Cavalier v. Aranda

• Court: District Court, S.D. California
• Decided: October 2, 2024
• Docket: 3:24-cv-01275
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT THOMAS CAVALIER, Case No.: 24cv1275-AJB (JLB) CDCR #E-98747, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS; WARDENS POLLARD, BUCKLE and 15 AND STEADMAN; CORRECTIONAL

16 OFFICERS ARANDA, SCHARR, (2) DISMISSING COMPLAINT VADIVINOS, STONE, PULIDO and 17 PURSUANT TO 28 U.S.C. QUINONEZ, §§ 1915(e)(2) & 1915A(b) 18 Defendants. 19 20 On June 24, 2024, Plaintiff Robert Thomas Cavalier, a state inmate incarcerated at 21 the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, proceeding 22 pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 in the District Court for 23 the Northern District of California, along with a motion to proceed in forma pauperis 24 (“IFP”). (ECF Nos. 1-2.) The case was then transferred to this Court. (ECF No. 6.) 25 Plaintiff claims the Defendants, three RJD Wardens and six RJD Correctional Officers, 26 retaliated against him for filing inmate grievances and appeals in violation of the First, 27 Eighth and Fourteenth Amendments by taking his property, issuing false and misleading 28 disciplinary charges, and paying another inmate to assault him. (ECF No. 1 at 1-14.) 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 5 although the administrative fee does not apply to persons granted leave to proceed IFP. 6 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 7 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner 10 seeking leave to proceed IFP must submit a “certified copy of the trust fund account 11 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 12 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 13 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an 14 initial payment of 20% of (a) the average monthly deposits in the account for the past six 15 months, or (b) the average monthly balance in the account for the past six months, 16 whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C. 17 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP 18 must pay any remaining balance in “increments” or “installments,” regardless of whether 19 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84. 20 In support of his IFP motion, Plaintiff has submitted a copy of his California 21 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and 22 Prison Certificate attested to by a CDCR trust account official. (ECF No. 5 at 1.) The 23 document shows he had an average monthly balance of $7.85 and average monthly deposits 24 of $8.80, with an available balance of $1.95. Id. Plaintiff’s Motion to Proceed IFP is 25 GRANTED and the Court assesses an initial partial filing fee of $1.76. Plaintiff remains 26 obligated to pay the remaining $348.24 in monthly installments irrespective of whether this 27 action is dismissed. Bruce, 577 U.S. at 84; 28 U.S.C. § 1915(b)(1)&(2). 28 / / / 1 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-Answer 4 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte 5 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 6 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203 7 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); Rhodes v. 8 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 9 “The standard for determining whether a plaintiff has failed to state a claim upon 10 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 11 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 12 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 13 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 14 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 15 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 16 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 17 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether 18 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 19 the reviewing court to draw on its judicial experience and common sense.” Id. 20 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 21 acting under color of state law, violate federal constitutional or statutory rights.” 22 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 23 source of substantive rights, but merely provides a method for vindicating federal rights 24 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quote 25 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 26 of a right secured by the Constitution and laws of the United States, and (2) that the 27 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 28 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 1 B. Allegations in the Complaint 2 Plaintiff alleges that around February 23, 2021, he “started noticing Officers 3 inexplicably harassing and vexing him after having witnessed excessive use of force and 4 ghost writing a complaint for the inmate.” (ECF No. 1 at 7.) Defendant Correctional 5 Officer Pulido “was the first to target” Plaintiff by issuing a false and misleading Rules 6 Violation Report (“RVR”). (Id.) Plaintiff filed several inmate grievances against Pulido 7 for filing the RVR. (Id.) The RVR was dismissed in the interests of justice when video 8 evidence showed Pulito approach Plaintiff’s cell and wake him up by banging a clipboard 9 on the cell door which started a verbal argument. (Id. at 7-8, 11-12.) Although the video 10 showed that Pulido lied in the RVR, he was never disciplined. (Id. at 8.) 11 On March 28, 2021, Plaintiff was moved from Facility A, a level III yard, to Facility 12 C, a level IV yard, in violation of CDCR regulations. (Id. at 8, 12.) He was told by the 13 Classification Committee he should not be housed on Facility C and they could not explain 14 who moved him or why, and he was moved back to Facility A after about three weeks. (Id. 15 at 8.) He filed an inmate grievance complaining of staff misconduct. (Id.) 16 On September 9, 2021, “after months of walking on eggshells” in fear of false and 17 misleading RVRs, Defendant Correctional Officer Quinonez demanded Plaintiff wear his 18 mask outside. (Id.) Plaintiff refused under CDCR health regulations as the temperature 19 was over 90 degrees and he has asthma. (Id. at 8, 12-13.) Quinonez used profanity and 20 threatened to issue a false and misleading RVR, which she did, and Plaintiff responded 21 with several inmate grievances. (Id. at 8.) Defendant Correctional Officer Scharr found 22 him guilty on that RVR based on redacted video evidence which did not show Quinonez’ 23 use of profanity or her threat to file a false RVR. (Id.) The guilty finding was reversed but 24 Scharr’s misconduct was never addressed, allowing Scharr “to act with impunity” by 25 Defendant Warden Steadman. (Id.) Headquarters determined Plaintiff did not need to 26 wear a mask because the incident occurred outdoors, but Warden Steadman circumvented 27 that finding by ordering the RVR reissued and reheard rather than vacated. (Id.) 28 / / / 1 On December 2, 2021, Defendant Correctional Office Aranda refused to sign and 2 process Plaintiff’s outgoing legal mail. (Id.) Plaintiff filed an inmate grievance accusing 3 Aranda of misconduct, and in response Defendants Correctional Officers Stone and 4 Vadivinos filed two separate RVRs charging Plaintiff with making false allegations of staff 5 misconduct. (Id. at 8, 13.) Plaintiff was found guilty at the adjudication of the RVR log 6 written by Vadivinos after an unfair hearing and filed inmate grievances alleging staff 7 misconduct and conspiracy to obstruct justice. (Id. at 8, 13-14.) He alleges Defendants 8 Wardens Steadman, Buckle and Pollard had substantial documentary evidence of a 9 miscarriage of justice in their audit of that RVR. (Id. at 8.) The RVR written by Stone was 10 dismissed after repeated requests for video evidence were denied. (Id. at 9.) 11 Plaintiff alleges that by April 7, 2022, the four RVRs were used to strip him of his 12 level III custody status and caused his placement on “C-status,” “thereby stripping him of 13 all personal property forcing him to send hundreds of dollars of appliances home at 14 expense.” (Id.) He was placed on a level IV yard where Stone orchestrated a May 20, 15 2022, assault and the theft of his property, about which Plaintiff filed several inmate 16 grievances. (Id.) Plaintiff alleges Stone gave Plaintiff’s radio, watch, shoes and shorts to 17 the inmate who assaulted him as payment for the assault, which resulted in traumatic brain 18 injury and loss of mobility. (Id.) Plaintiff alleges the RVRs and custody level changes will 19 have a negative impact on his parole eligibility, and claims violations of the First, Eighth 20 and Fourteenth Amendments. (Id. at 5, 9.) 21 C. Discussion 22 a) Fourteenth Amendment Due Process Claim 23 Plaintiff claims he was denied due process under the Fourteenth Amendment in 24 connection to: (1) his transfer to a higher level custody yard at RJD, (2) the taking of his 25 personal property, (3) the impact on parole eligibility, and (4) the four RVRs: (a) one by 26 Pulito which was dismissed, (b) one by Stone which was dismissed, (c) one by Quinonez 27 which was reissued and reheard rather than vacated in circumvention of a Headquarters 28 determination that Plaintiff was not guilty, and (d) one by Vadivinos in which Wardens 1 Steadman, Buckle and Pollard had substantial documentary evidence of a miscarriage of 2 justice. Although Plaintiff attaches approximately 133 pages of documents to the 3 Complaint including the RVRs, their appeals and his inmate grievances, Plaintiff may not 4 rely on these documents as a substitute for factual allegations necessary to support his 5 claims, which are required to be included in the Complaint. See Arnold v. Hearst Magazine 6 Media, Inc., No. 19cv1969-JAH (MDD), 2020 WL 3469367, at *8 (S.D. Cal. June 24, 7 2020) (“Exhibits attached to a complaint are not a substitute for factual allegations.”) 8 The Due Process Clause of the Fourteenth Amendment prohibits states from 9 “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. 10 Const. amend. XIV, § 1. Liberty interests protected by the Due Process Clause “will be 11 generally limited to freedom from restraint which, while not exceeding the sentence in such 12 an unexpected manner as to give rise to protection by the Due Process Clause of its own 13 force, nonetheless imposes atypical and significant hardship on the inmate in relation to 14 the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). 15 With respect to the RVRs, a prisoner is entitled to due process protections during a 16 disciplinary hearing where protected liberty interests are at stake. Serrano v. Francis, 345 17 F.3d 1071, 1077 (9th Cir. 2003). To show that a disciplinary proceeding implicates a 18 liberty interest protected by the Due Process Clause, a prisoner must show that his sentence 19 was exceeded in “an unexpected manner” or resulted in “atypical and significant hardship 20 on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. 21 If no such liberty interest is implicated, a prisoner is granted minimum due process, which 22 requires only that the outcome be “supported by some evidence in the record.” 23 Superintendent v. Hill, 472 U.S. 445, 454-55 (1985). If a protected liberty interest arises, 24 due process requires written notice of the charges and evidence relied on and the reasons 25 for the action taken, an opportunity “to call witnesses and present documentary evidence 26 in defense when” doing so “will not be unduly hazardous to institutional safety or 27 correctional goals,” assistance at the hearing if necessary, and an impartial factfinder. 28 Wolff v. McDonnell, 418 U.S. 539, 564-71 (1974). 1 Plaintiff’s allegations regarding the filing of false disciplinary charges does not state 2 a due process claim because “a prisoner does not have a constitutional right to be free from 3 wrongfully issued disciplinary reports.” Buckley v. Gomez, 36 F.Supp.2d 1216, 1222 (S.D. 4 Cal. 1997), aff’d, 168 F.3d 498 (9th Cir. 1999); see also e.g. Gadsden v. Gehris, No. 5 20cv0470-WQH (DEB), 2020 WL 5748094, at *8 (S.D. Cal. Sep. 25, 2020) (“The 6 allegations of the filing of false disciplinary charges by itself does not state a claim under 7 42 U.S.C. § 1983 because federal due process protections are contained in the ensuing 8 disciplinary proceedings themselves.”) Although Plaintiff challenges the evidence used at 9 his disciplinary hearings, he has not plausibly alleged they were not “supported by some 10 evidence in the record” sufficient to satisfy due process. Hill, 472 U.S. at 454-55. 11 Even if a liberty interest arose, Plaintiff has not alleged due process violations from 12 the two dismissed RVRs and the reissued and reheard RVR. See Frank v. Schultz, 808 13 F.3d 762, 764 (9th Cir. 2015) (no deprivation of due process rights where procedural error 14 was corrected through the administrative appeal process); see also Torricellas v. Poole, 15 954 F. Supp. 1405, 1414 (C.D. Cal. 1997) (“Where a procedural error has been corrected 16 in the administrative process, as it was here, there has been no compensable due process 17 violation. The administrative appeal is considered part of the process afforded, and any 18 error in the process can be corrected during that appeals process without necessarily 19 subjecting prison officials to liability for procedural violations at lower levels.”), affirmed, 20 141 F.3d 1179 (9th Cir. 1998). There are no allegations that any procedural protections 21 were denied at the hearing on the fourth RVR. See Wolff, 418 U.S. at 564-71. 22 Plaintiff has not stated a claim based on the allegations that his personal property 23 was stolen and that he was required to send appliances home at his own expense. When a 24 state provides an adequate post-deprivation remedy for the taking of a prisoner’s property, 25 through a state tort action for example, the existence of that remedy satisfies the 26 requirements of federal due process. Zinermon v. Burch, 494 U.S. 113, 128 (1990). The 27 Ninth Circuit has recognized that California law provides such a remedy. See Barrett v. 28 Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994), citing Cal. Gov’t Code §§ 810-895. 1 Plaintiff has not stated a due process claim based on his transfer within RJD from a 2 lower to a higher custody level because inmates do not have a due process right to a 3 particular classification or custody level. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) 4 (“[A] prisoner has no constitutional right to a particular classification status.”); Myron v. 5 Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (concluding California prisoner does not have 6 liberty interest in residing at a level III prison as opposed to level IV prison); Sandin, 515 7 U.S. at 480 (“The Due Process Clause standing alone confers no liberty interest in freedom 8 from state action taken within the sentence imposed.”) 9 Plaintiff has not stated a due process claim based on his concern that his future parole 10 consideration may be affected by the disciplinary actions and custody level increase. See 11 Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (“Whatever liberty interest [in parole that] 12 exists is, of course, a state interest created by California law.”) Due process requires a 13 parole applicant be given an opportunity to be heard and a statement of reasons for a denial 14 of parole, and “[t]he Constitution does not require more.” Greenholtz v. Inmates of Neb. 15 Penal and Correctional Complex, 442 U.S. 1, 16 (1979); see also Roberts v. Hartley, 640 16 F.3d 1042, 1046 (2011) (“there is no substantive due process right created by the California 17 parole scheme. If the state affords the procedural protections required by Greenholtz and 18 Cooke, that is the end of the matter for purposes of the Due Process Clause.”) 19 Plaintiff’s Fourteenth Amendment due process claim is dismissed sua sponte 20 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 21 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 22 b) First Amendment Retaliation Claim 23 Plaintiff claims Defendants filed the false RVRs in retaliation for his having filed 24 grievances and administrative appeals complaining of staff misconduct, including one he 25 filed on behalf of another inmate. “[A] viable claim of First Amendment retaliation entails 26 five basic elements: (1) An assertion that a state actor took some adverse action against an 27 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 28 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 1 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 2 Cir. 2005). The alleged adverse action need not be an independent constitutional violation. 3 Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert 4 an injury no more tangible than a chilling effect on First Amendment rights.”) Plaintiff 5 must allege a retaliatory motive, that is, a causal connection between the adverse action 6 and protected conduct. Watison, 668 F.3d at 1114. 7 Plaintiff has plausibly alleged an adverse action was taken against him for his 8 protected activity of filing inmate grievances by the filing of an allegedly false disciplinary 9 charge and that it created a chilling effect. Id. at 1114-15. However, he has not set forth 10 factual allegations which plausibly allege a retaliatory motive, that is, a causal connection 11 between the adverse action and his protected conduct. Id. at 1114. He alleges he “started 12 noticing Officers inexplicably harassing and vexing him after having witnessed excessive 13 use of force and ghost writing a complaint for the inmate.” (ECF No. 1 at 7.) The 14 Complaint is lacking any specific factual allegations regarding why Plaintiff contends any 15 Defendant took any action in response to his protected activity. Rather, Plaintiff appears 16 to assume they did because the events alleged in the Complaint began shortly after he filed 17 a complaint of excessive use of force on behalf of another inmate, and then continued while 18 he filed grievances and appeals after each RVR. Such allegations do not plausibly allege 19 a retaliatory motive. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (concluding 20 that, in the absence of factual allegations to the contrary, it would be “sheer speculation” 21 to assume that prison officials retaliated on the basis of an inmate’s First Amendment 22 activity, and although the timing of a defendant’s actions may “be considered as 23 circumstantial evidence of retaliatory intent,” timing alone is generally not enough to 24 support an inference of retaliatory intent); Iqbal, 556 U.S. at 678 (the “mere possibility of 25 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” do not 26 state a § 1983 claim for relief); McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per 27 curiam) (“The [First Amendment] right, however, is necessarily limited by the fact of 28 incarceration, and may be curtailed in order to achieve legitimate correctional goals or to 1 maintain prison security.”); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The 2 inquiry into causation must be individualized and focus on the duties and responsibilities 3 of each individual defendant whose acts or omissions are alleged to have caused a 4 constitutional deprivation.”) 5 Plaintiff’s First Amendment retaliation claim is dismissed sua sponte pursuant to 28 6 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112; 7 Wilhelm, 680 F.3d at 1121. 8 c) Eighth Amendment Claim 9 “[A] prison official violates the Eighth Amendment when two requirements are met. 10 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 11 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). 12 Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently 13 culpable state of mind,” that is, “one of ‘deliberate indifference’ to” his constitutional 14 rights. Id., quoting Wilson, 501 U.S. at 302-03. An objectively serious deprivation is a 15 denial of “the minimal civilized measures of life’s necessities.” Keenan v. Hall, 83 F.3d 16 1083, 1089 (9th Cir. 1996), quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981). 17 The allegations in the Complaint regarding the filing of false or misleading RVRs, 18 stolen and dispossessed personal property, transfers, and their negative effect on parole, 19 are insufficient to plausibly allege that any Defendant deprived Plaintiff of “the minimal 20 civilized measures of life’s necessities.” See Wilson, 501 U.S. at 298 (“[O]nly those 21 deprivations denying the minimal civilized measure of life’s necessities are sufficiently 22 grave to form the basis of an Eighth Amendment violation.”) (internal citation and quote 23 marks omitted); Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of 24 action, supported by mere conclusory statements, do not suffice” to state a § 1983 claim); 25 Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“[E]xtreme deprivations are required to make 26 out a conditions-of-confinement claim. Because routine discomfort is part of the penalty 27 that criminal offenders pay for their offenses against society, only those deprivations 28 denying the minimal civilized measure of life’s necessities are sufficiently grave to form 1 the basis of an Eighth Amendment violation.”) (internal quote marks and citation omitted); 2 see also Morrison v. Madden, No. 22cv0925-MWF (MAA), 2023 WL 9601240, *4 (C.D. 3 Cal. July 27, 2023) (“[T]he Supreme Court has never recognized an Eighth Amendment 4 claim in the parole denial context.”), citing Greenholtz, 442 U.S. at 7 and Swarthout, 562 5 U.S. at 220. 6 The Complaint also alleges that Defendant Stone gave Plaintiff’s radio, watch, shoes 7 and shorts to the inmate who assaulted him as payment for the assault, which resulted in 8 Plaintiff suffering traumatic brain injury and loss of mobility. (ECF No. 1 at 9.) The failure 9 of prison officials to protect inmates from attacks by other inmates violates the Eighth 10 Amendment when: (1) the deprivation alleged is “objectively, sufficiently serious” and 11 (2) the prison officials had a “sufficiently culpable state of mind,” acting with deliberate 12 indifference. Farmer, 511 U.S. at 834 (internal quotations omitted). Although the 13 allegation Stone paid an inmate to assault Plaintiff, if true, would state an Eighth 14 Amendment claim, Plaintiff is not permitted to rely on entirely conclusory allegations such 15 as set forth with respect to this claim. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 16 elements of a cause of action, supported by mere conclusory statements, do not suffice” to 17 state a § 1983 claim). If Plaintiff wishes to pursue this claim, he must set forth factual 18 allegations which plausibly support his claim that Stone paid an inmate to assault him. 19 Plaintiff’s Eighth Amendment claim is dismissed sua sponte pursuant to 28 U.S.C. 20 §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 21 680 F.3d at 1121. 22 D. Leave to Amend 23 In light of his pro se status, the Court grants Plaintiff leave to amend his Complaint 24 in order to attempt to address the pleading deficiencies identified in this Order. See Rosati 25 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 26 se complaint without leave to amend unless it is absolutely clear that the deficiencies of 27 the complaint could not be cured by amendment.”) (internal quote marks omitted). 28 / / / 1 III. Conclusion and Orders 2 Accordingly, good cause appearing, the Court: 3 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 4 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 5 Plaintiff’s prison trust account the $1.76 initial filing fee as well as the remaining $348.24 6 balance of the $350 filing fee owed in this case by collecting monthly payments from the 7 account in an amount equal to twenty percent (20%) of the preceding month’s income and 8 forward payments to the Clerk of the Court each time the amount in the account exceeds 9 $10 in accordance with 28 U.S.C. § 1915(b)(2). 10 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 11 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 12 P.O. Box 942883, Sacramento, California, 94283-0001. 13 4) DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 14 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and 15 GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file 16 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 17 Amended Complaint must be complete by itself without reference to his original pleading. 18 Defendants not named and any claim not re-alleged in his Amended Complaint will be 19 considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 20 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 21 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 22 re-alleged in an amended pleading may be “considered waived if not repled.”) 23 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 24 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 25 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 26 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring 27 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 28 / / / | take advantage of the opportunity to fix his complaint, a district court may convert the 2 || dismissal of the complaint into dismissal of the entire action.’’) 3 IT IS SO ORDERED. 4 || Dated: October 2, 2024

6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13