Opinion
8:24-cv-00145-JLS-JDE
02-02-2024
MATTHEW THOMAS PLASCENCIA, Plaintiff, v. JOE T. TURNQUIST, et al., Defendants.
ORDER REGARDING COMPLAINT
JOHN D. EARLY UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On January 18, 2024, Plaintiff Matthew Thomas Plascencia (“Plaintiff”), who is currently detained at the Theo Lacy Facility in Orange County, California, proceeding pro se and seeking to proceed in forma pauperis, filed a civil rights complaint under 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”). Dkt. 1 (“Complaint”). The Complaint relates to conduct that allegedly occurred while he was apparently a pretrial detainee at Men's Central Jail (the “Jail”) in Santa Ana, California. Although the caption of the Complaint fails to comply with Rule 10(a) of the Federal Rules of Civil Procedure as it does not name all the parties to this action, it is apparent from the body of the Complaint that Plaintiff seeks to name three Jail employees as defendants: Deputies Joe T. Turnquist (“Turnquist”) and J. Quenzler (“Quenzler”), and Dr. Kahn. Turnquist and Quenzler are named in their individual capacity only, but Plaintiff does not specify whether he is naming Dr. Kahn in his individual or official capacity. Plaintiff seeks monetary damages and unspecified injunctive relief. Complaint at 8 (CM/ECF pagination).
Under 28 U.S.C. § 1915A(b), the Court must dismiss the Complaint if it, among other things, fails to state a claim upon which relief may be granted. For the reasons explained below, several of Plaintiff's claims appear to be subject to dismissal.
II.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
The following is a summary of the allegations in the Complaint. On January 18, 2023, Plaintiff was involved in an altercation with another inmate in the second floor medical waiting area. Complaint at 6. Following the altercation, Plaintiff complied with Quenzler's order to place his hands behind his back. Id. at 3, 5-6. Quenzler then “grabbed [him] from behind” and “manipulated [his] upper torso to be bent over a medical bench while” Turnquist kneed him several times in the face. Id. He claims he “let the officers manipulate control of [his] body,” which can be seen on video footage taken of the incident. Id. at 5.
Plaintiff was seen by Dr. Kahn after the incident. Dr. Kahn cleared him for regular housing, “jokingly” telling him he was fine and to drink lots of water. Complaint at 4, 7. A few days later, Plaintiff was seen by another physician, Dr. John Watson. Dr. Watson advised Plaintiff that he suffered a concussion and ordered a CAT scan of his head and neck. Id. at 7. As a result of the use of force, Plaintiff suffered substantial neurological damage to his vision, including blurred vision; constant migraines; and ringing in his right ear, all of which have disrupted his everyday activities. He also is traumatized and suffered an abrasion to his face. Id. at 5, 7-8.
Plaintiff further claims Turnquist and Quenzler falsified their reports and he is in constant fear of retaliation from the deputies. According to Plaintiff, the day after the incident, on January 19, 2023, Quenzler “was insighting other inmates against [him] at medical.” Complaint at 5-6.
III.
STANDARD OF REVIEW
A complaint may be dismissed for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Pleadings by pro se plaintiffs are reviewed liberally and afforded the benefit of the doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (as amended). However, “a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In assessing whether a complaint states a viable claim, the Court applies the same standard as it would when evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). Rule 12(b)(6), in turn, is read in conjunction with Rule 8(a) of the Federal Rules of Civil Procedure (“Rule 8”). Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Under Rule 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2). Though Rule 8 does not require detailed factual allegations, at a minimum, a complaint must allege enough specific facts to provide both “fair notice” of the particular claim being asserted and “the grounds upon which [that claim] rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation omitted); see also Iqbal, 556 U.S. at 678 (observing that Rule 8 standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”); Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (finding that even pro se pleadings “must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong”); Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir. 1980) (upholding Rule 8 dismissal of “confusing, distracting, ambiguous, and unintelligible pleadings”).
Thus, to survive screening, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is “plausible” when the facts alleged support a reasonable inference that the plaintiff is entitled to relief from a specific defendant for specific misconduct. Id. Allegations that are “merely consistent with” a defendant's liability, or reflect only “the mere possibility of misconduct” do not show “that the pleader is entitled to relief,” and thus are insufficient to state a claim that is “plausible on its face.” Id. at 678-79 (citations omitted). “Taken together, Iqbal and Twombly require well-pleaded facts, not legal conclusions that ‘plausibly give rise to an entitlement to relief.' The plausibility of a pleading thus derives from its well-pleaded factual allegations.” Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (citations omitted).
If the Court finds that a complaint should be dismissed for failure to state a claim, the Court has discretion to dismiss with or without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment”). However, if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. See, e.g., Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there is no need to prolong the litigation by permitting further amendment” where the “basic flaw” in the pleading cannot be cured by amendment).
IV.
DISCUSSION
A. General Standard for Civil Rights Claims
To state a claim under Section 1983, a plaintiff must allege that a particular defendant, acting under color of state law, caused a deprivation of the plaintiff's federal rights. See West v. Atkins, 487 U.S. 42, 48 (1988). Allegations regarding causation “must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). A constitutional deprivation is “caused” when a person: (1) “does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation”; or (2) “set[s] in motion a series of acts by others which the [defendant] knows or reasonably should know would cause others to inflict the constitutional injury.” Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (citation omitted); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding liability under Section 1983 arises upon a showing of personal participation by the defendant). “A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
B. The Excessive Force Claim Against Turnquist and Quenzler
Plaintiff asserts Turnquist and Quenzler violated his Fourteenth and Eighth Amendment rights. Complaint at 3, 5. Although the Complaint mentions the Eighth Amendment, federal civil rights claims relating to excessive force against a pretrial detainee are analyzed under the Due Process Clause of the Fourteenth Amendment. See Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015). Thus, the Court interprets the Complaint as alleging a Fourteenth Amendment violation by Turnquist and Quenzler.
The Due Process Clause protects pretrial detainees from the use of excessive force that amounts to punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a [pretrial] detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”)). To state an excessive force claim under the Fourteenth Amendment, a pretrial detainee must allege that “the force purposely or knowingly used against him was objectively unreasonable.” Kingsley, 576 U.S. at 396-97. Objective reasonableness turns on the “facts and circumstances of each particular case.” Id. at 397 (citation omitted). Courts make this determination “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight” and consider the “‘legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained,' appropriately deferring to ‘policies and practices that in th[e] judgment' of jail officials ‘are needed to preserve internal order and discipline and to maintain institutional security.'” Id. (alterations in original) (quoting Bell, 441 U.S. at 540, 547). Courts may consider: (1) “the relationship between the need for the use of force and the amount of force used”; (2) “the extent of the plaintiff's injury”; (3) “any effort made by the officer to temper or to limit the amount of force”; (4) “the severity of the security problem at issue”; (5) “the threat reasonably perceived by the officer”; and (6) “whether the plaintiff was actively resisting.” Id.
Here, Plaintiff contends that he was complying with Quenzler's order to place his hands behind his back when Quenzler grabbed him from behind and manipulated his upper torso, such that his upper torso was bent over a medical bench, whereupon Turnquist kneed him several times in the face, causing a concussion, abrasion, blurred vision, migraines, and ringing in his ear.
Accepting Plaintiff's allegations in the Complaint and reasonable inferences drawn therefrom as the Court must in screening the Complaint, the allegations of the Complaint are sufficient to pass screening for a Fourteenth Amendment excessive force claim against Quenzler and Turnquist in their individual capacity. This finding does not preclude Quenzler or Turnquist from raising any argument or defense in future proceedings, including arguments that the Complaint fails to state a claim or is unexhausted.
C. The Federal Civil Rights Claim Against Dr. Kahn
1. Plaintiff Has Not Stated an Official Capacity Claim
Plaintiff does not specify whether he is suing Dr. Kahn in his individual or official capacity. To the extent Plaintiff is naming Dr. Kahn in his official capacity, such claim is subject to dismissal. An “official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72 (1985). Such a suit “is not a suit against the official personally, for the real party in interest is the entity.” Graham, 473 U.S. at 166. As the Supreme Court has explained, “[t]here is no longer a need to bring official-capacity actions against local government officials, for under Monell . . . local government units can be sued directly for damages and injunctive or declaratory relief.” Id. at 167 n.14. Here, Dr. Kahn appears to be an employee of the Jail, a facility run by the Orange County Sheriff's Department (“OCSD”). Thus, a claim against Dr. Kahn in his official capacity is properly treated as a claim against the employing agency, that is, the OCSD.
A local government entity “may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep't of Social Servs. of N.Y., 436 U.S. 658, 694 (1978). “[A]n individual may prevail in a § 1983 action against municipalities, including counties and their sheriff's departments, if the unconstitutional action implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Lockett v. County of Los Angeles, 977 F.3d 737, 740 (9th Cir. 2020) (internal quotation marks and citation omitted); see also Lozman v. City of Riviera Beach, 585 U.S. -, 138 S.Ct 1945, 1951 (2018). “[A] Monell claim must consist of more than mere ‘formulaic recitations of the existence of unlawful policies, conducts or habits.'” Bedford v. City of Hayward, 2012 WL 4901434, at *12 (N.D. Cal. Oct. 15, 2012) (citation omitted); see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (“The existence of a policy, without more, is insufficient to trigger local government liability under section 1983.”). “Monell allegations must be [pled] with specificity as required under Twombly and Iqbal.” Galindo v. City of San Mateo, 2016 WL 7116927, at *5 (N.D. Cal. Dec. 7, 2016).
In this case, the Complaint fails to allege any policy, custom, or practice by the OCSD that caused Plaintiff any alleged harm. Consequently, the Complaint fails to state a claim against Dr. Kahn in his official capacity.
2. No Individual Capacity Claim Is Stated Against Dr. Kahn
Plaintiff claims Dr. Kahn was negligent and committed malpractice by clearing him for regular housing after he was kneed in the face by Turnquist. Complaint at 4, 7. He contends that a few days later, Dr. Watson advised him he sustained a concussion and ordered a CAT scan of his head and neck. Plaintiff “feel[s] Dr. Kahn covered up the fact that [he] was not ok and knew [he] had sustained more than an abrasion to [his] face.” Id. at 7. To the extent Plaintiff purports to allege a Fourteenth Amendment claim against Dr. Kahn, the allegations of the Complaint are insufficient to state a claim for relief.
Claims for inadequate medical care brought by pretrial detainees arise under the Due Process Clause of the Fourteenth Amendment. Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). Such claims are analyzed under an objective deliberate indifference standard. Id. at 1124-25. To state such a claim, a plaintiff must allege: (1) “the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined”; (2) “those conditions put the plaintiff at substantial risk of suffering serious harm”; (3) “the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved- making the consequences of the defendant's conduct obvious”; and (4) “by not taking such measures, the defendant caused the plaintiff's injuries.” Id. at 1125. The plaintiff must “prove more than negligence but less than subjective intent-something akin to reckless disregard.” Id. (citation omitted); see also Alexander v. Nguyen, 78 F.4th 1140, 1145 (9th Cir. 2023). The “reckless disregard” standard is a formidable one.” Fraihat v. Immigr. & Customs Enf't, 16 F.4th 613, 636 (9th Cir. 2021) (addressing claim of deliberate indifference to medical needs of detainees under the Fifth Amendment). “Neither ‘mere lack of due care,' nor ‘an inadvertent failure to provide adequate medical care,' nor even ‘[m]edical malpractice,' without more, is sufficient to meet this standard.'” Id.; see also Alexander, 78 F.4th at 1145.
The Complaint's allegations do not meet this standard. As noted, Plaintiff seeks relief based on negligence and malpractice. Plaintiff's allegations that Dr. Kahn misdiagnosed him or cleared him for regular housing sound in negligence and do not rise to the level of a constitutional deprivation. While Plaintiff “feel[s]” Dr. Kahn covered up his diagnosis, such allegation is conclusory in nature, lacking any factual support. Plaintiff has not shown Dr. Kahn acted with reckless disregard in violation of the Fourteenth Amendment. As such, Plaintiff has not stated a federal civil rights claim against Dr. Kahn.
It is unclear whether Plaintiff is attempting to assert a federal civil rights claim against Dr. Kahn and/or a state law negligence claim based on medical malpractice. In a negligence claim based on medical malpractice, a plaintiff must show (1) “the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise”; (2) “a breach of that duty”; (3) “a proximate causal connection between the negligent conduct and the resulting injury”; and (4) “actual loss or damage resulting from the professional's negligence.” Neff v. Ha, 2021 WL 6496778, at *7 (C.D. Cal. Feb. 8, 2021) (citing Hanson v. Grode, 76 Cal.App.4th 601, 606 (1999) (as modified)). Here, Plaintiff was diagnosed with a concussion a few days after seeing Dr. Kahn. He does not allege any damages as a result of any delay in making this diagnosis. Indeed, he does not claim Dr. Watson changed his housing designation or imposed any restrictions in light of the diagnosis. Plaintiff provides insufficient allegations to support either a Fourteenth Amendment or medical malpractice claim.
D. Plaintiff's Remaining Allegations Do Not State a Civil Rights Claim
Plaintiff also appears to assert additional claims based on allegations that Turnquist and Quenzler falsified their reports and he fears retaliation. Both claims are subject to dismissal.
Plaintiff's allegations that Turnquist and Quenzler falsified their reports are vague and conclusory, lacking any specific factual support. While detailed factual allegations are not required, “‘naked assertion[s]' devoid of ‘further factual enhancement'” do not suffice under Rule 8. Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff's mere allegation that Turnquist and Quenzler falsified reports, without more, does not state a standalone constitutional claim. See, e.g., Mills v. Clarke, 2023 WL 3063287, at *6 (E.D. Cal. Apr. 24, 2023) (“[f]alse statements, alone, do not violate a prisoner's constitutional rights” (alteration in original) (citation omitted)), adopted by 2023 WL 3466360 (E.D. Cal. May 15, 2023); Sekona v. Perez, 2020 WL 2468089, at *9 (E.D. Cal. May 13, 2020) (“The creation of false evidence, standing alone, is not actionable under § 1983.”).
Plaintiff's allegations also are insufficient to state a First Amendment retaliation claim. Plaintiff alleges that he is in constant fear of retaliation by the deputies and on January 19, 2023, Quenzler “was insighting [sic] other inmates against” him. Complaint at 5-6. The First Amendment provides a right to petition the government for redress of grievances. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Additionally, deliberate retaliation by a prison official against an individual's exercise of First Amendment rights may be actionable under Section 1983. See id.; see also Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (as amended). To state a claim for retaliation in violation of the First Amendment in the prison context, a plaintiff must allege: “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes, 408 F.3d at 567-68 (internal footnote omitted). The “plaintiff must show a causal connection between a defendant's retaliatory animus and subsequent injury . . . .” Hartman v. Moore, 547 U.S. 250, 259 (2006). More specifically, a plaintiff must show his constitutionally protected conduct was the “substantial or motivating factor” for the alleged retaliatory action. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (internal quotation marks and citation omitted). The Rhodes standard applies equally to retaliation claims by pretrial detainees. Crossley v. Tulare Cty. Sheriff, 2023 WL 3794868, at *6 (E.D. Cal. June 2, 2023); Chavez v. Kings County, 2020 WL 4936911, at *9 (E.D. Cal. Aug. 24, 2020), adopted by 2020 WL 7074807 (E.D. Cal. Dec. 3, 2020); see also Nyland v. Calaveras Cty. Sheriff's Jail, 688 Fed.Appx. 483, 485 (9th Cir. 2017) (applying Rhodes to affirm dismissal of pretrial detainee's retaliation claim).
Here, Plaintiff fails to plead facts that would establish a causal connection between any constitutionally-protected conduct and an adverse action. Plaintiff's conclusory allegation that he “fears” retaliation and that Quenzler incited other inmates against him, without any specific factual support, is insufficient to establish a First Amendment retaliation claim. Plaintiff has not alleged Defendants took any adverse action against him because he engaged in protected conduct. As such, Plaintiff has not stated a retaliation claim.
E. Plaintiff's Request for the Appointment of Counsel Is Denied
The Complaint includes a request for the appointment of counsel. Complaint at 14. There is no constitutional right to appointed counsel in a civil rights case. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981).
Under 28 U.S.C. § 1915(e)(1), the Court may request an attorney to represent a party who is unable to afford counsel. However, Plaintiff requests that counsel be appointed. Section 1915(e)(1) does not authorize appointment of counsel to involuntary service. See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 310 (1989); United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). If Plaintiff is seeking funds from the Court to pay counsel, “[t]he Supreme Court has declared that ‘the expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress.'” Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (citing United States v. MacCollom, 426 U.S. 317, 321 (1976)). Congress has not provided funds to pay counsel secured under 28 U.S.C. § 1915(e). See 30.64 Acres of Land, 795 F.2d at 801. The Court treats the request to appoint counsel, therefore, as a request that the Court request an attorney to represent Plaintiff without compensation. After an evaluation of “the likelihood of success on the merits” and Plaintiff's ability “to articulate his claims pro se in light of the complexity of the legal issues involved,” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986), the Court finds that the exceptional circumstances necessary to grant Plaintiff's request do not exist at this time, and the request is denied in that regard.
V.
CONCLUSION AND ORDER
As indicated above, for screening purposes, Plaintiff has stated a Fourteenth Amendment excessive force claim against Turnquist and Quenzler in their individual capacity, but the remaining claims are subject to dismissal. Accordingly, the Court provides Plaintiff with several options as to how to proceed. Within thirty (30) days of this Order, Plaintiff must choose one of the following options and file the document required by that option:
1. If Plaintiff desires to proceed only with his Fourteenth Amendment excessive force claim against Turnquist and Quenzler and no other claim, Plaintiff need only file a document titled “Notice of Election” stating that he elects to proceed only on this claim and not as to any other claim, with the other claims voluntarily dismissed, and the action will proceed as to that claim against Turnquist and Quenzler in their individual capacity,
subject to any ruling by the District Judge on Plaintiff's request to proceed in forma pauperis (“IFP Request”). The undersigned notes that Plaintiff did not provide a certified copy of his prison trust account statement as required by 28 U.S.C. § 1915(a)(2). If Plaintiff files a Notice of Election as set forth above and his IFP Request is granted, the Court will commence the process of ordering the issuance of summonses and directing attempts at service of process. If Plaintiff files the Notice of Election set forth above and the IFP Request is denied or remains not granted, the Court will not issue summonses or direct attempts at service; but in that circumstance, nothing would prevent Plaintiff from thereafter paying the full filing fee, requesting summonses, and then taking steps to serve process upon Turnquist and Quenzler in compliance with Rule 4 of the Federal Rules of Civil Procedure.
OR
2. If Plaintiff believes some of all of the deficiencies set forth above can be remedied and wishes to seek to remedy those deficiencies, Plaintiff shall file a First Amended Complaint attempting to remedy those defects. Such First Amended Complaint should bear the docket number assigned in this case; be labeled “First Amended Complaint” and filled out completely, including the caption page; be complete in and of itself without reference to the prior complaint or any other pleading, attachment, or document; and shall properly identify all defendants and specify all facts upon which Plaintiff alleges a particular defendant caused any alleged constitutional violation. Plaintiff shall separately identify each claim for relief and provide the legal and factual bases supporting
such claims. Any amended complaint may not alter the nature of this suit by alleging new, unrelated claims. The Clerk is directed to send Plaintiff a blank Central District civil rights complaint form, which Plaintiff is encouraged to use.
OR
3. If Plaintiff disagrees with the above analysis and/or believes sufficient further factual allegations cannot be added to the Complaint to remedy the deficiencies identified, then Plaintiff shall file a Notice of Intent to Proceed with the Complaint. If Plaintiff chooses to file such Notice of Intent, the Court may treat the election as a statement that Plaintiff is unable to amend the Complaint to address the defects identified, which may result in dismissal of the claims found defective herein.
OR
4. If Plaintiff no longer wishes to pursue this action, Plaintiff may dismiss it by filing a Notice of Dismissal under Federal Rule of Civil Procedure 41(a)(1). A voluntary dismissal in this instance may not constitute a “strike” under 28 U.S.C. § 1915(g), whereas a dismissal of an action filed by a prisoner because it “fails to state a claim upon which relief may be granted” may constitute a “strike.” See 28 U.S.C. § 1915(g). The Clerk is directed to send Plaintiff a Central District request for dismissal form.
Plaintiff is cautioned that failure to timely file a fully compliant response as directed in this Order within 30 days from the date of this Order may result in the dismissal of part or all of this action for the foregoing reasons, failure to prosecute, and/or failure to comply with a court order.
As noted, the foregoing is subject to any ruling by the District Judge on Plaintiff's IFP Request.