(PC) Brown v. Reilly et al

Filing 33

ORDER signed by Magistrate Judge Allison Claire on 11/17/21 ORDERING that within 14 days of the service of this order, plaintiff shall complete and return the attached form notifying the court how he wants to proceed. If plaintiff does not return th e form, the court will assume that he is choosing to stand on the original complaint and will recommend dismissal without prejudice of all claims against defendant Dina and all claims against defendants Hood, Reilly, Gonzales, and Phillips, except the excessive force claim.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE CHEROKEE BROWN,

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Plaintiff,

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No. 2:20-cv-1709 WBS AC P

v.

ORDER

A. REILLY, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. On November 5, 2021, the undersigned screened the complaint and found that

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plaintiff had sufficiently stated a claim for excessive force against defendants Hood, Reilly,

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Gonzales, and Phillips, but that he had not stated any other claims against them and had failed to

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state any claims against defendant Dina. ECF No. 27. Plaintiff was given the option of (1)

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proceeding on his excessive force claim and voluntarily dismissing all other claims against Hood,

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Reilly, Gonzales, and Phillips and all claims against Dina, or (2) amending the complaint. Id. at

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9.

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In response to the screening order, plaintiff has filed both objections to the screening that

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make additional allegations related to retaliation, ECF No. 31, and a notice stating that he would

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like to proceed on the complaint as screened and voluntarily dismiss without prejudice all claims

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except his excessive force claim against Hood, Reilly, Gonzales, and Phillips, ECF No. 30. It is
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therefore unclear whether plaintiff wants to proceed on the complaint as screened, amend the

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complaint to add additional allegations related to retaliation, or stand on the original complaint.

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Because plaintiff has provided conflicting responses, he will need to clarify for the court how he

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wishes to proceed. Plaintiff has the following three options:

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1. Plaintiff may proceed on the complaint as screened. This means that the case will go

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forward on plaintiff’s excessive force claim against defendants Hood, Reilly,

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Gonzales, and Phillips only, and plaintiff will be voluntarily dismissing without

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prejudice all other claims against defendants Hood, Reilly, Gonzales, and Phillips and

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all claims against defendant Dina.

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2. Plaintiff may amend the complaint. This means that plaintiff will be given an

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opportunity to file an amended complaint to add additional facts in order to attempt to

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state additional claims for relief.

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3. Plaintiff may stand on the original complaint. This means that plaintiff believes the

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allegations in his original complaint, without any additional information, are sufficient

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to state a claim for relief and that he does not want to amend the complaint. If plaintiff

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chooses this option, the undersigned will convert the screening order to findings and

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recommendations and recommend that all claims against defendant Dina and all

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claims against defendants Hood, Reilly, Gonzales, and Phillips, except the excessive

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force claim, be dismissed for failure to state a claim. Plaintiff will then have an

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opportunity to file objections to the findings and recommendations, which the district

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judge will consider before deciding whether to adopt them.

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Accordingly, IT IS HEREBY ORDERED that within fourteen days of the service of this

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order, plaintiff shall complete and return the attached form notifying the court how he wants to

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proceed. If plaintiff does not return the form, the court will assume that he is choosing to stand

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on the original complaint and will recommend dismissal without prejudice of all claims against

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defendant Dina and all claims against defendants Hood, Reilly, Gonzales, and Phillips, except the

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excessive force claim.

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DATED: November 17, 2021

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE CHEROKEE BROWN,

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No. 2:20-cv-1709 WBS AC P

Plaintiff,
v.

PLAINTIFF’S NOTICE ON HOW TO
PROCEED

A. REILLY, et al.,

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Defendants.

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Check one:

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_____ Plaintiff wants to proceed immediately on his excessive force claim against defendants

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Reilly, Hood, Phillips, and Gonzales without amending the complaint. Plaintiff

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understands that by going forward without amending the complaint he is voluntarily

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dismissing without prejudice all other claims against defendants Reilly, Hood, Phillips,

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and Gonzales and all claims against defendant Dina pursuant to Federal Rule of Civil

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Procedure 41(a).

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_____ Plaintiff wants to amend the complaint.

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_____ Plaintiff believes the allegations in the original complaint are sufficient and wants to stand

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on the original complaint without amendment.
DATED:_______________________
Ronnie Cherokee Brown
Plaintiff pro se
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