Alvarado v. County of San Diego

• Court: District Court, S.D. California
• Decided: March 28, 2023
• Docket: 3:23-cv-00426
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 CESAR ALVARDO Case No.: 3:23-CV-0426-DMS-MDD Inmate No. 18123467, 9 ORDER: Plaintiff, 10 v. (1) GRANTING PLAINTIFF’S 11 MOTION TO PROCEED IN FORMA COUNTY OF SAN DIEGO; SHERIFF 12 PAUPERIS [ECF No. 2]; MARTINAS; CHIEF MEDICAL

13 OFFICER MONTGOMERY; SONIA AND MANNING, FACILITY COMMANDER, 14 Defendants. (2) SUA SPONTE DISMISSING 15 COMPLAINT FOR FAILING TO 16 STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 17 18 19 Cesar Alvarado (“Plaintiff”), currently detained at the Vista Detention Facility 20 (“VDF”) in Vista, California, has filed a civil rights complaint pursuant to 42 U.S.C. 21 § 1983. See Compl., ECF No. 1. Plaintiff did not pay the filing fee required by 28 U.S.C. 22 § 1914(a) to commence a civil action when he filed his Complaint; instead, he has filed a 23 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF 24 No. 2. 25 I. Motion to Proceed IFP 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 5 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 6 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 7 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 8 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6- 11 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 12 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 13 statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits 14 in the account for the past six months, or (b) the average monthly balance in the account 15 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 16 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner 17 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 18 any month in which his account exceeds $10, and forwards those payments to the Court 19 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 20 Plaintiff has submitted a copy of his San Diego Sheriff’s Department account 21 activity statement. See ECF No. 2 at 4. Based on this statement, the Court finds that 22 Plaintiff has had an average monthly balance of $1.05 and an average monthly deposit of 23 $121.76 for the six months prior to filing this action. 24 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec., 2020). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. 28 1 The Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), and assesses 2 an initial partial filing fee of $24.08 pursuant to 28 U.S.C. Section 1915(b)(1)(A). The 3 Court directs the San Diego County Sheriff, or their designee, to collect this initial filing 4 fee only if sufficient funds are available in Plaintiff’s account at the time this Order is 5 executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 6 prohibited from bringing a civil action or appealing a civil action or criminal judgment for 7 the reason that the prisoner has no assets and no means by which to pay the initial partial 8 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 9 Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 10 based solely on a “failure to pay . . . due to the lack of funds available to him when payment 11 is ordered.”). The Court further directs the San Diego County Sheriff, or their designee, to 12 collect the remaining balance of the filing fees required by 28 U.S.C. Section 1914 and to 13 forward it to the Clerk of the Court pursuant to the installment payment provisions set forth 14 in 28 U.S.C. Section 1915(b)(1). 15 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2) 16 A. Standard of Review 17 Because he is proceeding IFP, Plaintiff’s Complaint is also subject to sua sponte 18 review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon 19 which relief may be granted, or seek[s] monetary relief from a defendant immune from 20 such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 21 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if 22 the court determines that—(A) the allegation of poverty is untrue; or (B) the action or 23 appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be 24 granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 25 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis 26 complaint that fails to state a claim.”); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 27 (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 28 prisoners.”). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 5 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain 8 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 9 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 10 B. Plaintiff’s Allegations 11 Plaintiff alleges that he has been requesting new prescription eyeglasses since 2020. 12 See Compl. at 3. He further alleges that he has been diagnosed with chronic diabetes 13 mellitus which requires him to receive annual eye exams. See id. In February of 2023, 14 Plaintiff was sent to an outside hospital to receive an optometrist examination for his 15 glaucoma. See id. at 4. Plaintiff informed the optometrist that he had been denied new 16 prescription eyeglasses and the jail officials have not provided his prescription eye drops. 17 See id. The optometrist told Plaintiff that she would “let [jail officials] know about the 18 drops [and] eyeglasses.” Id. Plaintiff first noticed “bumps” on his face in December of 19 2022. Id. at 5. Plaintiff requested to a medical examination because he was in pain. See 20 id. Plaintiff was taken to the medical department where they gave him a bandage and sent 21 him back to his cell. Id. 22 On January 30, 2023, Plaintiff was receiving a prescription shot and showed the 23 nurse that he was getting the bumps on his skin again. See id. Plaintiff was seen in the 24 medical department on February 6, 2023 and he was again given a bandage and sent back 25 to his cell. See id. Plaintiff was later sent back to the medical department for “wound care” 26 and he was seen by a nurse practitioner who conducted a procedure that gave Plaintiff 27 “immediate relief.” Id. at 5-6. 28 1 On December 21, 2022, Plaintiff was “scheduled a social visit (video)” but he was 2 “also scheduled a professional visit at the same time without [his] knowledge.” Id. at 7. 3 Plaintiff asked to have the video call with his mother and cancel the other visit. See id. 4 However, jail officials cancelled both visits and placed him in lockdown in his cell. See id. 5 Since 2020, Plaintiff asked to see a dentist when he had a tooth fall out. See id. at 6 10. Plaintiff was told “we are not doing dental.” Id. In 2021, Plaintiff was seen by 7 someone in the dental department in late 2021 or early 2022. See id. Plaintiff was told that 8 his two teeth could be pulled, or he would get fillings in those teeth. See id. Plaintiff chose 9 fillings and was give Ibuprofen for pain. See id. Plaintiff returned to dental after his fillings 10 fell out and was told that he had an infection which would require a root canal. See id. He 11 was also given antibiotics and pain medication. See id. 12 Plaintiff seeks $350,000 in compensatory damages and $500,000 in punitive 13 damages. See id. at 13. 14 C. 42 U.S.C. § 1983 15 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 16 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 17 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 18 two essential elements: (1) that a right secured by the Constitution or laws of the United 19 States was violated, and (2) that the alleged violation was committed by a person acting 20 under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 21 1030, 1035-36 (9th Cir. 2015). 22 D. Discussion 23 The principles underlying the Eighth Amendment’s prohibition on the infliction of 24 cruel and unusual punishment “establish the government’s obligation to provide medical 25 care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 26 (1976). However, “[i]t is obduracy and wantonness, not inadvertence or error in good faith, 27 that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, 28 whether that conduct occurs in connection with establishing conditions of confinement, 1 supplying medical needs, or restoring official control over a tumultuous cellblock.” 2 Whitley v. Albers, 475 U.S. 312, 319 (1986). “[A]n inadvertent failure to provide adequate 3 medical care,” allegations that “a physician has been negligent in diagnosing or treating a 4 medical condition,” or “medical malpractice” do not state an Eighth Amendment claim. 5 Estelle, 429 U.S. at 105-06 (“Medical malpractice does not become a constitutional 6 violation merely because the victim is a prisoner.”) 7 “[A] prison official violates the Eighth Amendment only when two requirements are 8 met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 9 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson, 501 U.S. at 298. “Although routine 10 discomfort inherent in the prison setting is inadequate to satisfy the objective prong of an 11 Eighth Amendment inquiry, ‘those deprivations denying “the minimal civilized measure 12 of life’s necessities” are sufficiently grave to form the basis of an Eighth Amendment 13 violation.’” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), quoting Wilson v. Seiter, 14 501 U.S. 294, 298 (1991) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 15 Second, “a prison official must have a ‘sufficiently culpable state of mind,’” that is, 16 “one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834, 17 quoting Wilson, 501 U.S. at 302-03. The deliberate indifference prong of an Eighth 18 Amendment violation “is satisfied by showing (a) a purposeful act or failure to respond to 19 a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett 20 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “[T]he prison official must not only ‘be 21 aware of the facts from which the inference could be drawn that a substantial risk of serious 22 harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d 23 1051, 1057 (9th Cir. 2004), quoting Farmer, 511 U.S. at 837. 24 Here it is not clear whether the Plaintiff’s Complaint details events that occurred 25 while he was a pre-trial detainee or if they occurred following a conviction. As a pre-trial 26 detainee, an objective test for deliberate indifference under the Due Process Clause of the 27 Fourteenth Amendment is applied rather than a subjective test under the Cruel and Unusual 28 Punishments Clause of the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 1 n.16 (1979) (noting that the Due Process Clause of the Fourteenth Amendment is 2 applicable to claims of pre-trial detainees rather than the Eighth Amendment because 3 “Eighth Amendment scrutiny is appropriate only after the State has complied with the 4 constitutional guarantees traditionally associated with criminal prosecutions.”) Under the 5 objective reasonableness standard, Plaintiff must “prove more than negligence but less than 6 subjective intent - something akin to reckless disregard.” Gordon v. County of Orange, 7 888 F.3d 1118, 1125 (9th Cir. 2018). To state a 42 U.S.C. § 1983 claim for inadequate 8 medical care or unconstitutional conditions of confinement, a pre-trial detainee must 9 plausibly allege that: “(i) the defendant made an intentional decision with respect to the 10 conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at 11 substantial risk of suffering serious harm; (iii) the defendant did not take reasonable 12 available measures to abate that risk, even though a reasonable official in the circumstances 13 would have appreciated the high degree of risk involved - making the consequences of the 14 defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused 15 plaintiff’s injuries.” Id. 16 1. County of San Diego 17 In order to state a claim against Defendant County of San Diego, Plaintiff must allege 18 that: (1) he was deprived of a constitutional right, (2) the County has a policy, custom or 19 practice which amounted to deliberate indifference to that constitutional right; and (3) the 20 policy, custom or practice was the moving force behind the constitutional violation. 21 Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011), citing Monell v. 22 Department of Social Services, 436 U.S. 658, 694 (1978) (“We conclude, therefore, that a 23 local government may not be sued under § 1983 for an injury inflicted solely by its 24 employees or agents. Instead, it is when execution of a government’s policy or custom, 25 whether made by its lawmakers or by those whose edicts or acts may fairly be said to 26 represent official policy, inflicts the injury that the government as an entity is responsible 27 under § 1983.”) Municipal liability may be shown when an employee who committed the 28 constitutional violation was “acting pursuant to an expressly adopted official policy, 1 longstanding practice or custom, or as a final policymaker.” Thomas v. County of 2 Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014), citing Monell, 436 U.S. at 694. Municipal 3 liability arising from an alleged failure to train jail staff requires allegations “that ‘the need 4 for more or different training is so obvious, and the inadequacy so likely to result in the 5 violation of constitutional rights, that the policymakers of the city can reasonably be said 6 to have been deliberately indifferent to the need.’” Rodriguez v. City of Los Angeles, 891 7 F.3d 776, 802 (9th Cir. 2018), quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989). 8 Plaintiff’s allegation that inadequate medical care for his vision problems or the 9 delay in response to his request for dental treatment, by themselves, fails to state a 10 municipal liability claim because “proof of a single incident of unconstitutional activity,” 11 or even a series of “isolated or sporadic incidents” will not give rise to § 1983 municipal 12 liability. Grant v. County of Los Angeles, 772 F.3d 608, 618 (9th Cir. 1996); Monell, 436 13 U.S. at 691 (for an unwritten policy or custom to form the basis of a claim, it must be so 14 “persistent and widespread” that it constitutes a “permanent and well settled” practice). 15 Rather, liability based on custom, practice or policy “must be founded upon practices of 16 sufficient duration, frequency and consistency that the conduct has become a traditional 17 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Facts 18 regarding the specific nature of the policy, custom or practice are required, as merely 19 stating the subject to which the policy relates, such as medical care, is insufficient. See 20 Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (a complaint with 21 conclusory allegation of a municipal policy fails to state a claim where it does not “put 22 forth additional facts regarding the specific nature of this alleged policy, custom or 23 practice.”) 24 If Plaintiff wishes to proceed with a claim against the County of San Diego, he must 25 set forth factual allegations which identify a San Diego County custom, policy or practice 26 and plausibly allege a “direct causal link between a municipal policy or custom and the 27 alleged constitutional deprivation.” Collins v. County of Harker Heights, 503 U.S. 115, 28 123 (1992); Connick v. Thompson, 563 U.S. 51, 60 (2011) (in order to impose liability on 1 a local government under § 1983 a plaintiff must plead and prove that an “action pursuant 2 to official municipal policy” caused their injury.) Otherwise, he must allege a failure to 3 train or that an “individual who committed the constitutional tort was an official with final 4 policy-making authority or such an official ratified a subordinate’s unconstitutional 5 decision or action and the basis for it.” Rodriguez, 891 F.3d at 802-03. 6 Accordingly, Plaintiff’s claims against the County of San Diego are DISMISSED 7 for failing to state a claim upon which relief may be granted. 8 2. Individual Defendants 9 Plaintiff names as the remaining Defendants the Sheriff of San Diego County, the 10 Chief Medical Director, and the Facility Commander. Plaintiff does not allege any specific 11 factual allegations as to any of these named Defendants. In order to state a claim under 42 12 U.S.C. § 1983 against these Defendants, Plaintiff must allege facts sufficient to show that 13 each Defendant individually participated in causing a constitutional violation. “[A] 14 plaintiff must plead that each Government official defendant, through the official’s own 15 individual actions, has violated the constitution.” Iqbal, 556 U.S. at 676-77 (rejecting 16 argument that “a supervisor’s mere knowledge of his subordinate’s [unconstitutional 17 actions] amounts to the supervisor’s violating the Constitution.”) “A supervisory official 18 may be held liable under § 1983 only if ‘there exists either (1) his or her personal 19 involvement in the constitutional violation, or (2) a sufficient causal connection between 20 the supervisor’s wrongful conduct and the constitutional violation.’” Keates v. Koile, 883 21 F.3d 1228, 1242-43 (9th Cir. 2018), quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 22 2011). “In a section 1983 claim, a supervisor is liable for the acts of his subordinates if the 23 supervisor participated in or directed the violations, or knew of the violations of 24 subordinates and failed to act to prevent them.” Corales v. Bennett, 567 F.3d 554, 570 (9th 25 Cir. 2009) (internal quote marks omitted). 26 Plaintiff must set forth factual allegations identifying individual acts or omissions 27 by each person related to his medical treatment or conditions of confinement which resulted 28 in a constitutional violation. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The 1 inquiry into causation must be individualized and focus on the duties and responsibilities 2 of each individual defendant whose acts or omissions are alleged to have caused a 3 constitutional deprivation.”); Gordon, 888 F.3d at 1125 (in order to state a § 1983 claim 4 for inadequate medical care or unconstitutional conditions of confinement a pre-trial 5 detainee must plausibly allege that: “(i) the defendant made an intentional decision with 6 respect to the conditions under which the plaintiff was confined; (ii) those conditions put 7 the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take 8 reasonable available measures to abate that risk, even though a reasonable official in the 9 circumstances would have appreciated the high degree of risk involved - making the 10 consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, 11 the defendant caused plaintiff’s injuries.”) Plaintiff does not identify any individual 12 Defendant who knew of and deliberately ignored his need for treatment. Although Plaintiff 13 states he submitted requests for treatment regarding the delay as to his vision and dental 14 care, there are no factual allegations regarding who those requests were directed to or any 15 other facts which plausibly allege any individual Defendant was aware of his need for 16 treatment. In addition, allegations of differences of opinion over proper medical care, 17 inadequate medical treatment, medical malpractice, or even gross negligence by 18 themselves do not rise to the level of an Eighth or Fourteenth Amendment violation. See 19 Farmer, 511 U.S. at 835 (“[N]egligen(ce) in diagnosing or treating a medical condition” 20 does not amount to deliberate indifference), quoting Estelle, 429 U.S. at 105-06 (holding 21 that “an inadvertent failure to provide medical care,” allegations that “a physician has been 22 negligent in diagnosing or treating a medical condition,” or “medical malpractice” do not 23 state an Eighth Amendment claim as “[m]edical malpractice does not become a 24 constitutional violation merely because the victim is a prisoner.”); Toguchi, 391 F.3d at 25 1058 (a disagreement over the necessity or extent of medical treatment does not show 26 deliberate indifference); Gordon, 888 F.3d at 1124-25 (a pre-trial detainee must show more 27 than lack of due care or negligence). 28 1 If Plaintiff wishes to proceed with his claims against any individual Defendant, he 2 must provide facts which plausibly allege they “made an intentional decision with respect 3 to the conditions under which” he was confined, which placed him “at substantial risk of 4 suffering serious harm,” and caused his injuries by failing to “take reasonable available 5 measures to abate that risk, even though a reasonable official in the circumstances would 6 have appreciated the high degree of risk involved.” Gordon, 888 F.3d at 1125. 7 Accordingly, the Court sua sponte dismisses the Complaint for failure to state a 8 claim pursuant to 28 U.S.C. § 1915(e)(2). 9 E. Leave to Amend 10 In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading 11 to attempt to sufficiently allege a § 1983 claim if he can and if he wishes to attempt to do 12 so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should 13 not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)] 14 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 15 amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 16 III. Conclusion and Order 17 For the reasons explained, the Court: 18 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 19 (ECF No. 2). 20 2. DIRECTS the Watch Commander VDF, or their designee, to collect from 21 Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing monthly 22 payments in an amount equal to twenty percent (20%) of the preceding month’s income 23 and forwarding those payments to the Clerk of the Court each time the amount in the 24 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 25 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 26 ACTION. 27 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 28 Commander, Vista Detention Facility, 325 South Melrose Drive, Vista, California 92081. 1 4. DISMISSES Plaintiff's Complaint for failing to state a claim upon which 2 || relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and GRANTS 3 ||him thirty (30) days leave from the date of this Order in which to file an Amended 4 ||Complaint which cures all the deficiencies of pleading noted. Plaintiff's Amended 5 ||Complaint must be complete by itself without reference to his original pleading. 6 ||Defendants not named and any claim not re-alleged in his Amended Complaint will be 7 ||considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 8 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 9 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 10 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 11 ||‘“considered waived if not repled.”). 12 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights 13 |}complaint form for his use in amending. 14 IT IS SO ORDERED. 15 ||Dated: March 28, 2023 > 16 a Yn: 7 Hon. Dana M. Sabraw, Chief Judge United States District Court 18 19 20 21 22 23 24 25 26 27 28 12