Hudson v. Simon

• Court: District Court, S.D. California
• Decided: March 13, 2024
• Docket: 3:23-cv-02229
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Case No.: 3:23-cv-2229-AGS-LR Hakim N. HUDSON, 4 CDCR #BV-7888, ORDER: (1) GRANTING MOTION 5 TO PROCEED IN FORMA Plaintiff, PAUPERIS (ECF 2); 6

7 (2) DISMISSING AMENDED v. COMPLAINT WITHOUT 8 PREJUDICE FOR FAILURE TO

9 STATE A CLAIM; AND G. SIMON, San Diego Sheriff’s Dep’t, 10 (3) DENYING REQUESTS FOR Defendants. 11 STIPULATION AND MOTION FOR SERVICE (ECF 3, 4, 6) 12

13 14 In his First Amended Complaint, plaintiff Hakim N. Hudson alleges he was arrested 15 without a warrant or probable cause, strip searched, and subsequently detained without 16 charges for four days, in violation of his constitutional rights. (ECF 5, at 3–11.) For the 17 reasons discussed below, the Court grants Plaintiff’s motion to proceed without prepaying 18 the filing fee and dismisses the complaint without prejudice and with leave to amend. The 19 Court denies Plaintiff’s other motions as moot. 20 I. MOTION TO PROCEED IN FORMA PAUPERIS 21 All parties instituting any civil action, suit or proceeding in a district court of the 22 United States, except an application for writ of habeas corpus, must pay a filing fee of 23 $402.1 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional 26 administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The $52 administrative fee 27 does not apply to persons granted leave to proceed without prepayment. Id. 1 required filing fee if the Court grants leave to proceed based on indigency. 28 U.S.C. 2 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 3 To proceed without prepaying the fee, plaintiffs must establish their inability to pay 4 by filing an affidavit regarding their income and assets. See Escobedo v. Applebees, 5 787 F.3d 1226, 1234 (9th Cir. 2015). Prisoners seeking to establish an inability to pay must 6 also submit a “certified copy of the [prisoner’s] trust fund account statement (or 7 institutional equivalent) for . . . the 6-month period immediately preceding the filing of the 8 complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court 9 assesses an initial payment of 20% of (a) the average monthly deposits in the account for 10 the past six months, or (b) the average monthly balance in the account for the past six 11 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 12 § 1915(b)(1)&(4). Prisoners who proceed this way must repay the entire fee in installments 13 regardless of whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(2); Bruce 14 v. Samuels, 577 U.S. 82, 84 (2016). 15 In support of his motion, Hudson provided a copy of his trust account statement and 16 prison certificate authorized by an accounting officer. (See ECF 2, at 5–6.) During the six 17 months prior to filing suit, Plaintiff had an average monthly balance of $0, average monthly 18 deposits of $0, and an available account balance of $0 at the time he filed suit. (Id. at 6.) 19 Accordingly, Plaintiff’s motion is GRANTED, and the Court assesses no partial filing fee. 20 Hudson remains obligated to pay the $350.00 fee in monthly installments even if this action 21 is ultimately dismissed. See 28 U.S.C. §§ 1915(b)(1) & (2). 22 II. SCREENING 23 A. Legal Standards 24 The Court must screen a prisoner’s IFP complaint and sua sponte dismiss it to the 25 extent that it is frivolous, malicious, fails to state a claim, or seeks damages from defendants 26 who are immune. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010); see also 27 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). “The standard for determining whether Plaintiff 1 has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 2 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 3 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 4 complaint “contain sufficient factual matter . . . to state a claim to relief that is plausible on 5 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 6 And while detailed factual allegations are not required, “[t]hreadbare recitals of the 7 elements of a cause of action, supported by mere conclusory statements, do not suffice” to 8 state a claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant- 9 unlawfully-harmed me accusation[s]” fall short of the plausibility standard. Id. 10 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 11 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 12 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 13 substantive rights, but merely provides a method for vindicating federal rights elsewhere 14 conferred.” Graham v. Connor, 40 U.S. 386 U.S. 386, 393–94 (1989) (internal quotation 15 marks omitted). To establish liability under section 1983, a plaintiff must show both 16 (1) deprivation of a right secured by the Constitution and laws of the United States, and 17 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 18 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 19 B. Plaintiff’s Allegations 20 Hudson alleges that on November 30, 2020, San Diego Police Officer G. Simon 21 stopped him and asked to see his identification. (ECF 5, at 3.) Hudson provided Simon 22 with his state ID. (Id.) At some point thereafter, Simon told Hudson he was under arrest. 23 Initially, Simon stated he was arresting Hudson for failing to check in with felony 24 probation. (Id.) Hudson told Simon he was no longer on probation or parole. (Id. at 3–4.) 25 Ultimately, Simon arrested Hudson for failing to check in or register pursuant to California 26 Penal Code section 290.018. (Id. at 3–4; see also ECF 5-1, at 7.) But Hudson states that the 27 information Simon relied on was incorrect and he (Hudson) was “properly registered in 1 El Cajon.” (ECF 5, at 4; see also ECF 5-1, at 1–5.) Nonetheless, Simon arrested Hudson, 2 and transported him to the San Diego Central Jail. (ECF 5, at 7.) During the intake process, 3 San Diego Sheriff’s Department (“SDSD”) staff conducted a strip search of Hudson. (Id. 4 at 7–8.) Hudson was held in jail from November 30 until December 3, 2020, when he was 5 released without charges. (Id. at 9; see also ECF 5-1, at 8.) 6 Hudson alleges his Fourth Amendment rights2 were violated when he was arrested 7 and subsequently searched and detained in jail for four days. (Id. at 3, 7, 9.) He seeks 8 compensatory and punitive damages. (Id. at 13.) 9 C. Discussion 10 1. Statute of Limitations 11 As an initial matter, it appears Hudson’s claims are barred by the statute of 12 limitations. A court may raise a statute of limitations bar sua sponte and dismiss claims 13 when the running of the statute of limitations is apparent on the face of the complaint. 14 Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686–87 (9th Cir. 1993). A complaint, 15 however, may not be dismissed without leave to amend “unless it appears beyond doubt 16 that the plaintiff can prove no set of facts that would establish the timeliness of the claim.” 17 Id. (citation and internal quotations omitted); see Jump San Diego, LLC v. Kruger, 671 18 Fed. App’x 496, 497–98 (9th Cir. 2016) (stating plaintiff should be allowed to amend when 19 “it is not certain that [plaintiff could] prove no set of facts that would establish the 20 21 22 2 Plaintiff also references the Eighth Amendment and the Due Process Clause in his Complaint. (See ECF 5 at 8, 10.) However, based on his allegations that he was arrested, 23 searched, and detained without a probable-cause determination, the Fourth Amendment 24 applies. See Manuel v. City of Joliet, Ill., 580 U.S. 357, 367 (2017) (When a “complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, 25 then the right allegedly infringed lies in the Fourth Amendment.”); see also Bell v. Wolfish, 26 441 U.S. 520, 533 (1979) (stating the Due Process Clause protects a post-arraignment pretrial detainee); Whitley v. Albers, 475 U.S. 312, 318 (1986) (stating the Eighth 27 Amendment was “designed to protect those convicted of crimes”). 1 timeliness of the claim[s]”). 2 Section 1983 does not contain its own limitations period and instead borrows the 3 two-year limitation period for personal-injury claims applicable to the forum state of 4 California. Cal. Civ. Proc. Code § 335.1; see also Jones v. Blanas, 393 F.3d 918, 927 5 (9th Cir. 2004). Generally, that two-year clock begins to run “when the plaintiff knows or 6 has reason to know of the injury which is the basis of the action.” See Bonelli v. Grand 7 Canyon Univ., 28 F. 4th 948, 952 (9th Cir. 2022) (quoting Lukovsky v. City & Cnty. of San 8 Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008)). Specifically, a Fourth Amendment claim 9 accrues “when the wrongful act occurs.” Id.; see also Belanus v. Clark, 796 F.3d 1021, 10 1026 (9th Cir. 2015). 11 Hudson’s claims accrued on November 30, 2020, the date of his alleged unlawful 12 arrest, search, and detention. (See ECF 5, at 3.) The limitation period expired two years 13 later, on November 30, 2022. Plaintiff filed this action on November 7, 2023, nearly a year 14 after the statute of limitations had expired. So, the claims are time-barred unless Hudson is 15 eligible for tolling. 16 California law allows for the limitation period to be tolled for up to two years if the 17 plaintiff is, “at the time the cause of action accrued, imprisoned on a criminal charge, or in 18 execution under the sentence of a criminal court for a term less than for life.” Cal. Civ. 19 Code § 352.1(a). There is some question as to whether Hudson’s incarceration arising from 20 this arrest would count. Compare Elliott v. Union City, 25 F.3d 800, 803 (9th Cir. 1994) 21 with Austin v. Medicis, 21 Cal. App. 5th 577, 582 (2018). But the Court need not trouble 22 itself long. Even if Hudson were eligible for § 352.1 tolling, the period of incarceration 23 only lasted four days, which would not be nearly sufficient tolling to make a difference.3 24 25 26 3 Hudson is now incarcerated at the Substance Abuse Treatment Facility and State Prison, Corcoran. (See ECF 5, at 2.) But there is no indication his current custody is related 27 to his November 30, 2020 arrest nor continuous with that period of incarceration. 1 See § 352.1 (noting that tolling is only available for the “time of that disability,” i.e. the 2 incarceration). Therefore, his claims continue to appear time barred. 3 Although Hudson’s claims seem untimely, it is possible he could allege additional 4 facts to show he is entitled to sufficient equitable tolling. See Hull v. Central Pathology 5 Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994) (discussing the 6 requirements for equitable tolling). Currently, however, Hudson has failed to plead facts 7 which, if proved, would support any plausible claim for other types of tolling. See 8 Cervantes v. City of San Diego, 5 F.3d 1273, 1276–77 (9th Cir. 1993); Hinton v. Pac. 9 Enters., 5 F.3d 391, 395 (9th Cir. 1993) (stating the plaintiff carries the burden to plead 10 facts which would give rise to equitable tolling). 11 Because it appears from the face of the pleadings that the original complaint was 12 filed nearly three years after the two-year clock started, Hudson’s claims are dismissed 13 without prejudice for failure to state a claim. See Levald, 998 F.2d at 687; see also 14 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1). 15 2. Arrest 16 In the event Hudson can show his claims are timely, the Court now turns to the 17 substance of the allegations in the complaint. In his first claim, Hudson alleges Officer 18 Simon arrested him without a warrant or probable cause, in violation of the Fourth 19 Amendment. (ECF 5, at 3.) It is well-established that “an arrest without probable cause 20 violates the Fourth Amendment and gives rise to a claim for damages under § 1983.” 21 Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (citing Borunda v. 22 Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988)). 23 An officer has probable cause to make a warrantless arrest when a reasonably 24 prudent person possessing the facts and circumstances within the officer’s knowledge 25 would conclude that the suspect had committed or was committing a crime. Id. (citing 26 Crowe v. Cnty. of San Diego, 608 F.3d 406, 432 (9th Cir. 2010)). Probable cause does not 27 require conclusive evidence of guilt, but only “some objective evidence which would allow 1 a reasonable officer to deduce that a particular individual has committed or is in the process 2 of committing a criminal offense.” McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 3 1984); see also Adams v. Williams, 407 U.S. 143, 148 (1972) (“Probable cause . . . is 4 present if at the moment the arrest was made . . . the facts and circumstances within [the 5 arresting officer’s] knowledge and of which they had reasonably trustworthy information 6 were sufficient to warrant a prudent man in believing that the [suspect] had committed or 7 was committing an offense.”). 8 Here, Hudson alleges Simon asked him for identification and shortly after obtaining 9 it, arrested him in reliance upon “information [that was] wrong.” (ECF 5, at 3, 12.) But 10 Hudson fails to specify what “incorrect information” Simon relied upon and/or how it was 11 unreasonable for him to do so. Hudson appears to contend that his release from custody 12 four days later shows there was no probable cause to arrest him. But that he was released 13 does not establish an absence of probable cause at the time of his arrest, which requires 14 consideration of the facts and circumstances known by Simon at the time of the arrest. See 15 Maryland v. Pringle, 540. U.S. 366, 371 (2003); Freeman v. City of Santa Ana, 68 F.3d 16 1180, 1189 (9th Cir. 1995) (“[T]he mere fact a prosecution was unsuccessful does not mean 17 it was not supported by probable cause.”). Therefore, as currently pleaded, Hudson fails to 18 state a Fourth Amendment claim against Simon for unlawful arrest. See 28 U.S.C. 19 §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126–27. 20 3. Search 21 In his second claim, Hudson alleges his Fourth Amendment rights were violated by 22 the SDSD when employee(s) subjected him to a strip search upon his intake into San Diego 23 County Jail. (ECF 5, at 7.) 24 First, the SDSD is not a proper defendant. Under section 1983, municipalities are 25 deemed “persons” subject to suit, but underlying municipal departments, such as the 26 SDSD, are not. See Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995); see also Vance v. 27 Cnty. of Santa Clara, 928 F. Supp. 993, 995–96 (N.D. Cal. 1996). In addition, the Court 1 notes that even if Plaintiff had named the County of San Diego as a defendant, the facts as 2 alleged in the complaint would be insufficient to state a claim against the County. To do 3 so, Hudson must allege facts sufficient to plausibly show the SDSD employees who 4 searched him did so pursuant to a county “policy or custom.” Monell v. Dep’t of Soc. Servs. 5 of City of New York, 436 U.S. 658, 690–91 (1974); Villegas v. Gilroy Garlic Festival Ass’n, 6 541 F.3d 950, 964 (9th Cir. 2008). The County of San Diego may not be held vicariously 7 liable under section 1983.4 See Monell, 436 U.S. at 691 (“[A] a municipality cannot be held 8 liable solely because it employs a tortfeasor.”). Thus, Hudson has failed to state a Fourth 9 Amendment claim against SDSD based on his intake strip search. See 28 U.S.C. 10 §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126–27. 11 4. Detention 12 In his third claim, Hudson alleges Simon and SDSD unlawfully detained and “falsely 13 imprisoned” him without probable cause and held him in jail for four days without a 14 “criminal complaint.” (ECF 5, at 9.) He also contends that, upon intake, he was improperly 15 confined in administrative segregation without due process. (Id. at 10.) 16 First, to prevail on a section 1983 claim against Simon for false imprisonment based 17 upon an alleged unlawful arrest, Plaintiff must “demonstrate that there was no probable 18 cause to arrest him.”5 Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 19

20 4 Had Hudson named the individual deputies who performed the search, he would 21 still likely fail to state a claim. The Supreme Court has held that generally strip searches of 22 inmates entering the general population of a jail are constitutional even without reasonable suspicion. Florence v. Bd. of Chosen Freeholders, 566 U.S. 318 (2012). But see Hudson v. 23 Palmer, 468 U.S. 517, 528 (1984) (stating searches done for the purpose of harassment are 24 not constitutionally valid).

25 5 In his complaint, Huston also references the state tort of false imprisonment. 26 (ECF 5, at 11.) Under California tort law, false imprisonment requires: “(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and 27 (3) for an appreciable period of time, however brief.” Easton v. Sutter Coast Hosp., 80 Cal. 1 1998) (per curium); Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990). Thus, to the extent 2 Hudson’s false-imprisonment claim against Simon is based on his purported false arrest, 3 he fails to state a claim for the same reasons discussed earlier. 4 Next, Hudson alleges he was falsely imprisoned by SDSD when he was held in jail 5 for four days without a “criminal complaint.” (ECF 5, at 9.) The Fourth Amendment 6 “requires a prompt judicial determination of probable cause following an arrest made 7 without a warrant and ensuing detention.” Powell v. Nevada, 511 U.S. 79, 80 (1994). An 8 arrestee “is entitled under the Fourth Amendment to a hearing at which he is presented with 9 the probable cause of his arrest within forty-eight hours of the arrest.” Benson v. Chappell, 10 958 F.3d 801, 823 (9th Cir. 2020); see also Pierce v. Multnomah Cnty., Or., 76 F.3d 1032, 11 1043 (9th Cir. 1996) (“The Fourth Amendment sets the applicable constitutional 12 limitations on the treatment of an arrestee detained without a warrant up until the time such 13 arrestee is released or found to be legally in custody based upon probable cause for 14 arrest.”). “[A]bsent extraordinary circumstances, a longer delay violates the Fourth 15 Amendment.” Powell, 511 U.S. at 80. As discussed above, however, the SDSD is not a 16 proper defendant in a section 1983 claim because municipal departments are not “persons” 17 for purposes of section 1983. See Hervey, 65 F.3d at 791. Therefore, Hudson has failed to 18 state a claim against SDSD.6 19 Finally, Hudson’s claim that SDSD violated his right to due process by housing him 20

21 App.4th 485, 496 (Cal. App. 2000). Here, because Hudson has failed to state a cognizable 22 § 1983 claim, the Court declines to exercise supplemental jurisdiction over his state law claim. See 28 U.S.C. § 1368(c)(3). 23

24 6 Even if Hudson were suing San Diego County, as currently pleaded, Hudson would still fail to state a claim. While Plaintiff refences the standard set forth in Monell (ECF 5, 25 at 11), he fails to allege any facts suggesting the “execution of a government’s policy or 26 custom” was the moving force behind his purportedly unlawful detention. See Monell, 436 U.S. at 694. 27 1 in administrative segregation upon intake at the jail, fails for the same reason. Moreover, 2 while the Fourteenth Amendment provides, “[n]o State shall . . . deprive any person of life, 3 liberty, or property, without due process of law,” prisoners who wish to invoke due-process 4 protections must establish the existence of a protected liberty interest and show it was 5 denied without due process. See Sandin v. Conner, 515 U.S. 472, 483–84 (1995). 6 “Typically, administrative segregation in and of itself does not implicate a protected liberty 7 interest.” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (citations omitted); see 8 also Candler v. Santa Rita Cnty. Jail Watch Commander, 798 F. App’ 95, 96–97 (9th Cir. 9 2020). 10 In sum, Hudson has failed to state a Fourth Amendment and/or false-imprisonment 11 claim against Simon and SDSD based on his four-day detention. See 28 U.S.C. 12 §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126–27. 13 D. Leave to Amend 14 In light of Plaintiff’s pro se status, the Court GRANTS leave to amend. See Rosati 15 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a 16 pro se complaint without leave to amend [under 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is 17 absolutely clear that the deficiencies of the complaint could not be cured by amendment.’”) 18 (quoting Akhtar v Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)); see also Cervantes, 5 F.3d 19 at 1276–77 (when the running of the statute of limitations is apparent on the face of a 20 complaint, dismissal for failure to state a claim is proper, so long as Plaintiff is provided 21 an opportunity to amend to allege facts which, if proved, might support tolling). 22 III. MISCELLANEOUS REQUESTS AND MOTION FOR SERVICE 23 Plaintiff has also filed two requests for “stipulations of fact” (ECF 3, 4) and a 24 “motion for service” (ECF 6). Because the operative complaint is dismissed without 25 prejudice, the requests for stipulation and motion for service are DENIED without 26 prejudice as moot. 27 1 IV. CONCLUSION AND ORDER 2 For the reasons set forth above, the Court hereby: 3 1. GRANTS Plaintiff’s Motion to proceed IFP under 28 U.S.C. § 1915(a) 4 (ECF 2). 5 2. ORDERS the Secretary of the CDCR, or his designee, to collect the $350 6 filing fee owed in this case by collecting monthly payments from the account in an amount 7 equal to twenty percent (20%) of the preceding month’s income and forward payments to 8 the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 9 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST CLEARLY IDENTIFY THE NAME 10 AND CASE NUMBER ASSIGNED TO THIS ACTION. 11 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 12 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by 13 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 14 4. DISMISSES Plaintiff’s First Amended Complaint without prejudice for 15 failure to state a claim under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 16 5. DENIES Plaintiff’s Requests for Stipulation (ECF 3, 4) and Motion for 17 Service (ECF 6) as moot. 18 6. GRANTS Plaintiff until May 13, 2024, to file a Second Amended Complaint 19 which cures the deficiencies of pleading noted in this Order. Specifically, Plaintiff’s 20 Second Amended Complaint must be complete by itself without reference to any previous 21 version of his pleading. Defendants not named and any claims not re-alleged in the new 22 complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Lacey v. Maricopa 23 County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to 24 amend which are not re-alleged in an amended pleading may be “considered waived if not 25 repled”); Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). If Plaintiff fails to timely amend, the Court will enter a final Order dismissing this 26 civil action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 27 I II not 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 ||Dated: March 13, 2024

° Hon. Andrew G. Schopler 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