Cleo Westerfield v. Gomez et al

Filing 13

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The First Amended Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30 ) days from the date of this Memorandum and Order within which to file a Second Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Pl aintiff is further advised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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CLEO WESTERFIELD,
Plaintiff,

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15

Case No. CV 16-5957 DSF (SS)
MEMORANDUM AND ORDER DISMISSING

v.

FIRST AMENDED COMPLAINT WITH

C/O GOMEZ, et al.,

LEAVE TO AMEND

Defendants.

16
17

I.

18

INTRODUCTION

19
20

Plaintiff Cleo Westerfield (“Plaintiff”), a California state

21

prisoner proceeding pro se, has filed a First Amended Complaint

22

pursuant to 42 U.S.C. § 1983.

23

mandates that district courts perform an initial screening of

24

complaints in civil actions where a prisoner seeks redress from a

25

governmental entity or employee.

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may dismiss such a complaint, or any portion thereof, before

27

service of process if the complaint (1) is frivolous or malicious,

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(2) fails to state a claim upon which relief can be granted, or

(“FAC,” Dkt. No. 12).

28 U.S.C. § 1915A(a).

Congress

This Court

1

(3) seeks monetary relief from a defendant who is immune from such

2

relief.

3

F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). For the reasons

4

stated below, the First Amended Complaint is DISMISSED with leave

5

to amend.1

28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203

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7

II.

8

FACTUAL ALLEGATIONS AND CLAIMS

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10

Plaintiff sues two employees of the California Men’s Colony

11

(“CMC”), where he is currently housed.

12

Correctional

13

Plaintiff

14

capacities.

Officer

sues

Gomez

Defendants

and
in

Registered
their

These defendants are
Nurse

individual

(“RN”)
and

Yule.

official

(FAC at 3).

15
16

The FAC summarily alleges that, on April 27, 2015, Plaintiff

17

slipped and fell in a pool of standing water in the prison kitchen.

18

(Id. at 5).

Plaintiff was placed on medical leave for 125 days.2

19

(Id. at 5).

However, on April 29, 2015, just “two days into the

20

lay

21

instructed him to leave his cell and “go to the yard.”

22

Plaintiff told Gomez that he was feeling dizzy, taking medications

23

and had permission to stay in his cell because of his injury.

in

[sic],”

Gomez,

who

“constantly

harassed”

Plaintiff,
(Id.).

24

26

A magistrate judge may dismiss a complaint with leave to amend
without the approval of a district judge. See McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).

27

2

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28

1

Although not clearly alleged in the body of the FAC, various
attachments to the FAC indicate that Plaintiff suffered injuries
to his back and to the base of his neck. (See, e.g., FAC at 31).
2

1

(Id.).

2

up before she presse[d] [the] alarm.”

3

the cell, became dizzy, and lost consciousness.

Gomez told Plaintiff that “she did not care and [to] get
(Id.).

Plaintiff then left
(Id.).

4
5

Plaintiff woke up on the floor, soaked in urine, as a nurse 3

6

was yelling at him to get up because there was nothing wrong with

7

him.

8

write him up for violations relating to this incident.

9

nurse laughed at Plaintiff for urinating in his clothes and told

(Id.).

The nurse told Plaintiff twice that he was going to

10

other

medical

personnel

about

the

incident.

11

Plaintiff responded by saying he would sue the nurse.

(Id.).

(Id.

at

The

5-6).

(Id. at 5).

12
13

The specific grounds for Plaintiff’s claims are unclear.

14

However, the FAC appears to allege that Defendants are liable for

15

violations of Plaintiff’s rights under the Eighth Amendment (1)

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not to be treated “inhumanely” and “to be free from cruel and

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unusual punishment” and (2) “to have adequate medical care,” as

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well

19

emotional distress and (4) “p[e]rjury.”

20

seeks monetary damages.

21

\\

22

\\

23

\\

24

\\

as

state

law

claims

for

(3)

intentional

infliction

(Id. at 5).

of

Plaintiff

(Id. at 6).

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26
27
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The FAC does not clearly identify Yule as the nurse who spoke to
Plaintiff when he regained consciousness. (FAC at 5-6). However,
because no other facts are alleged against any other medical
personnel, the Court will assume that Yule is the “nurse” described
in the FAC’s statement of facts.
3

3

1

III.

2

DISCUSSION

3
4

Under 28 U.S.C. § 1915A(b), the Court must dismiss the First

5

Amended Complaint due to pleading defects.

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grant a pro se litigant leave to amend his defective complaint

7

unless

8

complaint could not be cured by amendment.”

9

F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation

“it

is

absolutely

clear

that

the

However, a court must

deficiencies

of

the

Akhtar v. Mesa, 698

10

marks omitted).

It is not “absolutely clear” that at least some

11

of the defects of Plaintiff’s First Amended Complaint could not be

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cured by amendment.

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DISMISSED with leave to amend.

The First Amended Complaint is therefore

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A.

Plaintiff’s Official Capacity Claims Are Defective

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Plaintiff sues Defendants for damages in both their official

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and individual capacities.

(FAC at 3).

However, Plaintiff’s

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official capacity claims are barred by the Eleventh Amendment and

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cannot proceed.

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Pursuant to the Eleventh Amendment, a state and its official

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arms are immune from suit under section 1983.

Howlett v. Rose,

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496 U.S. 356, 365 (1990); Brown v. Cal. Dept. of Corrections, 554

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F.3d 747, 752 (9th Cir. 2009) (“California has not waived its

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Eleventh Amendment immunity with respect to claims brought under

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§ 1983 in federal court”).

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his or her official capacity . . . is no different from a suit

“[A] suit against a state official in

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1

against the State itself.”

2

25 (9th Cir. 2007) (citation omitted).

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sued in their official capacity are generally entitled to immunity.

4

(Id. at 825).

Flint v. Dennison, 488 F.3d 816, 824Therefore, state officials

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6

Here, the Complaint requests only monetary damages.

(FAC at

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3, 6).

Monetary damages are not a proper remedy in suits against

8

state officials in their official capacity. Thus, Plaintiff’s

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official capacity claims are defective and must be dismissed.

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11
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B.

Plaintiff Fails To State A Claim For “Psychological Torment”
Or Intentional Infliction Of Emotional Distress

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Plaintiff broadly claims that his “right to not be treated

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inhuman[e]ly”

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intentional infliction of psychological torment.”

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is unclear whether Plaintiff is raising this claim against Gomez,

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Yule, or both.

19

attempting

20

Amendment or a state law tort claim for intentional infliction of

21

emotional distress.

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therefore must be dismissed with leave to amend.

to

was

violated

because

he

was

subjected

to

“the

(FAC at 5).

It

Additionally, it is unclear whether Plaintiff is
allege

a

constitutional

claim

under

the

Eighth

The FAC does not meet either standard and

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24
25

1.

Intentional Infliction Of “Psychological Torment” As An
Eighth Amendment Claim

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Infliction of suffering on prisoners that is “totally without
penological justification” violates the Eighth Amendment.
5

Rhodes

1

v. Chapman, 452 U.S. 337, 346 (1981).

2

wanton infliction of pain . . . constitutes cruel and unusual

3

punishment forbidden by the Eighth Amendment.”

4

475 U.S. 312, 319 (1986) (internal quotation marks and citation

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omitted).

6

Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

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psychological or emotional injuries are alleged, there must be a

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“‘high

9

emotional pain and suffering’” to rise to the level of an Eighth

“[T]he unnecessary and

Whitley v. Albers,

“The alleged pain may be physical or psychological.”

probability

of

. . .

severe

psychological

Where

injury

and

10

Amendment violation.

11

F.2d 1521, 1525 (9th Cir. 1993) (en banc)).

12

“humiliation” suffered by a male inmate who complained that female

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guards pointed, joked and “gawked” at him while he was showering

14

did not “rise to the level of severe psychological pain required

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to state an Eighth Amendment claim.”

16

(citing Somers v. Thurman, 109 F.3d 614, 616 (9th Cir. 1997)); see

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also Grummett v. Rushen, 779 F.2d 491, 494 n.1 (9th Cir. 1985)

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(prison policy allowing female guards to observe male inmates

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disrobing, showering, using the toilet, and being strip-searched,

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and allowing them to conduct pat-down searches including the groin

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area, did not amount to “the type of shocking and barbarous

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treatment

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Similarly, the routine “exchange of verbal insults between inmates

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and guards” does not violate the Eighth Amendment.

25

F.3d at 622.

protected

Id. at 1113 (quoting Jordan v. Gardner, 986

against

by

the

For example, the

Watison, 668 F.3d at 1113

[E]ighth

[A]mendment”).

Somers, 109

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Plaintiff does not allege “shocking and barbarous” conduct by

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either Defendant that would rise to the level of a constitutional
6

1

violation.

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state a constitutional deprivation, even when the language is

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vulgar and offensive.

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(9th Cir. 1987).

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constantly harrassing [sic] Plaintiff” ever since he had contacted

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“internal affairs” does not provide any basis for the Court to

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conclude that Plaintiff even endured any psychological suffering

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from Gomez’s “harassment,” much less that Gomez’s harassment was

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“shocking and barbarous.”

Mere verbal harassment or abuse is not sufficient to

Oltarzewski v. Ruggiero, 830 F.2d 136, 139

The FAC’s vague allegation that “Gomez was

Similarly, to the extent that Yule

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caused Plaintiff’s “psychological torment” by laughing at Plaintiff

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because he had urinated in his clothes and “telling other medical

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personnel” about the incident, the FAC also fails to state a

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constitutional claim against Yule. See Oltarzewski, 830 F.2d at

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139.

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assert a constitutional claim for “psychological torment,” the FAC

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must be dismissed, with leave to amend.

Therefore, to the extent that Plaintiff is attempting to

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18

2.

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Intentional Infliction Of Emotional Distress As A State
Law Tort Claim

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21

Alternatively, it is possible that Plaintiff is attempting to

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bring

a

state

law

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emotional

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procedural requirements in a civil action for alleging state law

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tort claims against government actors.

distress.

tort

claim

for

However,

the

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27
28
7

intentional
FAC

does

infliction

not

satisfy

of
the

1

Under

the

California

Government

Claims

Act

(“CGCA”),4

a

2

plaintiff may not bring an action for damages against a public

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employee or entity unless he first presents a written claim to the

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local governmental entity within six months of the accrual of the

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incident.

6

Services, 237 F.3d 1101, 1111 (9th Cir. 2001) (CGCA requires the

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“timely presentation of a written claim and the rejection of the

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claim in whole or in part” as a condition precedent to filing

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suit); see also Cal. Gov’t Code § 945.4 (“[N]o suit for money or

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damages may be brought against a public entity . . . until a written

11

claim therefor has been presented to the public entity and has been

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acted upon by the board, or has been deemed to have been rejected

13

by the board . . .”).

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allege compliance with the CGCA’s claims presentation requirement,

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or explain why compliance should be excused.

Mangold v. Cal. Pub.

16

Utils.

Cir.

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compliance with the [California] Tort Claims Act is required, the

18

plaintiff

19

compliance, or the complaint is subject to general demurrer.”)

20

(internal quotation marks omitted).

See Mabe v. San Bernadino County, Dept. of Public Social

Comm’n,

must

67

Furthermore, a plaintiff must affirmatively

F.3d

allege

1470,

1477

compliance

(9th

or

1995)

circumstances

(“Where

excusing

21
22

“The

failure

23

jurisdictional,

not

to
a

exhaust

an

procedural,

administrative
defect.”

remedy

Miller

v.

is

a

United

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25
26
27
28

The short title “Government Claims Act” has been used
interchangeably in California cases with the title “Tort Claims
Act” to refer to the statutory scheme for presenting claims for
money damages against governmental entities. However, because the
California Supreme Court has expressed a preference for the title
“Government Claims Act,” the Court will adopt that usage. See City
of Stockton v. Superior Court, 42 Cal. 4th 730, 741-42 (2007).
4

8

1

Airlines, Inc., 174 Cal. App. 3d 878, 890 (1985); see also Cornejo

2

v. Lightbourne, 220 Cal. App. 4th 932, 938 (2013) (“Ordinarily,

3

filing a claim with a public entity pursuant to the Claims Act is

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a jurisdictional element of any cause of action for damages against

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the public entity . . .”).

6

attempting to assert any state tort causes of action, the FAC does

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not plead satisfaction of the CGCA claims presentation requirement

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and fails to identify any evidence that Plaintiff exhausted his

9

remedies before filing suit.5
Plaintiff

11

infliction

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dismissed, with leave to amend.

13

that he should not assert such a claim unless he can show that he

14

presented his tort claim to the appropriate agency prior to filing

15

suit

16

particular circumstances of this case.

of

attempting
emotional

explain

why

to

Accordingly, to the extent that

10

or

is

To the extent that Plaintiff is

assert

distress”

a

state

claim,

law

the

“intentional

claim

must

be

However, Plaintiff is cautioned

exhaustion

should

be

excused

under

the

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18
19
20
21
22

Attachments to the FAC reflect Plaintiff’s attempt to exhaust the
internal prison grievance process. (See FAC at 38-41). However,
the claim presentation requirement under the CGCA is separate from,
and is not satisfied by, internal prison grievance processes. See
Hendon v. Ramsey, 528 F. Supp. 2d 1058, 1069–70 (S.D. Cal. 2007)
(“Although Plaintiff has demonstrated successfully that he utilized
the prison grievance process to exhaust his federal claims by
filing an inmate appeal, and has attached documentation in the
form of his CDC 602 form and administrative responses, these
documents do not satisfy the CTCA [California Tort Claims Act] with
respect to his state law negligence claims.”).
5

23
24
25
26
27
28

9

1

C.

2

Plaintiff Fails To Allege A Deliberate Indifference Claim
Against Either Defendant

3
4

It is also possible that Plaintiff is attempting to state a

5

constitutional claim for deliberate indifference to his serious

6

medical needs.

7

prisoner’s medical treatment, the prisoner must demonstrate that

8

the

9

medical needs.”

defendant

To state an Eighth Amendment claim based on a

was

“deliberately

indifferent”

to

his

“serious

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

10

2006); see also West v. Atkins, 487 U.S. 42, 49 (1988).

11

establish a “serious medical need,” the prisoner must demonstrate

12

that “failure to treat a prisoner’s condition could result in

13

further

14

infliction of pain.’”

15

see also Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006)

16

(the existence of a serious medical need is determined by an

17

objective standard).

significant

injury

or

the

‘unnecessary

and

To

wanton

Jett, 439 F.3d at 1096 (citation omitted);

18
19

To establish “deliberate indifference” to such a need, the

20

prisoner must demonstrate: “(a) a purposeful act or failure to

21

respond to a prisoner’s pain or possible medical need, and (b) harm

22

caused by the indifference.”

23

appear when prison officials deny, delay or intentionally interfere

24

with medical treatment, or it may be shown by the way in which

25

prison

26

omitted).

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serious risk of harm and must have consciously disregarded that

28

risk.

physicians

provide

(Id.).

medical

Deliberate indifference “may

care.”

(Id.)

(citations

The defendant must have been subjectively aware of a

See Farmer v. Brennan, 511 U.S. 825 (1994).
10

An “isolated

1

exception” to the defendant’s “overall treatment” of the prisoner

2

does not state a deliberate indifference claim.

3

1096.

Jett, 439 F.3d at

4
5

The

FAC

fails

to

state

a

deliberate

indifference

claim.

6

First, the FAC’s vague allegation that Plaintiff slipped and was

7

placed on “medical leave” does not sufficiently describe a “serious

8

medical need.”

9

Yule was subjectively aware of Plaintiff’s alleged serious medical

10

need and deliberately chose to ignore it, putting him at risk of

11

injury.6

12

care when he woke up after fainting, what kind of care he needed,

13

or even if Yule failed to provide that care.

14

not show that Plaintiff suffered any harm from either Defendant’s

15

alleged acts or failures to act.

16

fainted after Gomez forced him to evacuate his cell, the FAC does

17

not state whether he harmed himself when he fainted.

18

unclear whether Plaintiff suffered any harm at all once he awoke

19

and Yule saw him.

20

attempting to assert a deliberate indifference claim against one

21

or both Defendants, the claim must be dismissed, with leave to

22

amend.

Second, the FAC does not adequately allege that

The FAC fails to explain whether Plaintiff needed medical

Third, the FAC does

Even though Plaintiff allegedly

It is also

Accordingly, to the extent that Plaintiff is

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24
25
26
27
28

The FAC’s allegations, liberally construed, that Plaintiff told
Gomez that he was feeling dizzy, was on medication, and had a
medical “lay in” may be sufficient to show Gomez’s subjective
awareness that Plaintiff suffered from some medical condition. It
is questionable, however, whether these bare bones allegations show
that Gomez was aware of a “serious” medical need.
6

11

1

D.

2

Plaintiff Cannot State A Claim For Perjury Against Either
Defendant

3
4

Plaintiff alleges without explanation or context that one or

5

more of the Defendants is liable for “p[e]rjury.”

6

federal and state law, “[t]he factual predicates of perjury are:

7

(1)

8

(2) concerning a material matter (3) with the willful intent to

9

provide false testimony, rather than as a result of confusion,

that

the

defendant

gave

false

Under both

testimony

under

oath

10

mistake, or faulty memory.”

11

1166, 1170 (9th Cir. 2002) (citing United States v. Dunnigan, 507

12

U.S. 87, 94 (1993)); see also Hussein v. Barrett, 820 F.3d 1083,

13

1089 (9th Cir. 2016) (“Under California law, the elements of

14

perjury include a willful statement under oath of any material

15

matter which the witness knows to be false.”).

16

criminal offense, and a private plaintiff may not raise criminal

17

claims in a civil lawsuit.

18

at *4 (S.D. Cal. May 5, 2009) (“[A]n individual may not bring

19

criminal charges against someone by filing a complaint in this

20

Court.”).

21

of

22

Defendants made, much less allege that they made them under oath

23

with the intent to provide false testimony.

24

that Plaintiff is attempting to state a “perjury” claim, the claim

25

is both not cognizable and unsupported and must be dismissed.

action,

United States v. Jimenez, 300 F.3d

Perjury is a

See Johnson v. Wennes, 2009 WL 1228500,

Furthermore, even if there were a civil “perjury” cause
the

FAC

does

not

identify

26
27
28
12

what

false

statements

Thus, to the extent

1

E.

Plaintiff Fails To State A Claim For Retaliation

2
3

Plaintiff alleges that Gomez was constantly harassing him

4

“ever[] since the internal affairs was contacted.”

(FAC at 5).

5

It is possible that Plaintiff is attempting to state a retaliation

6

claim.

7

requirements for a § 1983 claim alleging that prison employees have

8

retaliated against an inmate for exercising a First Amendment

9

right:

The Ninth Circuit has set forth the minimum pleading

10
11

Within the prison context, a viable claim of First

12

Amendment

13

(1) An assertion that a state actor took some adverse

14

action

15

prisoner’s

16

(4) chilled the inmate’s exercise of his First Amendment

17

rights, and (5) the action did not reasonably advance a

18

legitimate correctional goal.

retaliation

against

an

entails

inmate

protected

(2)

conduct,

five

basic

because
and

of

that

elements:

(3)

such

that

action

19
20

See Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 2005)

21

(footnote omitted).

22

between

23

constitutional right.

24

(9th Cir. 1995).

the

The prisoner must establish a specific link

alleged

retaliation

and

the

exercise

of

a

See Pratt v. Rowland, 65 F.3d 802, 807-08

25
26

The FAC fails to state a retaliation claim.

The FAC does not

27

describe who contacted internal affairs or why.

28

Plaintiff contacted internal affairs for something relating to
13

Even assuming that

1

Gomez, the FAC does not describe the “harassment” that Gomez

2

purportedly inflicted on Plaintiff or even affirmatively state that

3

the harassment was in retaliation for his contacting internal

4

affairs.

5

Plaintiff’s exercise of his First Amendment rights and the alleged

6

retaliation.

7

attempting to raise a retaliation claim against Gomez, the claim

8

must be dismissed, with leave to amend.

The FAC does not establish a specific link between

Accordingly,

to

the

extent

that

Plaintiff

is

9
10

F.

The Complaint Violates Federal Rule Of Civil Procedure 8

11
12

Federal Rule of Civil Procedure 8(a)(2) requires that a

13

complaint contain “‘a short and plain statement of the claim

14

showing that the pleader is entitled to relief,’ in order to ‘give

15

the defendant fair notice of what the . . . claim is and the

16

grounds upon which it rests.’”

17

544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)).

18

violated when a pleading “says too little” and “when a pleading

19

says too much.”

20

2013) (emphasis in original); see also Cafasso, U.S. ex rel. v.

21

Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011)

22

(a complaint violates Rule 8 if a defendant would have difficulty

23

understanding and responding to the complaint)); McHenry v. Renne,

24

84 F.3d 1172, 1179–80 (9th Cir. 1996) (“[C]onfusing complaints

25

. . . impose unfair burdens on litigants and judges.”).

Bell Atlantic v. Twombly, 550 U.S.
Rule 8 may be

Knapp v. Hogan, 738 F.3d 1106, 1108 (9th Cir.

26
27

Here, the FAC violates Rule 8 because Plaintiff does not

28

identify what, exactly, the nature of each of his claims is, and
14

1

specifically identify the Defendant against whom each claim is

2

asserted.

3

respond to the First Amended Complaint.

4

1058.

5

evidence supporting his claims at this stage of the litigation,

6

the numerous exhibits attached to the Complaint are unnecessary.

7

Plaintiff cannot simply attach documents to his complaint and

8

expect the Defendants to guess their meaning.

Without more specific information, Defendants cannot
See Cafasso, 637 F.3d at

In addition, because Plaintiff is not required to provide

9
10

Accordingly, the First Amended Complaint is dismissed with

11

leave to amend.

Should Plaintiff choose to file a Second Amended

12

Complaint, he is advised to clearly identify the nature of each of

13

the legal claims he is bringing, the specific facts giving rise to

14

each claim, the and specific Defendant or Defendants against whom

15

each claim is brought.

16
17

IV.

18

CONCLUSION

19
20

For the reasons stated above, the First Amended Complaint is

21

dismissed with leave to amend.

22

this action, he is granted thirty (30) days from the date of this

23

Memorandum

24

Complaint.

25

defects

26

defendants or new allegations that are not reasonably related to

27

the claims asserted in prior complaints.

28

Complaint, if any, shall be complete in itself and shall bear both

and

Order

within

If Plaintiff still wishes to pursue

which

to

file

a

Second

Amended

In any amended complaint, Plaintiff shall cure the

described

above.

Plaintiff

15

shall

not

include

new

The Second Amended

1

the designation “Second Amended Complaint” and the case number

2

assigned to this action.

3

prior complaint.

4

Defendants who are properly named in such a complaint, consistent

5

with the authorities discussed above.

It shall not refer in any manner to any

Plaintiff shall limit his action only to those

6
7

In

any

amended

complaint,

Plaintiff

should

confine

his

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allegations to those operative facts supporting each of his claims.

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Plaintiff

is

advised

that

pursuant

to

Federal

Rule

of

Civil

10

Procedure 8(a), all that is required is a “short and plain statement

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of the claim showing that the pleader is entitled to relief.”

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Plaintiff is strongly encouraged to utilize the standard civil

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rights complaint form when filing any amended complaint, a copy of

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which is attached.

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clear the nature and grounds for each claim and specifically

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identify the Defendants he maintains are liable for that claim.

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Plaintiff shall not assert any claims for which he cannot allege a

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proper factual basis.

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In any amended complaint, Plaintiff should make

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Plaintiff is explicitly cautioned that the failure to timely

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file

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deficiencies described above, will result in a recommendation that

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this entire action be dismissed with prejudice for failure to

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prosecute and obey Court orders pursuant to Federal Rule of Civil

6

Procedure 41(b).

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wishes to pursue this action, he may voluntarily dismiss it by

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filing a Notice of Dismissal in accordance with Federal Rule of

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Civil Procedure 41(a)(1).

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a

Second

Amended

Complaint,

or

failure

to

correct

the

Plaintiff is further advised that if he no longer

A form Notice of Dismissal is attached

for Plaintiff’s convenience.

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DATED:

April 12, 2017

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/S/___
_ ______
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION, NOR IS IT INTENDED
TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW
OR LEXIS.

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