# Nogales v. Burke

> District Court, S.D. California · June 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10085864

## Case

- **Court:** District Court, S.D. California
- **Decided:** June 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10085864

## How later opinions describe it (automated extraction)

- noting that claims dismissed with leave to 7 ||amend which are not re-alleged in an amended pleading may be “considered waived if 8 repled”
- finding no protected 9 liberty interest in the CDCR family visitation program because it is not an “ordinary 10 incident of prison life”
- applying Heck’s favorable 17 termination requirement to a prisoner’s § 1983 action alleging deprivation of good time 18 custody credits

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JOSE NOGALES, Case No.: 22-cv-702-MMA (DEB)
CDCR #G-52536,
12

Plaintiff,
13 ORDER SCREENING COMPLAINT
vs. PURSUANT TO 28 U.S.C. § 1915A
14

15
ISU OFFICER BURKE, et al.,
16 Defendants.
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19 Plaintiff Jose Nogales, a state prisoner proceeding pro se, has paid the civil filing
20 fee and filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Doc. Nos 1–2. He
21 has also filed a request for service of the Complaint. Doc. No. 3.
22 I. SCREENING PURSUANT TO 28 U.S.C. § 1915A
23 A. Standard of Review
24 Because Plaintiff is a prisoner, his Complaint requires a pre-Answer screening
25 pursuant to 28 U.S.C. § 1915A. Under that statute, the Court must sua sponte dismiss a
26 prisoner’s complaint, or any portion of it, which is frivolous, malicious, fails to state a
27 claim, or seeks damages from defendants who are immune. Rhodes v. Robinson, 621
28 F.3d 1002, 1004 (9th Cir. 2010).
1 The standard for determining whether a prisoner has failed to state a claim upon
2 which relief can be granted under § 1915A “incorporates the familiar standard applied in
3 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”
4 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a
5 complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief
6 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell
7 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual allegations are not
8 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
9 mere conclusory statements, do not suffice.” Id. at 678.
10 B. Allegations in the Complaint
11 Plaintiff alleges that on August 12, 2020, while incarcerated at Centinela State
12 Prison (“Centinela”) in Imperial, California, Defendants Centinela Investigative Services
13 Unit (“ISU”) Officers Burke and Weiwel searched his cell. Doc. No. 1 ¶ 7. After they
14 strip searched and photographed him, they told him no contraband had been found in his
15 cell and asked: “Where are the phones and drugs Nogales, you’re a porter so we know
16 you know, where are they?” Id. ¶ 9. Plaintiff denied any such knowledge and asked why
17 they asked him. Id. They said an inmate had “dropped incriminating information on
18 countless inmates, one of which was him.” Id. When Plaintiff asserted his right to
19 remain silent Defendant Weiwel laughed and said “you know there are consequences to
20 not talking to us, right? Are you sure this is how you want to go about it?” Id. Plaintiff
21 nodded in the affirmative and Weiwel said “yeah, we’ll see about that.” Id.
22 On August 17, 2020, Defendants Burke and ISU Officer Lopez served Plaintiff
23 with a “validation packet,” which is used by the California Department of Corrections
24 and Rehabilitation (“CDCR”) to designate an inmate as an active member or associate of
25 a Security Threat Group (“STG”) such as a gang. Id. ¶ 10. Plaintiff was “baffled” and
26 asked on what basis was he being validated, to which Defendant Lopez responded “we’re
27 doing it because we can. You didn’t want to talk to us and you brought attention to
28 yourself so this is what you get.” Id. Plaintiff states that according to CDCR regulations
1 three sources are required to validate an inmate as a member or associate of a STG. Id.
2 ¶ 12. The sources relied on to validate him were a 2008 probation report discussing the
3 gang-related nature of his commitment offense, photographs of gang tattoos on his body
4 taken the day of the cell search which had been documented ten years earlier, and a report
5 authored by Defendant Burke on the day of the search falsely stating Plaintiff admitted
6 that day to membership in a gang. Id. ¶ 13. Plaintiff claims Defendants made it seem as
7 though he was being validated for recent activity when in fact it was retaliation for his
8 invocation of his right to remain silent on the day his cell was searched. Id. ¶¶ 12, 22.
9 He filed two inmate grievances challenging the gang validation. Id. ¶¶ 17–18, 23.
10 On August 26, 2020, Plaintiff’s cell was searched by Defendants ISU Sergeant
11 Tovar and Lieutenant Narvaez and he was strip searched. Id. ¶ 24. When Plaintiff asked
12 why he was targeted for another search, Tovar responded “you fu***d up and the
13 Lieutenant wants to see you.” Id. Defendant ISU Lieutenant Duarte ordered Plaintiff
14 outside and while they were alone said “those grievances you submitted are making me
15 do a lot of work. Maybe you didn’t mean to say the things you said, and maybe you want
16 to withdraw the paperwork, but just know that because you did that, I’m going to be on
17 you like flies on s**t.” Id. ¶¶ 25–26. Plaintiff informed Defendant Duarte he did not
18 intend to allow the validation to go unchallenged and Duarte replied “if you continue, I’ll
19 make you disappear.” Id. ¶ 26. When Plaintiff returned to his cell “it was trashed” and
20 he was told no contraband was found. Id. ¶ 27.
21 On November 3, 2020, Defendant Burke issued a Rules Violation Report (“RVR”)
22 charging Plaintiff with “construction possession of a contraband cellular device.” Id.
23 ¶ 31. The device was found in a different inmate’s cell and contained photographs of
24 Plaintiff and other inmates posing for pictures. Id. ¶ 32. At least ten other inmates seen
25 on the device posing for pictures were issued RVRs for constructive possession of the
26 device. Id. ¶ 34. On November 9, 2020, Plaintiff attended a hearing on the RVR in the
27 office of Defendant Lieutenant Martinez, although all the other inmates had their RVR
28 hearings conducted by Lieutenant Rodriguez. Id. ¶ 36. Defendant Martinez found
1 Plaintiff guilty and assessed the maximum penalty, “90 days loss of packages; 90 days
2 loss of yard and dayroom; and a 5 year loss of family visiting.” Id. ¶ 37. Plaintiff filed a
3 request for an interview with the Chief Disciplinary Officer and an inmate grievance
4 arguing Defendant Martinez was not fair and impartial and was aware that CDCR
5 regulations limited the loss of family visitation to one year. Id. ¶¶ 43–44.
6 Plaintiff claims his Fourteenth Amendment right to due process was violated by
7 Defendant Burke when he provided a false statement in support of his gang validation
8 (count one), his Fifth Amendment right to be free from retaliation was violated by
9 Defendants Burke, Weiwel and Lopez when they initiated the validation process in
10 retaliation for exercising his right to remain silent (count two), his First Amendment right
11 to be free from retaliation was violated by Defendants Narvaez, Tovar and Duarte when
12 they strip searched him, trashed his cell and threatened him in retaliation for filing inmate
13 grievances (count three), his Fourth Amendment right to be free from unreasonable
14 searches was violated by Defendants Tovar and Narvaez when they conducted a
15 vindictive and harassing strip search (count four), his Fourteenth Amendment right to due
16 process was violated by Defendant Martinez during the RVR hearing because he was not
17 impartial and found him guilty without sufficient evidence (counts five and six),
18 Defendant CDCR Secretary Allison should be enjoined from enforcing his guilty finding
19 for constructive possession of a cellular device because the prison regulation is
20 unconstitutionally vague in violation of the Fourteenth Amendment (count seven), and
21 his First Amendment rights were violated by Defendants Martinez, Burke and Duarte
22 when they filed the RVR in retaliation for filing inmate grievances (count eight). Id.
23 ¶¶ 46–101. He seeks monetary, injunctive and declaratory relief. Id. ¶¶ 102–23.
24 C. Analysis
25 1. Retaliation Claims
26 Plaintiff seeks to bring retaliation claims under the First and Fifth Amendments
27 against Defendants Burke, Weiwel and Lopez for their role in initiating the gang
28 validation in retaliation for exercising his right to remain silent (count two), against
1 Defendants Narvaez, Tovar and Duarte for strip searching him, trashing his cell and
2 threatening him in retaliation for filing inmate grievances (count three), and against
3 Defendants Martinez, Burke and Duarte for filing the RVR and depriving him of a fair
4 hearing in retaliation for Plaintiff filing inmate grievances (count eight).1 Id. ¶¶ 56–74,
5 96–101.
6 “Within the prison context, a viable claim of First Amendment retaliation entails
7 five basic elements: (1) An assertion that a state actor took some adverse action against
8 an inmate (2) because of (3) that prisoner’s protected conduct, and that such action
9 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not
10 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,
11 567-68 (2005). The adverse action need not be an independent constitutional violation.
12 Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert
13 an injury no more tangible than a chilling effect on First Amendment rights.”). Plaintiff
14 must allege a retaliatory motive, that is, a causal connection between the adverse action
15 and his protected conduct. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).
16 The Complaint plausibly alleges that adverse actions of the type that might chill an
17 inmate’s free exercise of his First Amendment rights were taken against Plaintiff,
18 including the filing of a false disciplinary charge and fraudulently initiating a gang
19 validation. Rhodes, 408 F.3d at 568-69 (an “adverse action” is an action causing “harm
20 or a threat of harm that would deter a person of ordinary firmness from protected
21 activities.”): Hines v. Gomez, 108 F.3d 265, 268–69 (9th Cir. 1997) (explaining that a
22 false disciplinary charge against a prisoner in retaliation for filing grievances constitutes
23 adverse action). The Complaint adequately alleges those actions were taken because of
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1 The Complaint fails to state a Fifth Amendment claim because Plaintiff is not challenging actions of
26 the federal government. See Lee v. City of Los Angeles, 250 F.3d at 687, 688 (9th Cir. 2001) (“The Due
Process Clause of the Fifth Amendment and the equal protection component thereof apply only to
27 actions of the federal government - not to those of state or local governments.”) Plaintiff indicates that
to the extent his claim is not cognizable under the Fifth Amendment he will rely on the First
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1 Plaintiff’s protected activity in filing inmate grievances and challenging his validation.
2 See Watison, 668 F.3d at 1114 (“Prisoners have a First Amendment right to file
3 grievances against prison officials and to be free from retaliation for doing so.”); Bruce v.
4 Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003) (retaliatory gang validation constitutes
5 adverse action).
6 With respect to the lack of a legitimate penological goal, Plaintiff alleges
7 Defendants Burke, Weiwel and Lopez initiated the gang validation based on a false report
8 and a pretextual revival of ten-year-old indicia of gang membership. He alleges
9 Defendants Tovar, Narvaez and Duarte threatened him, trashed his cell and strip searched
10 him in retaliation for filing inmate grievances, and that Defendants Martinez, Burke and
11 Duarte falsified an RVR and denied him due process at the RVR hearing in retaliation for
12 filing inmate grievances. He alleges that of the more than ten inmates charged with an
13 RVR for constructive possession of the same cellular device because they were seen
14 posing on the device, only Plaintiff had his hearing held by Defendant Martinez in his
15 office who knowingly issued an excessive punishment. Plaintiff has plausibly alleged
16 those actions did not advance a legitimate penological goal. See Sheppard v. Quillen,
17 840 F.3d 686, 692 (9th Cir. 2016) (“[A] prison official who uses a valid procedure as
18 subterfuge to obscure retaliation ‘cannot assert that (his action) served a valid penological
19 purpose, even though (the prisoner) may have arguably ended up where he belonged.’”),
20 quoting Bruce, 351 F.3d at 1289 (an abusive use of the gang validation process does not
21 serve a legitimate penological purpose even if the inmate arguably should have been
22 validated absent retaliatory motive).
23 With respect to Plaintiff’s First Amendment retaliation claims against Defendants
24 Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte and Martinez (counts two, three and
25 eight), the allegations in the Complaint “are sufficient to meet the low threshold for
26 proceeding past the screening stage.” Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678.
27 2. Due Process Claims
28 Plaintiff claims his rights to due process were violated when Defendant Burke
1 fabricated a report in the gang validation proceedings which falsely stated Plaintiff
2 admitted membership in a gang (count one), and when Defendant Martinez failed to be
3 an impartial hearing officer during the hearing on the RVR (count five) and found him
4 guilty without sufficient evidence (count six). Doc. No. 1 at ¶¶ 46–55, 80–90.
5 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person
6 of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
7 “The requirements of procedural due process apply only to the deprivation of interests
8 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of
9 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a
10 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a
11 deprivation of the interest by the government; (and) (3) lack of process.’” Wright v.
12 Riveland, 219 F.3d 905, 913 (9th Cir. 2000), quoting Portman v. Cnty. of Santa Clara,
13 995 F.2d 898, 904 (9th Cir. 1993).
14 “[A] prisoner is entitled to certain due process protections when he is charged with
15 a disciplinary violation.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003), citing
16 Wolff v. McDonnell, 418 U.S. 539, 564–571 (1974). When a protected liberty interest
17 arises federal due process requires prisoners be provided: (1) 24-hour advanced written
18 notice of the charges, (2) a written statement from the factfinder which identifies the
19 evidence relied on and the reasons for the action taken, (3) an opportunity “to call
20 witnesses and present documentary evidence in his defense when permitting him to do so
21 will not be unduly hazardous to institutional safety or correctional goals,” (4) assistance
22 at the hearing if he is illiterate or the matter is complex, and (5) a “sufficiently impartial”
23 factfinder. Wolff, 418 U.S. at 564–71. When a protected liberty interest is not at stake,
24 the minimum requirements of due process require only that “the findings of the prison
25 disciplinary board (be) supported by some evidence in the record.” Superintendent v.
26 Hill, 472 U.S. 445, 454–55 (1985). A protected liberty interest arises where a sentence is
27 exceeded in “an unexpected manner” or where an inmate is subject to restrictions that
28 impose “atypical and significant hardship on the inmate in relation to the ordinary
1 incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
2 Plaintiff has not plausibly alleged a protected liberty interest sufficient to give rise
3 to the full Wolff procedural protections. The restrictions arising from his guilty finding
4 include “90 days loss of packages; 90 days loss of yard and dayroom; and a 5 year loss of
5 family visiting.” Doc. No. 1 ¶ 37. There are no allegations the duration of his sentence
6 was affected or that he was subjected to “atypical and significant hardship on the inmate
7 in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484; see e.g.
8 Cooper v. Garcia, 55 F.Supp.2d 1090, 1098 (S.D. Cal. 1999) (finding no protected
9 liberty interest in the CDCR family visitation program because it is not an “ordinary
10 incident of prison life”). To the extent Plaintiff lost custody credits, a protected liberty
11 interest could arise from that loss, but his due process claim would be barred unless and
12 until he can demonstrate that the loss of credits has been invalidated or reversed. See
13 Heck v. Humphrey, 512 U.S. 477, 480–82 (1994) (holding that where success on a
14 prisoner’s § 1983 action would necessarily impact the validity of a conviction or duration
15 of a sentence the prisoner must first invalidate the underlying conviction or sentence); see
16 also Edwards v. Balisok, 520 U.S. 641, 643–47 (1997) (applying Heck’s favorable
17 termination requirement to a prisoner’s § 1983 action alleging deprivation of good time
18 custody credits).
19 Because Plaintiff has failed to plausibly allege that a protected liberty interest arose
20 from the RVR, only the minimum requirements of due process apply, that there be “some
21 evidence” supporting the guilty finding. Plaintiff admits there is such evidence in the
22 form of photographs on the cellular device of him posing for pictures on which the
23 finding of constructive possession was based. Although he claims in count seven that the
24 CDCR regulation providing for such a violation is unconstitutionally vague, he has not
25 plausibly alleged Defendant Martinez denied him the minimum requirements of due
26 process in connection to the guilty finding. See Hill, 472 U.S. at 457 (finding the “some
27 evidence” standard is met with “meager” evidence as long as “the record is not so devoid
28 of evidence that the findings of the disciplinary board were without support or otherwise
1 arbitrary”); Bruce, 351 F.3d at 1287–88 (a single piece of evidence with sufficient indicia
2 of reliability satisfies Hill’s standard); Hill, 472 U.S. at 455 (“Ascertaining whether this
3 standard is satisfied does not require examination of the entire record, independent
4 assessment of the credibility of witnesses, or weighing of the evidence.”).
5 Plaintiff alleges that Defendant Burke violated his right to due process by
6 fabricating a report in connection to the gang validation which falsely stated Plaintiff
7 admitted membership in a gang, because he was not given an opportunity to challenge the
8 accuracy and validity of the report. Doc. No. 1 ¶ 50. Although as set forth above
9 Plaintiff has plausibly alleged the gang validation was retaliatory, in order to state a due
10 process claim he must identify the “actual” or “critical decisionmaker” and plausibly
11 allege he was prevented from having “an opportunity to present his views to that
12 official.” Castro v. Terhune, 712 F.3d 1304, 1308 (9th Cir. 2013). In other words, it is
13 not sufficient to allege that Defendant Burke falsely reported Plaintiff admitted
14 membership in a gang, Plaintiff must allege he was denied due process in connection to
15 his ability to challenge that report. Id. Although he so alleges, the Complaint fails to
16 identify a Defendant who deprived him of the ability to challenge the report, and he has
17 not stated a claim against Defendant Burke. Id.; see also Buckley v. Gomez, 36
18 F.Supp.2d 1216, 1222 (S.D. Cal. 1997) (“a prisoner does not have a constitutional right to
19 be free from wrongfully issued disciplinary reports.”), aff’d 168 F.3d 498 (9th Cir. 1999);
20 see also e.g. Gadsden v. Gehris, No. 20cv0470-WQH (DEB), 2020 WL 5748094, at *8
21 (S.D. Cal. Sep. 25, 2020) (“The allegations of the filing of false disciplinary charges by
22 itself does not state a claim under 42 U.S.C. § 1983 because federal due process
23 protections are contained in the ensuing disciplinary proceedings themselves.”).
24 Accordingly, the Court dismisses the Fourteenth Amendment due process claims
25 from the Complaint (counts one, five and six) for failure to state a claim upon which
26 relief may be granted. See 28 U.S.C. § 1915A(b)(1); Wilhelm, 680 F.3d at 1121.
27 3. Fourth Amendment Claim
28 In count four of the Complaint Plaintiff alleges Defendants Tovar and Narvaez
1 violated his Fourth Amendment right to be free from unreasonable searches by when they
2 conducted vindictive and harassing cell and strip searches. Doc. No. 1 at ¶¶ 75–79.
3 “The Fourth Amendment prescription against unreasonable searches does not
4 apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526
5 (1984). In order for a body search to become so unreasonable as to violate the Fourth
6 Amendment it must be “excessive, vindictive, harassing, or unrelated to any legitimate
7 penological purpose.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988)
8 (“Shielding one’s unclothed figure from the view of strangers, particularly strangers of
9 the opposite sex is impelled by elementary self-respect and personal dignity.”). Plaintiff
10 alleges the strip searches were based on confidential information received from another
11 inmate that he was involved in possession of contraband with the prison and does not
12 allege they were conducted in and excessive or undignified manner. He has therefore
13 failed to plausibly allege a Fourth Amendment violation. Id. at 333–34 (upholding visual
14 body cavity search for contraband or weapons); Nunez v. Duncan, 591 F.3d 1217, 1227–
15 28 (9th Cir. 2010) (finding prisoner’s strip search for contraband did not violate the
16 Fourth Amendment because searching for contraband within a prison is reasonably
17 related to a legitimate penological interest of controlling contraband).
18 Accordingly, the Court dismisses the Fourth Amendment claim from the
19 Complaint (count four) for failure to state a claim upon which relief may be granted. See
20 28 U.S.C. § 1915A(b)(1); Wilhelm, 680 F.3d at 1121.
21 4. Void for Vagueness Claim
22 Finally, Plaintiff alleges in count seven of the Complaint that the CDCR regulation
23 under which he was found guilty of constructive possession of a cellular device is
24 unconstitutionally vague because it allowed him to be found guilty merely because he
25 was seen on a cellular device posing for pictures. He contends that a forensic
26 examination of the device revealed 14,544 images, including “multiple” images of
27 Plaintiff, that over ten inmates were issued RVRs as a result, and he was told he violated
28 California Code of Regulations § 3306 because of “his willingness and ability to possess
1 and control a contraband cellular phone even if the cellular phone was not discovered in
2 his possession demonstrates constructive possession.” Doc. No. 1 ¶¶ 32–34; Ex. K.
3 A prison disciplinary regulation is not unconstitutionally vague if it defines the
4 offense “with sufficient definiteness that ordinary people can understand what conduct is
5 prohibited and in a manner that does not encourage arbitrary and discriminatory
6 enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); Castro v. Terhune, 712
7 F.3d 1304, 1310–11 (9th Cir. 2013) (assuming without deciding void for vagueness
8 doctrine applies to prison disciplinary regulations). “Courts have reasoned that vague
9 statues and regulations should be held void because: (1) individuals should not be
10 punished for behavior they could not have known was illegal; (2) vague laws allow
11 arbitrary and discriminatory enforcement; and (3) vague laws may have a chilling effect
12 on free speech.” Lane v. Salazar, 911 F.3d 942, 950 (9th Cir. 2018), citing Grayned v.
13 City of Rockford, 408 U.S. 104, 108–09 (1972). The regulation at issue here provides
14 that: “Inmates shall not possess or have under their control or constructive possession any
15 . . . wireless communication devices capable of making or receiving wireless
16 communications.” Title 15, California Code of Regulations § 3306. Plaintiff’s allegation
17 that ordinary people would not understand that constructive possession of a wireless
18 communication device in prison includes posing for photographs taken by the device, and
19 his allegation that the regulation was used against him in an arbitrary and discriminatory
20 manner, “are sufficient to meet the low threshold for proceeding past the screening stage”
21 with respect to this claim. Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678.
22 D. Leave to Amend
23 In light of his pro se status, the Court grants Plaintiff leave to amend to attempt to
24 address the pleading deficiencies identified in this Order. See Rosati v. Igbinoso, 791
25 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint
26 without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint
27 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
28 Cir. 2012)).
1 E. Plaintiff’s Options
2 Because the Court has determined that Plaintiff’s First Amendment retaliation
3 claims against Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte and Martinez
4 (counts two, three and eight), and his void for vagueness claim against Defendant Allison
5 (count seven) survive the sua sponte screening process but his remaining claims against
6 the remaining Defendants do not, Plaintiff is given the opportunity to either: (1) notify
7 the Court of his intent to proceed only with the First Amendment retaliation claims in the
8 Complaint against Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte and
9 Martinez and his void for vagueness claim against Defendant Allison; or (2) file a First
10 Amended Complaint that attempts to correct any or all of the deficiencies of pleading
11 identified in this Order. Plaintiff must choose one of those options within forty-five (45)
12 days from the date this Order is filed. If Plaintiff notifies the Court he wishes to proceed
13 only with his claims against Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte,
14 Martinez and Allison, the Court will issue an Order directing the Clerk to issue the
15 summons as to those Defendants and dismiss all remaining claims and Defendants from
16 this action. Plaintiff’s request to issue a summons is denied without prejudice as
17 premature.
18 II. CONCLUSION
19 Based upon the forgoing, the Court DISMISSES all claims in Plaintiff’s
20 Complaint against all Defendants without prejudice and with leave to amend pursuant to
21 28 U.S.C. § 1915A(b) with the exception of Plaintiff’s First Amendment retaliation
22 claims against Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte, and Martinez
23 and the void for vagueness claim against Defendant Allison. The Court GRANTS
24 Plaintiff forty-five (45) days leave from the date of this Order in which to either:
25 (1) notify the Court of his intention to proceed with his First Amendment retaliation
26 claims against Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte and Martinez
27 and the void for vagueness claim against Defendant Allison only; or (2) file a First
28 Amended Complaint that cures the deficiencies of pleading noted in this Order. Should
1 || Plaintiff file a First Amended Complaint, it must be complete by itself without reference
2 any previous version of his Complaint. Any Defendants not re-named and any claims
3 re-alleged in the First Amended Complaint will be considered waived. See S.D. Cal.
4 || CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546
5 || (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”’); Lacey v. Maricopa
6 || County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to
7 ||amend which are not re-alleged in an amended pleading may be “considered waived if
8 repled”).
9 IT IS SO ORDERED.
10 Dated: June 6, 2022
Wadtht LIU - / hipltr
12 HON. MICHAEL M. ANELLO
13 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10085864. Public record. Not legal advice.