Curtis Clifford Ingram v. C. Rachal

Opinion

1 2

4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 CURTIS CLIFFORD INGRAM, Case No. CV 19-5605-DOC (KK) 11 Plaintiff, 12 v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

14 Defendant(s).

15 16 17 I. 19 Plaintiff Curtis Clifford Ingram (“Plaintiff”), proceeding pro se and in forma 20 pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”) alleging 21 violations of Plaintiff’s First and Eighth Amendment rights. For the reasons 22 discussed below, the Court dismisses the Complaint with leave to amend. 23 II. 25 On June 24, 2019, Plaintiff, an inmate at Ironwood State Prison, constructively 26 filed1 a Complaint against Correctional Officers C. Rachal and M. Sauceda 27 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading 28 to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); 1 (“Defendants”) in their individual and official capacities. ECF Docket No. (“Dkt.”) 2 1. Plaintiff alleges three instances of retaliation by defendant Rachal and one by 3 defendant Sauceda. In addition, Plaintiff alleges defendant Rachal was deliberately 4 indifferent to an “unsafe/unsanitary living condition.” Specifically, Plaintiff alleges as 5 follows: 6 On November 16, 2018, defendant Rachal issued Plaintiff a false rules violation 7 report (“RVR”) in retaliation for Plaintiff assisting another inmate with a legal matter. 8 Id. at 6-7. 9 On December 1, 2018, defendant Sauceda issued a false RVR at defendant 10 Rachal’s direction in retaliation for Plaintiff assisting the other inmate with a legal 11 matter. Id. at 7-8. 12 On December 7, 2018, Plaintiff woke up at 5:00 a.m. to find his cell 13 “completely flooded with foul smelling, ‘murky’, waste water, approx. a ¼ inch to a ½ 14 inch deep, and permeating the entire floor.” Id. at 9. Defendant Rachal became 15 aware of the issue at approximately 6:00 a.m., “but did nothing to provide remedy.” 16 Id. At approximately 6:30 a.m., at “chow ‘breakfast’ release”, Plaintiff requested 17 assistance from defendant Rachal, but was “denied due to chow time.” Id. At 18 approximately 7:00 a.m., “upon return from chow, Plaintiff again requested remedy, 19 only to be denied under guise that [defendant] Rachal was sole staff on the floor.” Id. 20 At approximately 8:15 a.m., Plaintiff again requested a remedy and defendant Rachal 21 told him to either “‘lock it up’ or go outside, of which Plaintiff chose to go to the law 22 library.” Id. At approximately 10:00 a.m., Plaintiff returned to the housing unit and a 23 different correctional officer permitted Plaintiff to clean up the waste water. Id. 24 Plaintiff then told defendant Rachal that in addition to submitting a grievance 25 regarding defendant Rachal’s deliberate indifference to the unsanitary conditions, 26 Plaintiff “would be documenting any and every violation Plaintiff observed 27 Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule 28 applies to § 1983 suits filed by pro se prisoners”). 2 1 afterwards.” Id. at 10. Plaintiff alleges defendant Rachal “knew, or reasonably should 2 have known that his inaction unreasonably subjected Plaintiff to the risk of injury 3 from: (a) slip and fall, in that waste water could potentially cause Plaintiff to slip and 4 fall; and (b) electric shock and/or electrocution, in that if Plaintiff slipped and fell, he 5 could also potentially knock down his electrical appliances . . . into the water thereby 6 causing injury and/or death.” Id. Plaintiff also alleges defendant Rachal’s deliberate 7 indifference to the waste water in his cell was in retaliation for Plaintiff helping the 8 other inmate with a legal matter. Id. 9 Finally, on December 23, 2018, defendant Rachal issued a RVR for misuse of 10 the phone in retaliation for Plaintiff putting defendant Rachal “on notice that he 11 would document unconstitutional violations.” Id. at 10-11. Plaintiff admits he was 12 using the phone “not on his assigned time.” Id. at 11. Defendant Rachal did not say 13 anything to Plaintiff, but Plaintiff received a RVR from defendant Rachal stating 14 Plaintiff had misused the phone. Id. Therefore, Plaintiff alleges the RVR was “false” 15 and issued solely in retaliation for “putting C/o Rachal on notice.” Id. 16 Plaintiff seeks nominal, compensatory and punitive damages as well as an 17 injunction “to remove [the] RVR’s and Counseling Chrono from Plaintiff’s Central 18 File . . . to ensure that Plaintiff receives adequate protection from retaliation.” Id. at 19 13. 22 Where a plaintiff is a prisoner or proceeding in forma pauperis, a court must 23 screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to dismiss 24 the case at any time if it concludes the action is frivolous or malicious, fails to state a 25 claim on which relief may be granted, or seeks monetary relief against a defendant 26 who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see Barren v. 27 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 28 3 1 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 2 “short and plain statement of the claim showing that the pleader is entitled to relief.” 3 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for 4 screening purposes, a court applies the same pleading standard as it would when 5 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 6 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 7 A complaint may be dismissed for failure to state a claim “where there is no 8 cognizable legal theory or an absence of sufficient facts alleged to support a 9 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 10 considering whether a complaint states a claim, a court must accept as true all of the 11 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 12 2011). However, the court need not accept as true “allegations that are merely 13 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 14 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 15 need not include detailed factual allegations, it “must contain sufficient factual matter, 16 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 17 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 18 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it 19 “allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. The complaint “must contain sufficient allegations of 21 underlying facts to give fair notice and to enable the opposing party to defend itself 22 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 23 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 24 however inartfully pleaded, must be held to less stringent standards than formal 25 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). 26 However, liberal construction should only be afforded to “a plaintiff’s factual 27 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 28 339 (1989), and a court need not accept as true “unreasonable inferences or assume 4 1 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 2 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 3 If a court finds the complaint should be dismissed for failure to state a claim, 4 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 5 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it 6 appears possible the defects in the complaint could be corrected, especially if the 7 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 8 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 9 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 10 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 11 IV. 13 A. THE ELEVENTH AMENDMENT BARS ALL SECTION 1983 16 1. Applicable Law 17 “The Eleventh Amendment prohibits federal courts from hearing suits brought 18 against an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 19 F.2d 1050, 1053 (9th Cir. 1991) (citing Pennhurst State School & Hosp. v. Halderman, 20 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984)). This jurisdictional bar 21 includes “suits naming state agencies and departments as defendants,” and it applies 22 whether a plaintiff “seek[s] damages or injunctive relief.” Id.; Pennhurst State School, 23 465 U.S. at 102. As to state officials sued in their official capacity, the Eleventh 24 Amendment immunizes state officials sued in their official capacity from claims for 25 retrospective relief (including monetary damage claims) but does not immunize them 26 from claims for prospective relief (such as forward-looking injunctive relief). 27 Kentucky v. Graham, 473 U.S. 159, 169-70, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); 28 5 1 Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ex Parte 2 Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 2d 714 (1908). 3 2. Analysis 4 Here, Plaintiff’s claims against Defendants in their official capacity for 5 monetary damages are barred by the Eleventh Amendment. See Graham, 473 U.S. at 6 169-70 (holding the Eleventh Amendment bar “remains in effect when State officials 7 are sued for damages in their official capacity”). Thus, Plaintiff’s claims against 8 Defendants in their official capacity for monetary damages are subject to dismissal. 10 1. Applicable Law 11 Federal courts are courts of limited jurisdiction and “a court’s equitable power 12 lies only over the merits of the case or controversy before it.” Pacific Radiation 13 Oncology, LLC v. Queen’s Medical Center, 810 F.3d 631, 633 (9th Cir. 2015); City of 14 Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Thus, “[a] federal court may issue an 15 injunction [only] if it has personal jurisdiction over the parties and subject matter 16 jurisdiction over the claim; it may not attempt to determine the rights of persons not 17 before the court.” Zepeda v. United States Immigration Serv., 753 F.2d 719, 727 (9th 18 Cir. 1985). The pendency of an action related to conduct by specific prison officials 19 however, does in itself not give a court jurisdiction over prison officials in general. 20 Id.; see also Summers v. Earth Island Inst., 555 U.S. 488, 491-93, 129 S. Ct. 1142, 173 21 L. Ed. 2d 1 (2009). 22 2. Analysis 23 Plaintiff seeks an injunction “to remove [the] RVR’s and Counseling Chrono 24 from Plaintiff’s Central File . . . to ensure that Plaintiff receives adequate protection 25 from retaliation.” Dkt. 1 at 13. Plaintiff, however, does not allege Defendants have 26 authority to expunge Plaintiff’s RVR’s and Counseling Chrono from his Central File. 27 Even though Defendants are sued in their official capacities, “the pendency of the 28 present action does not automatically give the Court jurisdiction over all prison 6 1 officials in general or over the expungement of rule violations from prisoner files at a 2 given institution.” Aubert v. Madruga, No. 1:13-CV-01659-AWI-EPG (PC), 2016 3 WL 2866419, at *7-8 (E.D. Cal. May 17, 2016), report and recommendation adopted, 4 2016 WL 4494478 (E.D. Cal. Aug. 25, 2016) (denying injunctive relief because the 5 court lacks jurisdiction to compel non-party prison officials to expunge rule violations 6 from plaintiff’s central file solely based on the pendency of a lawsuit against defendant 7 prison officials in their official capacity where defendants lack authority to expunge 8 plaintiff’s rule violations). The Court, therefore, lacks jurisdiction to compel non- 9 party prison officials to remove the RVR’s and Counseling Chrono from Plaintiff’s 10 Central File. Hence, Plaintiff’s request for injunctive relief must be dismissed. 13 1. Applicable Law 14 Allegations of retaliation against a prisoner’s First Amendment rights to speech 15 or to petition the government may support a Section 1983 claim. See Pratt v. 16 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Within the prison context, a viable claim 17 of First Amendment retaliation entails five basic elements: (1) the prisoner engaged in 18 protected conduct; (2) an assertion that a state actor took some adverse action against 19 an inmate; (3) the adverse action was “because of” the prisoner’s protected conduct; 20 (4) the adverse action chilled the inmate’s exercise of his First Amendment rights; and 21 (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. 22 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). “Because direct evidence of 23 retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of 24 events from which retaliation can be inferred is sufficient to survive dismissal.” 25 Watison, 668 F.3d at 1114; Pratt, 65 F.3d at 808 (“[T]iming can properly be 26 considered as circumstantial evidence of retaliatory intent”). 27 /// 28 /// 7 1 2. Analysis 2 Plaintiff alleges the incidents of retaliation on November 16, 2018 and 3 December 7, 2018 by defendant Rachal, and December 1, 2018 by defendant Sauceda 4 were “because of” Plaintiff exercising his right to assist another inmate with a legal 5 matter. However, inmates do not have a “special First Amendment right to provide 6 legal assistance to fellow inmates.” Shaw v. Murphy, 532 U.S. 223, 121 S. Ct. 1475, 7 149 L. Ed. 2d 420 (2001); see also Blaisdell v. Frappiea, 729 F.3d 1237, 1244 (9th Cir. 8 2013) (noting “it is far from clear that ‘the right to provide legal advice follows from a 9 right to receive legal advice’”); Manago v. Gonzalez, No. 1:11-CV-01269-SMS (PC), 10 2012 WL 6628902, at *9 (E.D. Cal. Dec. 19, 2012) (finding plaintiff’s communications 11 assisting his fellow inmates with their legal activities are not protected activity). 12 Accordingly, Plaintiff has failed to show he engaged in protected First Amendment 13 activity and the alleged incidents of retaliation on November 16, 2018, December 7, 14 2018, and December 1, 2018 are subject to dismissal. 15 Plaintiff alleges the incident of retaliation on December 23, 2018 by defendant 16 Rachal was because on December 7, 2018 Plaintiff put defendant Rachal “on notice” 17 that Plaintiff would be “documenting” any future constitutional violations. Dkt. 1. at 18 10-11. Plaintiff’s conclusory allegation of defendant Rachal’s allegedly retaliatory 19 motivation, however, is insufficient. See Iqbal, 556 U.S. at 678. While conduct 20 protected by the First Amendment in the prison context has included filing of a 21 prison grievance, Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003), and access to the 22 courts, Lewis v. Casey, 518 U.S. 343, 346, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996), 23 Plaintiff does not allege defendant Rachal retaliated because Plaintiff filed, or 24 threatened to file, a grievance. See Pratt, 65 F.3d at 807 (a prisoner must demonstrate 25 a specific link between the alleged retaliation and the exercise of a constitutional 26 right). First, Plaintiff received a RVR for misusing the phone and concedes he was 27 using the phone “not on his assigned time.” Dkt. 1 at 11. Second, defendant Rachal 28 did not say anything to Plaintiff on December 23, 2018 that would indicate he issued 8 1 the RVR “because of” Plaintiff’s threat to document future unconstitutional actions. 2 Finally, Plaintiff alleges his filing of staff complaints appears to have stopped the alleged 3 retaliation – a concession that appears to directly contradict Plaintiff’s theory that staff 4 complaints would cause retaliation. Id. Therefore, it is not plausible that defendant 5 Rachal was retaliating based on Plaintiff’s threat to “document” defendant Rachal’s 6 allegedly unconstitutional future activities. Accordingly, the circumstantial timing of 7 the December 23, 2018 grievance is insufficient to show the RVR was issued because 8 of Plaintiff’s allegedly protected activity. 9 Hence, Plaintiff’s First Amendment retaliation claims are subject to dismissal. 12 1. Applicable Law 13 The Eighth Amendment protects prisoners from inhumane conditions of 14 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison 15 officials have a duty to ensure that prisoners are provided, among other things, 16 adequate shelter, sanitation, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 17 (9th Cir. 2000). Conditions of confinement may be restrictive and harsh; however, 18 they cannot involve the “wanton and unnecessary infliction of pain” or be devoid of a 19 legitimate penological purpose. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 20 2392, 69 L. Ed. 2d 59 (1981). 21 Where a prisoner alleges injuries stemming from unsafe conditions of 22 confinement, prison officials may be held liable only if they acted with “deliberate 23 indifference to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 24 1128 (9th Cir. 1998). The deliberate indifference standard involves an objective and a 25 subjective prong. First, the plaintiff must show that the alleged deprivation was 26 “sufficiently serious” to rise to the level of an Eighth Amendment violation. Farmer 27 v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (citing 28 Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991)); 9 1 Johnson, 217 F.3d at 731. Second, the plaintiff must show that the prison official 2 acted with a “sufficiently culpable state of mind”; that is, that the official “kn[ew] of 3 and disregarded an excessive risk to inmate health or safety . . . .” Farmer, 511 U.S. at 4 837; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (“[T]he inmate must 5 show that the prison officials had no ‘reasonable’ justification for the deprivation.”). 6 2. Analysis 7 Here, Plaintiff alleges defendant Rachal was aware of the waste water in 8 Plaintiff’s cell for a half-hour before Plaintiff went to “chow” and then for another 9 hour and fifteen minutes before Plaintiff was released and went to the library. 10 Plaintiff’s allegations fail to meet either the objective or subjective prong necessary for 11 an Eighth Amendment claim. 12 First, while subjecting “a prisoner to lack of sanitation that is severe or 13 prolonged can constitute an infliction of pain within the meaning of the Eighth 14 Amendment,” Anderson v. Cnty. of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995), 15 opinion amended on denial of reh’g, 75 F.3d 448 (9th Cir. 1995), Plaintiff’s allegation 16 that defendant Rachal allowed Plaintiff to remain in the cell with waste water for half 17 an hour and then another hour and fifteen minutes does not rise to the level of 18 “severe or prolonged.” Plaintiff’s allegations differ in terms of both severity and 19 length when compared with cases that have found an Eighth Amendment violation. 20 See, e.g., LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972) (prisoner confined 21 for five days in strip cell with only a pit toilet and without light, a sink, or other 22 washing facilities), cert. denied, 414 U.S. 878, 94 S. Ct. 49, 38 L. Ed. 2d 123 (1973); 23 McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001) (inmate forced to live in a 24 feces covered cell for three days); McCord v. Maggio, 927 F.2d 844, 848 (5th Cir. 25 1991) (inmate repeatedly had to live in sewage and foul water and slept on a bare 26 mattress in water contaminated with human feces); c.f. Hendon v. Reed, No. 1:05- 27 CV-00790-OWW, 2011 WL 2224720, at *7 (E.D. Cal. June 7, 2011) (finding no 28 Eighth Amendment violation where guards threw Plaintiff’s own feces and urine on 10 1 him, but Plaintiff “immediately removed his clothing and was able to clean the 2 substance off of him”). In addition, Plaintiff does not allege he suffered any actual 3 injury from his exposure to the waste water. See Dkt. 1 at 13; Sherman v. Gonzalez, 4 No. 1:09-CV-00420-LJO, 2010 WL 2791565, at *6 (E.D. Cal. July 14, 2010), report 5 and recommendation adopted sub nom. Sherman v. Martinez, 2010 WL 3432240 6 (E.D. Cal. Aug. 31, 2010) (finding plaintiff sufficiently alleged an Eighth Amendment 7 violation where he suffered an asthma attack when he was confined to his cell flooded 8 with raw sewage with poor ventilation for five hours). Plaintiff, thus, fails to allege an 9 “extreme deprivation” required to support an Eighth Amendment conditions-of- 10 confinement claim. Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 117 L. Ed. 2d 11 156 (1992) (citation omitted) (“Only those deprivations denying the minimal civilized 12 measure of life’s necessities are sufficiently grave to form the basis of an Eighth 13 Amendment violation.”). 14 Second, Plaintiff appears to allege defendant Rachal knew of and disregarded 15 the risk that Plaintiff would slip and fall in a ½ inch of water and such a fall could 16 result in electrocution. Dkt. 1 at 9. However, this causal chain of events is neither 17 obvious nor seemingly probable. See Iqbal, 556 U.S. at 678. Plaintiff, thus, fails to 18 allege defendant Rachal had a sufficiently culpable state of mind. 19 Hence, Plaintiff’s Eighth Amendment conditions of confinement claim is 20 subject to dismissal. 21 V. 23 For the foregoing reasons, the Complaint is subject to dismissal. As the Court 24 is unable to determine whether amendment would be futile, leave to amend is granted. 25 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 26 advised that the Court’s determination herein that the allegations in the Complaint are 27 insufficient to state a particular claim should not be seen as dispositive of that claim. 28 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 11 1 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 2 face, Plaintiff is not required to omit any claim in order to pursue this action. 3 However, if Plaintiff asserts a claim in his First Amended Complaint that has been 4 found to be deficient without addressing the claim’s deficiencies, then the Court, 5 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned 6 district judge a recommendation that such claim be dismissed with prejudice for 7 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 8 the district judge as provided in the Local Rules Governing Duties of Magistrate 9 Judges. 10 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 11 service date of this Order, Plaintiff choose one of the following two options: 12 1. Plaintiff may file a First Amended Complaint to attempt to cure the 13 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a 14 blank Central District civil rights complaint form to use for filing the First 15 Amended Complaint, which the Court encourages Plaintiff to use. 16 If Plaintiff chooses to file a First Amended Complaint, he must clearly 17 designate on the face of the document that it is the “First Amended Complaint,” it 18 must bear the docket number assigned to this case, and it must be retyped or 19 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 20 include new defendants or allegations that are not reasonably related to the claims 21 asserted in the Complaint. In addition, the First Amended Complaint must be 22 complete without reference to the Complaint, or any other pleading, attachment, or 23 document. 24 An amended complaint supersedes the preceding complaint. Ferdik v. 25 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 26 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 27 leave to amend as to all his claims raised here, any claim raised in a preceding 28 12 1 | complaint is waived if it is not raised again in the First Amended Complaint. 2 | Lacey v. Maricopa Cty., 693 F.3d 896, 928 (Oth Cir. 2012). 3 The Court advises Plaintiff that it generally will not be well-disposed toward 4 | another dismissal with leave to amend if Plaintiff files a First Amended Complaint 5 | that continues to include claims on which relief cannot be granted. “[A] district 6 | court’s discretion over amendments is especially broad ‘where the court has already 7 | given a plaintiff one or more opportunities to amend his complaint.” Ismail v. Cty. 8 | of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 9 | 1261. Thus, if Plaintiff files a First Amended Complaint with claims on which 10 | relief cannot be granted, the First Amended Complaint will be dismissed 11 | without leave to amend and with prejudice. 12 2. Alternatively, Plaintiff may voluntarily dismiss the action without 13 | prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is 14 | directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court 15 | encourages Plaintiff to use if he chooses to voluntarily dismiss the action. 16 Plaintiff is explicitly cautioned that failure to timely file a First Amended 17 | Complaint will result in this action being dismissed with prejudice for failure 18 | to state a claim, or for failure to prosecute and/or obey Court orders pursuant 19 | to Federal Rule of Civil Procedure 41(b). 20 21 | Dated: August 12, 2019 l yn I 22 MONORABLT KJENLY KTYA KATO 04 United States Magjfttrate Judge 24 25 26 27 28 13