Keavney v. County of San Diego

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MICHAEL RICHARD KEAVNEY, Case No.: 3:19-cv-01947-AJB-BGS Booking #17104761, 11 ORDER: 12 Plaintiff, (1) DENYING MOTION 13 v. FOR EXTENSION OF TIME AS 14 MOOT [ECF No. 5]; COUNTY OF SAN DIEGO; DR. EMAD

15 BISHAY; DR. KASEY CONKLIN; SAN (2) DENYING MOTION FOR DIEGO COUNTY SHERIFF’S 16 APPOINTMENT OF COUNSEL DEPARTMENT MEDICAL STAFF, [ECF No. 11]; AND 17 Defendants. 18 (3) DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO 19 STATE A CLAIM PURSUANT TO 28 20 U.S.C. § 1915(e)(2) & 28 U.S.C. § 1915A(b) 21

22 23 On October 7, 2019, Michael Richard Keavney (“Plaintiff”), while incarcerated at 24 the San Diego County Central Jail (“SDCCJ”),1 filed a civil rights action pursuant to 42 25 U.S.C. § 1983 alleging that the County of San Diego and two Tri‒City Medical Center 26 27 1 Plaintiff is currently incarcerated at the San Diego County Sheriff’s Department Vista 28 1 doctors violated his constitutional rights by ignoring his pleas for medical attention in 2 December 2018. See generally ECF No. 1. 3 I. Procedural History 4 On May 27, 2020, the Court granted Plaintiff leave to proceed in forma pauperis 5 (“IFP”), conducted an initial screening of his original complaint, and dismissed the original 6 complaint sua sponte for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 7 § 1915A(b). See ECF No. 4. In its Order, the Court reviewed Plaintiff’s allegations on 8 Fourteenth Amendment grounds, provided him notice of his pleading deficiencies, and 9 granted him 45 days leave in which to fix them. Id. 10 On July 2, 2020, Plaintiff filed a motion requesting an extension of time to file his 11 amended complaint. See ECF No. 5. However, because Plaintiff filed his First Amended 12 Complaint (“FAC”) on July 8, 2020, his request for an extension of time is now moot. See 13 ECF No. 6. 14 The Court also cautioned Plaintiff in its May 27, 2020 Order that any “Defendants 15 not named and any claim not re-alleged in his Amended Complaint will be considered 16 waived.” Id. at 9 citing 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 the 18 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 19 dismissed with leave to amend which are not re-alleged in an amended pleading may be 20 “considered waived if not repled.”). In his FAC, Plaintiff no longer names the County of 21 San Diego as a Defendant. Accordingly, the County of San Diego is dismissed from this 22 action. 23 On July 13, 2020, Plaintiff filed a duplicate copy of his FAC, along with a Motion 24 for Appointment of Counsel. See ECF Nos. 10, 11. 25 II. Motion for Appointment of Counsel 26 Plaintiff requests that the Court appoint him counsel in this matter. See ECF No. 11. 27 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. of 28 Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 1 And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” 2 that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 3 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under 4 “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 5 1991). A finding of exceptional circumstances requires the Court “to consider whether 6 there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is unable to 7 articulate his claims in light of the complexity of the legal issues involved.’” Harrington v. 8 Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). 9 As currently pleaded, Plaintiff’s FAC demonstrates neither the likelihood of success 10 nor the legal complexity required to support the appointment of pro bono counsel pursuant 11 to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer¸560 F.3d at 970. First, 12 while Plaintiff may not be formally trained in law, his allegations, as liberally construed, 13 see Erickson v. Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully capable of 14 legibly articulating the facts and circumstances relevant to his claims which are not legally 15 “complex.” Agyeman, 390 F.3d at 1103. Second, for the reasons discussed more fully 16 below, Plaintiff’s FAC requires sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2) 17 and § 1915A, and it is simply too soon to tell whether he will be likely to succeed on the 18 merits of any potential constitutional claim against any of the Defendants. Id. 19 Therefore, the Court finds no “exceptional circumstances” currently exist and 20 DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 11) without prejudice 21 on that basis. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming 22 denial of counsel where prisoner could articulate his claims in light of the complexity of 23 the issues involved, and did not show likelihood of succeed on the merits). 24 III. Screening of FAC Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 25 A. Standard of Review 26 As the Court previously informed Plaintiff, because he is a prisoner and is 27 proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. 28 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 1 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 2 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 3 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 4 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 5 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 6 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 7 (citation omitted). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 11 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 12 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 14 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 15 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 16 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 20 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 21 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 22 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 23 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 24 B. Allegations in FAC 25 Plaintiff seeks damages against the San Diego County Sheriff’s Department and 26 unnamed SDCCJ medical and kitchen staff for incidents that occurred while he was 27 incarcerated at SDCCJ. See FAC, ECF No. 6 at 2. On or about December 11, 2018, Plaintiff 28 alleges he complained to SDCCJ deputies and medical staff about severe pain, stomach 1 cramps, diarrhea, and lack of appetite. Id. at 3. Plaintiff blames his medical issues on a 2 meal he received at SDCCJ and claims that he “was the only inmate to receive a tainted 3 meal from the” kitchen staff. Id. 4 Plaintiff alleges his pleas for medical attention were ignored for nearly two weeks 5 until a licensed vocational nurse at SDCCJ saw that Plaintiff needed help. Id. On or about 6 December 22, 2018, Plaintiff claims the licensed vocational nurse referred him to a jail 7 physician who then sent Plaintiff to Tri-City Medical Center. Id. Plaintiff alleges 8 Defendants “denied and delayed” him from receiving proper medical care, which “resulted 9 in about ten days of constant unnecessary pain” and eventually caused him to suffer a 10 severe infection. Id. Additionally, Plaintiff claims that his “pleas for help being ignored 11 created permanent intestinal scarring [that is] dramatically affecting his quality of life.” Id. 12 Plaintiff also renames two doctors who treated him at Tri-City Medical Center, Dr. 13 Kasey Conklin and Dr. Emad Bishay, as Defendants. Id. at 2. He claims both doctors 14 misdiagnosed him. Id. at 5. Plaintiff also alleges both doctors failed to test him for 15 communicable diseases until he was discharged from Tri-City Medical Center, after which, 16 Plaintiff was “diagnosed with Shigellosis.” Id. 17 C. 42 U.S.C. § 1983 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). Section 1983 “is not itself a source of substantive 21 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 22 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 23 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 24 secured by the Constitution and laws of the United States, and (2) that the deprivation was 25 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 26 F.3d 1128, 1138 (9th Cir. 2012). 27 / / / 28 / / / 1 D. Discussion 2 To the extent Plaintiff’s FAC seeks to challenge the adequacy of his medical care 3 while he was in pretrial custody, a claim brought under the Fourteenth Amendment “must 4 be evaluated under an objective deliberate indifference standard.”2 Gordon v. Cty. of 5 Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (citing Castro, 833 F.3d at 1070); see also 6 Nishimoto v. Cty. of San Diego, No. 3:16-CV-01974-BEN-JMA, 2018 WL 4297004, at 7 *3–4 (S.D. Cal. Sept. 10, 2018). 8 The elements of a pretrial detainee’s medical care claim against an individual 9 defendant under the due process clause of the Fourteenth Amendment are: 10 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff 11 at substantial risk of suffering serious harm; (iii) the defendant did not take 12 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 13 involved—making the consequences of the defendant’s conduct obvious; and 14 (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. “With respect to the third element, the defendant’s conduct must be 15 objectively unreasonable, a test that will necessarily ‘turn[] on the facts and 16 circumstances of each particular case.’” 17 Gordon, 888 F.3d at 1125 (quoting Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct. 2466, 18 2473 (2015)). 19 / / / 20 / / / 21

22 23 2 The Court again presumes, for purposes of screening only, that Plaintiff was a pretrial detainee at SDCCJ from December 11, 2018 to December 22, 2018, when he alleges to 24 have been denied adequate medical care, and that therefore his claims arise under the 25 Fourteenth Amendment rather than the Eighth. See Castro v. County of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (“Inmates who sue prison officials for injuries suffered 26 while in custody may do so under the Eighth Amendment’s Cruel and Unusual Punishment 27 Clause, or if not yet convicted, under the Fourteenth Amendment’s Due Process Clause.”) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). “Under both clauses, the plaintiff must 28 1 1. Doe Pleading & Individual Liability 2 The Federal Rules of Civil Procedure do not authorize or prohibit the use of fictitious 3 parties but Rule 10 does require a plaintiff to include the names of all parties in his 4 complaint. See Fed. R. Civ. P. 10(a). Courts especially disfavor Doe pleading in an IFP 5 case because in the event the plaintiff’s complaint alleges a plausible claim for relief, it is 6 effectively impossible for the United States Marshal or deputy marshal to fulfill his or her 7 duty to serve an unnamed defendant. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d); 8 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service 9 under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary 10 to identify the defendant.”); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 11 WL 3580764, at *6 (D. Haw. July 25, 2018) (noting that “[a]s a practical matter, the United 12 States Marshal cannot serve a summons and complaint on an anonymous defendant.”). 13 “A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 14 2, John Doe 3, and so on, but he must allege specific facts showing how each particular 15 doe defendant violated his rights.” Cuda v. Employees/Contractors/Agents at or OCCC, 16 2019 WL 2062945, at *3–4 (D. Haw. May 9, 2019). A plaintiff may also seek discovery to 17 obtain the names of the Does and later amend his pleading in order to substitute the true 18 names of those defendants, unless it is clear that discovery will not uncover their identities, 19 or that his complaint is subject to dismissal on other grounds. See Wakefield v. Thompson, 20 177 F.3d 1160, 1163 (9th Cir. 1999) (emphasis added) (citing Gillespie v. Civiletti, 629 21 F.2d 637, 642 (9th Cir. 1980)). 22 Here, Plaintiff’s FAC only makes vague claims against unnamed “medical staff” and 23 “kitchen staff” at SDCCJ. While he alleges that the SDCCJ’s medical staff “denied and 24 delayed” him medical treatment and that the kitchen staff had “the responsibility to provide 25 safe meals to every inmate for evert meal,” see FAC at 3-4, Plaintiff’s FAC requires sua 26 sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) because he makes no 27 specific allegations against any individual SDCCJ medical or kitchen staff member in 28 relation to the due process violations which seemingly form the basis of his suit. Simply 1 put, Plaintiff fails to link any particular constitutional violation to any specific, individual 2 state actor, and he fails to even minimally explain how any of the unidentified parties he 3 seeks to sue personally caused a violation of his constitutional rights. See FAC at 2-4; Iqbal, 4 556 U.S. at 677. “A plaintiff must allege facts, not simply conclusions, t[o] show that [each 5 defendant] was personally involved in the deprivation of his civil rights.” Barren v. 6 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks 7 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required 8 element of a § 1983 claim.”). As it stands, Plaintiff’s FAC fails to plead [the] factual 9 content that [would] allow[] the court to draw the reasonable inference that [any] defendant 10 is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 11 Pursuant to § 1983, Plaintiff must, at minimum, allege some factual content to 12 describe how each individual person he seeks to sue violated the Constitution. Id. at 676- 13 77; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 14 F.3d 930, 934 (9th Cir. 2002). He may not attribute liability to a group of unidentified 15 defendants as he has, but must “set forth specific facts” as to each individual defendant’s 16 wrong. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v. List, 880 F.2d 17 1040, 1045 (9th Cir. 1989). 18 2. Claims Against the San Diego County Sheriff’s Department 19 Plaintiff’s Fourteenth Amendment claims against the San Diego County Sheriff’s 20 Department (“SDSD”) itself are also insufficient. Departments of municipal entities are 21 not “persons” subject to suit under § 1983; therefore, a local law enforcement agency, like 22 the SDSD, is not a proper party. See Vance v. County of Santa Clara, 928 F. Supp. 993, 23 996 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an appropriate 24 means of pleading a § 1983 action against a municipality.”) (citation omitted); Powell v. 25 Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability 26 on any ‘person’ who violates someone’s constitutional rights ‘under color of law.’ Cook 27 County Jail is not a ‘person.’”). 28 / / / 1 “Persons” under § 1983 are state and local officials sued in their individual 2 capacities, private individuals and entities which act under color of state law, and/or the 3 local governmental entity itself. Vance, 928 F. Supp. at 995-96. The SDSD is a law 4 enforcement agency or department of the County of San Diego, but it is not a “person” 5 subject to suit under § 1983. See, e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th 6 Cir. 2005) (“[M]unicipal police departments and bureaus are generally not considered 7 ‘persons’ within the meaning of section 1983.”); Rodriguez v. Cnty. of Contra Costa, 2013 8 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v. Estes, 65 F.3d 784, 791 (9th 9 Cir. 1995)) (“Although municipalities, such as cities and counties, are amenable to suit 10 under Monell [v. Dep’t of Social Servs, 436 U.S. 658 (1978)], sub-departments or bureaus 11 of municipalities, such as the police departments, are not generally considered “persons” 12 within the meaning of § 1983.”); Nelson v. Cty. of Sacramento, 926 F. Supp. 2d 1159, 1170 13 (E.D. Cal. 2013) (dismissing Sacramento Sheriff’s Department from section 1983 action 14 “with prejudice” because it “is a subdivision of a local government entity,” i.e., Sacramento 15 County); Gonzales v. City of Clovis, 2013 WL 394522 (E.D. Cal. Jan. 30, 2013) (holding 16 that the Clovis Police Department is not a “person” for purposes of section 1983). 17 3. Claims Against Drs. Bishay and Conklin 18 Finally, Plaintiff’s Fourteenth Amendment claims against both Tri-City Medical 19 Center doctors fail because Plaintiff does not allege that either doctor acted with deliberate 20 indifference to a substantial risk that he would suffer serious harm. See, e.g., Gordon, 888 21 F.3d at 1125. 22 Instead, like in his original Complaint, Plaintiff only alleges facts to support his 23 supplemental state law claims against Drs. Bishay and Conklin for reckless endangerment, 24 medical malpractice, and negligence. See FAC at 5. “In any civil action of which the district 25 courts have original jurisdiction, the district courts shall have supplemental jurisdiction 26 over all other claims that are so related to claims in the action within such original 27 jurisdiction that they form part of the same case or controversy under Article III of the 28 United States Constitution.” 28 U.S.C. § 1367(a). However, “once judicial power exists 1 under § 1367(a), retention of supplemental jurisdiction over state law claims 2 under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 3 1997). 4 “The district courts may decline to exercise supplemental jurisdiction over a claim 5 under subsection (a) if—(3) the district court has dismissed all claims over which it has 6 original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that “if 7 the federal claims are dismissed before trial, ... the state claims should be dismissed as 8 well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). As previously 9 mentioned, the Court has found Plaintiff’s FAC fails to state a plausible claim for relief 10 pursuant to 42 U.S.C. § 1983. Therefore, in the absence of any viable federal claim upon 11 which § 1983 relief may be granted, the Court exercises its discretion once again and 12 DISMISSES all Plaintiff’s supplemental state law claims without prejudice pursuant to 28 13 U.S.C. § 1367(c)(3). Id. 14 Because Plaintiff’s FAC, like his original Complaint, fails to satisfy all these 15 pleading requirements, it too must be DISMISSED sua sponte because it fails to state any 16 claim upon which § 1983 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 17 and 28 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121. 18 E. Leave to Amend 19 Plaintiff has already been provided a short and plain statement of his pleading 20 deficiencies, as well as an opportunity to amend those claims to no avail. See ECF No. 4. 21 As to the County of San Diego, the San Diego County Sheriff’s Department, Dr. Emad 22 Bishay, and Dr. Casey Konklin, the Court denies further leave to amend as futile. See 23 Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of 24 amendment can, by itself, justify the denial of ... leave to amend.’”) (quoting Bonin v. 25 Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). 26 However, as to his purported Fourteenth Amendment claims against currently 27 unnamed medical and kitchen staff at SDCCJ, the Court will grant Plaintiff one final 28 opportunity to amend his pleading to attempt to sufficiently allege a § 1983 claim against 1 those defendants he is able to identify by name, if he can. See Rosati v. Igbinoso, 791 F.3d 2 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without 3 leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that 4 the deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v. 5 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 6 IV. Conclusion and Order 7 For the reasons explained, the Court: 8 1. DENIES Plaintiff’s Motion for Extension of Time as moot [ECF No. 5]; 9 2. DENIES Plaintiff’s Motion for Appointment of Counsel [ECF No. 11]; 10 3. DISMISSES Plaintiff’s FAC for failing to state a claim upon which relief 11 may be granted pursuant to 28 U.S.C. § 1915A(b)(1), and GRANTS him forty-five (45) 12 days leave from the date of this Order in which to file his Second Amended Complaint 13 which cures the deficiencies of pleading noted and names only the individual SDCCJ 14 medical and kitchen staff members he claims caused him harm. 15 Plaintiff’s Second Amended Complaint must be complete by itself without reference 16 to his FAC or original complaint. Any Defendant not named and any claim not re-alleged 17 in his Second Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; 18 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 19 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 20 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 21 re-alleged in an amended pleading may be “considered waived if not repled.”). 22 If Plaintiff fails to file his Second Amended Complaint within 45 days, the Court 23 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 24 a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1), and his 25 failure to prosecute in compliance with a court order requiring amendment. See Lira v. 26 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 27 the opportunity to fix his complaint, a district court may convert the dismissal of the 28 complaint into dismissal of the entire action.”). 1 4, DIRECTS the Clerk of the Court to terminate the COUNTY OF SAN 2 || DIEGO, DR. EMAD BISHAY, and DR. KASEY CONKLIN as a parties to this action. 3 5. DIRECTS the Clerk of the Court to mail Plaintiff a court approved civil rights 4 complaint form for his use in amending. 5 IT IS SO ORDERED. 6 Dated: July 20, 2020 ,

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