Norris Dajon Miller v. Lily Keenan

Filing 6

MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. the 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 First 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. Plaintiff is further ad vised that is 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 Plaintiffs 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

10
11

NORRIS DAJON MILLER,

Case No. CV 17-2969 SJO (SS)

Plaintiff,

12
13
14

MEMORANDUM DECISION AND ORDER

v.
LILY KEENAN,

DISMISSING COMPLAINT WITH LEAVE
TO AMEND

Defendant.

15
16
17

I.

18

INTRODUCTION

19
On

20

April

19,

2017,

Norris

Dajon

Miller

(“Plaintiff”),

a

21

California state prisoner proceeding pro se, filed a civil rights

22

complaint pursuant 42 U.S.C. § 1983 (“Complaint”).

23

summarily alleges that Deputy District Attorney Lily Keenan is

24

liable

25

violation of his Sixth and Fourteenth Amendment rights.

26

6) (continuous pagination).

27

\\

28

\\

for

malicious

prosecution

and

false

Plaintiff

imprisonment

in

(Id. at

1

Congress mandates that district courts perform an initial

2

screening of complaints in civil actions where a prisoner seeks

3

redress

4

§ 1915A(a). This Court may dismiss such a complaint, or any portion

5

thereof,

6

frivolous or malicious, (2) fails to state a claim upon which

7

relief can be granted, or (3) seeks monetary relief from a defendant

8

who is immune from such relief.

9

also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000)

10

(en banc). For the reasons stated below, the Complaint is DISMISSED

11

with leave to amend.1

from

a

before

governmental

service

of

entity

process

or

if

employee.

the

28

complaint

U.S.C.

(1)

is

28 U.S.C. § 1915A(b)(1-2); see

12
13

II.

14

ALLEGATIONS OF THE COMPLAINT

15
16

The only Defendant sued in this matter is Deputy District

17

Attorney

Keenan.

(Complaint

18

individual capacity only.

at

4).

Keenan

is

sued

in

her

(Id. at 3).

19
20

Plaintiff was tried on six criminal charges in state court.

21

(Id. at 10-13).

22

assault and one count of resisting an executive officer, but

23

acquitted him of one count of attempted robbery of one of the

24

assault

25

executive officer.

victims

The jury convicted Plaintiff of three counts of

and

another

count

of

resisting

a

different

(Id. at 10-11).

26
27
28

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).
1

2

1

The Complaint summarily alleges that Keenan “falsely accused

2

[Plaintiff] of crimes that [he] did not commit” in reference to

3

the two counts that resulted in acquittals.

4

id. at 4 (“See the attached proof and evidence underlined from my

5

jury trial transcripts saying I was found not guilty on two

6

counts.”)).

7

in jail pending trial on those two counts for four months and

8

nineteen days. (Id. at 5). Plaintiff seeks $46,700,000 in monetary

9

damages for the “emotional stress, heartache, pain and suffering,

10

[and] false imprisonment” caused by being accused of the two crimes

11

of which he was acquitted.

(Id. at 3; see also

Plaintiff further claims that he was wrongfully held

(Id. at 5).

12
13

III.

14

DISCUSSION

15
16

Under

28

U.S.C.

§

1915A(b),

the

Court

must

dismiss

the

17

Complaint due to pleading defects.

18

a pro se litigant leave to amend his defective complaint unless

19

“it is absolutely clear that the deficiencies of the complaint

20

could not be cured by amendment.”

Akhtar v. Mesa, 698 F.3d 1202,

21

1212

and

22

omitted).

23

clear” that at least some of the defects of Plaintiff’s Complaint

24

could not be cured by amendment.

25

Plaintiff will be able to allege facts sufficient to support even

26

one of his claims, due to his pro se status, the Court will DISMISS

27

the Complaint with leave to amend.

(9th

Cir.

2012)

(citation

However, the Court must grant

internal

quotation

marks

For the reasons discussed below, it is not “absolutely

While it is far from certain that

28
3

1

A.

The Complaint Fails To State A Claim For Malicious Prosecution

2
3

A claim of malicious prosecution is generally not cognizable

4

under

section

5

judicial system to provide a remedy.

6

693 F.3d 896, 919 (9th Cir. 2012).

7

common law tort of malicious prosecution, although such claims are

8

“disfavored.”

9

state a claim for malicious prosecution under California law, “a

10

plaintiff must demonstrate that the prior action (1) was initiated

11

by or at the direction of the defendant and legally terminated in

12

the plaintiff’s favor, (2) was brought without probable cause, and

13

(3) was initiated with malice.”

14

4th 735, 740 (2007); see also Casa Herrera, Inc. v. Beydoun, 32

15

Cal.

16

prosecution of either a criminal or civil matter); Van Audenhove

17

v. Perry, 11 Cal. App. 5th 915, 919 (2017) (quoting Casa Herrera).

18

Malicious prosecution is also actionable under state law where the

19

defendant “continu[es] to prosecute a lawsuit discovered to lack

20

probable cause.”

21

cannot establish any one of these three elements, its malicious

22

prosecution action will fail.”

23

Servs., Inc., 136 Cal. App. 4th 1392, 1398 (2006).

4th

1983

if

process

is

available

within

the

state

See Lacey v. Maricopa Cnty.,
California law recognizes the

Zamos v. Stroud, 32 Cal. 4th 958, 966 (2004).

336,

341

(2004)

To

Seibel v. Mittlesteadt, 41 Cal.

(standard

applies

Zamos, 32 Cal. 4th at 970.

to

underlying

“If a plaintiff

Staffpro, Inc. v. Elite Show

24
25

Although malicious prosecution is fundamentally a state law

26

tort,

the

Ninth

Circuit

has

determined

27

plaintiff may bring a claim for malicious prosecution under section

28

1983 when certain conditions are met.
4

that

a

civil

rights

To state a federal claim

1

for malicious prosecution, in addition to alleging the elements of

2

a state law claim, a plaintiff must establish that the prosecution

3

was conducted “for the purpose of denying [the accused] equal

4

protection or another specific constitutional right.’”

5

F.3d at 919 (quoting Freeman v. City of Santa Ana, 68 F.3d 1180,

6

1189 (9th Cir. 1995)).

7

actions “are not limited to suits against prosecutors but may

8

[also] be brought . . . against other persons who have wrongfully

9

caused the charges to be filed.”

10

F.3d 1062, 1066 (9th Cir. 2004).

Lacey, 693

In such instances, malicious prosecution

Awabdy v. City of Adelanto, 368

11
12

The “favorable termination” element of a malicious prosecution

13

claim

requires

14

“reflect the merits of the action and the plaintiff’s innocence of

15

the misconduct alleged in the lawsuit.”

16

4th at 1399 (emphasis in original; internal quotation marks and

17

citation omitted).

18

necessarily favorable simply because the party prevailed in the

19

prior proceeding; the termination must relate to the merits of the

20

action

21

responsibility for the misconduct alleged against him.” Sagonowsky

22

v. More, 64 Cal. App. 4th 122, 128 (1998).

23

the underlying litigation ‘leaves some doubt as to the defendant’s

24

innocence or liability[, it] is not a favorable termination, and

25

bars

26

against the underlying plaintiff.’”

27

at 1399-1400 (quoting Eells v. Rosenblum, 36 Cal. App. 4th 1848,

28

1855 (1995) (alteration and emphasis in original)); see also Womack

by

that

that

the

of

the

underlying

action

Staffpro, 136 Cal. App.

“Termination of the prior proceeding is not

reflecting

party

termination

from

either

on

bringing

the

a

5

innocence

of

or

lack

of

“If the resolution of

malicious

prosecution

action

Staffpro, 136 Cal. App. 4th

1

v. Cnty. of Amador, 551 F. Supp. 2d 1017 (E.D. Cal. 2008) (granting

2

defendant’s motion for summary judgment in malicious prosecution

3

action where dismissal of underlying criminal charges “in the

4

interest of justice” “left some doubt” about the suspect’s factual

5

innocence and thus did not constitute a “favorable termination”);

6

Peinado v. City and Cnty. of San Francisco, 2014 WL 6693837, at

7

*4-5 (N.D. Cal. Nov. 26, 2014) (same).

8
9

To determine whether there was a “favorable termination,”

10

California courts “look at the judgment as a whole in the prior

11

action.”

12

marks and citation omitted).

Casa Herrera, 32 Cal. 4th at 341 (internal quotation
As one court explained,

13
14

[F]or purposes of determining favorable termination,

15

“[t]he court in the action for malicious prosecution

16

will not make a separate investigation and retry each

17

separate allegation without reference to the result of

18

the previous suit as a whole . . . .”

[Crowley v.

19

Katleman,

(en

20

Instead, consideration should be given to the judgment

21

as a whole” as it is “the decree of judgment itself in

22

the former action [that] is the criterion by which to

23

determine

24

proceeding.”

8

Cal.

who

was

4th

666,

the

684

(1994)

successful

party

banc).]

in

such

[Id. at 685].

25
26

Staffpro, 136 Cal. App. 4th at 1403. Accordingly, where a plaintiff

27

in a malicious prosecution action prevailed on only “some, but not

28

all, of the causes of action asserted against it in the complaint
6

1

in the underlying litigation,” the plaintiff “cannot establish

2

favorable

3

maintaining a subsequent malicious prosecution action.”

4

1394.

5

cause” element of a malicious prosecution action may be met where

6

only one of the claims in the underlying litigation lacked probable

7

cause, the “favorable termination” element requires that “there

8

must first be favorable termination of the entire action.’”

9

v. American Pacific Holding Corp., 42 Cal. App. 4th 822, 829 (1996)

10

(quoting Crowley, 8 Cal. 4th at 686 (emphasis in original)); see

11

also Staffpro, 136 Cal. App. 4th at 1402-03 (the severability

12

analysis applicable to the probable cause element “is inapplicable

13

to the favorable termination element of the malicious prosecution

14

tort”).2

termination

and

is

consequently

precluded

from
Id. at

Several courts have emphasized that while the “probable

Dalany

15
16

Courts in this circuit have generally adopted California’s

17

“whole judgment” rule when analyzing the favorable termination

18

element

of

a

section

1983

malicious

prosecution

claim.

For

19
20
21
22
23
24
25
26
27
28

The Staffpro court acknowledged that a “handful of published
opinions of the California Courts of Appeal apply severability
analysis to determine the favorable termination element of the tort
of malicious prosecution.” Staffpro, 136 Cal. App. 4th at 1403.
These cases suggest that “favorable termination” may exist where a
charge on which a defendant is acquitted is “severable” from a
charge on which the defendant was convicted in the same proceeding.
See id. at 1404 (discussing, inter alia, Sierra Club Foundation v.
Graham, 72 Cal. App. 4th 1135 (1999) and Paramount General Hospital
Co. v. Jay, 213 Cal. App. 3d 360 (1989)). However, the Staffpro
court noted that all but one of those decisions were decided before
the California Supreme Court affirmed the “judgment as a whole”
rule of “favorable termination” in Crowley. As to Sierra Club,
the one post-Crowley case adopting a severability analysis with
respect to favorable termination, the Staffpro court rejected that
court’s analysis as flawed. Id. at 1403-04.
2

7

1

example, in Whitmore v. Cnty. of Los Angeles, 2010 WL 11530651

2

(C.D. Cal. Aug. 9, 2010), affirmed 473 Fed. App’x 575 (9th Cir.

3

2012), the malicious prosecution plaintiff had been charged in an

4

underlying

5

officer, assault upon a peace officer, attempted firearm removal,

6

taking a firearm or weapon while resisting a peace officer, and

7

obstructing or resisting a peace officer.

8

plaintiff was acquitted on “the more serious charges,” but was

9

found guilty of “resisting arrest, a felony count of battery with

10

injury to a peace officer, and leaving the scene of an accident.”

11

Id.

12

prosecution claim failed because plaintiff’s acquittal on certain

13

counts did not necessarily show plaintiff’s actual “innocence” of

14

the crimes with which he was charged.

15

court found that plaintiff’s underlying conviction for battery with

16

injury of a peace officer, coupled with evidence showing that

17

plaintiff had “bashed” the officer’s head into the pavement at

18

least

19

threatened to kill the officer, indicated that despite plaintiff’s

20

acquittals on some counts, the resolution of his criminal trial

21

left “some doubt” as to his guilt.

22

to establish a triable issue as to whether there was a favorable

23

termination of the underlying action for purposes of his malicious

24

prosecution claim.

criminal

action

with

attempted

murder

of

Id. at *8.

a

police

At trial,

The court concluded on summary judgment that the malicious

twice,

outweighed

the

officer

Id.

by

Id.

In particular, the

110

pounds,

and

had

As such, plaintiff failed

Id.

25
26

In a number of recent unpublished cases, the Ninth Circuit

27

has adhered to a very strict application of the “judgment as a

28

whole”

rule

in

malicious

prosecution
8

cases

involving

mixed

1

underlying

criminal

verdicts.

These

cases

include

the

Ninth

2

Circuit’s affirmance of the decision in the Whitmore case discussed

3

above.

4

Whitmore’s criminal ‘judgment as a whole,’ Whitmore did not receive

5

a favorable outcome.”); see also Cairns v. Cnty. of El Dorado, 2017

6

WL 3049577, at *1 (9th Cir. July 19, 2017) (unpublished) (“Because

7

Kevin Cairns was convicted of disturbing the peace in the same

8

action in which he was acquitted of four other offenses, he cannot

9

demonstrate that he was successful in the entire criminal action.

10

The malicious prosecution claim therefore fails as a matter of

11

law.”) (emphasis in original; internal citations omitted); Rezek

12

v. City of Tustin, 2017 WL 1055648, at *2 (9th Cir. Mar. 21, 2017)

13

(unpublished) (affirming grant of summary judgment for defendants

14

where

15

vandalism in the same action in which he was acquitted of resisting

16

arrest,” and thus could not demonstrate that the underlying trial

17

was resolved in his favor in the context of the judgment as a

18

whole).

See Whitmore, 473 Fed. App’x. 575 at *1 (“[C]onsidering

the

malicious

prosecution

plaintiff

“was

convicted

of

19
20

Here, documents submitted by Plaintiff with his Complaint

21

establish that Plaintiff was charged with six counts and convicted

22

on four.

23

about the underlying prosecution, it appears that the charges may

24

have arisen from the same course of action, which further calls

25

into question whether Plaintiff was indeed “factually” innocent

26

even of the two charges on which he was acquitted.

27

City of San Diego, 149 F.3d 951, 963 (9th Cir. 1998) (“An acquittal,

28

however, reveals very little -- if anything -- about whether the

Furthermore, although the Complaint is devoid of detail

9

See Poppell v.

1

charges were procured with malice.

Any number of innocent factors

2

can contribute to an acquittal, including the high burden of

3

proof.”).

4

the same proceeding that he now challenges indicates, when the

5

judgment is viewed as a whole, that Plaintiff did not receive a

6

“favorable

7

therefore has failed to show, and seemingly will continue to be

8

unable to plead or prove, an essential element of this claim.

9

However, out of an abundance of caution, the Court will allow

10

Plaintiff one final opportunity to attempt to plead a claim for

11

malicious prosecution upon a showing that despite his convictions,

12

the underlying action resolved in his favor.

13

cautioned that he may not plead claims for which he has no factual

14

or legal basis.3

The fact that Plaintiff was convicted on four counts in

termination”

of

the

underlying

prosecution.

He

Plaintiff is strongly

15
16

B.

The Complaint Fails To State A Claim For False Imprisonment

17
18

In his request for relief, Plaintiff seeks monetary damages

19

from Keenan for “false imprisonment,” although he does not explain

20

why or how he believes that Keenan is liable for his pretrial

21
22
23
24
25
26
27
28

Plaintiff’s malicious prosecution claim against Keenan suffers
from other pleading defects as well.
Even if the claim could
somehow survive the “judgment as a whole” rule applying to the
favorable termination element, which appears unlikely, it may still
be barred by the doctrine of absolute prosecutorial immunity,
depending on the nature of the acts that Plaintiff believes Kennan
committed, as discussed in more detail in connection with
Plaintiff’s false imprisonment claim below.
Furthermore, the
Complaint does not allege any facts showing that the prosecution
conducted was for the purpose of denying Plaintiff equal protection
or some other constitutional right, as required for a section 1983
malicious prosecution claim. Lacey, 693 F.3d at 919.
3

10

1

detention.

Plaintiff is cautioned that “[t]he Constitution does

2

not guarantee that only the guilty will be arrested.

3

§ 1983

4

acquitted -- indeed, for every suspect released,” which it does

5

not.

6

depending on the nature of the acts Plaintiff believes Keenan

7

committed, Keenan may be protected by the doctrine of absolute

8

prosecutorial immunity.

would

provide

a

cause

of

action

for

If it did,

every

Baker v. McCollan, 443 U.S. 137, 145 (1979).

defendant

Furthermore,

9
10

The pleading requirements for false imprisonment are “quite

11

different” from those for malicious prosecution.

12

imprisonment

13

termination of a criminal prosecution or malice.

14

prevail on his § 1983 claim for false arrest and imprisonment, [a

15

plaintiff] would have to demonstrate that there was no probable

16

cause to arrest him.”

17

374, 380 (9th Cir. 1998).

18

claim on his “‘constitutional right to be free from continued

19

detention after it was or should have been known that the detainee

20

was entitled to release.’”

21

F.3d

22

citation omitted).

668,

not

683

require

(9th

the

plaintiff

to

A claim for false
allege

favorable

Instead, “[t]o

Cabrera v. City of Huntington Park, 159 F.3d

Cir.

A plaintiff may also base a due process

See Lee v. City of Los Angeles, 250
2001)

(internal

quotation

marks

and

23
24

However, the doctrine of “[p]rosecutorial immunity applies to

25

§ 1983 claims” and bars claims against prosecutors for certain acts

26

taken in the course of a criminal prosecution.

27

Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016).

28

“State prosecutors are absolutely immune from § 1983 actions when
11

Garmon v. Cnty. of
In particular,

1

performing functions ‘intimately associated with the judicial phase

2

of the criminal process,’ [Imbler v. Pachtman, 424 U.S. 409, 430

3

(1976)], or, phrased differently, ‘when performing the traditional

4

functions of an advocate.’”

5

Kalina v. Fletcher, 522 U.S. 118, 131 (1997)).

Garmon, 828 F.3d at 843 (quoting

6
7

Accordingly, a prosecutor is absolutely immune from suit for

8

“‘initiating a prosecution’ and ‘presenting a state’s case,’ and

9

during ‘professional evaluation of the evidence assembled by the

10

police and appropriate preparation for its presentation at trial

11

. . . after a decision to seek an indictment has been made.’”

12

Garmon, 828 F.3d at 843 (quoting Buckley v. Fitzsimmons, 509 U.S.

13

259, 273 (1993)); see also Milstein v. Cooley, 257 F.3d 1004, 1012

14

(9th Cir. 2001) (“Initiating a prosecution has consistently been

15

identified

16

advocate.”); Mishler v. Clift, 191 F.3d 998, 1008 (9th Cir. 1999)

17

(“Filing charges and initiating prosecution are functions that are

18

integral to a prosecutor’s work.”).

19

by absolute immunity in the “preparation of an arrest warrant,”

20

during “appearances before a grand jury,” “in a probable cause

21

hearing,” and at trial.

22

see also Milstein, 257 F.3d at 1012 (“Appearing in court to argue

23

a motion is a quintessential act of advocacy.”).

as

a

function

within

a

prosecutor’s

role

as

an

A prosecutor is also protected

Lacey, 693 F.3d at 933 (citing cases);

24
25

Absolute immunity applies even if it “‘leave[s] the genuinely

26

wronged defendant without civil redress against a prosecutor whose

27

malicious or dishonest action deprives him of liberty.’”

28

v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005) (quoting Imbler,
12

Genzler

1

424 U.S. at 432).

However, prosecutors are entitled only to

2

“qualified immunity, rather than absolute immunity, when they

3

perform

4

normally performed by a detective or police officer.’”

5

410 F.3d at 636 (quoting Kalina, 522 U.S. at 126).

administrative

functions,

or

‘investigative

functions
Genzler,

6
7

Courts look to the “nature of the function performed” when

8

determining if a prosecutor’s actions are those of an advocate,

9

which are protected by absolute immunity, or of an administrator

10

or investigator, which are not.

11

Buckley, 509 U.S. at 269).

12

promote, transfer and terminate” employees, “which do not affect

13

the prosecutor’s role in any particular matter,” are generally

14

deemed administrative functions not protected by absolute immunity.

15

Lacey, 693 F.3d at 931.

16

apply when a prosecutor ‘gives advice to police during a criminal

17

investigation,’ ‘makes statements to the press,’ or ‘acts as a

18

complaining

19

application.’”

20

Goldstein, 555 U.S. 335, 343 (2009) (brackets in original)); see

21

also Milstein, 257 F.3d at 1101 (filing a false crime report is

22

not protected by absolute immunity).

23

not

24

soliciting falsehoods from others, such as by obtaining false

25

statements from purported witnesses or “shopping for a dubious

26

expert opinion.”

27

\\

28

\\

apply

witness

if

Garmon, 828 F.3d at 843 (quoting
For example, “decisions to hire,

Similarly, “[a]bsolute immunity does not

in

support

of

a[n

arrest]

warrant

Garmon, 828 F.3d at 843 (quoting Van de Kamp v.

a

prosecutor

Absolute immunity also does

knowingly

Id.

13

fabricates

evidence

by

1

Plaintiff’s false imprisonment claim lacks sufficient detail

2

for the Court to determine the role Keenan played, if any, in

3

Plaintiff’s arrest and/or continued pre-trial detention.

4

basis for the false imprisonment claim is simply that Keenan

5

decided to file criminal charges in reliance on evidence provided

6

by the police, the filing decision would appear to be protected

7

from suit by absolute immunity.

8

allege facts showing, for example, that Keenan simply “advised”

9

police to arrest him on false pretenses, or knowingly fabricated

10

or solicited false evidence to keep him in custody prior to trial,

11

such acts may not be protected by absolute immunity.

12

cautioned that he must have a factual basis for any allegation in

13

support of his claims.

14

dismissed, with leave to amend.

If the

However, if Plaintiff is able to

Plaintiff is

With that advisement, the Complaint is

15
16

IV.

17

CONCLUSION

18
19

For the reasons stated above, the Complaint is dismissed with

20

leave to amend.

If Plaintiff still wishes to pursue this action,

21

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

22

and Order within which to file a First Amended Complaint.

23

amended complaint, the Plaintiff shall cure the defects described

24

above.

25

allegations that are not reasonably related to the claims asserted

26

in the original complaint.

27

shall be complete in itself and shall bear both the designation

28

“First Amended Complaint” and the case number assigned to this

Plaintiff

shall

not

include

new

defendants

In any

or

new

The First Amended Complaint, if any,

14

1

action.

It shall not refer in any manner to any previously filed

2

complaint in this matter.

3
4

In

any

amended

complaint,

Plaintiff

should

confine

his

5

allegations to those operative facts supporting each of his claims.

6

Plaintiff

7

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

8

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

9

Plaintiff is strongly encouraged to utilize the standard civil

10

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

11

which is attached.

12

identify the nature of each separate legal claim and make clear

13

what specific factual allegations support each of his separate

14

claims.

15

concise and to omit irrelevant details.

16

Plaintiff to cite case law, include legal argument, or attach

17

exhibits at this stage of the litigation. Plaintiff is also advised

18

to omit any claims for which he lacks a sufficient factual basis.

is

advised

that

pursuant

to

Federal

Rule

of

Civil

In any amended complaint, Plaintiff should

Plaintiff is strongly encouraged to keep his statements
It is not necessary for

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Plaintiff is explicitly cautioned that failure to timely file

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a First Amended Complaint or failure to correct the deficiencies

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described above, will result in a recommendation that this action

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be dismissed with prejudices for failure to prosecute and obey

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court orders pursuant to Federal Rule of Civil Procedure 41(b).

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Plaintiff is further advised that is he no longer wishes to pursue

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this action,

he may

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Dismissal

accordance

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\\

in

voluntarily dismiss it by filing a Notice of
with

Federal

15

Rule

of

Civil

Procedure

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41(a)(1).

A form Notice of Dismissal is attached for Plaintiff’s

2

convenience.

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DATED:

August 22, 2017
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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