The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 MYSHIELLE R. JACQUEZ, No. 2:25-cv-3362 CSK P
12 Plaintiff,
13 v. ORDER
14 B. MAYBERRY, et al.,
15 Defendants.
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17 Plaintiff is a state prisoner proceeding pro se. Plaintiff’s electronically filed original
18 complaint was missing several pages. (ECF No. 1.) On January 23, 2026, this Court granted
19 plaintiff’s application to proceed in forma pauperis and ordered plaintiff to file a complete paper
20 copy of the original complaint. (ECF No. 7.) On June 24, 2026, plaintiff filed a complete paper
21 copy of the original complaint. (ECF No. 12.) This Court screens the complete paper copy of the
22 original complaint below.
23 For the reasons discussed below, plaintiff is granted an opportunity to proceed with the
24 following potentially colorable claim: retaliation against defendants Mayberry, Bangyan and
25 George, raised in claim one.
26 I. SCREENING STANDARDS
27 The court is required to screen complaints brought by prisoners seeking relief against a
28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
1 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally
2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
4 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
5 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
6 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an
7 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
8 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
9 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
10 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
11 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably
12 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at
13 1227.
14 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
15 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
16 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
17 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
18 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a
19 formulaic recitation of the elements of a cause of action;” it must contain factual allegations
20 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.
21 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the
22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
23 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal
24 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as
25 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the
26 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
27 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
28 ///
1 II. THE CIVIL RIGHTS ACT
2 To state a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal
3 constitutional or statutory right; and (2) that the violation was committed by a person acting under
4 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d
5 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the
6 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal
7 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.
8 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44
9 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable
10 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679
11 (2009). The requisite causal connection between a supervisor’s wrongful conduct and the
12 violation of the prisoner’s constitutional rights can be established in a number of ways, including
13 by demonstrating that a supervisor’s own culpable action or inaction in the training, supervision,
14 or control of his subordinates was a cause of plaintiff’s injury. Starr v. Baca, 652 F.3d 1202,
15 1208 (9th Cir. 2011).
16 III. PLAINTIFF’S COMPLAINT1
17 A. Plaintiff’s Factual Allegations
18 Named as defendants are Correctional Officer Mayberry, Correctional Officer Ceja,
19 Correctional Lieutenant Vitale, Correctional Officer Bangyan and Correctional Officer George.
20 (ECF No. 12 at 5-6.)
21 Plaintiff claims that on August 27, 2025, defendants Mayberry and Ceja entered the
22 receiving and release section of Mule Creek State Prison (“MCSP”) to retrieve plaintiff. (Id. at
23 13.) Plaintiff had been transferred from Salinas Valley State Prison (“SVSP”) to MCSP. (Id.)
24 Defendant Mayberry became upset when plaintiff could not hear what defendant Mayberry said
25 to plaintiff while plaintiff was in the holding cell. (Id.) Defendant Mayberry opened the holding
26 cell door and secured plaintiff in waist chain restraints. (Id.) As plaintiff began walking,
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1 As discussed in the complaint, plaintiff identifies as transgender. This Court refers to plaintiff
28 as she/her.
1 defendant Mayberry “violently snatched [plaintiff] backwards, causing [plaintiff] to nearly fall…”
2 (Id.) As plaintiff reengaged her walker, defendant Mayberry continued the same pattern of
3 behavior until they reached the alpha facility yard. (Id.) Shortly after reaching the alpha facility
4 yard, defendant Mayberry began threatening plaintiff. (Id.) Defendant Mayberry stated, “I am a
5 bitch. Wanna be gangsta. Nigga. I’ll fuck you up. You don’t know about me. You’re going to
6 find out who I am. You’re going away. I am going to have you packed out. Bitch I’ll beat your
7 ass myself bitch.” (Id. at 13-14.) Plaintiff claims that defendant Mayberry began threatening
8 plaintiff “only after” plaintiff said that she was going to file an administrative grievance against
9 defendant Mayberry. (Id. at 14.) Plaintiff also claims that her threat to file an administrative
10 grievance against defendant Mayberry “did not deter defendant Mayberry from his continued
11 threat and epithets.” (Id.) Plaintiff claims that after she threatened to file a grievance, defendant
12 Mayberry “commenced to become more inflamed.” (Id.) Defendant Mayberry made further
13 threats of violence against plaintiff. (Id.) Based on these allegations, it is unclear whether
14 plaintiff claims that defendant Mayberry began making threats before or after plaintiff threatened
15 to file a grievance against him.
16 Plaintiff asked defendants Mayberry and Ceja if someone else could escort plaintiff. (Id.)
17 This request was denied and inflamed defendants Mayberry and Ceja. (Id.) Defendant Ceja
18 grabbed plaintiff’s left arm and defendant Mayberry grabbed plaintiff’s right arm. (Id. at 14.)
19 Defendants began pulling plaintiff in two different directions, causing injuries to plaintiff’s arms,
20 shoulders and back. (Id.) Due to the high stress level caused by the incident and the pain caused
21 by the violent snatching of her body while secured in waist chain restraints, plaintiff announced
22 that she was “man down” and having chest pains. (Id.) Defendant Mayberry stated, “Fuck your
23 man down. I’ll write your ass up for manipulation.” (Id. at 14-15.)
24 Plaintiff claims that after defendant Vitale arrived, defendant Mayberry stated to
25 defendants Ceja and Vitale, “I wanna dip this bitch on the neck what we doing.” (Id. at 14.)
26 Defendant Mayberry also stated to plaintiff, “I’ll find a way to put my hands on you.” (Id.)
27 Defendant Vitale refused to let another officer escort plaintiff in spite of plaintiff telling
28 defendant Vitale what defendants Mayberry and Ceja were doing prior to defendant Vitale’s
1 arrival. (Id. at 15.) Defendant Vitale was the superior officer of defendants Mayberry and Ceja
2 and heard defendant Mayberry make verbal threats toward plaintiff. (Id.) Defendant Vitale
3 stated, “I’m right here. Nothing is going to happen.” (Id.) Shortly into the escort, defendant
4 Mayberry yanked plaintiff’s right arm. (Id.) After having to stop, defendant Vitale eventually
5 took over the escort and there were no further issues. (Id.)
6 Shortly thereafter, plaintiff arrived at A2 building. (Id.) Once inside, defendant Vitale
7 informed plaintiff that plaintiff would be assigned Cell No. 122 with inmate Nelson. (Id.) After
8 defendant Vitale knocked on the door, inmate Nelson appeared at door window. (Id.) After
9 defendant Vitale told inmate Nelson that plaintiff would be his assigned roommate, inmate
10 Nelson stated, “He’s not coming in here. Stop sending people.” (Id.) Plaintiff then informed
11 defendant Vitale of the rights of transgender people. (Id.) Plaintiff told defendant Vitale that
12 inmate Nelson was a non-transgender inmate and housing plaintiff with inmate Nelson violated
13 plaintiff’s rights. (Id.) Defendant Vitale responded, “This is an all male prison. You have no
14 rights.” (Id.)
15 Plaintiff was then taken to the program office. (Id. at 16.) Upon plaintiff’s arrival at the
16 program office, plaintiff informed defendants Mayberry, Ceja and Vitale that she was going to
17 file a grievance against them. (Id.) After plaintiff made this statement, defendant Mayberry
18 instructed the officers, apparently defendants Bangyan and George, to not remove plaintiff’s
19 waist restraints and to not give plaintiff restroom breaks or water. (Id.) Plaintiff was placed in a
20 holding cage for approximately three hours. (Id.) While plaintiff was in the holding cage,
21 defendants Bangyan and George refused to remove the waist restraints, did not give plaintiff
22 water and refused to allow plaintiff restroom breaks even after plaintiff told defendants that she
23 suffered from incontinence. (Id.) This caused plaintiff to use the bathroom on herself. (Id.)
24 Plaintiff claims that other inmates in holding cages were allowed to use the restroom and given
25 water. (Id.) Plaintiff claims that she informed defendants Bangyan and George that she would be
26 filing a grievance against them. (Id.)
27 Plaintiff claims that she was held in the holding cage for approximately three hours
28 despite informing all defendants that she required medical care. (Id. at 16-17.) Plaintiff also
1 informed all defendants that plaintiff was making use of force allegations, yet all defendants
2 denied this request which prevented plaintiff from accessing medical care until her release from
3 the holding cage. (Id. at 17.) Plaintiff later had a CDCR 7219 completed which showed that
4 plaintiff sustained injuries.2 (Id.)
5 B. Plaintiff’s Legal Claims
6 1. Claim One—Retaliation
7 Plaintiff claims that all defendants retaliated against her for exercising her right to file a
8 report a complaint and file a grievance. (Id. at 17-18.)
9 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to
10 petition the government may support a section 1983 claim. See Rizzo v. Dawson, 778 F.2d 527,
11 531-32 (9th Cir. 1985). “Within the prison context, a viable claim of First Amendment retaliation
12 entails five basic elements: (1) An assertion that a state actor took some adverse action against an
13 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
14 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a
15 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The
16 threat to file a grievance is protected by the First Amendment. See Gleason v. Placencia, 2020
17 WL 3497001, at *2-3 (E.D. Cal. June 29, 2020). In addition, the mere threat of harm can be an
18 adverse action. See Brodheim v. Cry, 584 F.3d 1261, 1270-71 (9th Cir. 2009) (“Thus, the mere
19 threat of harm can be an adverse action, regardless of whether it is carried out because the threat
20 itself can have a chilling effect.”) (emphasis in original).
21 This Court finds that plaintiff states a potentially colorable retaliation claim against
22 defendant Mayberry based on the threatening statements defendant Mayberry allegedly made to
23 plaintiff after plaintiff said she was going to file a grievance against defendant Mayberry.
24 Assuming that defendant Mayberry threatened plaintiff before plaintiff threatened to file a
25 grievance against him, plaintiff’s claim that defendant Mayberry continued his threats and that his
26 threats became more inflamed after plaintiff threatened to file a grievance are sufficient to state a
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2 A CDCR 7219 is a Medical Report of Injury or Unusual Occurrence. See Hawkins v. Gomez,
28 2023 WL 5417604, at *2 n. 2 (E.D. Cal. Aug. 22, 2023).
1 retaliation claim.
2 Plaintiff also claims that after arriving at the program office, she threatened to file a
3 grievance against defendants Mayberry, Ceja and Vitale. Plaintiff claims that in response to this
4 threat, defendant Ceja instructed defendants Bangyan and George not to remove plaintiff’s
5 restraints or allow plaintiff water or restroom breaks while she was in the holding cell. Plaintiff
6 claims that defendants Bangyan and George obeyed these instructions from defendant Mayberry,
7 while allowing other inmates in holding cells restroom breaks and access to water. This Court
8 finds that these allegations state potentially colorable retaliation claims against defendants
9 Mayberry, Bangyan and George.
10 This Court finds that plaintiff has not adequately linked defendants Ceja and Vitale to her
11 retaliation claims. While plaintiff appears to claim that defendants Ceja and Vitale heard plaintiff
12 threaten to file grievances, plaintiff has not plead sufficient facts demonstrating that defendants
13 Ceja and Vitale took adverse actions against plaintiff in response to these threats. Accordingly,
14 the retaliation claims against defendants Ceja and Vitale are dismissed.
15 2. Claim Two—Excessive Force
16 When determining whether the force was excessive, the court looks to the “extent of the
17 injury suffered by an inmate…, the need for application of force, the relationship between that
18 need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’
19 and ‘any efforts made to temper the severity of a forceful response.’” Hudson v. McMillian, 503
20 U.S. 1, 7 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses
21 of physical force generally do not implicate the Eighth Amendment, significant injury need not be
22 evident in the context of an excessive force claim, because “[w]hen prison officials maliciously
23 and sadistically use force to cause harm, contemporary standards of decency always are violated.”
24 Hudson, 503 U.S. at 9 (citing Whitley, 475 U.S. at 327). A prison official may be held liable for
25 the failure to intervene in another officer’s use of excessive force only if they had a reasonable
26 opportunity to intercede. See Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000); Robins
27 v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995).
28 Plaintiff claims that defendants Mayberry and Ceja used excessive force in violation of the
1 Eighth Amendment. (ECF No. 12 at 19-20.) Plaintiff claims that defendant Vitale is liable as
2 their supervisor because he could have stopped their actions. (Id. at 20.)
3 Plaintiff first claims that defendant Mayberry used excessive force when he “violently
4 snatched” plaintiff, causing plaintiff to nearly fall. Standing alone, these allegations do not state a
5 potentially colorable Eighth Amendment excessive force claim. Plaintiff does not describe how
6 defendant Mayberry violently snatched plaintiff or address whether plaintiff suffered any injuries
7 as a result of defendant’s actions. Without more information regarding this alleged use of force,
8 this Court cannot determine whether these allegations state a potentially colorable Eighth
9 Amendment excessive force claim against defendant Mayberry. See Wilkins v. Gaddy, 559 U.S.
10 34, 38 (2010) (quoting Hudson, 503 U.S. at 9) (“[Not every malevolent touch by a prison guard
11 gives rise to a cause of action,” and “[a]n inmate who complains of a ‘push or shove’ that causes
12 no discernable injury almost certainly fails to state a valid excessive force claim.”). Accordingly,
13 this claim is dismissed.
14 Plaintiff next claims that defendants Mayberry and Ceja used excessive force when they
15 grabbed plaintiff’s arms and pulled plaintiff in different directions, causing injuries to her arms,
16 shoulders and back. Standing alone, these allegations do not state a potentially colorable Eighth
17 Amendment excessive force claim. Plaintiff does not describe how defendants pulled her arms in
18 different directions or the specific injuries caused to her arms, shoulders and back. Without more
19 information regarding this alleged use of force, this Court cannot determine whether these
20 allegations state a potentially colorable Eighth Amendment excessive force claim against
21 defendants Mayberry and Ceja. See Wilkins, 559 U.S. at 38. Accordingly, this claim is
22 dismissed.
23 Plaintiff next claims that defendant Mayberry used excessive force when he yanked
24 plaintiff’s right arm, apparently causing defendant Vitale to take over the escort. These
25 allegations standing alone do not state a potentially colorable Eighth Amendment excessive force
26 claim. Plaintiff does not describe how defendant Mayberry yanked her arm or address whether
27 plaintiff suffered any injuries as a result of this incident. Without more information regarding this
28 alleged use of force, this Court cannot determine whether these allegations state a potentially
1 colorable Eighth Amendment excessive force claim against defendant Mayberry. See Wilkins,
2 559 U.S. at 38. Accordingly, this claim is dismissed.
3 Plaintiff claims that defendant Vitale failed to stop the excessive force allegedly used by
4 defendants Mayberry and Ceja. This Court finds that plaintiff fails to plead a potentially
5 colorable Eighth Amendment failure to intervene claim against defendant Vitale because plaintiff
6 fails to plead potentially colorable excessive force claims against defendants Mayberry and Ceja.
7 In addition, plaintiff pleads no facts demonstrating that defendant Vitale witnessed defendant
8 Mayberry allegedly violently snatching plaintiff during the escort to the alpha yard or defendants
9 Mayberry and Ceja allegedly pulling plaintiff’s arms in different directions. Therefore, defendant
10 Vitale could not have intervened in these incidents. Plaintiff also does not plead sufficient facts
11 demonstrating that defendant Vitale could have intervened when defendant Mayberry allegedly
12 yanked plaintiff’s right arm. For these reasons, plaintiff’s Eighth Amendment failure to intervene
13 claims against defendant Vitale are dismissed.
14 3. Claim Three—Inadequate Medical Care
15 A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in
16 violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate
17 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
18 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate
19 indifference requires plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure
20 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and
21 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately
22 indifferent.” Jett, 439 F.3d at 1096 (internal citations omitted).
23 Plaintiff appears to claim that, when she went “man down,” defendant Mayberry denied
24 her medical care for the injuries she suffered to her arms, shoulders and back caused by
25 defendants Ceja and Mayberry pulling her arms. Plaintiff also appears to claim that all
26 defendants denied plaintiff medical care for the injuries to her arms, shoulders and back while she
27 was in the holding cell. Plaintiff claims that these injuries were later documented in a CDCR
28 7219 form. However, plaintiff fails to describe these injuries or provide a copy of the CDCR
1 7219 documenting these injuries. Without knowing the type and extent of injuries plaintiff
2 allegedly suffered and received treatment for, this Court cannot determine whether plaintiff states
3 a potentially colorable Eighth Amendment claim for denial of adequate medical care against
4 defendants. Accordingly, this claim is dismissed.
5 IV. PLAINTIFF’S OPTIONS
6 For the reasons discussed above, this Court finds that plaintiff’s complaint states one
7 potentially colorable claim: retaliation against defendants Mayberry, Bangyan and George, raised
8 in claim one.
9 For the reasons discussed above, this Court finds that the following claims raised in the
10 complaint are not potentially colorable: (1) retaliation against defendants Ceja and Vitale, raised
11 in claim one; (2) excessive force against in violation of the Eighth Amendment against defendants
12 Mayberry and Ceja raised in claim two; (3) failure to intervene in violation of the Eighth
13 Amendment against defendant Vitale, raised in claim two; and (4) inadequate medical care in
14 violation of the Eighth Amendment against all defendants, raised in claim three
15 Plaintiff may proceed forthwith to serve defendants Mayberry, Bangyan and George and
16 pursue only her potentially colorable retaliation claim, or she may delay serving any defendant
17 and attempt to cure the pleading defects as to the other claims found not potentially colorable. If
18 plaintiff elects to proceed forthwith with her potentially colorable retaliation claim, then within
19 thirty days plaintiff must so elect on the attached form. In this event the Court will construe
20 plaintiff’s election as consent to dismissal of the remaining claims without prejudice. Under this
21 option, plaintiff does not need to file an amended complaint.
22 Or, plaintiff may delay serving any defendant and attempt again to cure the pleading
23 defects as to her claims found not potentially colorable. If plaintiff elects to attempt to amend her
24 complaint to cure these pleading defects, plaintiff has thirty days to amend. Plaintiff is not
25 granted leave to add new claims or new defendants.
26 Any amended complaint must show the federal court has jurisdiction, the action is brought
27 in the right place, plaintiff has complied with the California Government Claims Act, and plaintiff
28 is entitled to relief if plaintiff’s allegations are true. It must contain a request for particular relief.
1 Plaintiff must identify as a defendant only persons who personally participated in a substantial
2 way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743
3 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an
4 act, participates in another’s act, or omits to perform an act he is legally required to do that causes
5 the alleged deprivation).
6 A district court must construe a pro se pleading “liberally” to determine if it states a claim
7 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an
8 opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While
9 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a cause of
10 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
11 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff
12 must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
13 plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp., 550 U.S. at 570).
14 A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
15 defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a “probability requirement,” but it asks for
16 more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a
17 defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.
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19 Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions
20 can provide the framework of a complaint, they must be supported by factual allegations, and are
21 not entitled to the assumption of truth. Id.
22 An amended complaint must be complete in itself without reference to any prior pleading.
23 Local Rule 220; see Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015)
24 (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non-
25 existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original
26 pleading is superseded. Plaintiff is not granted leave to add new claims or new defendants.
27 ///
28 ///
1] V. CONCLUSION
2 Accordingly, IT IS HEREBY ORDERED that:
3 1. The following claims are dismissed with leave to amend: (1) retaliation against
4 || defendants Ceja and Vitale, raised in claim one; (2) excessive force against in violation of the
5 || Eighth Amendment against defendants Mayberry and Ceja raised in claim two; (3) failure to
6 || intervene in violation of the Eighth Amendment against defendant Vitale, raised in claim two; and
7 || (4) inadequate medical care in violation of the Eighth Amendment against all defendants, raised
8 | claim three. Within thirty days of service of this order, plaintiff may file an amended
9 || complaint. Plaintiff □□ not obligated to amend her complaint.
10 2. The allegations in the complaint are sufficient to state a potentially colorable retaliation
11 || claim against defendants Mayberry, Bangyan and George, raised in claim one. See 28 U.S.C.
12 | § 1915A. If plaintiff chooses to proceed solely as to such claim, plaintiff shall so indicate on the
13 || attached form and return it to the Court within thirty days from the date of this order. In this
14 | event, the Court will construe plaintiff's election to proceed forthwith as consent to an order
15 || dismissing the defective claims without prejudice.
16 3. Failure to comply with this order will result in a recommendation that this action be
17 || dismissed.
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19 | Dated: August 13, 2026 A a
CA Spo |
CHI SOO KIM
71 UNITED STATES MAGISTRATE JUDGE
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25 || Jacq3362.14(2)/2
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 MYSHIELLE R. JACQUEZ, No. 2:25-cv-3362 CSK P
12 Plaintiff,
13 v. NOTICE OF ELECTION
14 B. MAYBERRY, et al.,
15 Defendants.
16
Plaintiff elects to proceed as follows:
17
______ Plaintiff opts to proceed with the following claim: retaliation against
18
defendants Mayberry, Bangyan and George, raised in claim one. Under
19 this option, plaintiff consents to dismissal of the remaining claims raised in
the complaint, without prejudice.
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OR
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_____ Plaintiff opts to file an amended complaint and delay service of process.
22
23 DATED:
24 _______________________________
Plaintiff
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