Opinion
2:20-cv-02418 TLN DB P
11-11-2021
KENNETH HILL, Plaintiff, v. D. FIELDS, et al., Defendants.
ORDER
DEBORAH BARNES UNITED STATFS MAGISTRATE JUDGE
Plaintiff Kenneth is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
In its August 8, 2021 order, the court determined that plaintiff's complaint stated potentially cognizable Eighth Amendment claim for deliberate indifference against defendant D. Fields an employee at California State Prison, Sacramento (“SAC”). (ECF No. 7 at 10.) The court further determined that the complaint did not contain any other cognizable claims. (Id.) Plaintiff was given the option to proceed on his cognizable claims and dismiss all other claims and defendants or be given leave to amend the complaint. On October 6, 2021, plaintiff responded to the court's order by stating he wished to proceed in his Eighth Amendment claim against defendant D. Fields but that he objected to voluntarily dismissing all other claims and defendants. (ECF No. 9.) The court again informed the plaintiff that in order to proceed on the 1 cognizable claims in his complaint, he would need to voluntarily dismiss all other claims and defendants. (ECF No. 10.) Alternatively, the court would grant plaintiff leave to amend his complaint to state additional claims and defendants.
Plaintiff has filed a new notice with the court of how he wishes to proceed. (ECF No. 11.) In this notice, plaintiff states he “wishes to proceed on the claims against defendant D. Fields but does not voluntarily dismiss [his] claims against Def Scriver.” (Id. at 1.) This is not an option available to the plaintiff. Presently his complaint contains claims that are not cognizable. As such, plaintiff may amend his complaint to attempt to state additional claims or plaintiff may voluntarily dismiss all other claims and defendants if he wishes to only proceed with his cognizable claims. Plaintiff may not proceed on the complaint as it is presently constructed as it contains claims that are not cognizable. See 28 U.S.C. § 1915A.
Plaintiff will be given another opportunity to inform the court of how he wishes to proceed. If plaintiff is unable to decide whether he wishes to amend his complaint or to voluntarily dismiss all other claims and defendants to proceed on his cognizable claims, it will be recommended that the non-cognizable claims and defendants be dismissed by the District Judge in this action.
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff may choose to proceed on his cognizable claims as set out in the court's August 8, 2021 order (ECF No. 7) or he may choose to amend his complaint.
2. Within twenty (20) days of the date of this order plaintiff shall notify the court of how he wishes to proceed. Plaintiff may use the form included with this order for this purpose.
3. Plaintiff is warned that his failure to comply with this order will result in a recommendation that this action be dismissed. 2
PLAINTIFF'S NOTICE ON HOW TO PROCEED
Check one:
___ Plaintiff wants to proceed immediately on his Eighth Amendment deliberate indifference to safety claim against defendant D. Fields. Plaintiff understands that by going forward without amending the complaint he is voluntarily dismissing all other claims and defendants.
___ Plaintiff wants to amend the complaint. 3