(PC) Booth v. Newsom

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 PATRICK J. BOOTH, No. 2:20-cv-1562 DJC AC P

12 Plaintiff,

13 v. ORDER

14 GAVIN NEWSOM, et al.,

15 Defendants.

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17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief under 42

18 U.S.C. § 1983. The case has been referred to a United States Magistrate Judge pursuant to 28

19 U.S.C. § 636(b)(1)(B) and Local Rule 302. Plaintiff’s second amended complaint (“SAC”) is

20 now before the court for screening. ECF No. 19. For the reasons stated below, plaintiff will be

21 given the opportunity to either proceed on the SAC as screened or amend the complaint a final

22 time.

23 I. SCREENING REQUIREMENT

24 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

25 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (brackets added); Franklin v. Murphy, 745 F.2d

26 1221, 1227-28 (9th Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on

27 indisputably meritless legal theories’ or whose ‘factual contentions are clearly baseless.’”

28 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (brackets added) (quoting Neitzke, 490

1 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122,

2 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully

3 pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations

4 omitted).

5 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

6 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

7 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

8 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

9 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

10 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

11 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

12 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

13 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

14 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain

15 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

16 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

17 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

19 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

20 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

21 content that allows the court to draw the reasonable inference that the defendant is liable for the

22 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

23 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

24 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

25 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

26 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

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1 II. SECOND AMENDED COMPLAINT

2 Plaintiff names the following defendants: California Governor Gavin Newsom; Mule

3 Creek State Prison (“MCSP”) Warden P. Covello; Chief Deputy Warden Holmes; Associate

4 Warden Williams; Facility A Captain Hobbs; Corrections Officer Landreth; Chief Nurse Masbad;

5 and Chief Physician Ball. ECF No. 19 at 1-4. He alleges that his First and Eighth Amendment

6 rights were violated when defendants (1) failed to protect him from contracting COVID-19

7 (Claims One and Three); (2) destroyed his property in retaliation for filing grievances (Claim

8 Two); and (3) failed to provide him with kosher meals (Claim Four). Id. at 5-8.

9 Plaintiff alleges that he contracted COVID-19 as the result of defendants’ failure to

10 protect him. He became very sick and spent two weeks in a great deal of pain. ECF No. 19 at 5,

11 7. Plaintiff lost his voice for several weeks, and he continues to have bad headaches and blurry

12 vision. Id. Plaintiff seeks monetary damages and injunctive relief in the form of kosher meals;

13 single cell housing; the removal of timed showers and toilets; the cessation of housing COVID-10

14 inmates in Building Two; resolution to the overcrowding problem; educational instruction on how

15 COVID-19 spreads; and more sanitary protocols regarding dishware usage. Id. at 9-10.

16 III. DISCUSSION

17 A. Claims for Which a Response Will Be Required

18 1. Claims One and Three: Failure to Protect Health and Safety

19 a. Overview of the Claim

20 Although plaintiff identifies Claim One as involving basic necessities and Claim Three as

21 involving a threat to safety, both of these Eighth Amendment claims turn on defendants’ allegedly

22 inadequate responses to COVID-19. ECF No. 19 at 5, 7. Accordingly, they are both construed as

23 claims of deliberate indifference to inmate health and safety, and are considered together here.

24 Claim One alleges that defendants Covello, Holmes, Williams, Hobbs, Ball, and Masbad

25 generally failed to protect plaintiff from COVID and “encouraged all inmates to get COVID-19.”

26 Id. at 5. Claim Three alleges specifically that Covello, Holmes, Hobbs, and Ball knew that

27 Building Two was unsafe to house COVID-19 inmates because the air vents in the building had

28 no barriers to prevent the spread of the virus from cell to cell. Id. at 7. The SAC’s omnibus

1 statement of facts recites a history of MCSP’s COVID-related precautions, policies, and related

2 inmate concerns and complaints from the outset of the pandemic through the filing of the

3 complaint, which support plaintiff’s general allegation that all defendants were aware of the

4 dangers of COVID, its means of transmission, and what was required to prevent its spread. See

5 id. at 12-16. The SAC alleges that plaintiff contracted COVID because of defendants’ failure to

6 act, and suffers from chronic health problems as a consequence. Id.

7 b. Applicable Law

8 The Eighth Amendment requires prison officials to take reasonable measures to guarantee

9 the safety of inmates. Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). “[A] claimant need not

10 show that a prison official acted or failed to act believing that harm would actually befall an

11 inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial

12 risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 842 (1994); see Lemire v. California

13 Dep’t of Corr. & Rehab., 726 F.3d 1062, 1076 (9th Cir. 2013) (objective prong of deliberate

14 indifference may be satisfied by inmate demonstrating he was exposed to substantial risk of some

15 range of serious harm; the harm actually suffered need not have been the most likely result among

16 range of outcomes). Actual knowledge of substantial risk of serious harm can be established by

17 showing that the risk was “longstanding, pervasive, well-documented, or expressly noted by

18 prison officials in the past, and the circumstances suggest that the defendant-official being sued

19 had been exposed to information concerning the risk and thus must have known about it.”

20 Farmer, 511 U.S. at 842-48 (internal quotation marks omitted).

21 Whether the substantial risk of harm comes from a single source or from multiple sources

22 does not matter. “The question under the Eighth Amendment is whether prison officials, acting

23 with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious

24 damage to his future health.” Farmer, 511 U.S. at 843.

25 c. Discussion

26 Plaintiff’s allegations adequately demonstrate that the named defendants were aware of a

27 substantial risk of harm to plaintiff and other inmates from a life-threatening and highly

28 contagious disease during the relevant period. Despite the known risks, defendants failed to

1 implement single cell occupancy, provide clean and effective masks, assess the ventilation system

2 in Building Two before housing sick inmates there, and isolate sick inmates. Defendants’ testing

3 policies and work protocols for staff were also inadequate to protect inmates from infection. ECF

4 No. 19 at 22-24 and passim. Plaintiff identifies specific actions taken by the defendants

5 individually which, drawing all inferences in plaintiff’s favor, plausibly reflect deliberate

6 indifference to inmate safety in light of the pandemic conditions. Specifically, the SAC alleges as

7 follows:

8 Warden Covello and Chief Deputy Warden Holmes: When the outbreak began at MCSP,

9 defendants Covello and Holmes “stacked inmates” – hundreds of whom were sick – in a gym on

10 bunk beds, instead of building tents for them. ECF No. 19 at 27. Inmates who were sick were

11 throwing up on or around each other. Id. Covello and Holmes permitted staff to work in

12 facilities where individuals had contracted COVID-19 and then turn around and work in facilities

13 with individuals who had not contracted it. ECF No. 19 at 23. This foreseeably contributed to

14 the spread of the virus in different facilities. Id. In December 2020, plaintiff filed a grievance

15 stating that defendant Covello was attempting to create herd immunity by moving inmates to

16 Building Two and placing them with another inmate so they could contract COVID-19. Id. at 21.

17 Although face masks and face shields were distributed to the prisons, the Warden and Chief

18 Deputy Warden failed to ensure that staff wore masks, and they ignored reports that inmates were

19 being given dirty masks that they did not wear. Id. at 22-25. Staff and inmate testing protocols

20 were also defective. Id. It is reasonable to assume for screening purposes that such matters were

21 the responsibility of the Warden and Chief Deputy Warden.

22 Captain Hobbs and Dr. Ball: August 2020, after Building Two had been designated to

23 house quarantined COVID-19 inmates, defendant Hobbs allowed inmates who were assigned to

24 work in Building Two to continue to do so, despite the increased risk of spreading the virus to

25 Facility A, which had no COVID-19 cases at that time, and despite the fact that the Inmate

26 Advisory Council (“IAC”)1 had expressed concerns about the decision. ECF No. 19 at 14. That

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1 Plaintiff was the chair of the IAC at that time. See ECF No. 19 at 22. He states that the IAC

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1 same month, when the IAC put defendant Ball on notice that nurse employees were disposing of

2 their masks and other personal protective equipment in the trash and without regard to inmate

3 workers, defendant Ball responded that the risk of contracting the virus because of those actions

4 was minimal. Id. at 15. Plaintiff also alleges that defendant Hobbs did nothing after plaintiff told

5 him that inmates were not receiving disinfectant or days to clean their cells as they had been

6 promised. Id. at 25.

7 Chief Nurse Masbad: Defendant Masbad enforced a policy requiring inmates to use

8 “nonreusable” cups that had been placed in a day room and were accessible to the random

9 handling, coughing, and sneezing of other inmates. ECF No. 19 at 27. In February 2021,

10 defendant Masbad sent an e-mail to nurses in Building Five to make certain the policy was being

11 enforced. Id.

12 For purposes of screening, the court concludes that plaintiff has adequately pled an Eighth

13 Amendment claim against defendants Covello, Holmes, Hobbs, Ball, and Masbad.

14 2. Claim Two: Retaliation

15 a. Relevant Allegations

16 In Claim Two, plaintiff asserts that defendant Landreth retaliated against plaintiff for

17 using the inmate appeals process and the courts. ECF No. 19 at 6. On August 18, 2020, after

18 plaintiff had been active for some time in seeking improved institutional response to the COVID

19 pandemic, Landreth poured water into plaintiff’s typewriter and ripped up some of plaintiff’s

20 books and papers. During this incident, “Landreth made it clear that the next time that plaintiff

21 told on [officers] for not wearing their masks… things were going to get really bad for plaintiff.”

22 Id. at 17. Plaintiff complained about this retaliation and continued his IAC advocacy. On

23 October 13, 2020, Landreth again destroyed plaintiff’s cell and took allowable property. ECF

24 No. 20. Landreth specifically told plaintiff that “if he 602ed him he would ‘Fuck [plaintiff] up.’”

25 Id. at 6; see also id. at 20. Landreth also told plaintiff, “If you file a fuckin lawsuit on me, you

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27 “is a lawful council that meets with administration to voice inmate concerns. And [sic] to voice

administration concerns to the inmate population.” Id. at 11 (brackets added).

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1 [ain’t] seen shit,” indicating that plaintiff would get hurt if he filed another grievance against

2 Landreth. Id. at 27.

3 b. Applicable Law

4 Inmates have a First Amendment right to file grievances, and any retaliatory punishment

5 against them for doing so is constitutionally prohibited. See Rhodes v. Robinson, 408 F.3d 559,

6 567 (9th Cir. 2005); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citations omitted).

7 To state a viable First Amendment retaliation claim, a prisoner must allege that (1) a state actor

8 took some adverse action against him (2) because of (3) that prisoner'’ protected conduct, and that

9 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did

10 not reasonably advance a legitimate correctional goal. Rhodes, 408 F.3d at 567-68. Plaintiff

11 must show that the defendant was aware of plaintiff’s prior protected conduct and that the

12 protected conduct was “the ‘substantial’ or ‘motivating’ factor” behind the defendant’s alleged

13 misconduct. Brodheim, 584 F.3d at 1271.

14 c. Discussion

15 Plaintiff’s allegations against Landreth are adequate to state a claim for retaliation against

16 him.

17 B. Failure to State a Claim

18 1. Defendant Gavin Newsom

19 Although plaintiff identifies Governor Newsom as a defendant (ECF No. 19 at 1, 3), none

20 of the specific claims for relief name him or present any factual allegations regarding his personal

21 involvement in the specific constitutional violations asserted. See id. at 1-10. Although the

22 governor’s response to the pandemic is referenced in the attachment to the SAC (see, e.g., id. at

23 12, 22, 26, 28), these allegations are not linked causally to the actions giving rise to the specified

24 claims. Because plaintiff’s allegations against Governor Newsom do not plausibly support a

25 conclusion that he caused the alleged violations of plaintiff’s rights, the court finds that the SAC

26 states no claims against him.

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1 2. Defendant Williams

2 Associate Warden Williams is named in Claim One, but the complaint does not contain

3 any allegations showing that this defendant acted with deliberate indifference to inmate safety.

4 The SAC fails to identify any specific action that Williams took which was a cause of the

5 preventable spread of COVID-19 at MCSP. Accordingly, no claim is stated against Williams.

6 2. Claim Four: Free Exercise of Religion

7 Claim Four alleges that Warden Covello deprived plaintiff, who is Jewish, of Kosher

8 meals in violation of his right to freedom of religion. ECF No. 19 at 8. The SAC includes no

9 details regarding MCSP’s religious meals program, the history (if any) of plaintiff’s participation

10 in it, or the circumstances of his exclusion from it.

11 The right to exercise religious practices and beliefs does not terminate at the prison door.

12 O’Lone v. Shabazz, 482 U.S. 342 (1987). “Inmates . . . have the right to be provided with food

13 sufficient to sustain them in good health that satisfies the dietary laws of their religion.” McElyea

14 v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987) (citing Kahane v. Carlson, 527 F.2d 492, 495 (2d

15 Cir. 1975). To establish a free exercise violation, plaintiff must show defendants burdened the

16 practice of his religion, without justification reasonably related to legitimate penological interests,

17 by preventing him from engaging in conduct that is (1) based on a “sincerely held” religious

18 concern and (2) “rooted in religious belief” rather than in secular philosophical concerns. Shakur

19 v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (quoting Malik v. Brown, 16 F.3d 330, 333 (9th

20 Cir. 1994)).

21 Plaintiff’s allegations are insufficient to state a free exercise claim based on the denial of

22 religious meals. The SAC does not specify who is depriving plaintiff of Kosher meals, and

23 section 1983 establishes liability only for those who cause violations of a plaintiff’s constitutional

24 rights. 42 U.S.C. § 1983. The allegation that Warden Covello is aware that plaintiff is “not

25 allowed to eat Kosher,” ECF No. 19 at 8, does not make him potentially liable for any First

26 Amendment violation. No proper defendant is identified on this claim, and the allegations are too

27 conclusory to make out a constitutional violation.

28 To the extent plaintiff alleges that he is being denied Kosher meals in retaliation for his

1 COVID advocacy and/or for bringing this lawsuit (see id. at 25), such motivation might indicate

2 the absence of a penological justification for the denial. However, no facts have been alleged to

3 show that whoever denied plaintiff’s request for Kosher meals did so for an improper purpose.

4 Accordingly, neither a free exercise claim nor a retaliation claim has been stated.

5 IV. OPTIONAL LEAVE TO AMEND

6 For the reasons set forth above, the court finds that the SAC states the following claims

7 for relief, which are suitable for service: (1) Eighth Amendment failure to protect inmate health

8 and safety (Claims One and Three) against defendants Covello, Holmes, Hobbs, Ball, and

9 Masbad; and (2) First Amendment retaliation against defendant Ladreth. The court further finds

10 that the SAC does not state a free exercise of religion claim, or any cognizable claims against

11 defendants Newsom or Williams. It is possible that plaintiff may be able to remedy the defective

12 claims, at least in part. Accordingly, he will be provided a final opportunity to amend the

13 complaint if he so desires.

14 Plaintiff may either (1) proceed forthwith to serve defendants Covello, Holmes, Ball,

15 Masbad, Hobbs, and Landreth on the claims identified above, or (2) he may delay serving any

16 defendant and amend the complaint.

17 Plaintiff will be required to complete and return the attached notice advising the court how

18 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to

19 file a third amended complaint. If plaintiff elects to proceed on his claims against defendants

20 Covello, Holmes, Ball, Masbad, Hobbs, and Landreth without amending the complaint, the court

21 will proceed to serve the complaint. A decision to go forward without amending the complaint

22 will be considered a voluntarily dismissal without prejudice of all other claims and defendants.

23 If plaintiff chooses to file a third amended complaint, he must demonstrate how the

24 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo

25 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how

26 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th

27 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link

28 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy,

1 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official

2 participation in civil rights violations are not sufficient.” Ivey, 673 F.2d at 268 (citations

3 omitted).

4 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

5 1119, 1125 (9th Cir. 2002). Claims must be set forth in short and plain terms, simply, concisely

6 and directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Each claim must

7 identify the defendants against which it is brought; individuals against whom no claim is brought

8 should not be named as defendants. The facts intended to support each claim should be set forth

9 under the heading of that claim and should be limited to the facts that are alleged to give rise to

10 liability. There is no need for an omnibus “Statement of Background Facts,” and plaintiff is

11 cautioned that his detailed narratives defeat the purpose of stating a claim. See McHenry v.

12 Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (complaints should not contain preambles,

13 introductions, argument, speeches, explanations, stories, griping, vouching, evidence, attempts to

14 negate possible defenses, summaries, and the like). The court should be able to read and

15 understand plaintiff’s pleading within minutes. Id. at 1177.

16 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make

17 his first amended complaint complete. Local Rule 220 requires that an amended complaint be

18 complete in itself without reference to any prior pleading. This is because, as a general rule, an

19 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

20 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th

21 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled

22 in subsequent amended complaint to preserve appeal). Once plaintiff files a third amended

23 complaint, the original complaint no longer serves any function in the case. Therefore, in an

24 amended complaint, as in an original complaint, each claim and the involvement of each

25 defendant must be sufficiently alleged.

26 V. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT

27 You have stated viable claims for relief against defendants Covello, Holmes, Ball, Hobbs

28 and Masbad for deliberate indifference to COVID-19 risks, and against defendant Landreth for

1 | retaliation. You have not, however, presented facts that support a First Amendment claim for the

2 || denial of Kosher meals, or any claims against defendants Williams and Newsom.

3 You have a choice to make. You may drop the claims and defendants found unsuitable

4 || for service, and have the complaint served on Covello, Holmes, Ball, Masbad, Hobbs, and

5 || Landreth right away. In the alternative, you may file a third amended complaint that tries to fix

6 || the problems with the defective claims. Whatever you decide to do, you must complete and

7 || return the attached Notice on How to Proceed form in order to let the court know your decision,

8 | and you must do so within fourteen days.

9 CONCLUSION

10 Accordingly, IT IS HEREBY ORDERED that:

11 1. The Clerk of Court shall send plaintiff a copy of this district’s Civil Rights Complaint

12 | By a Prisoner form.

13 2. Plaintiff's second amended complaint states the following claims against the following

14 || defendants:

15 a. Eighth Amendment failure to protect (deliberate indifference to inmate health and

16 || safety) claims against defendants Covello, Holmes, Ball, Masbad, and Hobbs;

17 b. First Amendment retaliation against defendant Landreth.

18 3. Within fourteen days from the date of this order, plaintiff must return the attached

19 || Notice on How to Proceed form indicating whether he wishes to proceed on the second amended

20 || complaint as screened herein, or if he wishes to amend the complaint.

21 4. If plaintiff chooses to amend the complaint, he will have thirty days from the date of

22 || this order to file an amended complaint. This will be plaintiffs final opportunity to amend the

23 || complaint.

24 Plaintiff is cautioned that failure to comply with this order within the periods allotted may

25 || result in a recommendation that this matter be dismissed.

26 || DATED: June 27, 2023 A / ~

27 ALLISON CLAIRE

28 UNITED STATES MAGISTRATE JUDGE

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 PATRICK J. BOOTH, No. 2:20-cv-1562 DJC AC P

12 Plaintiff,

13 v. PLAINTIFF’S NOTICE ON HOW TO

PROCEED

14 GAVIN NEWSOM, et al.,

15 Defendants.

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CHECK ONE:

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Plaintiff would like to proceed immediately on his First and Eighth Amendment claims

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against defendants Covello, Holmes, Ball, Masbad, Hobbs, and Landreth as construed by the

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court. Plaintiff understands that by choosing to go forward without amending the complaint, he is

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voluntarily dismissing his religious meals claim and all claims against defendants Newsom and

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Williams pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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Plaintiff would like to amend the complaint.

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24 DATED:

_______________________________

25 PATRICK J. BOOTH

Plaintiff Pro Se

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