Dunsmore v. State of California

Opinion

1 2 3 4 5 6 7 10 11 DARRYL DUNSMORE, Case No.: 3:20-cv-00406-AJB-WVG Inmate Booking No. 19777041, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION FOR CIVIL 14 CONTEMPT, MOTION TO

15 APPOINT COUNSEL, AND MOTION STATE OF CALIFORNIA; SAN DIEGO FOR TEMPORARY RESTRAINING 16 COUNTY; SAN DIEGO SHERIFF’S ORDER; AND 17 DEP’T; DEPARTMENT OF CORRECTIONS; GORE (2) DISMISSING FIRST AMENDED 18 XAVIER BECCERA; ATTORNEY COMPLAINT FOR FAILING TO 19 GENERAL, STATE A CLAIM PURSUANT TO 28 20 Defendants. U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) 21 22 23 I. Procedural History 24 On March 2, 2020, Darryl Dunsmore (“Plaintiff”), currently housed at the San 25 Diego Central Jail located in San Diego, California, and proceeding pro se, filed a civil 26 rights action pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) In addition, 27 Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 28 § 1915(a). (See ECF No. 3.) 1 On April 6, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP and 2 simultaneously DISMISSED his Complaint for failing to state a claim upon which relief 3 could be granted. (See ECF No. 4.) Plaintiff was granted leave to file an amended 4 pleading in order to correct the deficiencies of pleading identified in the Court’s Order. 5 (See id.) 6 On July 1, 2020, Plaintiff filed his First Amended Complaint (“FAC”). (See ECF 7 No. 11.) In addition, to his FAC, Plaintiff submitted a declaration from Ken Karan1, an 8 attorney who declares that he personally met with Plaintiff on April 21, 2020. (See id., 9 ECF No. 11 at 18.) Karan declares that Plaintiff asked him to mail an amended pleading 10 in this matter on his behalf and he “personally put the amended complaint in an envelope 11 and mailed it to this Court with first class postage pre-paid” on or about April 22, 2020. 12 (Id.) However, he notes that a review of the Court’s docket indicates that the amended 13 complaint had not been filed. (Id.) 14 On July 17, 2020, Ken Karan submitted a second declaration in which he indicates 15 that he was “wrong” in his previous declaration and in fact, he had not previously mailed 16 Plaintiff’s amended pleading which he recently discovered while “moving file boxes.” 17 (Karan Decl, ECF No. 13 at 1.) Karan attaches as an exhibit the “true and correct 18 original of the amended complaint Mr. Dunsmore is attempting to file.” (Id. at 2.) 19 Attached to Karan’s second declaration was also a “Motion for Civil Contempt,” “Motion 20 for Appointment of Counsel,” “Motion for Temporary Restraining Order and Preliminary 21 Injunction,” and “First Amended Complaint.” (Id. at 3-26.) 22 On July 17, 2020, Plaintiff filed a motion to strike the amended complaint filed on 23 July 1, 2020 and requested that the Court file the First Amended Complaint (“FAC”) 24 attached to Karan’s second declaration. The Court GRANTED Plaintiff’s Motion and 25 directed the Clerk of Court to strike the amended complaint filed on July 1, 2020. 26

27 1 Karan has not submitted a substitution of attorney in this matter and thus, it does not appear that Karan 28 1 The Clerk of Court was directed to file Plaintiff’s FAC, see ECF No. 13 at 17-36, 2 Motion for Civil Contempt, see ECF No. 13 at 3-4, Motion for Appointment of Counsel, 3 see ECF No. 13 at 5-6, and Motion for Temporary Restraining Order and Preliminary 4 Injunction, see ECF No. 13 at 7-16 as separate entries in the Court’s docket. 5 II. Motion to Appoint Counsel 6 All documents filed pro se are liberally construed, and “a pro se complaint, 7 however inartfully pleaded, must be held to less stringent standards than formal pleadings 8 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. 9 Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no 10 constitutional right to counsel in a civil case; and Plaintiff’s FAC does not demand that 11 the Court exercise its limited discretion to request than an attorney represent him pro 12 bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v. Dept. of 13 Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390 F.3d 14 1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support such a 15 discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991); 16 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist 17 where there is cumulative showing of both a likelihood of success on the merits and a 18 demonstrated inability of the pro se litigant to articulate his claims in light of their legal 19 complexity. Id. 20 As currently pleaded, Plaintiff’s FAC demonstrates that while he may not be 21 formally trained in law, he nevertheless is fully capable of legibly articulating the facts 22 and circumstances relevant to his claims, which are typical and not legally “complex.” 23 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet 24 to show he is likely to succeed on the merits of the claims. Therefore, the Court DENIES 25 Plaintiff’s Motion for Appointment of Counsel (ECF No. 21). 26 / / / 27 / / / 28 / / / 1 III. Screening of FAC pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre- 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 6 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 7 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 8 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 9 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 10 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 11 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 12 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 13 680, 681 (7th Cir. 2012)). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 20 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to 21 “contain sufficient factual matter, accepted as true, to state a claim to relief that is 22 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 23 marks omitted). 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 25 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 26 Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context- 27 specific task that requires the reviewing court to draw on its judicial experience and 28 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 1 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 2 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 3 B. Plaintiff’s Allegations2 4 Plaintiff claims that the “State of California and the County of San Diego have 5 established policy or law which violates Plaintiff’s right to medical care” when his “ADA 6 appliances were confiscated” when he was transferred to the San Diego Central Jail. 7 (FAC at 5.) Plaintiff was placed in an “isolation cell” because he is “on auto immune 8 suppression therapy” and is “totally disabled due to Ankylosing Spondylitis and 9 Parkinson’s.” (Id.) 10 Plaintiff’s cell contained a shower, which is required due to a “medical directive 11 and chronos,” but “employees under the supervision of Bill Gore” have failed to “repair 12 or maintain said shower.” (Id.) Plaintiff claims using “public restrooms and showers” 13 could “jeopardize Plaintiff’s auto immune suppression therapy.” (Id. at 6.) 14 Plaintiff alleges that upon “arrival at San Diego County Jail [his] ADA appliances 15 were confiscated and only [his] eating spoon was provided.” (Id.) Plaintiff claims that 16 he used this “ADA spoon to prepare items to safely eat” because Plaintiff has a medical 17 condition that puts him at “risk of choking on food.” (Id.) However, Plaintiff broke this 18 spoon and “was forced to eat like an animal for at least 30 days because Plaintiff could 19 not replace [his] spoon.” (Id. at 7.) Plaintiff alleges that he “ended up choking on [his] 20 food” and was found on his cell floor by “staff” who told Plaintiff that if he “did that 21 again they would put [him] on suicide watch.” (Id.) Plaintiff claims “they finally placed 22 an order” to replace his spoon and other “hand appliances.” (Id.) 23 Plaintiff also claims he was denied access to the courts when “17 boxes of 24 litigation” he brought with him upon his transfer to the San Diego Central Jail were 25 “confiscated” when he arrived at the jail. (Id. at 10.) As a result, Plaintiff alleges he was 26

27 2 The Court will refer to the page numbers as they are imprinted by the court’s electronic case filing 28 1 unable to pursue his “collateral attack” on his underlying criminal sentence. (Id.) 2 Plaintiff also claims that the attorney assigned to him by the Office of Assigned Counsel 3 was “ineffective.” (Id. at 15.) 4 Plaintiff seeks injunctive relief, $60,000,000 in compensatory damages, and 5 $60,000,000 in punitive damages. (Id. at 36.) 6 C. 42 U.S.C. § 1983 7 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 8 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 9 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must 10 allege two essential elements: (1) that a right secured by the Constitution or laws of the 11 United States was violated, and (2) that the alleged violation was committed by a person 12 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 13 789 F.3d 1030, 1035-36 (9th Cir. 2015). 14 D. Supervisory Liability 15 Plaintiff names a number of government officials whom he claims are responsible 16 for violating his constitutional rights. Specifically, Plaintiff identifies the Governor 17 Newsom, Mayor Faulconer, Sheriff Gore, and Attorney General Beccera as Defendants 18 and appears to hold them liable in their supervisory capacity. Plaintiff makes broad 19 allegations that these Defendants “supported harmful policies” and “failed to train or 20 supervise employees.” (FAC at 2.) 21 However, these types of broad and conclusory allegations fail to plausibly show 22 how, or to what extent, these Defendants may be held individually liable for any 23 constitutional injury. See Iqbal, 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency of 24 City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege 25 with at least some degree of particularity overt acts which defendants engaged in” in 26 order to state a claim). As pleaded, Plaintiff plainly seeks to hold these Defendants liable 27 for the acts of unidentified subordinates. But “vicarious liability is inapplicable to … 28 § 1983 suits.” Iqbal, 556 U.S. at 676. Instead, “Plaintiff must plead that each 1 Government-official defendant, through [his] own individual actions, has violated the 2 Constitution” in order to plead a plausible claim for relief. Id.; see also Crowley v. 3 Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (supervisor may be held liable under §1983 4 only if there is “a sufficient causal connection between the supervisor’s wrongful conduct 5 and the constitutional violation”) (citations and internal quotation marks omitted); Fayle 6 v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (when a named defendant holds a 7 supervisorial position, the causal link between the defendant and the claimed 8 constitutional violation must be specifically alleged). 9 “The inquiry into causation must be individualized and focus on the duties and 10 responsibilities of each individual defendant whose acts or omissions are alleged to have 11 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), 12 citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457, 13 460 (9th Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 14 1999) (“Causation is, of course, a required element of a § 1983 claim.”) A person 15 deprives another “of a constitutional right, within the meaning of section 1983, if he does 16 an affirmative act, participates in another’s affirmative acts, or omits to perform an act 17 which he is legally required to do that causes the deprivation of which [the plaintiff 18 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff offers no 19 factual allegations to support a claim that any of these named Defendants were 20 responsible for any specific claims Plaintiff raises in his FAC. 21 Thus, Defendants Newsom, Faulconer, Gore, and Becerra are DISMISSED from 22 this action for failing to state a claim against them upon which relief may be granted. 23 E. Access to Courts claims 24 Plaintiff’s access to courts claim are far from clear but he generally alleges that he 25 has been denied access to the courts which purportedly “effectively destroyed [his] 26 collateral attacks” on his criminal sentence. (FAC at 10.) 27 Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 28 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other 1 grounds by Lewis, 518 U.S. at 354. In order to state a claim of a denial of the right to 2 access the courts, a prisoner must establish that he has suffered “actual injury,” a 3 jurisdictional requirement derived from the standing doctrine. Lewis, 518 U.S. at 349. An 4 “actual injury” is “actual prejudice with respect to contemplated or existing litigation, 5 such as the inability to meet a filing deadline or to present a claim.” Id. at 348 (citation 6 and internal quotations omitted). The right of access does not require the State to “enable 7 the prisoner to discover grievances,” or even to “litigate effectively once in court.” Id. at 8 354; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury 9 as the “inability to file a complaint or defend against a charge”). Instead, Lewis holds: 10 [T]he injury requirement is not satisfied by just any type of frustrated legal claim ... Bounds does not guarantee inmates the wherewithal to transform 11 themselves into litigating engines capable of filing everything from 12 shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, 13 directly or collaterally, and in order to challenge the conditions of their 14 confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and 15 incarceration. 16 17 Id. at 346; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at *2- 18 3 (E.D. Cal. Mar. 6, 2017). Indeed, the failure to allege an actual injury is “fatal.” Alvarez 19 v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to show that a ‘non-frivolous 20 legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4). 21 In addition to alleging an “actual injury,” Plaintiff must also plead facts sufficient 22 to describe the “non-frivolous” or “arguable” nature of underlying claim he contends was 23 lost as result of Defendants’ actions. Christopher v. Harbury, 536 U.S. 403, 413-14 24 (2002). The nature and description of the underlying claim must be set forth in the 25 pleading “as if it were being independently pursued.” Id. at 417. 26 / / / 27 / / / 28 / / / 1 Plaintiff references several case numbers but offers no specific factual allegations 2 as to what forms the basis of these cases.3 There are no allegations that offer, with any 3 specificity, the nature or description of the underlying claims. Plaintiff does not allege 4 any “actual injury” or identify any “prejudice with respect to contemplated or existing 5 litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis, 518 6 U.S. at 348. More specifically, he does not describe the non‒frivolous or arguable nature 7 of any of the underlying claims in his FAC. 8 Accordingly, the Court finds that Plaintiff has failed to state an access to courts 9 upon which relief can be granted. 10 E. Monell Liability 11 To the extent Plaintiff attempts to assert a claim against the County of San Diego, 12 his allegations are insufficient. A municipal entity may be held liable under § 1983 only 13 if he alleges facts sufficient to plausibly show that he was deprived of a constitutional 14 right by individually identified employees who acted pursuant to the municipality’s 15 policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 16 (1977); Monell v. Dep’t of Social Servs, 436 U.S. 658, 691 (1978); Villegas v. Gilroy 17 Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). The County of San Diego may 18 not be held vicariously liable under § 1983 simply because one of its employees is 19 alleged to have acted wrongfully. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 20 403 (1997); Monell, 436 U.S. at 691 (“[A] a municipality cannot be held liable solely 21 because it employs a tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). 22 Instead, the municipality may be held liable “when execution of a government’s policy or 23 custom ... inflicts [a constitutional] injury.” Monell, 436 U.S. at 694; Los Angeles Cty., 24 Cal. v. Humphries, 562 U.S. 29, 36 (2010). 25

26 3 Plaintiff has filed dozens of petitions and writs in the California Court of Appeal, Fourth Appeal 27 District, Division 1. Several of these matters have been filed in the last six months since Plaintiff has been housed in the San Diego Central Jail. See https://appellatecases.courtinfo.ca.gov/search (website 28 1 Therefore, the claims against the County of San Diego are DISMISSED for failing 2 to state a claim upon which relief may be granted. 3 F. Public Defender 4 To the extent that Plaintiff names Deputy Public Defender Craig Leff, who has 5 been appointed to represent him, see FAC at 3, he fails to state a claim upon which 6 § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 7 “[A] public defender does not act under color of state law when performing a lawyer’s 8 traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. 9 Dodson, 454 U.S. 312, 325 (1981); Miranda v. Clark County, Nevada, 319 F.3d 465, 468 10 (9th Cir. 2003) (“[The public defender] was, no doubt, paid by government funds and 11 hired by a government agency. Nevertheless, [her] function was to represent [her] client, 12 not the interests of the state or county.”); Garnier v. Clarke, 332 Fed. App’x 416 (9th Cir. 13 2009) (affirming district court’s sua sponte dismissal of prisoner’s § 1983 claims against 14 appointed counsel). Thus, all claims against Defendant Leff are dismissed from this 15 action for failing to state a claim upon which relief may be granted. 16 G. American with Disabilities Act 17 Plaintiff also invokes the Americans with Disabilities Act (“ADA”), 42 U.S.C. 18 § 12132, at least twice in his FAC. (See FAC at 9, 10.) The ADA applies in the prison 19 context. See 42 U.S.C. § 12131(1)(B); U.S. v. Georgia 546 U.S. 151, 154 (2006). In order 20 to state a claim under Title II of the ADA, however, a plaintiff must allege: 21 22 (1) he ‘is an individual with a disability; (2) he ‘is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, 23 or activities;’ (3) he ‘was either excluded from participation in or denied the 24 benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity;’ and (4) ‘such exclusion, 25 denial of benefits, or discrimination was by reason of [his] disability.’ 26

27 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citing 28 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (quoting Thompson v. 1 Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)). 2 Plaintiff cannot pursue an ADA claim against any of the named individual 3 Defendants because there is no individual liability under Title II. Vinson v. Thomas, 288 4 F.3d 1145 (9th Cir. 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 5 against a State official in [his or] her individual capacity to vindicate rights created by 6 Title II of the ADA ...”); see also Heinke v. County of Tehama Sheriff’s Dept., No. CVI 7 S-12-2433 LKK/KJN, 2013 WL 3992407, at *7 (E.D. Cal. Aug.1, 2013). The ADA’s 8 definition of “public entity” does not include individuals. See Hardwick v. Curtis 9 Trailers, Inc., 896 F. Supp. 1037, 1038-39 (D. Or. 1995) (individual liability is precluded 10 under ADA Title II) (citing Miller v. Maxwell’s Intern., Inc., 991 F.2d 583 (9th Cir. 11 1993)). 12 Moreover, Plaintiff does not allege that he was discriminated against because of his 13 alleged disabilities. In order to recover money damages under Title II of the ADA, the 14 alleged discrimination must be intentional on the part of the defendants. Duvall v. Cty. of 15 Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). 16 For these reasons, Plaintiff’s FAC also fails to state an ADA claim upon which 17 relief can be granted. See 28 U.S.C. § 1915(e)(2)(b)(ii), § 1915A(b)(1). 18 H. Leave to Amend 19 Thus, for all these reasons, the Court finds Plaintiff’s FAC fails to state a § 1983 20 claim upon which relief can be granted, and that it must be dismissed sua sponte and in 21 its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison, 22 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because Plaintiff is proceeding pro se, 23 however, the Court having now provided him with “notice of the deficiencies in his 24 complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698 F.3d 25 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 26 1992)). 27 / / / 28 / / / 1 IV. Motion for Temporary Restraining Order and Preliminary Injunction 2 Finally, the Court considers Plaintiff’s “Motion for Temporary Restraining Order 3 and Preliminary Injunction (ECF No. 22) 4 A federal district court may issue emergency injunctive relief only if it has 5 personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See 6 Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that 7 one “becomes a party officially, and is required to take action in that capacity, only upon 8 service of summons or other authority-asserting measure stating the time within which 9 the party served must appear to defend.”). The court may not attempt to determine the 10 rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 11 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983). An injunction 12 binds only “the parties to the action,” their “officers, agents, servants, employees, and 13 attorneys,” and “other persons who are in active concert or participation.” Fed. R. Civ. P. 14 65(d)(2)(A)-(C). 15 Moreover, “at an irreducible minimum,” the party seeking immediate injunctive 16 relief “must demonstrate a fair chance of success on the merits, or questions serious 17 enough to require litigation.” Pimentel v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) 18 (internal quotation marks and citation omitted)). As stated above, the Court has found 19 that Plaintiff’s FAC fails to contain a plausible claim upon which § 1983 relief can be 20 granted, he cannot succeed on the merits, and has not shown irreparable harm. “‘A 21 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the 22 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 23 the balance of equities tips in his favor, and that an injunction is in the public interest.’” 24 Glossip v. Gross, __ U.S. __, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural 25 Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)); see also Williams v. Duffy, No. 26 18-CV-06921-BLF, 2019 WL 95924, at *3 (N.D. Cal. Jan. 3, 2019) (denying prisoner’s 27 TRO based in conjunction with sua sponte screening and dismissal of complaint for 28 failure to state a claim pursuant to 28 U.S.C. § 1915A). 1 Accordingly, because Plaintiff has failed to state any plausible claim upon which 2 § 1983 relief can be granted in this case, and the Court lacks personal jurisdiction over 3 any of the persons he seeks to enjoin, his Motion for Temporary Restraining Order and 4 Preliminary Injunction must be DENIED. 5 V. Conclusion and Orders 6 For the reasons explained, the Court: 7 1. DENIES Plaintiff’s Motion for Civil Contempt, Motion for Appointment of 8 Counsel, and Motion for Temporary Restraining Order and Preliminary Injunction. (ECF 9 Nos. 20, 21, 22.) 10 2. DISMISSES Plaintiff’s FAC for failing to state a claim upon which relief 11 may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and GRANTS 12 him sixty (60) days leave from the date of this Order in which to file an Amended 13 Complaint which cures all the deficiencies of pleading noted. Plaintiff’s Amended 14 Complaint must be complete by itself without reference to his original pleading. 15 Defendants not named and any claim not re-alleged in his Amended Complaint will be 16 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 17 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 18 the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 19 claims dismissed with leave to amend which are not re-alleged in an amended pleading 20 may be “considered waived if not repled.”). 21 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 22 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 23 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 24 and 1915A(b), and his failure to prosecute in compliance with a court order requiring 25 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 26 not take advantage of the opportunity to fix his complaint, a district court may convert the 27 dismissal o3 the complaint into dismissal of the entire action.”). 28 / / / 1 3. The Clerk of Court is directed to mail a court approved form civil rights 2 ||complaint to Plaintiff. 3 4 || IT ISSO ORDERED. 5 6 Dated: August 4, 2020 ,

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