
24 show that the course of treatment the doctors chose was medically unacceptable
25 under the circumstances, and . . . that they chose this course in conscious disregard of
26 an excessive risk to plaintiff’s health.” Jackson, 90 F.3d at 331.
27 ///
1 2. Analysis
2 Here, Plaintiff sets forth conclusory allegations, but provides no specific facts
3 to support his conclusions as to each defendant. Plaintiff simply alleges defendants
4 R.C. Johnson, Secretary of the Department of Corrections, J. Clark Kelso, C.
5 Galstian, M. Lewis, B. Ramos, S. Gates, Ha/Haas and nurse practitioner Oh “refuse
6 the treatments recommended by the Expert,” but provides no factual allegations to
7 support this conclusion. Dkt. 1 at 12. For example, Plaintiff does not provide facts
8 to indicate when and how the defendants were informed of the recommended
9 treatments or whether defendants have the authority to deny treatments, and if so,
10 what actions they took to deny such treatments. Similarly, Plaintiff simply alleges he
11 has “advised Ha/Haas . . . and the other defendant’s [sic] that [his prescribed]
12 medications do not lessen his pain,” but again provides no factual allegations. Id. at
13 12. For example, Plaintiff does not state when or how defendants were advised that
14 the prescribed medications were not alleviating his pain; whether the defendants have
15 the authority to prescribe other medication, and if so, what actions they took to deny
16 such medication. Plaintiff’s allegations that defendants R.C. Johnson, Secretary of the
17 Department of Corrections, J. Clark Kelso, C. Galstian, M. Lewis, B. Ramos, S. Gates,
18 Ha/Haas, and nurse practitioner Oh “will not prescribe pain relief comparable to his
19 level of pain” and fail to provide a “cervical pillow” or “wedge pillow and mattresses
20 to treat his painful condition’s (sic),” id. at 12-13, suffer from similar deficiencies.
21 If Plaintiff seeks to amend this claim, he must allege specific facts indicating,
22 among other things, when and how each defendant learned of Plaintiff’s
23 recommended treatments; what role each defendant has in prescribing Plaintiff’s
24 medical treatment; when and how each defendant was informed Plaintiff was in
25 severe pain, unable to sleep, or unable to care for himself; and what actions each
26 defendant took to deny Plaintiff other pain medication, surgery, a cervical pillow, or a
27 wedge pillow. Plaintiff is further advised he cannot simply refer to defendants
1 defendant to demonstrate that each defendant was directly and personally involved in
2 the alleged constitutional deprivation.
3 V.
4 LEAVE TO FILE A FIRST AMENDED COMPLAINT
5 For the foregoing reasons, the Complaint is subject to dismissal. As the Court
6 is unable to determine whether amendment would be futile, leave to amend is granted.
7 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is
8 advised that the Court’s determination herein that the allegations in the Complaint are
9 insufficient to state a particular claim should not be seen as dispositive of that claim.
10 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual
11 matter in his pleading, accepted as true, to state a claim to relief that is viable on its
12 face, Plaintiff is not required to omit any claim in order to pursue this action.
13 However, if Plaintiff asserts a claim in his First Amended Complaint that has been
14 found to be deficient without addressing the claim’s deficiencies, then the Court,
15 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned
16 district judge a recommendation that such claim be dismissed with prejudice for
17 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with
18 the district judge as provided in the Local Rules Governing Duties of Magistrate
19 Judges.
20 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the
21 service date of this Order, Plaintiff choose one of the following three options:
22 1. Plaintiff may file a First Amended Complaint to attempt to cure the
23 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank
24 Central District civil rights complaint form to use for filing the First Amended
25 Complaint, which the Court encourages Plaintiff to use.
26 If Plaintiff chooses to file a First Amended Complaint, he must clearly
27 designate on the face of the document that it is the “First Amended Complaint,” it
1 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not
2 include new defendants or allegations that are not reasonably related to the claims
3 asserted in the Complaint. In addition, the First Amended Complaint must be
4 complete without reference to the Complaint, or any other pleading, attachment, or
5 document.
6 An amended complaint supersedes the preceding complaint. Ferdik v.
7 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat
8 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff
9 leave to amend as to all his claims raised here, any claim raised in a preceding
10 complaint is waived if it is not raised again in the First Amended Complaint.
11 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).
12 The Court advises Plaintiff that it generally will not be well-disposed toward
13 another dismissal with leave to amend if Plaintiff files a First Amended Complaint
14 that continues to include claims on which relief cannot be granted. “[A] district
15 court’s discretion over amendments is especially broad ‘where the court has already
16 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty.
17 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at
18 1261. Thus, if Plaintiff files a First Amended Complaint with claims on which
19 relief cannot be granted, the First Amended Complaint will be dismissed
20 without leave to amend and with prejudice.
21 2. Alternatively, Plaintiff may file a notice with the Court that he intends to
22 stand on the allegations in his Complaint. If Plaintiff chooses to stand on the
23 Complaint despite the deficiencies in all of Plaintiff’s claims identified above, then the
24 Court will submit a recommendation to the assigned district judge that the
25 Complaint, in its entirety, be dismissed with prejudice for failure to state a
26 claim, subject to Plaintiff’s right at that time to file Objections with the district judge
27 as provided in the Local Rules Governing Duties of Magistrate Judges.
1 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice,
2 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to
3 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff
4 to use if he chooses to voluntarily dismiss the action.
5 Plaintiff is explicitly cautioned that failure to timely respond to this
6 Order will result in this action being dismissed without prejudice for failure to
7 prosecute and/or obey Court orders pursuant to Federal Rule of Civil
8 Procedure 41(b).
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10 Dated: January 27, 2021

11 HONORABLE KENLY KIYA KATO
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10040027. Public record. Not legal advice.