(PC)Williams v. Fox

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 KENNETH WILLIAMS, No. 2:18-cv-2045 MCE AC P 12 Plaintiff, 13 v. ORDER 14 K. FOX, et al., 15 Defendants. [16] 17 I. Introduction 18 Plaintiff is a California state prisoner who proceeds pro se with an application to proceed 19 in forma pauperis and a civil rights complaint filed pursuant to 42 U.S.C. § 1983 . This action is 20 referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) 21 and Local Rule 302(c). For the reasons that follow, the court grants plaintiff’s request to proceed 22 in forma pauperis, finds that the complaint fails to state a claim and is not suitable for service, and 23 grants leave to file a First Amended Complaint. 24 II. In Forma Pauperis Application 25 Plaintiff has submitted an affidavit and prison trust account statement that make the 26 showing required by 28 U.S.C. § 1915 (a). See ECF No. 2. Accordingly, plaintiff’s request to 27 proceed in forma pauperis will be granted. 28 //// 1 Plaintiff must nevertheless pay the statutory filing fee of $350.00 for this action. 28 2 U.S.C. §§ 1914 (a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee 3 in accordance with the provisions of 28 U.S.C. § 1915 (b)(1). By separate order, the court will 4 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account 5 and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 6 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 7 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 8 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 9 1915(b)(2). 10 III. Screening of Plaintiff’s Complaint 11 A. Legal Standards for Screening Prisoner Civil Rights Complaints 12 The court is required to screen complaints brought by prisoners seeking relief against a 13 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 14 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 15 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 16 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 17 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 18 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 19 1984). 20 Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement 21 of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair 22 notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. 23 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it 25 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to 27 state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a 28 claim to relief that is plausible on its face.’” Iqbal at 678 (quoting Twombly at 570). “A claim 1 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 2 reasonable inference that the defendant is liable for the misconduct alleged. 3 “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 4 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 5 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97 , 6 106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) (“Pleadings shall be 7 so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the 8 deficiencies in the complaint and an opportunity to amend, unless the complaint’s deficiencies 9 cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 10 B. The Complaint 11 Plaintiff sets forth four putative claims, each premised on a different disciplinary finding 12 and asserting the denial of plaintiff’s Eighth and Fourteenth Amendment rights. Each claim is 13 asserted against a different defendant. All of the challenged incidents took place during 14 plaintiff’s prior incarceration at California State Prison Solano (CSP-SOL). Plaintiff alleges that 15 each of the challenged Rule Violation Reports (RVRs) reflects false charges and improperly 16 resulted in lengthening plaintiff’s life prison term due to the forfeiture of time credits and deferred 17 consideration for parole, causing plaintiff significant mental stress and anguish. Plaintiff has 18 submitted Third Level Decisions addressing each of the challenged RVRS, demonstrating the 19 administrative exhaustion of his claims. Plaintiff seeks, inter alia, declaratory relief, 20 compensatory and punitive damages, and the expungement of the challenged RVRs from his 21 prison file. 22 The first RVR charged plaintiff with “Introduction of a Controlled Substance for 23 Distribution” on August 5, 2012, initially resulting in plaintiff’s transfer to Administrative 24 Segregation (Ad Seg) and requiring that he participate in a “potty watch” contraband search. 25 Plaintiff alleges that defendant Correctional Officer K. Fox, in conspiracy with non-defendant 26 officers Swetland and Slaughter, planted controlled substances on or near plaintiff while he was 27 exiting the prison visiting room and again shortly thereafter when housed in Ad Seg. Plaintiff 28 was charged and found guilty two months later. Plaintiff alleges that his request for a DNA test, 1 which he sought in an effort to refute Fox’s claim that he had held the controlled substance(s) in 2 his mouth, was denied. Plaintiff alleges that defendant Fox “caused and directed” “this entire 3 scenario” based on his “personal dislike for plaintiff.” ECF No. 1 at 5. 4 The second RVR charged plaintiff with “Willfully Delaying a Peace Officer in the 5 Performance of his Duties” on July 12, 2013. During an authorized outdoor religious prayer 6 meeting, the yard was ordered “down” for an emergency. Several prisoners failed to get down 7 and/or stood up prematurely. When prisoners were instructed to leave the yard, photos were 8 taken of the suspected perpetrators and their ID cards were confiscated. Plaintiff alleges that 9 defendant Correctional Officer J. Wartson erred in identifying plaintiff as one of the perpetrators, 10 and that the finding of plaintiff’s guilt on this charge was improperly based on a “generalized 11 sweep” unsupported by sufficient evidence. Plaintiff relies on Wartson’s statement at plaintiff’s 12 disciplinary hearing: “[W]hen defendant was asked if he saw plaintiff stand up, he responded that 13 he could not see the prisoners in the back.” ECF No. 1 at 7. Plaintiff also contends that he was 14 denied an investigative employee (IE) “to gather the facts for the RVR hearing.” Id. at 6. 15 The third RVR charged plaintiff with “Conspiracy to Introduce a Controlled Substance 16 into an Institution” on February 11, 2014. Plaintiff alleges that defendant Correctional Officer D. 17 Letourneau falsely accused plaintiff “due to some baseless notes that were found by prison guard 18 Fox in plaintiff’s cell” on November 7, 2013, based on an ongoing investigation. ECF No. 1 at 819 9. Plaintiff alleges that the content of the notes was not disclosed to him, preventing him from 20 preparing an adequate defense, and demonstrating that the resulting guilt finding failed to meet 21 the “some evidence” standard. Id. at 9. 22 The fourth RVR charged plaintiff with “Delaying a Peace Officer in the Performance of 23 his Duties” on June 11, 2014, based on plaintiff’s alleged refusal to accept a cellmate while 24 housed in Ad Seg. Plaintiff states that he signed the required compatibility form but “added a 25 notation of disagreement and duress” because the proposed cellmate was a “known cell 26 aggressor.” ECF No. 1 at 11. Plaintiff alleges that defendant Lieutenant A. Scotland threatened 27 him with an RVR if plaintiff did not cooperate, conspired with others to issue the RVR, then 28 presided over plaintiff’s hearing and followed up with his threatened guilt finding, while denying 1 plaintiff’s requests for a copy of the completed compatibility form and the presentation of a 2 witness. 3 In conclusion, plaintiff alleges: 4 The actions of Defendants Fox, Wartson, Letourneau and Scotland, to falsely frame Plaintiff for drugs, get-down refusal, conspiracy and 5 cell-mate refusal, with Rules Violations Reports for each, were imposed maliciously and for the purpose of causing Plaintiff to suffer 6 mental stress and anguish regarding his Parole Board hearings and a longer term in prison. These actions violated Plaintiff’s rights to 7 procedural due process and constituted cruel and unusual punishment under the United States Constitution. [8] 9 ECF No. 1 at 12. 10 Plaintiff seeks “general, special and punitive damages” in the amount of $5000 from each 11 defendant; “injunctive relief for the four RVRs to be vacated and expunged from plaintiff’s prison 12 files and records;” “declaratory relief which sets forth the rights and responsibilities of the 13 parties;” “appointment of counsel and reasonable attorney fees;” and “such other relief as the 14 court deems just and proper.” Id. (with minor edits). 15 C. Governing Legal Princples 16 Plaintiff’s claims are appropriately brought under 42 U.S.C. § 1983 , rather than in a 17 petition for writ of habeas corpus under 28 U.S.C. § 2254 . If plaintiff were to prevail on his 18 claims and requested relief, such success would not necessarily lead to his immediate or earlier 19 release from confinement, and therefore do not lie at the core of habeas. See Nettles v. Grounds, [20] 830 F.3d 922 (9th Cir. 2016) (en banc) (construing Supreme Court precedent), cert. denied, 137 21 S. Ct. 645 (2017). As the Ninth Circuit has explained: 22 Success on the merits of [petitioner’s] claim would not necessarily lead to immediate or speedier release because the expungement of 23 the challenged disciplinary violation would not necessarily lead to a grant of parole. Under California law, the parole board must consider 24 “[a]ll relevant, reliable information” in determining suitability for parole. Cal. Code Regs. tit. 15, § 2281 (b). A rules violation is merely 25 one of the factors shedding light on whether a prisoner “constitutes a current threat to public safety,” In re Lawrence, 44 Cal. 4th 1181 [] 26 (2008). Because the parole board has the authority to deny parole “on the basis of any of the grounds presently available to it,” Ramirez 27 [v. Galaza], 334 F.3d [850] at 859 [9th Cir. 2003], the presence of a disciplinary infraction does not compel the denial of parole, nor does 28 an absence of an infraction compel the grant of parole. 1 Nettles, 830 F.3d at 934-35 . This case falls under the Nettles rule despite plaintiff’s allegation 2 that his length of custody has been increased, because absent the subject RVRs plaintiff would 3 not necessarily be granted parole. 4 Convicted prisoners charged with prison rule infractions are entitled only to limited 5 procedural due process protections under the Fourteenth Amendment. “Where a prison 6 disciplinary hearing may result in the loss of good time credits . . . the inmate must receive: (1) 7 advance written notice of the disciplinary charges; (2) an opportunity, when consistent with 8 institutional safety and correctional goals, to call witnesses and present documentary evidence in 9 his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons 10 for the disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff v. 11 McDonnell, 418 U.S. 539, 563-67 (1974)). The disciplinary hearing must be conducted by a 12 person or body that is “sufficiently impartial to satisfy the Due Process Clause.” Wolff, 418 U.S. 13 at 571. Additionally, “the requirements of due process are satisfied if some evidence supports the 14 decision by the prison disciplinary board to revoke good time credits.” Hill, 472 U.S. at 455 .1 15 “The Eighth Amendment, which applies to the States through the Due Process Clause of 16 the Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual punishments’ on those 17 convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296-97 (1991) (citation omitted). To state 18 an Eighth Amendment claim against a specific defendant, a prisoner must plausibly “make two 19 showings. First, the plaintiff must make an ‘objective’ showing that the deprivation was 20 ‘sufficiently serious’ to form the basis for an Eighth Amendment violation. Second, the plaintiff 21 must make a ‘subjective’ showing that the prison official acted ‘with a sufficiently culpable state 22 of mind.’” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quoting Wilson at 298). [23] 1 “In Superintendent v. Hill, 472 U.S. 445, 455-56 [] (1985), the Supreme Court held that 24 revocation of good time credits requires only a ‘modicum of evidence’ to support the prison’s decision. Accordingly, due process requirements are satisfied if there is ‘some evidence from [25] which the conclusion of the administrative tribunal could be deduced.’ Id. at 455 []. ‘Ascertaining 26 whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant 27 question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.’ Id. at 455-56 [].” Lane v. Salazar, 911 F.3d 942, 951 (9th Cir. 2018), 28 cert. denied, 140 S. Ct. 167 (2019). 1 However, a prisoner’s “claims based on the falsity of the charges and the impropriety of 2 [the prison official’s] involvement in the grievance procedure, standing alone, do not state 3 constitutional claims.” Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (citing Freeman v. 4 Rideout, 808 F.2d 949, 951-52 (2d Cir.1986), cert. denied, 485 U.S. 982 (1988) (“The prison 5 inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of 6 conduct which may result in the deprivation of a protected liberty interest. The plaintiff, as all 7 other prison inmates, has the right not to be deprived of a protected liberty interest without due 8 process of law.”). Thus, district courts within this Circuit have routinely found that prisoners 9 cannot state an Eighth Amendment claim premised only on the alleged fact of a false disciplinary 10 charge or conviction. See e.g. Hutchinson v. Infante, 2017 WL 1709474 , at *2-3, 2017 U.S. Dist. 11 LEXIS 67714 (E.D. Cal. May 3, 2017) (Case No. 2:16-cv-0114 KJM AC P) (collecting cases); 12 accord, Richardson v. Tuman, 2019 WL 669569 , at *9, 2019 U.S. Dist. LEXIS 26178 (E.D. Cal. 13 Feb. 19, 2019) (Case No. 1:18-cv-01166 EPG PC). 14 A false disciplinary charge or conviction may be challenged on procedural due process 15 grounds, as set forth above, or as an element of a First Amendment retaliation claim. “Within the 16 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 17 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 18 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 19 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 20 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (fn. and citations omitted). 21 The alleged adverse action in a retaliation claim need not, in itself, violate the inmate’s 22 constitutional rights. Rather, the interest asserted in a retaliation claim is the right to be free of 23 conditions that would not have been imposed but for the alleged retaliatory motive. See Pratt v. 24 Rowland, 65 F.3d 802, 806 (1995) (adverse action need not reflect an “independent constitutional 25 interest”); Hines v. Gomez, 108 F.3d 265 , 268 (9th Cir.1997) (alleged adverse action was filing of 26 disciplinary report in retaliation for prisoner’s use of the grievance system); Rizzo v. Dawson, [27] 778 F.2d 527, 531 (9th Cir. 1985) (alleged adverse action was transfer of prisoner to a different 28 prison); see also Watison v. Carter, 668 F.3d 1108, 1114-16 (9th Cir. 2012) (alleged adverse 1 actions of filing a false disciplinary charge, placing plaintiff in administrative segregation, and 2 lying to the parole board were “more than minimal” harms that would have chilled or silenced a 3 person of ordinary firmness). “[A] plaintiff who fails to allege a chilling effect may still state a 4 claim if he alleges he suffered some other harm” as a retaliatory adverse action. Brodheim v. 5 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing Rhodes, 408 F.3d at 568, n.11 ). However, not 6 every allegedly adverse action will support a retaliation claim; there must be some nexus between 7 the protected conduct and alleged adverse action. See Huskey v. City of San Jose, 204 F.3d 893 , 8 899 (9th Cir. 2000) (retaliation claim cannot rest on “the logical fallacy of post hoc, ergo propter 9 hoc, literally, ‘after this, therefore because of this’”) (citation omitted). 10 D. Failure to State a Claim 11 In light of the legal authority set forth above, plaintiff’s allegations that the challenged 12 RVRs rest on false charges, contrived evidence or insufficient evidence do not state cognizable 13 due process claims. See Sprouse, supra, 870 F.2d at 452 ; Freeman, supra, 808 F.2d at 951 ; see 14 also Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (“[A]n allegation that a prison guard 15 planted false evidence which implicates an inmate in a disciplinary infraction fails to state a claim 16 for which relief can be granted where the procedural due process protections . . . are provided.”); 17 Buckley v. Gomez, 36 F. Supp. 2d 1216, 1222 (S.D. Cal. 1997) (prisoners have no constitutional 18 right to be free from wrongfully issued disciplinary reports), aff’d without opinion, 168 F.3d 498 19 (9th Cir. 1999). 20 Plaintiff’s specific challenges to the disciplinary hearing procedures fail to state a 21 cognizable claim as framed. Decisions concerning a prisoner’s access to evidence, tests of 22 evidence, witnesses and assignment of an IE are subject to the discretion of the hearing officer 23 and panel. A prisoner’s due process rights must be balanced with the requirement that prison 24 officials “have the necessary discretion to keep the hearing within reasonable limits and to refuse 25 to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit 26 access to other inmates to collect statements or to compile other documentary evidence.” Wolff, [27] 418 U.S. at 566 . Additionally, assistance “in the form of help from the staff or from a sufficiently 28 competent inmate designated by the staff” is available only when the prisoner is illiterate or the 1 issue is particularly complex. Id. at 570 . Reliance on reliable confidential information is 2 permitted. Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir. 1987). The complaint does not 3 identify any violations of these minimal constitutional standards. 4 Plaintiff’s additional specific allegations against defendants Fox and Scotland are also 5 inadequate to state a cognizable claim. Plaintiff alleges that Fox, inspired by his “dislike” for 6 plaintiff, conspired with other officials to manufacture false evidence against him. This allegation 7 cannot state a retaliation claim without facts demonstrating that Fox’s “dislike” of plaintiff was in 8 response to plaintiff’s exercise of his First Amendment rights. Nor do the allegations against Fox 9 state a conspiracy claim, which requires allegations of more than one defendant acting in 10 concert.2 Similarly, plaintiff does not state a retaliation claim against defendant Scotland on the 11 present allegations that Scotland threatened to issue an RVR and pursue a guilt finding against 12 plaintiff if he did not sign the cellmate compatibility form, followed through by issuing an RVR, 13 then presided over plaintiff’s disciplinary hearing and rendered the threatened guilt finding. No 14 First Amendment rights attach to a cellmate compatibility form or the objections plaintiff wrote 15 on the form. 16 However, it may be possible for plaintiff to state a cognizable due process claim against 17 Scotland if plaintiff can plausibly allege facts demonstrating that Scotland was not impartial when 18 he presided over the subject disciplinary hearing; that is, that Scotland’s exercise of his authority 19 presented “a hazard of arbitrary decisionmaking” in violation of plaintiff’s due process rights. 20 Wolff, 418 U.S. at 571 . [22] 2 A conspiracy claim made pursuant to Section 1983 requires allegations of “an agreement or 23 meeting of the minds to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (citation and internal quotation marks omitted), as well as an “actual deprivation of 24 constitutional rights resulting from the alleged conspiracy,” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (citation and internal quotation marks omitted). “To be liable, each participant in [25] the conspiracy need not know the exact details of the plan, but each participant must at least share 26 the common objective of the conspiracy.” Franklin, 312 F.3d at 441 (citation and internal quotation marks omitted). To state a cognizable conspiracy claim, plaintiff must show “that the 27 defendants conspired or acted jointly or in concert and that some overt act must have been done in furtherance of the conspiracy.” Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974) 28 (citation omitted). 1 Although it presently appears unlikely that plaintiff can cure any of these pleading defects, 2 he will be granted leave to file an amended complaint that comports with the legal standards set 3 forth herein. 4 IV. Leave to File a First Amended Complaint 5 Because the allegations of plaintiff’s complaint fail to state a cognizable claim, the court 6 will not direct service of the complaint on any defendant. However, plaintiff will be granted the 7 opportunity to file a First Amended Complaint (FAC). If plaintiff chooses to file a FAC, he must 8 demonstrate how the conditions about which he complains resulted in a deprivation of his 9 constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). The complaint must allege 10 in specific terms how each named defendant is involved. Arnold v. IBM Corp., 637 F.2d 1350 , 11 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some 12 affirmative link or connection between an individual defendant’s actions and the claimed 13 deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Vague and conclusory 14 allegations of official participation in civil rights violations are not sufficient.” Ivey v. Bd. of 15 Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 16 Local Rule 220 requires that an amended complaint be complete in itself without 17 reference to any prior pleading. An amended complaint supersedes the original complaint. Loux 18 v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (citations omitted), overruled in part by Lacey v. 19 Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (claims dismissed with prejudice and 20 without leave to amend do not have to be re-pled in subsequent amended complaint to preserve 21 appeal). If plaintiff files a FAC, the original complaint no longer serves any purpose. Therefore, 22 in an amended complaint, as in an original complaint, each claim and the involvement of each 23 defendant must be sufficiently alleged. 24 V. Plain Language Summary of this Order for Pro Se Plaintiff 25 You have been granted leave to proceed in forma pauperis in this action and will pay the 26 filing fee over time with automatic deductions from your prison trust account. 27 The court has screened your complaint, and finds that it does not present facts that could 28 entitle you to relief. For that reason, the complaint will not be served on any defendant. wOASe 2. LOVE CUTIVE NN UIC IR ee PAY tt OV tt 1 You may file a First Amended Complaint (FAC) that tries to fix the problems the court 2 | has identified. Keep in mind that RVR hearings and results can only be challenged on very 3 || limited grounds that are explained in this order. Allegations against each specific defendant must 4 | clearly link the that person to the denial of your rights. 5 If you choose to file a FAC, you must do so within forty-five (45) days after the filing date 6 || of this order. A FAC must include all of the claims you want to pursue, because the court will not 7 || look at the claims or information in the original complaint. Any claims not in the FAC will not 8 || be considered. Failure to timely file a FAC will result in a recommendation that this action be 9 | dismissed without prejudice. 10 VI. Conclusion 11 For the foregoing reasons, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s request to proceed in forma pauperis, ECF No. 2, is granted. 13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 14 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 15 | § 1915¢b)(1). All fees shall be collected and paid in accordance with this court’s order to the 16 || Director of the California Department of Corrections and Rehabilitation filed concurrently 17 || herewith. 18 3. Plaintiffs complaint, ECF No. 1, has been screened pursuant to 28 U.S.C. § 1915A 19 | and found not to state a claim; 20 4. Plaintiff is granted leave to file a First Amended Complaint (FAC), on the form 21 || provided herewith, within forty-five (45) days after the filing date of this order, subject to the 22 || legal standards set forth herein. Failure to timely file a FAC will result in a recommendation that 23 | this action be dismissed without prejudice. 24 5. The Clerk of Court is directed to send plaintiff, together with a copy of this order, a 25 || copy of the form complaint used by prisoners in this district to pursue a civil rights action under 26 | 42 U.S.C. § 1983 . ~ 27 | DATED: April 28, 2020 HMtren— Lhare ALLISON CLAIRE 28 UNITED STATES MAGISTRATE JUDGE