(PC) Booth v. Santos

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA PATRICK J. BOOTH, No. 2:23-cv-0509 CKD P 12 Plaintiff, 13 v. ORDER DAWN SANTOS, 15 Defendant.

17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. Plaintiff’s June 6, 2024, second amended complaint is before the court for screening 19 The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

24 The court has reviewed plaintiff’s second amended complaint and finds that plaintiff may proceed on a claim arising under the First Amendment for retaliation for protected conduct based upon plaintiff’s claim that defendant withheld property from plaintiff because plaintiff submitted inmate grievances and filed lawsuits.

28 ///// 1 At this point, plaintiff has two options: proceed on the claim identified above or file a third amended complaint to attempt to cure deficiencies with respect to the other claims.

3 If plaintiff chooses to proceed on the claim described above, the court will construe this as a request to voluntarily dismiss the additional claims pursuant to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure.

6 With respect to plaintiff’s other claims and assertions, plaintiff is informed as follows: 7 1. Plaintiff’s assertion that defendant withheld evidence from plaintiff does not amount to a claim for denial of access to courts in violation of the First Amendment. Being denied evidence is not the same as being denied access and nothing suggests plaintiff was ever denied access.

10 2. Loss of property, by itself, caused by state employees generally does not amount to a violation of federal law as long as the state provides procedures to obtain a remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). The California Legislature has provided a remedy for tort claims, such as loss of property, against public officials in the California Government Code, §§ 900, et seq.

15 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s third amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading.

18 In accordance with the above, IT IS HEREBY ORDERED that: 19 1. Plaintiff has the option to proceed immediately on the claim described herein. In the alternative, plaintiff may choose to file a third amended complaint to fix the deficiencies identified in this order with respect to the remaining claims.

22 2. Within 21 days from the date of this order, plaintiff shall complete and return the attached Notice of Election form notifying the court whether he wants to proceed on the screened complaint or whether he wants time to file a third amended complaint.

25 ///// ///// ///// ///// 1 3. If plaintiff fails to return the attached Notice of Election within the time provided, the || court will construe this failure as consent to dismiss the deficient claims and proceed only on the || cognizable claim identified above.

4 || Dated: September 13, 2024 Card Kt | (£4 (g— 5 CAROLYN K DELANEY?

6 UNITED STATES MAGISTRATE JUDGE 9] 1 10 boot0509.option 1] 10 UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA PATRICK J. BOOTH, No. 2:23-cv-0509 CKD P 14 Plaintiff, v. NOTICE OF ELECTION DAWN SANTOS, 17 Defendant.

19 Check only one option: _____ 1. Plaintiff wishes to proceed on a claim arising under the First Amendment for retaliation for protected conduct based upon plaintiff’s claim that defendant withheld property from plaintiff because plaintiff submitted inmate grievances and filed lawsuits.

23 _____ 2. Plaintiff wants time to file a third amended complaint.

24 DATED: 26 ____________________ 27 Plaintiff