Voss v. Baker

Filing 9

ORDER for Plaintiff to: (1) Notify the Court That he is Willing to Proceed Only on the Claims Against Defendant Baker for Deliberate Indifference to Serious Medical Needs in Violation of the First Amendment; (2) File a First Amended Complaint; OR (3) Notify the Court That he Wishes to Stand on His Complaint, Subject to Dismissal of Claims Consistent With This Order, signed by Magistrate Judge Erica P. Grosjean on 5/25/17. Thirty Day Deadline. (Attachments: # 1 Amended Complaint Form) (Marrujo, C)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 CRAIG WILLIAM VOSS, Plaintiff, 12 13 14 v. BRIAN BAKER, Defendant. 15 16 17 1:17-cv-00626-EPG (PC) ORDER FOR PLAINTIFF TO: (1) NOTIFY THE COURT THAT HE IS WILLING TO PROCEED ONLY ON THE CLAIMS AGAINST DEFENDANT BAKER FOR DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS IN VIOLATION OF THE EIGHTH AMENDMENT AND RETALIATION IN VIOLATION OF THE FIRST AMENDMENT; 18 (2) FILE A FIRST AMENDED COMPLAINT; OR 19 20 (3) NOTIFY THE COURT THAT HE WISHES TO STAND ON HIS COMPLAINT, SUBJECT TO DISMISSAL OF CLAIMS CONSISTENT WITH THIS ORDER 21 22 23 (ECF NO. 1) 24 THIRTY DAY DEADLINE 25 I. 26 BACKGROUND Craig William Voss (“Plaintiff”) is a state prisoner proceeding pro se and in forma 27 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 28 1 1 complaint commencing this action on May 4, 2017, (ECF No. 1), which is now before the 2 Court for screening.1 3 II. 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 6 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 8 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 9 ' 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have 10 been paid, the court shall dismiss the case at any time if the court determines that the action or 11 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. ' 1915(e)(2)(B)(ii). SCREENING REQUIREMENT 12 A complaint is required to contain “a short and plain statement of the claim showing 13 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 14 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 17 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 18 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 19 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 20 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 21 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 22 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 23 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 24 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 25 26 27 28 1 On May 12, 2017, Plaintiff consented to magistrate judge jurisdiction in this action pursuant to 28 U.S.C. ' 636(c) (ECF No. 7), and no other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 2 1 pro se complaints should continue to be liberally construed after Iqbal). SUMMARY OF PLAINTIFF’S COMPLAINT 2 III. 3 Plaintiff is an inmate at the California Correctional Institution in Tehachapi, California. 4 He is supposed to receive psychotropic medications at a central pill distribution window. On 5 August 11, 2016, Plaintiff approached the window. 6 distributing pills at that time. Defendant Baker motioned for Plaintiff to remove his sunglasses. 7 Plaintiff told Defendant Baker that he had a prescription for the sunglasses, and offered to show 8 Defendant Baker the prescription. Defendant Baker responded “I don’t give a fuck faggot take 9 them off.” After further discussion, Defendant Baker ordered Plaintiff to go to the back of the 10 line. When Plaintiff came to the front of the line again, Defendant Baker refused to dose 11 Plaintiff’s medication. Plaintiff then located a custody officer to request assistance. The 12 officer ordered Defendant Baker to dose Plaintiff’s medication. Defendant Baker complied 13 five minutes later. Defendant Baker was tasked with 14 Later that day, Defendant Baker entered Plaintiff’s dorm, ordered Plaintiff to exit his 15 bunk area, and searched Plaintiff’s bunk area. Defendant Baker removed various medications, 16 which had been prescribed to Plaintiff. When Plaintiff confronted Defendant Baker, Defendant 17 Baker said “You’re a crazy faggot and cannot be trusted with carry medications anymore.” 18 When Plaintiff explained his need for the medications, Defendant Baker responded “You don’t 19 know who the fuck you’re fucking with do you?” 20 Defendant Baker also discussed Plaintiff’s medications in a loud and non-confidential 21 way so that other inmates could hear, including saying “What’s wrong? You don’t want all 22 your little buddies to know that your little pecker doesn’t work or that you’ve got a weak 23 ticker[?]” Defendant Baker also discussed the name of one of Plaintiff’s family members in 24 front of other inmates. 25 The next day, August 12, 2016, Plaintiff reported the events to Dr. Allan Yin and also 26 submitted an inmate health care appeal. The prison investigated the appeal, deemed it a staff 27 complaint, and elevated it to the local Internal Security Unit for investigation. 28 On October 30, 2016, Defendant Baker again operated one of the pill distribution 3 1 windows. Pursuant to a plan Plaintiff developed with his advocate, Plaintiff approached the 2 nearest custody officer and requested assistance. The custody officer escorted Plaintiff to 3 another pill distribution window. Defendant Baker yelled “Oh hell no you can deal with me. 4 I’m not going to let you manipulate staff. In fact I’m going to write your ass up!” Plaintiff 5 alleges that he believed Defendant Baker was retaliating against Plaintiff for filing grievances 6 against Defendant Baker and was attempting to intimidate Plaintiff. 7 Plaintiff brings the following causes of action: 1) An Eighth Amendment claim for 8 “[d]eprivation of medication;” 2) A Fourteenth Amendment claim for “[d]isclosure of protected 9 medical information;” 3) A First Amendment claim for “[r]etaliation/[i]ntimidation;” and 4) A 10 11 state law claim for intentional infliction of emotional distress. ANALYSIS OF PLAINTIFF’S CLAIMS IV. 12 A. 13 The Civil Rights Act under which this action was filed provides: 14 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 15 16 17 18 42 U.S.C. § 1983 19 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 20 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 21 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 22 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 23 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 24 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 25 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 26 under color of state law, and (2) the defendant deprived him of rights secured by the 27 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 28 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 4 1 “under color of state law”). A person deprives another of a constitutional right, “within the 2 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 3 omits to perform an act which he is legally required to do that causes the deprivation of which 4 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 5 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal 6 connection may be established when an official sets in motion a ‘series of acts by others which 7 the actor knows or reasonably should know would cause others to inflict’ constitutional harms.” 8 Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 9 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 10 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 11 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 12 13 B. Eighth Amendment Claim for Deliberate Indifference to Serious Medical Needs 14 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 15 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 16 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This 17 requires a plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat 18 a prisoner’s condition could result in further significant injury or the unnecessary and wanton 19 infliction of pain,’” and (2) “the defendant's response to the need was deliberately indifferent.” 20 Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal 21 quotations marks omitted), overruled on other grounds WMX Technologies v. Miller, 104 F.3d 22 1133 (9th Cir. 1997) (en banc)). 23 Deliberate indifference is established only where the defendant subjectively “knows of 24 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 25 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 26 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 27 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 28 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 5 1 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 2 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 3 836-37 & n.5 (1994) (citations omitted). 4 A difference of opinion between an inmate and prison medical personnel—or between 5 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 6 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 7 Toguchi, 391 F.3d at 1058. Additionally, “a complaint that a physician has been negligent in 8 diagnosing or treating a medical condition does not state a valid claim of medical mistreatment 9 under the Eighth Amendment. Medical malpractice does not become a constitutional violation 10 merely because the victim is a prisoner.” Estelle, 429 U.S. at 106 11 The Court finds that Plaintiff has alleged a cognizable claim for deliberate indifference 12 to serious medical needs in violation of the Eighth Amendment based on the allegations that 13 Defendant Baker refused to provide necessary medication and also removed necessary 14 medication from Plaintiff’s bunk. 15 C. 16 Fourteenth Amendment Claim Regarding Disclosure of Protected Medical Information 17 The Supreme Court has spoken of the constitutional right to privacy of medical 18 information without defining its contours. See Whalen v. Roe, 429 U.S. 589, 603-604 (1977) 19 (“We hold that neither the immediate nor the threatened impact of the patient-identification 20 requirements in the New York State Controlled Substances Act of 1972 on either the reputation 21 or the independence of patients for whom Schedule II drugs are medically indicated is 22 sufficient to constitute an invasion of any right or liberty protected by the Fourteenth 23 Amendment.”); NASA v. Nelson, 562 U.S. 134, 138 (2011) (“We assume, without deciding, 24 that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We 25 hold, however, that the challenged portions of the Government's background check do not 26 violate this right in the present case.”). 27 28 The Ninth Circuit has described a prisoner’s right to privacy of medical information as follows: 6 1 2 3 4 5 6 7 8 9 “[I]mprisonment carries with it the circumscription or loss of many significant rights.” Loss of privacy is an “inherent incident[ ] of confinement.” “A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security.” We join our sister circuits in holding that prisoners do not have a constitutionally protected expectation of privacy in prison treatment records when the state has a legitimate penological interest in access to them. The penological interest in access to whatever medical information there is regarding Seaton is substantial. Prisons need access to prisoners' medical records to protect prison staff and other prisoners from communicable diseases and violence, and to manage rehabilitative efforts. Seaton v. Mayberg, 610 F.3d 530, 534–35 (9th Cir. 2010) (alternations in original) (footnotes 10 omitted). 11 In the non-prisoner context, an earlier Ninth Circuit case stated that there is a 12 13 “constitutionally protected privacy interest in avoiding disclosure of personal matters [that] clearly encompasses medical information and its confidentiality.” Norman-Bloodsaw v. 14 Lawrence Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998). In holding that 15 nonconsensual testing for sensitive medical information violated a right to privacy, the Court 16 explained: 17 18 19 20 21 22 23 24 25 26 27 28 The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality. Doe v. Attorney General of the United States, 941 F.2d 780, 795 (9th Cir.1991) (citing United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.1980)); Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir.1996); see also Doe v. City of New York, 15 F.3d 264, 267–69 (2d Cir.1994). Although cases defining the privacy interest in medical information have typically involved its disclosure to “third” parties, rather than the collection of information by illicit means, it goes without saying that the most basic violation possible involves the performance of unauthorized tests—that is, the non-consensual retrieval of previously unrevealed medical information that may be unknown even to plaintiffs. These tests may also be viewed as searches in violation of Fourth Amendment rights that require Fourth Amendment scrutiny. The tests at issue in this case thus implicate rights protected under both the Fourth Amendment and the Due Process Clause of the Fifth or Fourteenth Amendments. Yin v. California, 95 F.3d 864, 870 (9th Cir.1996), cert. denied, 519 U.S. 1114, 117 S.Ct. 955, 136 L.Ed.2d 842 (1997). 7 1 Id. at 1269. See also Planned Parenthood of Southern Arizona v. Lawall, 307 F.3d 783, 789– 2 90 (9th Cir. 2002) (“We next consider whether the statute violates a young woman's privacy 3 interest in avoiding disclosure of sensitive personal information. See Whalen v. Roe, 429 U.S. 4 589, 599 600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). This interest, often referred to as the right to 5 “informational privacy,” Ferm v. United States Trustee (In re Crawford), 194 F.3d 954, 958 6 (9th Cir.1999), applies both when an individual chooses not to disclose highly sensitive 7 information to the government and when an individual seeks assurance that such information 8 will not be made public. See Whalen, 429 U.S. at 599 n. 24, 97 S.Ct. 869; Norman–Bloodsaw 9 v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir.1998).”). 10 Here, Plaintiff alleges that Defendant Baker violated his Fourteenth Amendment 11 privacy right when Defendant Baker said “What’s wrong? You don’t want all your little 12 buddies to know that your little pecker doesn’t work or that you’ve got a weak ticker?” and 13 “Do you know who Suzanne Voss is? I don’t like the way you’ve manipulated her.” Plaintiff 14 does not allege the Defendant Baker disclosed any document or specific medical record. 15 The Court finds that the alleged conduct does not rise to a violation of Plaintiff’s rights 16 to substantive due process under the Fourteenth Amendment. Defendant Baker’s comments, 17 while harassing and potentially in violation of prison rules, are not specific enough to constitute 18 a constitutional violation based on the legal standards discussed above. The Court has not 19 located any case finding such a constitutional violation under similar circumstances. Rather, 20 the cases involving a constitutional privacy interest concern involuntary disclosure of specific 21 medical records. Not only do the circumstances in this case not involve medical records, they 22 also do not involve a specific medical disclosure. Stating that “You don’t want all your little 23 buddies to know that your little pecker doesn’t work or that you’ve got a weak ticker?” is not a 24 medical diagnosis. It is more akin to a general harassing allegation. It is also not clear that this 25 general comment correctly reflected Plaintiff’s medical condition. The comments were also 26 not disclosed to any specific inmate. Rather, they were said in the presence of other inmates, 27 who may or may not have been paying attention to these remarks. For these reasons, and based 28 8 1 on the case law discussed above, Plaintiff’s allegations even if true do not state a constitutional 2 claim for violation of Plaintiff’s Fourteenth Amendment rights. 3 D. First Amendment Claim for Retaliation 4 Allegations of retaliation against a prisoner's First Amendment rights to speech or to 5 petition the government may support a § 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 1104 6 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation 7 entails five basic elements: (1) An assertion that a state actor took some adverse action against 8 an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled 9 the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 10 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 11 2005). 12 Plaintiff has alleged a claim for retaliation under the First Amendment as to Defendant 13 Baker. Plaintiff has alleged that Defendant Baker took the adverse action of yelling at Plaintiff 14 and threatening to “write him up” in retaliation for Plaintiff filing grievances against Defendant 15 Baker. 16 E. Intentional Infliction of Emotional Distress 17 ‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff 18 must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or 19 reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering 20 severe or extreme emotional distress; and (4) actual and proximate causation of the emotional 21 distress by the defendant's outrageous conduct.” 22 Cal.App.5th 1268, at *14 (2017) as modified (Apr. 18, 2017). “It has not been enough that the 23 defendant has acted with an intent to inflict emotional distress, or even that his conduct has 24 been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to 25 punitive damages for another tort. Liability has been found only where the conduct has been so 26 outrageous in character, and so extreme in degree, as to go beyond all possible bounds of 27 decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” 28 Jackson v. Mayweather, 10 Cal.App.5th 1240 (2017), as modified (Apr. 19, 2017) (2017) 9 Gabrielle A. v. County of Orange, 10 1 The Court finds that Plaintiff’s allegations, even if true, do not constitute intentional 2 infliction of emotional distress under these legal standards. Plaintiff alleges that Defendant 3 Baker used profane language in insisting that Plaintiff remove his sunglasses and not receive 4 pills. Plaintiff also alleges that Defendant Baker searched his cell, removed his medication, and 5 made harassing comments in front of other inmates. This conduct is not so outrageous and 6 extreme, utterly intolerable in a civilized community, to rise to the level of intentional infliction 7 of emotional distress under California law. 8 V. 9 The Court has screened Plaintiff’s complaint and finds that it states claims against 10 Defendant Baker for deliberate indifference to serious medical needs in violation of the Eighth 11 Amendment and for retaliation in violation of the First Amendment. The Court finds that the 12 complaint states no other cognizable claims. CONCLUSION AND ORDER 13 In light of this conclusion and the law cited above, Plaintiff shall choose between 14 proceeding only on the claims against Defendant Baker for deliberate indifference to serious 15 medical needs in violation of the Eighth Amendment and retaliation in violation of the First 16 Amendment, amending the complaint if Plaintiff believes that additional facts would establish 17 additional claims, or standing on the current complaint subject to dismissal of claims consistent 18 with this order. 19 Should Plaintiff choose to amend the complaint, the amended complaint should be brief, 20 Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of 21 Plaintiff’s constitutional or other federal rights, Iqbal, 556 U.S. at 676; Jones v. Williams, 297 22 F.3d 930, 934 9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a 23 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 24 U.S. at 555). There is no respondeat superior liability, and each defendant is only liable for his 25 or her own misconduct. Id. at 676. Plaintiff must demonstrate that each defendant personally 26 participated in the deprivation of Plaintiff’s rights. Jones, 297 F.3d at 934. Plaintiff is advised 27 that a short, concise statement of the allegations in chronological order will assist the court in 28 identifying his claims. Plaintiff should name each defendant and explain what happened, 10 1 describing personal acts by the individual defendant that resulted in the violation of Plaintiff’s 2 rights. Plaintiff should also describe any harm he suffered as a result of the violation. 3 Plaintiff should note that although he has been given the opportunity to amend, it is not 4 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 5 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 6 If Plaintiff decides to file an amended complaint, he is advised that an amended 7 complaint supersedes the original complaint, Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 8 (9th Cir. 2012) (en banc), and it must be complete in itself without reference to the prior or 9 superseded pleading, Local Rule 220. Once an amended complaint is filed, the original 10 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in 11 an original complaint, each claim and the involvement of each defendant must be sufficiently 12 alleged. 13 Complaint,” refer to the appropriate case number, and be an original signed under penalty of 14 perjury. The amended complaint should be clearly and boldly titled “First Amended 15 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 16 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 17 2. Within thirty (30) days from the date of service of this order, Plaintiff shall 18 either: 19 a. Notify the Court in writing that he does not wish to file an amended 20 complaint and is instead willing to proceed only on the claims against 21 Defendant Baker for deliberate indifference to serious medical needs in 22 violation of the Eighth Amendment and for retaliation in violation of the 23 First Amendment; 24 b. File a First Amended Complaint; or 25 c. Notify the Court in writing that he wishes to stand on his current complaint, 26 subject to dismissal of claims and defendants consistent with this order. 27 28 11 1 3. Should Plaintiff choose to amend the complaint, Plaintiff shall caption the 2 amended complaint “First Amended Complaint” and refer to the case number 3 1:17-cv-00626-EPG; and 4 4. Failure to comply with this order will result in the dismissal of this action. 5 6 7 IT IS SO ORDERED. Dated: May 25, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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