Hung Duong Nguon v. William C. Ryan, Superior Court Judge, et al.

• Court: District Court, S.D. California
• Decided: February 20, 2026
• Docket: 3:25-cv-03422
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HUNG DUONG NGUON, Case No. 25cv3422-DMS (BJW) CDCR #K-49649, 12 ORDER DENYING MOTION FOR Plaintiff, 13 RECUSAL AND DISMISSING CIVIL vs. ACTION FOR FAILING TO 14 STATE A CLAIM PURSUANT WILLIAM C. RYAN, Superior Court 15 TO 28 U.S.C. § 1915A(b)(1) Judge, et al.,

16 Defendants. 17 18 19 On December 1, 2025, Plaintiff Hung Duong Nguon, a state inmate incarcerated at 20 the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, proceeding 21 pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 accompanied by a copy of 22 his prison trust account statement. (ECF Nos. 1-2.) On December 9, 2025, Plaintiff paid 23 the full civil filing fee, and filed a motion to exceed the 22-page limit on civil complaints 24 filed by prisoners in this district under General Order 653A and Local Civil Rule 8.2(a). 25 (ECF Nos. 3, 6.) On December 16, 2025, after the filing fee had been received but before 26 it was docketed, the Court construed Plaintiff’s prison trust account statement as a motion 27 to proceed in forma pauperis and denied Plaintiff leave to proceed in forma pauperis, 28 denied Plaintiff’s motion to exceed the page limit because the Complaint did not exceed 1 the page limit, and dismissed this action without prejudice for failure to satisfy the filing 2 fee requirement. (ECF No. 4.) On December 17, 2025, Plaintiff filed a notice that he had 3 paid the filing fee. (ECF No. 5.) The Clerk of Court then amended the docket to reflect 4 the filing fee was paid in full and reopened the case. (ECF No. 6.) 5 On January 7, 2026, Plaintiff filed a Motion for recusal seeking to recuse the 6 assigned District Judge, arguing that bias was shown arising from errors in construing his 7 trust account statement as a motion to proceed in forma pauperis and denying his motion 8 to exceed the page limit. (ECF No. 7.) On January 8, 2025, Plaintiff filed a Motion for an 9 extension of time to satisfy the filing fee requirement which was denied as moot. (ECF 10 Nos. 9-10.) 11 I. Motion for Recusal 12 Plaintiff seeks recusal of the undersigned District Judge for construing his trust 13 account statement as a motion to proceed in forma pauperis, arguing that it was error to do 14 so because he did not authorize the prison to submit a copy of his trust account statement 15 and did not file an in forma pauperis motion because he had always intended to pay the full 16 civil filing fee. (ECF No. 7 at 1-4.) Plaintiff also contends that he wishes to present 36 17 causes of action in this action but due to the page limit only had space to present 6 causes 18 of action, and argues it was error not to have granted him leave to file a new Complaint 19 exceeding the page limit for that purpose. (Id. at 4-7.) 20 “The standard for recusal is ‘whether a reasonable person with knowledge of all of 21 the facts would conclude that the judge’s impartiality might reasonably be questioned.’” 22 Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984), quoting United States v. Nelson, 23 718 F.2d 315, 321 (9th Cir. 1983). A judge’s adverse rulings alone are not sufficient for 24 recusal “even if they were erroneous.” See Nelson, 718 F.2d at 321. Plaintiff has not 25 presented any evidence of judicial bias or any other reason supporting recusal, merely his 26 disagreement with judicial rulings in this case. The Court finds recusal is not warranted 27 and DENIES the Motion for recusal. As set forth at the end of this Order, Plaintiff will be 28 given an opportunity to seek leave to exceed the page limit for an amended complaint. 1 II. SCREENING PURSUANT TO 28 U.S.C. § 1915A 2 A. Standard of Review 3 The Court must conduct an initial review of the Complaint under 28 U.S.C. § 1915A, 4 which “mandates early review - ‘before docketing () or () as soon as practicable after 5 docketing’ - for all complaints ‘in which a prisoner seeks redress from a governmental 6 entity or officer or employee of a governmental entity.’” Chavez v. Robinson, 817 F.3d 7 1162, 1168 (9th Cir. 2016), quoting 28 U.S.C. § 1915A(a). “‘On review, the court shall 8 . . . dismiss the complaint, or any portion of the complaint,’ if it ‘(1) is frivolous, malicious, 9 or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from 10 a defendant who is immune from such relief.’” Olivas v. Nevada ex rel. Dept. of Corr., 11 856 F.3d 1281, 1283 (9th Cir. 2017), quoting 28 U.S.C. § 1915A(b). 12 Screening pursuant to § 1915A “incorporates the familiar standard applied in the 13 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” 14 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “The Rule 12(b)(6) standard 15 requires a complaint to ‘contain sufficient factual matter, accepted as true, to state a claim 16 to relief that is plausible on its face.’” Id., quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 17 (2009). 18 “Section 1983 creates a private right of action against individuals who, acting under 19 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 20 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show 21 both (1) deprivation of a right secured by the Constitution and laws of the United States, 22 and (2) that the deprivation was committed by a person acting under color of state law.” 23 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 24 B. Discussion 25 1. Plaintiff’s Allegations 26 Plaintiff challenges the validity of his 1997 Los Angeles County Superior Court 27 criminal conviction for kidnapping during the commission of a carjacking with the use of 28 a firearm, for which he was sentenced to life with the possibility of parole plus three years, 1 and in addition challenges an ongoing denial of parole. He names as Defendants San 2 Diego County Superior Court Judge William C. Ryan, former Los Angeles County 3 Superior Court Judge David S. Milton, former Los Angeles County District Attorney Gil 4 Garcetti, former Deputy Los Angeles County District Attorneys Fernando Guzman and 5 Reid Rose, former California Attorney General Daniel E. Lungren, California Governor 6 Gavin Newsom, trial counsel Bruce Ivan Brown, the California Department of Corrections 7 and Rehabilitation (“CDCR”), CDCR Secretary Jeff Macomber, RJD Wardens Rafael 8 Acevedo and James Hill, San Diego, Sacramento and Los Angeles Counties, the California 9 Board of Parole Hearings (“BPH”), BPH Presiding Commissioner David Ndudim, Deputy 10 BPH Commissioner Teresa Meighan, attorney Karen Fleming who represented Plaintiff at 11 a BPH hearing, BPH transcriber Maria Irene Lopez, BPH staff attorney Roxanna Gomez, 12 BPH Chief Counsel Chancellor Veal, BPH special processing attorney D. Moeller, and 13 psychologists Timothea McGinley and Jeanette Sanders. (ECF No. 1 at 2, 6-11.) 14 Plaintiff alleges that on July 9, 2024, he attended a BPH parole hearing via video 15 conference, six months after it should have taken place, where Defendants Ndudim, 16 Meighan, McGinley, Sanders, Fleming, BPH, Gomez, Veal, Moeller and CDCR violated 17 his right to a fair, timely, accurately-transcribed, in-person hearing, at which false and 18 misleading evidence was introduced and relevant evidence ignored, at which Ndudim and 19 Meighan displayed bias and prejudice, and at which he was forced to be represented by 20 Fleming rather than being allowed to represent himself, who provided ineffective 21 assistance of counsel by failing to object, sided with the BPH several times, and was 22 responsible for producing an inaccurate and altered transcript. (Id. at 11, 14-17.) Plaintiff 23 states that he has appeared before the BPH eight times, the first in 2005, some with 24 25 26 1 Plaintiff unsuccessfully challenged his 2001 parole denial in a habeas petition filed in this 27 Court raising similar claims as here. See Nguon v. Madden, 2023 WL 2573894, at *1 & n.1 (S.D. Cal. Mar. 20, 2023) (noting that Plaintiff has filed several state and federal 28 1 untimely hearings, and contends the continued denials and delays, a recent notification that 2 he will not receive an elderly parole hearing in 2026 to which he is entitled, and the 3 requirement that he has an available half-way house in both the United States and Vietnam, 4 amounts to an indefinite no parole policy. (Id. at 11-12.) He contends that similarly 5 situated inmates serving life sentences for crimes committed when they were teenagers and 6 participating in similar rehabilitative prison programs are serving less prison time, and that 7 Defendants have essentially turned a life sentence for an offense he committed in 1995 into 8 an unauthorized death sentence or life without parole. (Id. at 13, 16.) 9 Plaintiff alleges Defendants Ndudim, Meighan, BPH, McGinley, Sanders, Ryan, 10 Hill, Gomez, Veal, Moeller, Newsom, CDCR, Macomber and Acevedo have practiced 11 racial discrimination because he is half Chinese and half Vietnamese by granting parole to 12 White, Black and Hispanic prisoners convicted of worse crimes. (Id. at 13-14.) He claims 13 that Defendant Judge Ryan accepted the findings of the BPH that Plaintiff suffered from 14 schizoaffective disorder and was in a state of delusion at the time of his crime, but 15 nevertheless denied his state habeas petition seeking a new trial in which he argued he was 16 not guilty by reason of insanity. (Id. at 2, 14, 17.) He claims his trial attorney Defendant 17 Brown provided ineffective assistance of counsel by failing to raise defenses of not guilty 18 by reason of insanity, lack of capacity to form mens rea, incompetence to stand trial, and 19 under the Americans with Disabilities Act. (Id. at 17.) He claims Defendants San Diego 20 County, Hill, Acevedo, Newsom, Macomber and CDCR violated their duty to protect him 21 from the constitutional violations alleged in the Complaint, and that Defendants Los 22 Angeles County, Garcetti, Guzman, Rose, Lungren and Milton failed to void his conviction 23 after determining he was in a state of delusion when he committed his offense. (Id.) He 24 claims that although his 30 plus years of imprisonment has become cruel and unusual, 25 Defendants BPH, Ndudim, Meighan, Gomez, Veal, Moeller, Hill, Acevedo, Newsom, 26 Macomber, CDCR, McGinley, Sanders and Ryan “don’t think so,” and are allowing his 27 sentence to be transformed into one of slavery, life without parole or the death penalty in 28 violation of due process. (Id. at 17-18.) 1 Plaintiff alleges Garcetti, Guzman, Rose, Lungren, Los Angeles County and Milton 2 wrongfully convicted him of kidnapping during the commission of a carjacking. (Id. at 18- 3 19.) He alleges that BPH, Ndudim, Meighan, Gomez, Veal, Moeller, Hill, Acevedo, 4 Newsom, Macomber, CDCR, McGinley, Sanders and Ryan claimed Plaintiff had 5 schizoaffective disorder and tried to force him to take anti-psychotic medication even 6 though specialists determined he did not suffer from that disorder, and “use[d] this to deny 7 [Plaintiff] parole in July 2024.” (Id. at 19.) He alleges he “is being falsely accused with 8 writing over 5000 sex letters to female staffs and harassing them,” and was forced to buy, 9 read and talk about a “sex book” despite not having a sex conviction. (Id. at 19-20.) 10 Plaintiff claims violations under the First, Fifth, Sixth, Ninth and Fourteenth Amendments, 11 and seeks monetary damages. (Id. at 20-22.) 12 2. Heck Bar 13 Plaintiff has not stated a 42 U.S.C. § 1983 claim against any Defendant based on 14 allegations that he was wrongfully convicted, has failed to have his conviction overturned, 15 or has not been released on parole. Claims related to the “circumstances” of a prisoner’s 16 confinement are brought in a civil rights action, while constitutional challenges to the 17 validity or duration of a prisoner’s confinement must be raised in a petition for federal 18 habeas corpus under 28 U.S.C. § 2254. Muhammad v. Close, 540 U.S. 749, 750 (2004), 19 citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Nettles v. Grounds, 830 20 F.3d 922, 927 (9th Cir. 2016) (en banc) (“The Court has long held that habeas is the 21 exclusive vehicle for claims brought by state prisoners that fall within the core of habeas, 22 and such claims may not be brought in a [civil rights] action.”), citing Wilkinson v. Dotson, 23 544 U.S. 74, 81-82 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior 24 invalidation)—no matter the relief sought (damages or equitable relief), no matter the target 25 of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)— 26 if success in that action would necessarily demonstrate the invalidity of confinement or its 27 duration.”) A claim based on “harm caused by actions whose unlawfulness would render 28 a conviction or sentence invalid,” is not cognizable outside of the habeas context unless 1 Plaintiff “prove[s] that the conviction or sentence has been reversed on direct appeal, 2 expunged by executive order, declared invalid by a state tribunal authorized to make such 3 determination, or called into question by a federal court’s issuance of a writ of habeas 4 corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 5 Thus, Plaintiff may not seek relief based on claims he has been unlawfully convicted, 6 sentenced, and/or incarcerated in a civil rights action without first showing his conviction 7 or incarceration has been invalidated. Id.; see also Ramirez v. Galaza, 334 F.3d 850, 856 8 (9th Cir. 2003) (“Suits challenging the validity of the prisoner’s continued incarceration lie 9 within ‘the heart of habeas corpus,’ whereas ‘a [civil rights] action is a proper remedy for 10 a state prisoner who is making a constitutional challenge to the conditions of his prison 11 life, but not to the fact or length of his custody.’”), quoting Preiser, 411 U.S. at 498-99 12 (holding that a writ of habeas corpus is “explicitly and historically designed” to provide a 13 prisoner with the exclusive means to attack the validity of his confinement in federal court). 14 Because Plaintiff has not and cannot allege his conviction has already been invalidated, but 15 instead indicates he is still serving his sentence on the conviction, the Court finds such 16 claims in the Complaint fail to state a claim upon which § 1983 relief can be granted and 17 are subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1). See Heck, 512 18 U.S. at 486-87. These claims are dismissed without leave to amend. See Beets v. County 19 of Los Angeles, 669 F.3d 1038, 1041-42 (9th Cir. 2012) (holding that the filing of an 20 amended complaint is futile if claims are barred by Heck), disapproved of on other grounds 21 by Lemos v. County of Sonoma, 40 F.4th 1002 (9th Cir. 2022); Bell v. Allison, 2022 WL 22 4077119, at *1 (9th Cir. 2022) (affirming dismissal of Heck-barred claims without leave to 23 amend because “amendment would be futile.”) 24 3. Immunity 25 In addition, Defendant Superior Court Judges Ryan and Milton are immune from 26 actions arising from the discharge of their official duties as alleged by Plaintiff here. See 27 Mireles v. Waco, 502 U.S. 9, 11 (1991) (“Like other forms of official immunity, judicial 28 immunity is an immunity from suit, not just from ultimate assessment of damages.”); 1 Moore v. Urquhart, 899 F.3d 1094, 1104 (9th Cir. 2018) (“Section 1983 . . . provides 2 judicial officers immunity from injunctive relief even when the common law would not.”) 3 This immunity applies “however erroneous the act may have been, and however injurious 4 in its consequences it may have proved to the plaintiff.” Cleavinger v. Saxner, 474 U.S. 5 193, 199-200 (1985). “Grave procedural errors or acts in excess of judicial authority do 6 not deprive a judge of this immunity.” Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th 7 Cir. 1988). Likewise, Plaintiff’s claims against Defendants former Los Angeles County 8 District Attorney Garcetti, former Deputy Los Angeles County District Attorneys Guzman 9 and Rose, and former California Attorney General Lungren are barred by the doctrine of 10 quasi-judicial immunity. Prosecutors are entitled to absolute quasi-judicial immunity from 11 liability for damages under 42 U.S.C. § 1983 when the alleged wrongful acts were 12 committed by a prosecutor in the performance of an integral part of the criminal judicial 13 process as alleged by Plaintiff here. See Bly-Magee v. California, 236 F.3d 1014, 1018 14 (9th Cir. 2001) (quasi-judicial absolute immunity applies to attorneys general for conduct 15 related to their state litigation duties in civil suits); Garmon v. Cnty. of Los Angeles, 828 16 F.3d 837, 843 (9th Cir. 2016) (state prosecutors are absolutely immune from suit “when 17 performing functions ‘intimately associated with the judicial phase of the criminal 18 process.’”), quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Plaintiff has failed to 19 state a claim against the Judge or prosecutor Defendants and these claims are dismissed 20 without leave to amend. See Huffman v. Lindgren, 81 F.4th 1016, 1021-22 (9th Cir. 2023) 21 (affirming dismissal without leave to amend of claims against judges and prosecutors based 22 on judicial and quasi-judicial immunity). 23 Plaintiff has not stated a claim against BPH Presiding Commissioner Ndudim, 24 Deputy BPH Commissioner Meighan, BPH transcriber Lopez, BPH staff attorney Gomez, 25 BPH Chief Counsel Veal, BPH special processing attorney Moeller, or psychologists 26 McGinley and Sanders. State parole board officials, including court-appointed 27 psychologists and psychiatrists, have absolute quasi-judicial immunity when they act to 28 grant, deny or revoke parole, because such actions are functionally comparable to those of 1 judges. Sellars v. Procunier, 641 F.2d 1295, 1302-04 (9th Cir. 1981); Anderson v. Boyd, 2 714 F.2d 906, 909 (9th Cir. 1983) (“Quasi-judicial immunity completely shields covered 3 officials when they perform the functions which give rise to the need for absolute 4 protection, even when the officials make egregious mistakes in carrying out these duties.”); 5 Sullivan v. Kennedy, 2021 WL 2383224, at *5-7 (D. Haw. June 10, 2021) (“Court- 6 appointed psychologists and psychiatrists who perform court-ordered evaluations enjoy 7 quasi-judicial immunity” requiring dismissal without leave to amend.) All claims against 8 the parole board Defendants based on allegations for which they are entitled to quasi- 9 judicial immunity are dismissed without leave to amend. See Sharma v. Stevas, 790 F.2d 10 1486, 1486 (9th Cir. 1986) (claims barred by judicial and quasi-judicial immunity may be 11 dismissed without leave to amend). 12 Plaintiff has also failed to state a claim against Defendants state appointed attorneys 13 Fleming, Moeller and Brown. A public attorney “does not act under color of state law 14 when performing a lawyer’s traditional functions as counsel to a defendant in a criminal 15 proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981); Miranda v. Clark County, 16 Nevada, 319 F.3d 465, 468 (9th Cir. 2003) (“[The appointed attorney] was, no doubt, paid 17 by government funds and hired by a government agency. Nevertheless, his function was 18 to represent his client, not the interests of the state or county.”); Garnier v. Clarke, 332 19 Fed. App’x 416 (9th Cir. 2009) (affirming district court’s sua sponte dismissal of prisoner’s 20 § 1983 claims against appointed counsel). Any claims against Plaintiff’s court-appointed 21 attorneys, to the extent they are based on allegation regarding their representation of him, 22 are dismissed without leave to amend because court-appointed attorneys cannot be sued 23 under § 1983 for “performing a lawyer’s traditional functions” in representing Plaintiff. 24 Dodson, 454 U.S. at 3325 25 4. Municipal Defendants 26 In order to state a claim for municipal liability against Defendants Los Angeles, 27 Sacramento and San Diego Counties, Plaintiff must allege that: (1) he was deprived of a 28 constitutional right, (2) the County has a policy, custom or practice which amounted to 1 deliberate indifference to that constitutional right; and (3) the policy, custom or practice 2 was the moving force behind the constitutional violation. Dougherty v. City of Covina, 3 654 F.3d 892, 900-01 (9th Cir. 2011), citing Monell v. Department of Social Services, 436 4 U.S. 658, 694 (1978) (“We conclude, therefore, that a local government may not be sued 5 under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when 6 execution of a government’s policy or custom, whether made by its lawmakers or by those 7 whose edicts or acts may fairly be said to represent official policy, inflicts the injury that 8 the government as an entity is responsible under § 1983.”) Municipal liability may be 9 shown when an employee who committed the constitutional violation was “acting pursuant 10 to an expressly adopted official policy, longstanding practice or custom, or as a final 11 policymaker.” Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014), citing 12 Monell, 436 U.S. at 694. 13 Plaintiff has not identified in the body of the Complaint a custom, policy or practice 14 allegedly adhered to with deliberate indifference to his constitutional rights. He fails to 15 plausibly allege municipal liability because “proof of a single incident of unconstitutional 16 activity,” or even a series of “isolated or sporadic incidents” will not give rise to § 1983 17 municipal liability. Gant v. County of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014). 18 5. Parole Claims 19 Finally, Plaintiff has failed to state a claim based on his allegations that the 20 Defendants continue to deny him parole. The Supreme Court has stated that the effect that 21 parole suitability determinations have, if any, on the duration of a sentence, “is simply too 22 attenuated to invoke the procedural guarantees of the Due Process Clause.” Sandin v. 23 Conner, 515 U.S. 472, 487; see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997) 24 (recognizing that relief which would improve future parole eligibility does not “guarantee 25 parole or necessarily shorten . . . prison sentences by a single day.”); Greenholtz v. Inmates 26 of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or 27 inherent right of a convicted person to [parole].”) 28 / / / 1 The Supreme Court has found that a prisoner may bring a § 1983 action on narrow 2 grounds challenging parole eligibility guidelines because success would merely result in a 3 new parole hearing and not necessarily a release from custody. See Dotson, 544 U.S. at 4 82. However, the Supreme Court has emphasized that it is not the role of federal courts to 5 substantively review state parole denials such as Plaintiff seeks here. See Swarthout v. 6 Cooke, 562 U.S. 216, 220 (2011) (holding that, under federal law, a prisoner subject to a 7 state parole decision is entitled only to an opportunity to be heard and a statement of reasons 8 for why parole was denied). Because Plaintiff does not allege he was denied an opportunity 9 to be heard and a statement of reasons for the denial of parole, he has not stated a claim 10 based on his parole proceedings. Id. Also, as noted above, Plaintiff would be required to 11 bring such a claim on habeas, which he has several times, and not under § 1983. 12 5. Leave to Amend 13 Although it appears unlikely Plaintiff will be able to amend his Complaint to state a 14 claim, in light of his pro se status, the Court grants leave to amend, other than with respect 15 to the claims identified above which are dismissed without leave to amend. See Rosati v. 16 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 17 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless it 18 is absolutely clear that the deficiencies of the complaint could not be cured by 19 amendment.”) (internal quote marks omitted). 20 Now that Plaintiff has been informed of the pleading deficiencies of his claims and 21 the majority of his claims have been dismissed without leave to amend, to the extent he 22 still wishes to include 36 causes of action rather than 6, and contends he does not have 23 space to do so within the 22 page limit, he may seek leave of Court to exceed the page limit 24 of an amended complaint, and in doing so must demonstrate that such an amended 25 complaint complies with Rule 8 of the Rules of Civil Procedure which requires that every 26 complaint must contain: “(1) a short and plain statement of the grounds for the court’s 27 jurisdiction,” . . . (2) a short and plain statement showing that the pleader is entitled to 28 relief; and (3) a demand for the relief sought.” Fed. R. Civ. P. 8(a)(1)-(3). 1 ||. CONCLUSION 2 Accordingly, for all the reasons discussed, the Court DENIES Plaintiff s Motion for 3 ||Recusal (ECF No. 7) and DISMISSES this civil action pursuant to 28 U.S.C. § 1915A 4 || based on Plaintiffs failure to state a claim upon which relief can be granted. The Court 5 || GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file a 6 || First Amended Complaint which cures the deficiencies of pleading noted in this Order 7 ||regarding claims which have not been dismissed without leave to amend. Plaintiff s First 8 ||Amended Complaint must be complete by itself without reference to his original 9 ||Complaint. Defendants not named and any claims not re-alleged in the First Amended 10 || Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 11 ||v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (‘[A]n amended 12 || pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d896, 928 (9th Cir. 13 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 14 || amended pleading may be “considered waived if not repled.”) If Plaintiff fails to amend, 15 || the Court will dismiss this action for failure to statea claim and failure to prosecute. See 16 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (‘Ifa plaintiff does not take advantage 17 || of the opportunity to fix his complaint, a district court may convert the dismissal of the 18 ||complaint into dismissal of the entire action.”) 19 IT IS SO ORDERED. 20 ||Dated: February 20, 2026 g □ 71 YN - Hon. Dana M. Sabraw United States District Judge 23 24 25 26 27 28 -12-