Jonathan Grigsby v. Debbie Asuncion

• Court: District Court, C.D. California
• Decided: December 23, 2019
• Docket: 2:18-cv-09826
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 JONATHAN GRIGSBY, ) No. CV 18-9826-JLS (PLA) ) 13 Plaintiff, ) ) 14 v. ) ORDER DISMISSING FIRST AMENDED ) COMPLAINT WITH LEAVE TO AMEND 15 DEBBIE ASUNCION, et al., ) ) 16 Defendants. ) ) 17 18 Plaintiff, a state prisoner who was incarcerated at the California State Prison, Lancaster, 19 California (“CSP-LAC”) at the time that he initiated this action, filed a pro se civil rights action 20 pursuant to 42 U.S.C. § 1983 on November 21, 2018. (ECF No. 1). Plaintiff also filed a request 21 to proceed without prepayment of the filing fee, which was denied by the District Court on the 22 grounds that plaintiff had previously had three or more cases dismissed that constitute strikes in 23 accordance with 28 U.S.C. § 1915(g). (ECF Nos. 2, 8). Plaintiff subsequently paid the full filing 24 fee. (ECF No. 25). 25 Plaintiff’s Complaint named numerous employees of the California Department of 26 Corrections and Rehabilitation (“CDCR”) as defendants. (ECF No. 1 at 3-13). Plaintiff, however, 27 was able to successfully serve the summons and Complaint on only two defendants, Correctional 28 1 2019, after considering plaintiff’s Objections (ECF No. 106), the District Court accepted this 2 Court’s Initial Report and Recommendation (ECF No. 103) and dismissed all unserved named 3 defendants from this action for failure to prosecute. (ECF No. 107). Subsequently, the Court 4 granted the Motion to Stay the Case filed by the two remaining defendants while the Court 5 conducted additional screening. (ECF Nos. 109-112). 6 Plaintiff’s claims in this action arise from an incident on July 16 to 17, 2018, when plaintiff 7 was not taken from his cell for medical attention for several hours while he was in severe pain and 8 calling for help. (ECF No. 1 at 11-16). Plaintiff sought to have criminal charges filed against 9 unnamed prison employees who allegedly falsified documents and failed to investigate plaintiff’s 10 claims. Plaintiff also sought compensatory damages. (Id. at 20). 11 In accordance with the mandate of the Prison Litigation Reform Act of 1995 (“PLRA”), the 12 Court screened the Complaint for the purpose of determining whether the action is frivolous or 13 malicious; or fails to state a claim upon which relief may be granted; or seeks monetary relief 14 against a defendant who is immune from such relief. See 28 U.S.C. § 1915A; 42 U.S.C. § 15 1997e(c)(1). Plaintiff’s status as a prisoner is determined at the time when he filed the action. 16 See Olivas v. Nevada ex rel. Dep’t of Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (citing Page v. 17 Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000), and holding that the status of “prisoner” for 18 purposes of 28 U.S.C. § 1915A is determined “at the time that the plaintiff files the complaint”). 19 After careful review of the Complaint, the Court found that plaintiff’s allegations failed to 20 state a short and plain statement of any claim and appeared insufficient to state a claim against 21 the two remaining defendants. Accordingly, the Complaint was dismissed with leave to amend. 22 See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Plaintiff was ordered, if he desired to 23 pursue this action, to file a First Amended Complaint no later than November 8, 2019, remedying 24 the deficiencies discussed in the Court’s Order of October 10, 2019. Further, plaintiff was 25 admonished that, if he failed to timely file a First Amended Complaint or failed to remedy the 26 deficiencies of his pleading, the Court would recommend that the action be dismissed without 27 further leave to amend and with prejudice. (See ECF No. 113). 28 1 On November 4, 2019, plaintiff filed a First Amended Complaint (“FAC”) that names as 2 defendants Warden Asuncion, Correctional Officers Dunn and Escajeda, and Health Appeals 3 Supervisor Mason. Plaintiff names Correctional Officer Escajeda, Supervisor Mason, and Warden 4 Asuncion in both their individual and official capacities. (ECF No. 114 at 3-4). The District Court’s 5 Order of October 1, 2019, dismissed without prejudice for failure to prosecute defendants Warden 6 Asuncion and Correctional Officer Dunn. (ECF No. 107). To date, plaintiff has failed to file a proof 7 of service of process on either of these two defendants. In the FAC plaintiff once again seeks to 8 have unspecified CDCR employees fired and have “criminal charges filed.” Plaintiff also seeks 9 monetary damages. (ECF No. 114 at 9). 10 The Court once again has screened the FAC for the purpose of determining whether the 11 action is frivolous or malicious; or fails to state a claim upon which relief may be granted; or seeks 12 monetary relief against a defendant who is immune from such relief. The Court’s screening of the 13 pleading under the foregoing statutes is governed by the following standards. A complaint may 14 be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable 15 legal theory; or (2) insufficient facts alleged under a cognizable legal theory. See, e.g., Kwan v. 16 SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017); see also Rosati v. Igbinoso, 791 F.3d 1037, 17 1039 (9th Cir. 2015) (“In determining whether a complaint should be dismissed for failure to state 18 a claim under the [PLRA], we apply the familiar standard of Fed. R. Civ. P. 12(b)(6).”). Further, 19 with respect to a plaintiff’s pleading burden, the Supreme Court has held that: “a plaintiff’s 20 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 21 conclusions, and a formulaic recitation of the elements of a cause of action will not do. … Factual 22 allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal citations 24 omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 25 L. Ed. 2d 868 (2009) (To avoid dismissal for failure to state a claim, “a complaint must contain 26 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ 27 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 28 1 the reasonable inference that the defendant is liable for the misconduct alleged.” (internal citation 2 omitted)). 3 Since plaintiff is appearing pro se, the Court must construe the allegations of the pleading 4 liberally and must afford plaintiff the benefit of any doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 5 (9th Cir. 2010). Further, it is particularly important in a civil rights case filed by a pro se litigant to 6 attempt to ascertain plaintiff’s claims to protect his or her access to the courts. See Blaisdell v. 7 Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (the rule of liberal construction “relieves pro se 8 litigants from the strict application of procedural rules”); Pouncil v. Tilton, 704 F.3d 568, 574-75 9 (9th Cir. 2012) (the rule of liberal construction “protects the rights of pro se litigants to 10 self-representation and meaningful access to the courts”). In addition, the Court may not dismiss 11 a claim because a pro se litigant has set forth an incomplete “legal theory supporting the claim” 12 alleged. See Johnson v. City of Shelby, 574 U.S. 10, 135 S. Ct. 346, 346, 190 L. Ed. 2d 309 13 (2014). Finally, in determining whether a complaint states a claim to relief that is plausible on its 14 face, factual allegations are accepted as true and construed in the light most favorable to plaintiff. 15 See, e.g., Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the “tenet that a court 16 must accept as true all of the allegations contained in a complaint is inapplicable to legal 17 conclusions.” Iqbal, 556 U.S. at 678; see also Chavez v. United States, 683 F.3d 1102, 1108 (9th 18 Cir. 2012) (“a court discounts conclusory statements, which are not entitled to the presumption of 19 truth, before determining whether a claim is plausible”). Nor is the Court “bound to accept as true 20 a legal conclusion couched as a factual allegation or an unadorned, 21 the-defendant-unlawfully-harmed-me accusation.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 22 2018) (internal quotation marks and citations omitted). 23 After careful review of the FAC under the foregoing standards, the Court finds that plaintiff’s 24 allegations once again appear insufficient to state a claim against any defendant. Because plaintiff 25 is an inmate proceeding pro se in a civil rights action, the Court, although doubtful that plaintiff will 26 be able to correct the deficiencies in his pleading, will give plaintiff one additional opportunity to 27 amend his FAC to correct the deficiencies in his claims. Accordingly, the FAC is dismissed with 28 1 or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured 2 by amendment” (internal quotation marks omitted)). 3 Plaintiff is admonished that, if plaintiff desires to pursue this action, he must file a 4 Second Amended Complaint no later than January 17, 2020, remedying the deficiencies 5 discussed below. Further, plaintiff is admonished that, if he fails to timely file a Second 6 Amended Complaint or fails to remedy the deficiencies of this pleading as discussed 7 herein, the Court will recommend that the action be dismissed without further leave to 8 amend and with prejudice.1 9 10 A. ELEVENTH AMENDMENT IMMUNITY 11 Plaintiff’s FAC once again names three defendants in their official capacities, and he 12 appears to seek only monetary damages against these defendants. 13 As the Court has previously admonished plaintiff, the Supreme Court has held that an 14 “official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” 15 Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Such a suit 16 “is not a suit against the official personally, for the real party in interest is the entity.” Id. at 166 17 (emphasis in original). Further, in Will v. Mich. Dep’t. of State Police, 491 U.S. 58, 64-66, 71, 109 18 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), the Supreme Court held that states and state agencies are 19 not persons subject to civil rights suits under 42 U.S.C. § 1983, and that a suit against a state 20 official in his or her official capacity is “no different from a suit against the State itself.” 21 22 23 1 Plaintiff is advised that this Court’s determination herein that the allegations in the First Amended Complaint are insufficient to state a particular claim should not be seen as dispositive 24 of that claim. Accordingly, while this Court believes that you have failed to plead sufficient factual matter in your pleading, accepted as true, to state a claim to relief that is plausible on its face, you 25 are not required to omit any claim or defendant in order to pursue this action. However, if you 26 decide to pursue a claim in a Second Amended Complaint that this Court has found to be insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit 27 to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to your right at that time to file Objections with the district judge as 28 1 The Eleventh Amendment bars federal jurisdiction over suits by individuals against a State 2 and its instrumentalities, unless either the State consents to waive its sovereign immunity or 3 Congress abrogates it. Pennhurst St. School & Hosp. v. Halderman, 465 U.S. 89, 99-100, 104 4 S. Ct. 900, 79 L. Ed. 2d 67 (1984). While California has consented to be sued in its own courts 5 pursuant to the California Tort Claims Act, such consent does not constitute consent to suit in 6 federal court. See BV Engineering v. Univ. of Cal., 858 F.2d 1394, 1396 (9th Cir. 1988); see also 7 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985) 8 (holding that Art. III, § 5 of the California Constitution does not constitute a waiver of California’s 9 Eleventh Amendment immunity). Finally, Congress has not repealed State sovereign immunity 10 against suits under 42 U.S.C. § 1983. 11 Accordingly, any state agency, such as the CDCR, is immune from all civil rights claims 12 raised pursuant to § 1983. See Pennhurst, 465 U.S. at 100 (“This jurisdictional bar applies 13 regardless of the nature of the relief sought.”); Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 14 3057, 57 L. Ed. 2d 1114 (1978) (per curiam) (the Eleventh Amendment bars claims for injunctive 15 relief against Alabama and its Board of Corrections). In addition, the Eleventh Amendment “bars 16 actions against state officers sued in their official capacities for past alleged misconduct involving 17 a complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., 18 money damages.” Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988). Therefore, the Eleventh 19 Amendment bars retrospective relief against a state official in his or her official capacity. 20 Accordingly, plaintiff’s claims seeking damages against defendants who are employees of 21 the CDCR in their official capacities constitute claims against the State and are barred by the 22 Eleventh Amendment. Plaintiff may not seek monetary damages from any CDCR official in his 23 or her official capacity if plaintiff chooses to file a Second Amended Complaint. 24 25 26 B. WARDEN ASUNCION 27 Plaintiff’s FAC once again names Warden Asuncion as a defendant in her individual 28 1 allegations against this defendant. Plaintiff alleges only that Warden Asuncion was “made aware” 2 of the actions of CDCR employees, “did nothing,” and “ignored” plaintiff’s grievances. (Id. at 3-4, 3 7-8). Plaintiff also does not purport to allege any specific claim against Warden Asuncion. 4 Although it remains unclear what claim or claims plaintiff may be raising against Warden 5 Asuncion in her individual capacity, supervisory personnel such as a warden are not liable under 6 § 1983 on a theory of respondeat superior. See, e.g., Iqbal, 556 U.S. at 676 (“Government 7 officials may not be held liable for the unconstitutional conduct of their subordinates under a theory 8 of respondeat superior”). Here, plaintiff’s only allegations against Warden Asuncion are 9 conclusory, unsupported by any specific factual allegations, and appear to only pertain to Warden 10 Asuncion’s role as supervisor of employees at the prison. Plaintiff does not set forth any facts 11 raising a plausible inference that Warden Asuncion was personally involved in a specific 12 deprivation of plaintiff’s constitutional rights, or that Warden Asuncion set “in motion a series of 13 acts by others,” or “knowingly refus[ed] to terminate a series of acts by others, which [Warden 14 Asuncion] knew or reasonably should have known would cause others to inflict a constitutional 15 injury.” Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011). Plaintiff’s mere unsupported 16 conculsory allegations that Warden Asuncion failed to respond to plaintiff’s grievances are not 17 accepted as true in determining whether plaintiff’s FAC sets forth a plausible claim against Warden 18 Asuncion. See, e.g., Chavez, 683 F.3d at 1108. 19 Accordingly, plaintiff’s FAC fails to set forth a short and plain statement of any claim against 20 Warden Asuncion alleging sufficient “factual content that allows the court to draw the reasonable 21 inference that [Warden Asuncion] is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677-78. 22 23 24 C. DEFENDANTS ESCAJEDA AND DUNN 25 Plaintiff alleges that Correctional Officer Escajeda “denied” or refused plaintiff medical 26 attention on July 17, 2018. (ECF No. 114 at 3, 5). The only factual allegations against Officer 27 Escajeda are that Escajeda refused medical care from the start of Escajeda’s shift at around 6:30 28 1 from his cell door for “3 to 4 hours” (id.), but he does not allege any facts to support a reasonable 2 inference that Officer Escajeda was aware that plaintiff sought medical care for several hours. 3 Further, plaintiff alleges that he had received medical attention the evening before Officer 4 Escajeda’s shift began, and that plaintiff was taken to see a doctor around 11:00 a.m., which was 5 less than five hours after Escajeda’s shift started on July 17, 2018. Similarly, the only factual 6 allegation against Officer Dunn is that plaintiff asked Dunn to call the nurse for a second time at 7 11:30 p.m. on July 16, 2018, because plaintiff’s pain had grown worse, but Officer Dunn ignored 8 plaintiff. (Id. at 4, 6). Plaintiff claims that Correctional Officers Escajeda and Dunn violated 9 plaintiff’s “right to medical care” and “subjected [plaintiff] to cruel and unusual punishment for 13 10 hours.” (Id. at 7). 11 In general, plaintiff alleges that he began to experience “serious pain” in his stomach at 12 around 9:30 p.m. on July 16, 2018, and that he was seen by a nurse that evening after plaintiff 13 asked for medical assistance. The nurse informed plaintiff that no doctor would be available until 14 morning and provided plaintiff with medication. (Id. at 6). Plaintiff’s pain increased, and he asked 15 Correctional Officer Dunn at 11:30 p.m. to call the nurse again. At some point, plaintiff vomited. 16 (Id.). Plaintiff was taken in a wheelchair to see a doctor around 11:00 a.m. on the morning of July 17 17, 2018, and he was sent to an outside hospital “around 11:20 or 11:30 a.m.” that morning. (Id. 18 at 6-7). Plaintiff had a “procedure to unblock [his] small intestine,” and he was hospitalized for four 19 days. (Id. at 7). 20 In order to state a claim under the Eighth Amendment for constitutionally inadequate 21 medical care, a prisoner must show that a specific defendant was deliberately indifferent to his 22 serious medical needs. See Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 125 L. Ed. 23 2d 22 (1993); Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed 2d 251 (1976). “This 24 includes both an objective standard -- that the deprivation was serious enough to constitute cruel 25 and unusual punishment -- and a subjective standard -- deliberate indifference.” Colwell v. 26 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal quotation marks omitted). To state such 27 a claim, “a prisoner must demonstrate that the prison official acted with deliberate indifference.” 28 1 Deliberate indifference may be manifest by the intentional denial, delay, or interference with a 2 prisoner’s medical care. See Estelle, 429 U.S. at 104-05. The prison official, however, “must not 3 only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious 4 harm exists,’ but that person ‘must also draw the inference.’” Toguchi, 391 F.3d at 1057 (quoting 5 Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)); see also 6 Colwell, 763 F.3d at 1066 (a “prison official is deliberately indifferent . . . only if the official knows 7 of and disregards an excessive risk to inmate health and safety” (internal quotation marks 8 omitted). Thus, an inadvertent failure to provide adequate medical care, negligence, a mere delay 9 in medical care (without more), or a difference of opinion over proper medical treatment, are all 10 insufficient to constitute an Eighth Amendment violation. See Estelle, 429 U.S. at 105-07; 11 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison 12 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 13 Both Officer Escajeda and Officer Dunn are alleged to be correctional officers and not 14 health care workers. Plaintiff alleges that he did receive medical attention from a nurse at around 15 9:30 p.m., and he was told that no doctor was available that night. Plaintiff alleges that he next 16 asked for medical care at 11:30 p.m., and that he was taken to see a doctor at 11:00 a.m. the 17 following morning, which represents a delay of less than twelve hours. (Id. at 6). Plaintiff’s FAC 18 once again fails to set forth any factual allegations sufficient to raise a reasonable inference that 19 either Officer Escajeda or Officer Dunn was aware that a delay in seeking additional medical 20 attention for plaintiff’s pain posed a substantial risk to plaintiff’s health. Moreover, plaintiff fails to 21 set forth specific facts alleging that either Officer Escajeda or Officer Dunn took an action at any 22 specific time, participated in another prison official’s action, or failed to perform an act that he was 23 legally required to do that caused plaintiff’s constitutional deprivation. As the Court has previously 24 admonished plaintiff, in order to state a claim against a specific defendant, plaintiff must allege 25 facts showing that the defendant deprived plaintiff of a right guaranteed under the United States 26 Constitution or a federal statute. See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 27 2d 40 (1988). “A person deprives another ‘of a constitutional right, within the meaning of section 28 1 an act which he is legally required to do that causes the deprivation of which [the plaintiff 2 complains].’” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting Johnson v. Duffy, 588 3 F.2d 740, 743 (9th Cir. 1978)) (emphasis and alteration in original). As the Supreme Court has 4 made clear, in order to state a claim against an individual defendant, plaintiff must allege sufficient 5 factual allegations against that defendant to nudge a claim “across the line from conceivable to 6 plausible.” See Twombly, 550 U.S. at 570. 7 Here, plaintiff’s FAC fails to allege sufficient factual allegations against either Officer 8 Escajeda or Officer Dunn to state a plausible claim arising from allegedly inadequate medical 9 treatment. If plaintiff wishes to proceed on a federal civil rights claim against these defendants, 10 then plaintiff should set forth in an amended pleading “simply, concisely, and directly [the] events” 11 that entitle him to damages from each defendant. Johnson, 135 S. Ct. at 347. 12 13 D. HEALTH APPEALS SUPERVISOR MASON 14 Plaintiff alleges that defendant Mason refused to investigate plaintiff’s complaint that he had 15 been “denied medical treatment” and refused to provide a name of a CDCR employee to plaintiff. 16 Plaintiff also alleges that he was “threatened” at unspecified times unless he dropped the 17 complaint. (ECF No. 114 at 3, 5, 8). Plaintiff appears to allege that the actions of Supervisor 18 Mason violated his due process rights, but the only factual allegations against this defendant 19 pertain to the processing of administrative grievances. (Id. at 8). To the extent that plaintiff is 20 purporting to state a federal civil rights claim against Supervisor Mason arising from the allegedly 21 inadequate processing of plaintiff’s administrative grievances, a prisoner has no federal 22 constitutional right to an effective grievance or appeal procedure and the mere participation of a 23 prison official in plaintiff’s administrative appeal process is an insufficient basis on which to state 24 a federal civil rights claim against such defendant. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th 25 Cir. 2003) (holding that a prisoner has no constitutional right to an effective grievance or appeal 26 procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (an inmate has “no legitimate claim 27 of entitlement to a grievance procedure”). Further, to the extent that plaintiff may be intending to 28 1 grievance, the guarantee of procedural due process under the Fourteenth Amendment applies 2 only when a constitutionally protected liberty or property interest is at stake. See Ingraham v. 3 Wright, 430 U.S. 651, 672, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977); Board of Regents v. Roth, 408 4 U.S. 564, 569, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Shinault v. Hawks, 782 F.3d 1053, 1057 5 (9th Cir. 2015) (“Due process protections extend only to deprivations of protected interests.”). An 6 inmate administrative appeal system does not implicate a liberty interest protected by the Due 7 Process Clause. See Mann, 855 F.2d at 640. Accordingly, plaintiff’s factual allegations in the 8 FAC against defendant Mason once again fail to give rise to a federal civil rights claim. 9 The Court is mindful that, because plaintiff is appearing pro se, the Court must construe the 10 allegations of the Complaint liberally and must afford plaintiff the benefit of any doubt. Further, 11 the Court may not dismiss a claim because a pro se plaintiff has failed to set forth a complete legal 12 theory to support the claim alleged. See Johnson, 135 S. Ct. at 346. That said, the Supreme 13 Court has made clear that the Court has “no obligation to act as counsel or paralegal to pro se 14 litigants.” Pliler v. Ford, 542 U.S. 225, 231, 124 S. Ct. 2441, 159 L. Ed. 2d 338 (2004); see also 15 Noll, 809 F.2d at 1448 (“courts should not have to serve as advocates for pro se litigants”). Here, 16 plaintiff’s FAC fails to set forth factual allegations supporting any plausible civil rights claim against 17 defendant Mason. 18 19 * * * 20 Because plaintiff is proceeding pro se in this civil rights action, the Court will provide him 21 with one additional opportunity to amend. Based on the above deficiencies, plaintiff’s FAC is 22 dismissed with leave to amend. If plaintiff desires to pursue this action, he is ORDERED to file 23 a Second Amended Complaint no later than January 17, 2020, remedying the deficiencies 24 discussed herein. Further, plaintiff is admonished that, if he fails to timely file a Second Amended 25 Complaint or fails to remedy the deficiencies of his pleading as discussed herein, the Court will 26 recommend that the action be dismissed without further leave to amend and with prejudice. 27 The Second Amended Complaint must bear the docket number assigned in this case; be 28 1 original Complaint, the First Amended Complaint, or any other pleading, attachment or document. Each claim plaintiff alleges must clearly set forth which defendant(s) is alleged to be responsible for the alleged violation, and clearly and concisely reference the factual allegations that are relevant to that claim. Further, if plaintiff chooses to proceed with this action, plaintiff must use the 5 || blank Central District civil rights complaint form accompanying this order, must sign and date the 6 form, must completely and accurately fill out the form, and must use the space provided in the form to set forth all of the claims that he wishes to assert in a Second Amended Complaint. The 8] Clerk is directed to provide plaintiff with a blank Central District civil rights complaint form. 9 In addition, if plaintiff no longer wishes to pursue this action, he may request a voluntary dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a). The clerk also is 11! directed to attach a Notice of Dismissal form for plaintiff's convenience. 12 IT IS SO ORDERED. 13 Gael Kx. Oba DATED: December 23, 2019 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 49