The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 FRED FELEKI MARTINEZ, No. 2:23-cv-2350 CKD P
12 Plaintiff,
13 v. ORDER
14 JEFF LYNCH, et al.,
15 Defendants.
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17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §
18 1983. Plaintiff’s January 22, 2024, amended complaint is before the court for screening.
19 The court is required to screen complaints brought by prisoners seeking relief against a
20 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
21 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
22 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
23 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
24 The court has reviewed plaintiff’s amended complaint and finds that plaintiff may proceed
25 on the following claims:
26 1. A claim for excessive use of force in violation of the Eighth Amendment against
27 defendants Earnshaw, Botelho, and Gutierrez.
28 /////
1 2. A claim for failure to protect arising under the Eighth Amendment against defendant
2 Hibbard.
3 At this point, plaintiff has two options: proceed on the claims identified above or file a
4 second amended complaint to attempt to cure deficiencies with respect to the other claims.
5 If plaintiff chooses to proceed on the claims described above, the court will construe this as a
6 request to voluntarily dismiss the additional claims pursuant to Rule 41(a)(1)(i) of the Federal
7 Rules of Civil Procedure.
8 With respect to plaintiff’s claim arising under the Americans with Disabilities Act (ADA),
9 plaintiff is informed that Title II of the ADA “prohibit[s] discrimination on the basis of
10 disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II of the ADA applies
11 to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 208
12 (1998). “To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a
13 qualified individual with a disability; (2) [he] was excluded from participation in or otherwise
14 discriminated against with regard to a public entity’s services, programs, or activities; and (3)
15 such exclusion or discrimination was by reason of [his] disability.” Lovell, 303 F.3d at 1052.
16 “To recover monetary damages under Title II of the ADA, a plaintiff must prove intentional
17 discrimination on the part of the defendant,” and the standard for intentional discrimination is at
18 least deliberate indifference. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001).
19 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to
20 make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended
21 complaint be complete in itself without reference to any prior pleading.
22 In accordance with the above, IT IS HEREBY ORDERED that:
23 1. Plaintiff has the option to proceed immediately on the claims described herein. In the
24 alternative, plaintiff may choose to file a second amended complaint to fix the deficiencies
25 identified in this order with respect to the remaining claims.
26 2. Within 21 days from the date of this order, plaintiff shall complete and return the
27 attached Notice of Election form notifying the court whether he wants to proceed on the screened
28 amended complaint or whether he wants time to file a second amended complaint.
1 3. If plaintiff fails to return the attached Notice of Election within the time provided, the
2 || court will construe this failure as consent to dismiss the deficient claims and proceed only on the
3 || cognizable claim identified above.
4 || Dated: September 13, 2024 Card Kt | (£4 (g—
5 CAROLYN K DELANEY?
6 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 FRED FELEKI MARTINEZ, No. 2:23-cv-2350 CKD P
12 Plaintiff,
13 v. NOTICE OF ELECTION
14 JEFF LYNCH,
15 Defendant.
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17 Check only one option:
18 _____ 1. Plaintiff wishes to proceed on the following claims:
19 A. A claim for excessive use of force in violation the Eighth Amendment against
20 defendants Earnshaw, Botelho and Gutierrez.
21 B. A claim for failure to protect arising under the Eighth Amendment against defendant
22 Hibbard.
23 _____ 2. Plaintiff wants time to file a second amended complaint.
24 DATED:
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26 ____________________
27 Plaintiff
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