Dilon Andrew Dalton Hess v. San Diego District Attorney, Summer Stephan, Katia Davila, CHP Oceanside, CHP San Diego, Oceanside Police Dep't

• Court: District Court, S.D. California
• Decided: June 23, 2026
• Docket: 3:26-cv-01620
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DILON ANDREW DALTON HESS, Case No.: 3:26-cv-1620-JES-LR Booking #25701006, 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS [ECF No. 2] AND 14

SAN DIEGO DISTRICT ATTORNEY, 15 (2) DISMISSING COMPLAINT SUMMER STEPHAN, KATIA DAVILA, WITHOUT PREJUDICE FOR 16 CHP OCEANSIDE, CHP SAN DIEGO, FAILURE TO STATE A CLAIM OCEANSIDE POLICE DEP’T, 17 PURSUANT TO 28 U.S.C. HOLLYWOOD, MOYER, MORRISON, §§ 1915(e)(2)(B) AND 1915A(b) 18 HUTHMAKER, DALEY, NELSON, C. REARDON, S. REARDON, SMITH, 19 HOLLINS, SHIELDS, HERB WESTON, 20 RICHARD COLMAN, 21 Defendants. 22 23 I. INTRODUCTION 24 Plaintiff Dilon Andrew Dalton Hess (“Hess” or “Plaintiff”), a detainee proceeding 25 pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983, along with a motion 26 to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. Hess raises claims related to criminal 27 proceedings in San Diego County Superior Court Case No. SCN455335. See ECF No. 1 at 28 3–6. For the reasons discussed below, the Court grants the IFP motion and dismisses the 1 complaint without prejudice for failure to state a claim against any Defendant. 2 II. IFP MOTION 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire 6 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant 7 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 8 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 9 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 10 fee[s] [a]re paid.”). 11 To proceed IFP, prisoners must “submit an affidavit that includes a statement of all 12 assets they possess,” as well as a “certified copy of their trust fund account statement (or 13 institutional equivalent) for the 6-month period immediately preceding the filing of the 14 complaint.” 28 U.S.C. § 1915(a)(1), (2) (citation modified). Using this financial 15 information, the court assesses an initial partial filing fee which is “calculated based on 16 ‘the average monthly deposits to the prisoner’s account’ or ‘the average monthly balance 17 in the prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in 18 ‘monthly payments of 20 percent of the preceding month’s income credited to the 19 prisoner’s account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, 20 while prisoners may qualify to proceed IFP without having to pay the full statutory filing 21 upfront, they remain obligated to pay the full amount due in monthly payments. See Bruce 22 v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2). 23 In support of his IFP Motion, Hess has provided a signed copy of his prison 24 certificate which reflects an average monthly balance of $50.00, average monthly deposits 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 1 of $50.00, and an available account balance of $0.27. ECF No. 2 at 4. Accordingly, the 2 Court GRANTS Plaintiff’s IFP motion. Because the initial partial filing fee would exceed 3 the balance in Plaintiff’s account, the Court assesses no initial partial filing fee. See 28 4 U.S.C. § 1915(b)(4) (providing that a prisoner should not be prohibited from bringing a 5 civil action or appealing a civil action solely because he has no assets and no means to pay 6 the initial partial filing fee). The facility where Plaintiff is detained must collect the full 7 balance of the $350 fee owed and forward payments to the Clerk of the Court as provided 8 by 28 U.S.C. § 1915(b)(2). 9 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A(b) 10 A. Standard of Review 11 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a 12 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 13 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 14 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 15 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 16 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 17 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 18 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 19 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible 20 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 21 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements 22 of a cause of action, supported by mere conclusory statements, do not suffice” to state a 23 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully- 24 harmed me accusation[s]” fall short of meeting this plausibility standard. Id. 25 B. Plaintiff’s Allegations 26 In his Complaint, Hess alleges claims related to criminal proceedings taking place 27 in San Diego County Superior Court Case No. SCN455335. Hess states that he was 28 “illegally arrested” on May 6, 2024. ECF No. 1 at 3, 5. He claims law enforcement officers 1 involved in his case “intentionally hid evidence and created evidence illegally.” Id. 2 Specifically, Hess alleges that officers “submitted photoshopped pictures to connect him 3 to the charged filed.” Id. at 3. Plaintiff further alleges that the assistant district attorney 4 prosecuting his case has “withheld evidence favorable to [his] defense.” Id. at 5. 5 On February 18, 2026, the judge presiding over Hess’s criminal proceedings ordered 6 a competency evaluation, despite Hess expressing his wish to proceed to trial. Id. at 4. Hess 7 also states that his appointed defense counsel has improperly waived his appearance to 8 certain court proceedings “without his consent.” Id. When Plaintiff sought to relieve his 9 appointed counsel and represent himself, he was “deemed incompetent twice.”2 Id. Hess 10 states that the prosecutor in his case “purposely had a doctor find [him] incompetent.” Id. 11 C. Discussion 12 In his Complaint, Hess names numerous Defendants as follows: San Diego District 13 Attorney, Summer Stephan and Assistant District Attorney, Katia Davila; California 14 Highway Patrol (“CHP”) Oceanside, CHP San Diego, CHP Officers Hollywood and 15 Meyer; Oceanside Police Department; San Diego Police (“SDPD”) Officers Morrison, 16 Huthmaker, Daley, Nelson, C. Reardon, S. Reardon, Smith, Hollins, and Shields; and 17 Plaintiff’s appointed defense attorneys, Weston and Colman. Id. at 2, 8–9. Hess sues all 18 Defendants in the official capacities only. Id. 19 Hess raises claims pursuant to 42 U.S.C. § 1983 which requires he allege (1) a right 20 secured by the Constitution or laws of the United States was violated; and (2) the alleged 21 violation was committed by “a person” acting under the color of state law. West v. Atkins, 22 487 U.S. 42, 48 (1988). In ground one, Hess alleges Davila called Officers Moyer, Shields 23 and Daley as witnesses at some point during the criminal proceedings and they, in turn, 24 provided “dishonest” testimony. ECF No. 1 at 3. In ground two, Hess alleges he has been 25 26 27 2 It is not clear from the facts alleges whether Hess’s reference to being “deemed incompetent” two times preceded (or includes) the trial court’s February 18, 2026 order that Hess be “evaluated.” See ECF No. 1 28 1 denied “access to courts” because he has been deemed incompetent twice during the 2 criminal proceedings. Id. at 4. Last, he alleges claims of false imprisonment and cruel and 3 unusual punishment after he was “illegally arrested” by Defendant Moyer, with the 4 involvement of Defendants Hollywood, Morrison, Huthmaker, Daley, Nelson, C. Reardon, 5 S. Reardon, Smith, Hollins, and Shields. He further claims officers also hid evidence and 6 “created evidence” illegally. Id. at 5. Hess seeks money damages and release from custody. 7 Id. at 7. 8 1. Official Capacity 9 As noted above, Hess names all Defendants in their official capacities only. Official 10 capacity suits “generally represent only another way of pleading an action against an entity 11 of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting 12 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). 13 a. District Attorney Defendants 14 First, Hess’s official capacity claims against Stephan, District Attorney of San Diego 15 County and Davila, a Deputy District Attorney, are treated as claims against state. See 16 Weiner v. San Diego Cnty., 210 F.3d 1025, 1030–31 (9th Cir. 2000) (holding that under 17 California law, a county district attorney acts as a state official when deciding whether to 18 prosecute an individual). And the Eleventh Amendment bars a prisoner’s § 1983 claims for 19 money damages against state actors sued in their official capacities. Will v. Michigan Dep’t 20 of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a State nor its officials acting 21 in their official capacities are ‘persons’ under § 1983.”); see also Dittman v. California, 22 191 F.3d 1020, 1025–26 (9th Cir. 1999) (“The State of California has not waived its 23 Eleventh Amendment immunity with respect to claims brought under § 1983 in federal 24 court.”). Thus, Hess’s claims for money damages against Stephan and Davila must be 25 dismissed. 26 In addition, to the extent Hess seeks injunctive relief, the prosecutors are entitled to 27 absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (“[A]cts 28 undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, 1 and which occur in the course of his role as an advocate for the State.”). Therefore, Hess 2 has not stated a claim against Defendant San Diego District Attorney Stephan and 3 Defendant Davila. 4 b. CHP Officer Defendants 5 Plaintiff’s official capacity claims against the Oceanside CHP, San Diego CHP and 6 CHP Officers Hollywood and Meyer must also be dismissed. An official capacity suit 7 against a CHP entity or officer is, in effect, a suit against the state. See Will, 491 U.S. at 8 71. Therefore, because the state of California has not waived its immunity, Plaintiff cannot 9 proceed with his claims seeking money damages against CHP entities and CHP officers 10 acting in their official capacities. See O’Leary v. Cal. Highway Patrol, 923 F.2d 862, 1991 11 WL 2545 (9th Cir. 1991) (unpublished) (stating “the State and the CHP enjoy sovereign 12 immunity and cannot be sued under section 1983” and the Eleventh Amendment “bars 13 [plaintiff’s] claims against the CHP officers sued in their official capacities for monetary 14 damages”); Baker v. State of Cal. Highway Patrol, No. 13-CV-00073-MEJ, 2013 WL 15 4427199, at *7 (N.D. Cal. Aug. 14, 2013), aff’d sub nom. Baker v. California Highway 16 Patrol, 601 Fed. App’x. 556 (9th Cir. 2015) (“Actions against state officials in their official 17 capacities are treated as suits against the State, and are therefore generally barred by the 18 Eleventh Amendment . . .. This principle is applicable to lawsuits against CHP employees 19 in their official capacities.”). Therefore, Hess has not stated a claim against Defendants 20 CHP Oceanside, CHP San Diego, or CHP Officers Hollywood and Meyer. 21 c. Oceanside Police Department and SDPD Officers 22 Finally, Plaintiff is suing the Oceanside Police Department and SDPD Officers 23 Morrison, Huthmaker, Daley, Nelson, C. Reardon, S. Reardon, Smith, Hollins and Shields 24 in their official capacities, which is the same as suing the City of Oceanside and City of 25 San Diego themselves. See Monell, 436 U.S. at 690 n.55. A local government entity may 26 not be held vicariously liable under § 1983 simply based on allegedly unconstitutional acts 27 of its employees. Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead, a plaintiff 28 asserting municipal liability must show the “local government had a deliberate policy, 1 custom, or practice that was the moving force behind the constitutional violation [they] 2 suffered.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). 3 Thus, to state a claim, Hess “must show that (1) []he was deprived of a constitutional right; 4 (2) the [municipality] had a policy; (3) the policy amounted to a deliberate indifference to 5 h[is] constitutional right; and (4) the policy was the moving force behind the constitutional 6 violation.” Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110– 7 11 (9th Cir. 2001). 8 Here, Plaintiff has not identified or alleged a policy, practice or custom from the City 9 of Oceanside or the City of San Diego that may have caused a deprivation of his rights, 10 and he also fails to allege that any such practice was the moving force behind his alleged 11 injury. Plaintiff has also failed to plead sufficient facts to support an allegation that there 12 was a direct causal link between an Oceanside or San Diego policy or custom and any 13 alleged constitutional violation. See Dougherty v. City of Covina, 654 F.3d 892, 900–01 14 (9th Cir. 2011) (“The Complaint lacked any factual allegations regarding key elements of 15 the Monell claims, or, more specifically, any facts demonstrating that [plaintiff’s] 16 constitutional deprivation was the result of a custom or practice of the City of Covina or 17 that the custom or practice was the ‘moving force’ behind his constitutional deprivation.”). 18 Therefore, Hess has failed to state an official-capacity claim against the Oceanside Police 19 Department or SDPD Officers Morrison, Huthmaker, Daley, Nelson, C. Reardon, S. 20 Reardon, Smith, Hollins and Shields. 21 d. Appointed Defense Counsel 22 Lastly, Hess cannot state an official-capacity claim against his court appointed 23 defense attorneys, Weston and Colman. Appointed criminal defense counsel, including 24 public defenders, are generally not state actors capable of being sued under 42 U.S.C. 25 § 1983. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act 26 under color of state law when performing a lawyer’s traditional functions as counsel to a 27 defendant in a criminal proceeding.”); see also Miranda v. Clark County, Nev., 319 F.3d 28 465, 468 (9th Cir. 2003) (finding that a court-appointed attorney was not a state actor within 1 the meaning of § 1983 because “his function was to represent his client, not the interests 2 of the state or county”); Garnier v. Clarke, 332 Fed. Appx. 416 (9th Cir. 2009) (affirming 3 district court’s sua sponte dismissal of prisoner’s § 1983 claims against appointed counsel). 4 As such, Hess fails to state a claim against Defendants Weston and Colman. 5 2. Individual Capacity 6 Even assuming Plaintiff had named Defendants in their individual capacities, as 7 pleaded he has not stated a claim against any individual Defendant for the reasons 8 discussed below. 9 a. District Attorney Defendants 10 As discussed above, to the extent Plaintiff seeks to raise claims against District 11 Attorney Stephan and Deputy District Attorney Davila for malicious prosecution, use of 12 perjured testimony and suppression of evidence, Stephan3 and Davila are absolutely 13 immune from liability in their roles as advocates for the government in judicial 14 proceedings. Prosecutors are immune from liability for all “acts undertaken by a prosecutor 15 in preparing for the initiation of judicial proceedings or for trial, and which occur in the 16 course of his role as an advocate for the State.” See Buckley v. Fitzsimmons, 509 U.S. 259, 17 273 (1993); Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (concluding prosecutorial 18 immunity protects eligible government officials who perform functions “intimately 19 associated with the judicial phase of the criminal process”); Genzler v. Longanbach, 410 20 F.3d 630, 637 (9th Cir. 2005) (noting absolute immunity applies even if it “leave[s] the 21 genuinely wronged defendant without civil redress against a prosecutor whose malicious 22 or dishonest action deprives him of liberty”). “This immunity covers the knowing use of 23 false testimony at trial, the suppression of exculpatory evidence, and malicious 24

25 26 3 In addition, Plaintiff does not describe any specific action by District Attorney Stephan. To the extent Plaintiff asserts claims against District Attorney Stephan they appear to be based solely on her role as the 27 District Attorney of San Diego County. Supervisory personnel such as District Attorney Stephan are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior. 28 1 prosecution.” Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001). Therefore, because 2 Defendants Stephan and Davila are entitled to immunity, as currently pleaded Hess cannot 3 state an individual-capacity claim against them. 4 b. Appointed Defense Counsel 5 Hess cannot state an individual-capacity § 1983 claim against his court-appointed 6 defense attorneys, Weston and Colman. As discussed above, appointed counsel acting in 7 their roles as advocates are not state actors who can be sued under § 1983. Georgia v. 8 McCollum, 505 U.S. 42, 53 (1992). 9 c. Individual CHP and SDPD Officers 10 In addition, Plaintiff has not stated an individual capacity claim against any CHP or 11 SDPD Defendant for “illegal arrest” or for “creating evidence.” See ECF No. 1 at 5. “A 12 claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth 13 Amendment, provided the arrest was without probable cause or other justification.” Lacey 14 v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir.2012) (quoting Dubner v. City & Cnty. of 15 S.F., 266 F.3d 959, 964 (9th Cir. 2001). In addition, to state a § 1983 claim, Hess must 16 allege facts to establish a causal link between the Defendants’ conduct and an alleged 17 unlawful arrest. Without causation, there is no deprivation of a plaintiff’s constitutional 18 rights. Rizzo v. Goode, 423 U.S. 362, 370–71 (1976). Here, Hess provides only the 19 conclusory allegation that he was “illegally arrested” and as such, has not plausibly alleged 20 he was arrested without probable cause. See ECF No. 1 at 5. 21 As to Plaintiff’s allegation regarding fabrication of evidence, there is a “clearly 22 established due process right not to be subjected to criminal charges on the basis of false 23 evidence that was deliberately fabricated by the government.” Devereaux v. Abbey, 263 24 F.3d 1070, 1074–75 (9th Cir. 2001). To prevail on a section 1983 claim of deliberate 25 fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated 26 evidence and (2) the deliberate fabrication caused the plaintiff's deprivation of liberty. 27 Spencer v. Krause, 857 F.3d 789, 798 (9th Cir. 2017). Here, Hess has failed to allege any 28 specific facts as to any individual law enforcement defendant sufficient to support an 1 individual capacity claim based on fabrication of evidence. See id; see also Rizzo, 423 U.S. 2 at 370–71. Therefore, he has not stated an individual capacity claim against law 3 enforcement Defendants Hollywood, Meyer, Morrison, Huthmaker, Daley, Nelson, C. 4 Reardon, S. Reardon, Smith, Hollins and Shields. 5 3. Abstention 6 Finally, it appears Hess’s state criminal proceedings are ongoing.4 If this is the case, 7 this civil action is barred by the abstention doctrine set forth in Younger v. Harris, 401 U.S. 8 37, (1971). Under Younger, unless extraordinary circumstances are present, federal courts 9 must abstain from hearing suits where: (1) state judicial proceedings are ongoing; (2) the 10 state proceedings implicate important state interests; (3) the federal plaintiff is not barred 11 from litigating federal constitutional issues in the state proceeding; and (4) the federal court 12 action would enjoin the proceeding or have the practical effect of doing so. San Jose Silicon 13 Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 14 1092 (9th Cir. 2008). Younger abstention applies to actions for damages as well as 15 declaratory and injunctive relief. Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir. 2004). 16 Here, all the above elements appear to be met. First, it appears state criminal 17 proceedings were pending when Hess filed this case.5 See Beltran v. State of California, 18 19 20 4 The Court takes judicial notice of the fact that Hess has been charged with numerous felonies and 21 misdemeanors in San Diego County Case No. SCN455335, including carjacking, hit and run, recklessly evading police officers, and possession of stolen property. Information available on the San Diego County 22 Sheriff’s Department website indicates proceedings in Hess’s criminal case are ongoing. And while the precise stage of the proceedings is unclear, Hess has not been sentenced and the next hearing in Case No. 23 SCN455335 is scheduled for June 9, 2026. See San Diego County Sheriff’s Office, Who’s In Jail, https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=Gd67iBOzmOf3fUZG2qY3iBQaqnVUov85Q2 24 3WZaQl%2fXo%3d#! (visited June 8, 2026). Based on the allegations in the complaint, it appears 25 criminal proceedings were paused on February 18, 2026, when the trial judge “ordered an evaluation” of Plaintiff’s competency. See ECF No. 1 at 4. It is not clear whether proceedings have since resumed. 26 5 If plaintiff’s state criminal proceedings are concluded, his claims are likely barred under Heck v. 27 Humphrey, 512 U.S. 477, 486–87 (1994), which holds that to recover damages based on an unconstitutional conviction, a section 1983 plaintiff must show that conviction was reversed, expunged, 28 1 871 F.2d 777, 782 (9th Cir. 1988) (for purposes of Younger abstention analysis, the 2 pendency of state proceedings is determined “at the time the federal action was filed”). 3 Hess alleges he has been “deemed incompetent twice” during these proceedings and states 4 that on February 18, 2026, the trial court ordered him evaluated. ECF No. 1 at 4. Second, 5 the State of California’s interest in prosecuting individuals charged with violating its laws 6 is an important state interest. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“This Court 7 has recognized that the States’ interest in administering their criminal justice systems free 8 from federal interference is one of the most powerful of the considerations that should 9 influence a court considering equitable types of relief.” (internal citations omitted)). Third, 10 Hess has the opportunity to raise challenges to his arrest, speedy trial rights, competency 11 proceedings, and the effectiveness of his trial lawyers in state court proceedings. See Duke 12 v. Gastelo, 64 F.4th 1088, 1096 (9th Cir. 2023). 13 Thus, to the extent criminal proceedings are ongoing in state court, Hess’s claims 14 are barred under Younger. Where Younger applies, the district court must dismiss the 15 federal action. Beltran, 871 F.2d at 782. 16 D. Leave to Amend 17 Given Plaintiff’s pro se status, the Court grants Plaintiff leave to amend his 18 complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 19 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 20 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 21 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 22 Cir. 2012)). 23 IV. CONCLUSION AND ORDER 24 Accordingly, the Court: 25 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 26 (ECF No. 2). 27 2. ORDERS the Facility Commander of the San Diego County Central Jail, or 28 his designee, to garnish from Plaintiff’s trust account the full $350 filing fee owed for this 1 ||case, and to forward in monthly payments an amount equal to twenty percent (20%) of the 2 ||preceding month’s income to the Clerk of the Court each time the amount in his account 3 || exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 4 3. DIRECTS the Clerk of the Court to serve a copy of this Order on the Facility 5 |}Commander, San Diego Central Jail, 1173 Front Street, San Diego, California 92101. 6 4. DISMISSES the Complaint in its entirety for failure to state a claim against 7 Defendant pursuant to 28 U.S.C. §§ 1915(e)(2)(B)G)) & 1915A(b)(1). 8 5. GRANTS Plaintiff sixty (60) days leave from the date of this Order in which 9 file a First Amended Complaint which cures the deficiencies of pleading noted in this 10 || Order. Plaintiff's Amended Complaint must be complete by itself without reference to his 11 || original Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 12 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 13 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 14 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 15 ||““considered waived if not repled.”). 16 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final 17 || Order dismissing this civil action based both on failure to state a claim upon which relief 18 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)q1) and § 1915A(b)(1), and failure to 19 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 20 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 21 fix his complaint, a district court may convert the dismissal of the complaint into 22 || dismissal of the entire action.’’). 23 IT IS SO ORDERED. 24 || Dated: June 23, 2026 25 =| oe San— 26 Honorable James E. Simmons Jr. 17 United States District Judge 28 12