(PC) Navarro v. Cate, et al.

Filing 268

ORDER directing Plaintiff to file Fourth Amended Complaint or notify the court of his desire to proceed only on claims found cognizable 117 signed by Magistrate Judge Jennifer L. Thurston on 10/11/2020. Fourth Amended Complaint due by 11/16/2020. (Attachments: # 1 Complaint Form). (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO LOUIS NAVARRO, Plaintiff, 14 15 16 ORDER DIRECTING PLAINTIFF TO FILE A FOURTH AMENDED COMPLAINT OR NOTIFY THE COURT OF HIS DESIRE TO PROCEED ONLY ON CLAIMS FOUND COGNIZABLE Defendants. 12 13 Case No. 1:20-cv-00810-JLT (PC) (Doc. 117) v. CATE, et al., 30-DAY DEADLINE 17 18 The Central District of California, Judge Pregerson, transferred Claims 2 and 3 of 19 Plaintiff’s third amended complaint to the Eastern District of California on May 20, 2020. (Doc. 20 261; see also Doc. 264.) Claims 2 and 3 now proceed in this action. 21 On July 6, 2020, the Court directed Defendants to respond to Plaintiff’s third amended 22 complaint, addressing only the operative claims in this action. (Doc. 266.) On August 5, 2020, 23 Defendants filed a request for screening. (Doc. 267.) Although Plaintiff filed his third amended 24 complaint in August of 2017, the court has not screened it as required by 28 U.S.C. § 1915A(a). 25 (Id. at 2.) Because screening is mandatory under the statute, the Court grants Defendants’ request. 26 Upon screening, the Court finds that Plaintiff states cognizable claims of retaliation 27 against Defendants Daveiga and Ruiz. Plaintiff’s remaining claims are not cognizable. Because 28 Plaintiff may be able to cure the deficiencies in his pleading, the Court grants him leave to amend 1 his complaint. Alternatively, Plaintiff may file a notice that he wishes to proceed only the 2 retaliation claims found cognizable and to dismiss the remaining claims and defendants. 3 I. SCREENING REQUIREMENT 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or an 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 complaint is frivolous or malicious, 7 fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant 8 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 9 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 10 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 11 II. PLEADING REQUIREMENTS 12 A. Federal Rule of Civil Procedure 8(a) 13 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 14 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 15 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 16 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 17 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 18 quotation marks and citation omitted). 19 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 20 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 22 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 23 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 24 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 25 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 26 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 27 liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories. 28 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 2 1 rights complaint may not supply essential elements of the claim that were not initially pled,” 2 Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation 3 marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe 4 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 5 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to 6 state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall 7 short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 8 B. Linkage and Causation 9 Section 1983 provides a cause of action for the violation of constitutional or other federal 10 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 11 section 1983, a plaintiff must show a causal connection or link between the actions of the 12 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 13 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 14 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 15 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 16 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 17 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 18 III. PLAINTIFF’S FACTUAL ALLEGATIONS 1 19 On September 24, 2007, while housed at California State Prison, Corcoran (See Doc. 117 20 at 9-11.), Plaintiff complained of Correctional Captain Daveiga’s treatment of Plaintiff and other 21 Native American inmates during an incident. (Id. at 9.) Daveiga subsequently rehoused Plaintiff 22 in a “restricted section of the prison.” (Id.) Plaintiff then filed a grievance against Daveiga on 23 September 26, 2007. (Id. at 9-10.) 24 On February 25, 2008, Daveiga and Correctional Captain Ruiz issued a rules violation 25 report against Plaintiff for conspiring to assault prison staff with a deadly weapon. (Id. at 10.) 26 Consequently, Plaintiff was placed in administrative segregation (“ad-seg”). (Id.) Defendants 27 withdrew the RVR after failing to abide by due process requirements and issued a second RVR 28 1 For screening purposes, the Court accepts Plaintiff’s factual allegations as true. See Iqbal, 556 U.S. at 678. 3 1 against Plaintiff for allegedly planning to batter correctional officers with a deadly weapon. (Id.) 2 After withdrawing the second RVR, Daveiga and Ruiz issued a third RVR against Plaintiff for 3 threatening a peace officer. (Id.) The hearing for the RVR was held on August 26, 2008. (Id.) 4 Plaintiff asserts that the charges were not supported by any evidence. (Id.) Plaintiff was found not 5 guilty, but he remained administrative segregation. (Id.) Defendants did not provide Plaintiff with 6 any reasons for keeping him in ad-seg. Plaintiff remained there until December 29, 2008. Plaintiff 7 filed a grievance regarding his placement in ad-seg. (See id.) Defendant Grannis, the chief of 8 inmate appeals at CDCR, denied the grievance at the third level of review. (Id.) 9 During his time in ad-seg, Plaintiff had two ongoing actions in federal court: Navarro v. 10 Sullivan, No. 2:07-01593-DDP-PJW (C.D. Cal.), a habeas action, and Navarro v. Herndon, No. 11 2:09-cv-01878-KJM-KJN (E.D. Cal.), a section 1983 action. (Id. at 11.) “Plaintiff alleges that due 12 to inadequate law library access,” insufficient legal supplies, and outdated legal books, Plaintiff 13 was unable to properly prosecute both actions. (Id.) With respect to his habeas petition, Plaintiff 14 asserts that “two … prior convictions … were improperly counted as two strikes [even though] 15 each arose from a single criminal act.” (Id.) With respect to his section 1983 action, Plaintiff 16 alleges that a motion to dismiss was granted “due to procedural statute of limitations, technical 17 reasons, that could have been averted had plaintiff had sufficient … time in law library,” etc. (Id.) 18 Plaintiff also alleges that he was unable to file a habeas petition regarding his placement in 19 ad-seg due to insufficient library access and inadequate materials. (Id.) Plaintiff alleges that 20 fourteen defendants, including Daveiga and Ruiz, “personally participated in the denial of access 21 to courts.” (Id.) 22 IV. DISCUSSION 23 In Claim 2 of the complaint, Plaintiff raises retaliation and due process claims against 24 Defendants Daveiga, Ruiz, and Grannis. (Doc. 117 at 9.) Plaintiff asserts that his claims arise 25 under the First, Eighth, and Fourteenth amendments. (Id.) Based on his allegations, the Court 26 assumes that Plaintiff does not intend to raise an Eighth Amendment claim. But in an abundance 27 of caution, the Court addresses conditions of confinement under the Eighth Amendment below. 28 In Claim 3, Plaintiff raises access-to-courts claims against Daveiga and Ruiz, as well as 4 1 Defendants Adams, Brooks, Chastain, Comates, Davis, Grannis, Guzman, Hough, Junious, Neri, 2 Rosenthal, Sheppard-Brooks, and Wortman. (Id. at 11.) Plaintiff raises the claims under the First 3 and Fourteenth Amendments. (Id.) 4 A. Retaliation 5 A claim of retaliation has five elements. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 6 2012). First, a plaintiff must allege that he engaged in protected activity. Id. For example, filing 7 an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as is the 8 right to access the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977); see also Rizzo v. Dawson, 9 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that the defendant took 10 adverse action against him. Watison, 668 F.3d at 1114 (citation omitted). “Third, the plaintiff 11 must allege a causal connection between the adverse action and the protected conduct.” Id. In 12 other words, the plaintiff must claim the defendant subjected him to an adverse action because of 13 his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the plaintiff must allege 14 that the official’s acts would chill or silence a person of ordinary firmness from future [protected] 15 activities.” Watison, 668 F.3d at 1114 (internal quotation marks and citation omitted). “Fifth, the 16 plaintiff must allege ‘that the prison authorities’ retaliatory action did not advance legitimate 17 goals of the correctional institution….’” Id. (quoting Rizzo, 778 F.2d at 532). 18 Plaintiff states cognizable retaliation claims against Correctional Captains Daveiga and 19 Ruiz. He alleges that he engaged in protected activity, i.e., filing inmate grievances, and that 20 Defendants subjected him to adverse action because of this activity, including issuing false RVRs 21 and placing him in administrative segregation for more than 300 days. Such adverse actions 22 would silence a person of ordinary firmness and not advance any legitimate penological interest. 23 Plaintiff does not state a cognizable retaliation claim against Grannis, the CDCR chief of 24 inmates appeals. Plaintiff’s allegations against Grannis are limited to the defendant’s denial of his 25 administrative appeal. However, inmates do not have a constitutional right to “specific prison 26 grievance procedure[s].” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citation omitted). 27 More generally, Plaintiff’s allegation does not show that Grannis’ actions or failures to act caused 28 the deprivation of which he complains. See Johnson, 588 F.2d at 743. Thus, Plaintiff’s allegation 5 1 that Grannis denied his grievance, without more, is insufficient to state a cognizable claim. 2 B. Due Process 3 The Fourteenth Amendment protects persons from deprivations of life, liberty, or property 4 without due process of law. U.S. Const. amend. XIV. Protected liberty interests may arise both 5 from the Constitution itself or from state law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) 6 (citations omitted). “A state may create a liberty interest through statutes, prison regulations, and 7 policies.” Chappell v. Mandeville, 706 F.3d 1052, 1063 (9th Cir. 2013) (citation omitted). 8 When a protected liberty interest is implicated, the Due Process Clause provides certain 9 procedural guarantees. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). The 10 amount of process or specific procedures required vary by context and the particular interest at 11 stake. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 12 When a protected interest is at stake, a prisoner charged with a disciplinary violation is 13 entitled to (1) advance written notice of the charge, (2) an opportunity to present evidence and 14 call witnesses, unless calling witnesses would interfere with institutional security, and (3) a 15 written statement by the factfinder of the evidence relied upon and the reason(s) for the discipline. 16 Wolff v. McDonnell, 418 U.S. 539, 564-570 (1974); see also Serrano v. Francis, 345 F.3d 1071, 17 1077 (9th Cir. 2003). In addition, a disciplinary decision must be supported by “some evidence.” 18 See Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). In 19 addition to procedural guarantees, a disciplinary decision must be supported by “some evidence.” 20 See Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). 21 Plaintiff does not state a cognizable due process claim. Although he alleges that 22 Defendants denied him adequate procedures during a disciplinary hearing and that the charges 23 against him were not supported by evidence, Plaintiff does not provide facts that show that his 24 subsequent placement in ad-seg implicated a protected liberty interest. See Sandin v. Conner, 515 25 U.S. 472, 486 (1995) (plaintiff’s “discipline in segregated confinement did not present the type of 26 atypical, significant deprivation in which a State might conceivably create a liberty interest ”). 27 However, as explained in the previous section, Plaintiff’s placement in ad -seg does constitute an 28 “adverse action” for purposes of a retaliation claim. 6 1 C. Access to the Courts 2 Inmates have a fundamental, constitutional right of access to the courts. Lewis v. Casey, 3 518 U.S. 343, 346, 350 (1996). To establish a claim of denial of access to courts, a prisoner must 4 allege an “actual injury,” i.e., that an official frustrated or hindered her efforts to pursue a legal 5 claim. Id. at 351. The injury requirement, however, “is not satisfied by just any type of frustrated 6 legal claim.” Id. at 354. Rather, the types of legal claims protected are limited to direct criminal 7 appeals, petitions for writs of habeas corpus, and civil rights actions brought under section 1983 8 to vindicate basic constitutional rights. See id. (citations omitted). “Impairment of any other 9 litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of 10 conviction and incarceration.”2 Id. at 355 (emphasis omitted). 11 Claims of denial of access to courts generally fall into two categories: (1) claims arising 12 from an official frustrating a plaintiff from preparing and filing a lawsuit in the present, i.e., a 13 forward-looking claim, or (2) claims arising from an official causing the loss of a meritorious 14 claim that can no longer be pursued, i.e., a backward-looking claim. Christopher v. Harbury, 536 15 U.S. 403, 412-15 (2002). When a prisoner asserts a backward-looking claim, “he must show: 1) 16 the loss of a ‘non-frivolous’ or ‘arguable’ underlying claim; 2) the official acts frustrating the 17 litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available 18 in a future suit.” Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536 19 U.S. at 413-414), overruled on other grounds by Hust v. Phillips, 555 U.S. 1150 (2009). 20 Plaintiff does not state a cognizable access-to-courts claim with respect to his habeas 21 action, Navarro v. Sullivan, No. 2:07-01593-DDP-PJW (C.D. Cal.), or his section 1983 action, 22 Navarro v. Herndon, No. 2:09-cv-01878-KJM-KJN (E.D. Cal.). Plaintiff does not show that the 23 underlying habeas and civil rights claims were arguable or non-frivolous. 24 The Court has reviewed the records in these two cases and takes judicial notice thereof. 3 25 In the former case, the court dismissed the action because it found that Plaintiff’s claims lacked 26 2 27 28 The Court notes that, in the Ninth Circuit, a separate but related cause of action exists for “active interference” in litigation efforts “challenging … sentences or … conditions of … confinement.” Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). Plaintiff does not allege active interference, but rather inadequate library access and resources (see Doc. 117 at 12); thus, the Silva line of cases do not apply. 3 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 7 1 merit. Sullivan, Doc. 78 at 7-18 (Dec. 10, 2009); Doc. 80 (April 7, 2010). With respect to 2 Plaintiff’s claim that the trial court improperly counted convictions arising from the same 3 criminal act as two strikes (see Doc. 117 at 11), the habeas court found that (1) Plaintiff 4 misinterpreted California law, and (2) even if he were correct, he “would not be entitled to relief 5 in this Court because sentencing errors involving the application of state sentencing law … are 6 not cognizable on federal habeas review.” See Sullivan, Doc. 78 at 8. Plaintiff thus fails to show 7 how the outcome of his case might have been different had he had been provided greater access to 8 the library. That is, he does not show that his habeas claims were arguable or non-frivolous. 9 In the latter case, the court granted, in part, the defendants’ motion to dismiss Plaintiff’s 10 civil rights complaint because he filed it more than four years after the relevant causes of action 11 accrued, i.e., after the applicable statute of limitations had run. Herndon, Doc. 78 at 8-13 (Aug. 12 24, 2011); Doc. 79 (Sept. 30, 2011). Like his habeas case, Plaintiff fails to show how the outcome 13 of the motion to dismiss might have been different had he been provided greater library access, 14 given that his claims were time-barred. Plaintiff therefore fails to show that the dismissed-civil 15 rights claims were arguable or non-frivolous. 16 Plaintiff states a potentially viable access-to-courts claims with respect to the RVRs 17 discussed in section IV.A, supra. As described in that section, Plaintiff alleges Defendants falsely 18 charged him with rules violations and placed him in ad -seg in retaliation for filing inmate 19 grievances. Plaintiff further alleges that, because prison officials denied him adequate legal 20 resources while he was in ad-seg, including sufficient time in the library, he was unable to 21 prepare a habeas petition challenging the rules violations and subsequent ad-seg placement. (See 22 Doc. 117 at 11.) Thus, Plaintiff shows he “suffered arguably actionable harm that he wished to 23 bring before the courts,” via a habeas action, but that he “was so stymied by inadequacies of the 24 law library that he was unable even to file a complaint” or petition. Lewis, 518 U.S. at 351. 25 Though this last claim is potentially viable, Plaintiff fails to link it to the defendants. See 26 Rizzo, 423 U.S. at 373-75. He names no fewer than fourteen defendants for this claim. (Doc. 117 27 at 11.) Though Plaintiff states that each of the fourteen individuals “personally participated in the 28 denial of access to courts,” he provides no facts to support this assertion. As explained in section 8 1 II.A, supra, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 3 It appears that Plaintiff names some of the defendants solely because they hold 4 supervisory positions. However, section 1983 does not impose liability on a supervisor merely 5 because his subordinate has violated Plaintiff’s rights. See id. at 676-77. To impose liability, 6 Plaintiff must allege specific misdeeds that each individual defendant committed, rather than the 7 misdeeds of those he or she supervised. See id. If he files a fourth amended complaint, Plaintiff 8 must provide facts that show how each defendant’s actions or inactions caused the deprivation of 9 which he complains. See Johnson, 588 F.2d 743. If he cannot do so for any particular defendant, 10 he should not include that defendant in an amended complaint. 11 D. Conditions of Confinement 12 “It is undisputed that the treatment a prisoner receives in prison and the conditions under 13 which he is confined are subject to scrutiny under the [Cruel and Unusual Punishments Clause of 14 the] Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). “[P]rison officials must 15 ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take 16 reasonable measures to guarantee the safety of … inmates.’” Farmer v. Brennan, 511 U.S. 825, 17 832 (1994) (citations omitted). 18 “In order to establish … [an Eighth Amendment] violation, [p]laintiffs must satisfy both 19 the objective and subjective components of a two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 20 (9th Cir. 2002) (citation omitted). First, plaintiffs must show that their alleged deprivation is 21 “sufficiently serious.” Farmer, 511 U.S. at 834 (citation and internal quotation marks omitted). 22 To be sufficiently serious, the “prison official’s act or omission must result in the denial of ‘the 23 minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 24 347 (1981)). 25 Second, plaintiffs must show that the prison official was deliberately indifferent to their 26 health or safety. Farmer, 511 U.S. at 834. A prison official is deliberately indifferent “if he knows 27 that inmates face a substantial risk of serious harm and disregards that risk by failing to take 28 reasonable measures to abate it.” Id. at 847. 9 1 Plaintiff does not state a cognizable conditions-of-confinement claim. He does not allege 2 that Defendants denied him any of “life’s necessities,” Rhodes v. Chapman, 452 U.S. at 347, such 3 as adequate food, clothing, safety, or medical care, see Farmer v. Brennan, 511 U.S. at 832. In 4 other words, Plaintiff does not allege a deprivation that implicates the Eighth Amendment. 5 V. 6 CONCLUSION AND ORDER For the reasons set forth above, the Court finds that Plaintiff states cognizable claims of 7 retaliation against Defendants Daveiga and Ruiz, but his remaining claims are not cognizable. 8 Therefore, the Court directs Plaintiff, within 30 days of the date of service of this order, to file a 9 fourth amended complaint curing the deficiencies identified herein. Alternatively, Plaintiff may 10 file a notice that he wishes to proceed only on the claims found cognizable. If Plaintiff no longer 11 wishes to pursue this action, he may file a notice of voluntary dismissal. If Plaintiff needs an 12 extension of time to comply with this order, he shall file a motion seeking an extension no later 13 than 30 days from the date of service of this order. 14 Plaintiff is informed that an amended complaint supersedes the original complaint and 15 prior amendments. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Thus, an amended 16 complaint must be “complete in itself without reference to the prior or superseded pleading.” 17 Local Rule 220. The Court provides Plaintiff with an opportunity to amend his complaint to cure 18 the deficiencies identified in this order with respect to Claim 2 and 3 of the third amended 19 complaint. Plaintiff may not change the nature of this suit by adding unrelated claims in a fourth 20 amended complaint. Accordingly, the Court ORDERS: 21 1. Plaintiff is GRANTED leave to file a fourth amended complaint; 22 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and, 23 3. Within 30 days from the date of service of this order, Plaintiff must file one of 24 the following three items: 25 a. a fourth amended complaint curing the deficiencies identified in this order, or 26 b. a notice that he does not wish to file a fourth amended complaint and instead 27 wishes to (1) proceed only on his claims of retaliation against Defendants 28 Daveiga and Ruiz, (2) dismiss his due process, access-to-courts, and Eighth 10 1 Amendment claims, and (3) dismiss Defendants Adams, Brooks, Chastain, 2 Comates, Davis, Grannis, Guzman, Hough, Junious, Neri, Rosenthal, 3 Sheppard-Brooks, and Wortman, or 4 c. a notice of voluntary dismissal of this case. 5 If Plaintiff fails to comply with this order, the Court will recommend that this action 6 proceed only on the claims found cognizable herein and that all other claims and defendants 7 be dismissed with prejudice. 8 9 10 IT IS SO ORDERED. Dated: October 11, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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