Palacios v. Lewis

• Court: District Court, S.D. California
• Decided: August 21, 2023
• Docket: 3:23-cv-00871
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AARON MARCEL PALACIOS, Case No.: 23-CV-00871-TWR (DEB) CDCR #T-90758, 12 ORDER (1) GRANTING Plaintiff, 13 PLAINTIFF’S MOTION TO vs. PROCEED IN FORMA PAUPERIS, 14 AND (2) DISMISSING COMPLAINT LEWIS, Captain; GODINEZ, Lieutenant; 15 FOR FAILURE TO STATE A CLAIM and CDCR, PURSUANT TO 28 U.S.C. 16 Defendants. §§ 1915(e)(2)(B) AND 1915A(b) 17 (ECF Nos. 1, 2) 18 19 Presently before the Court is Plaintiff Aaron Marcel Palacios’s civil rights 20 Complaint filed pursuant to 42 U.S.C. § 1983 (ECF No. 1, “Compl.”) and his Motion to 21 Proceed In Forma Pauperis (“IFP”) (ECF No. 2, “IFP Mot.”) filed pursuant to 28 U.S.C. 22 § 1915(a). Plaintiff is currently incarcerated at Richard J. Donovan Correctional Facility 23 (“RJD”) and proceeding pro se. (See Compl. at 1.) He1 alleges that while incarcerated at 24 RJD, Defendants Lewis, Godinez, and the California Department of Corrections and 25 / / / 26

27 1 Plaintiff states he is transgender, (see Compl. at 3), but does not indicate pronoun preferences. 28 1 Rehabilitation (“CDCR”) violated his Eighth and Fourteenth Amendment rights. (See 2 generally Compl.) 3 I. Motion to Proceed In Forma Pauperis 4 All parties instituting any civil action, suit, or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $402.2 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 10 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 11 Bruce v. Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 12 Cir. 2015), regardless of whether his action is ultimately dismissed, see 28 U.S.C. 13 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 14 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 15 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 16 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 17 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 18 trust account statement, the Court assesses an initial payment of 20% of (a) the average 19 monthly deposits in the account for the past six months, or (b) the average monthly balance 20 in the account for the past six months, whichever is greater, unless the prisoner has no 21 assets. See 28 U.S.C. § 1915(b)(1), (4). The institution having custody of the prisoner then 22 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 23 month in which his account exceeds $10, and forwards those payments to the Court until 24 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85. 25

26 2 In civil actions except for applications for a writ of habeas corpus, civil litigants must pay the $350 27 statutory fee in addition to a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative 28 1 In support of his IFP Motion, Plaintiff submitted a certified copy of his trust account 2 statement and a prison certificate pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3 3.2. (See ECF No. 3.) See also Andrews, 398 F.3d at 1119. These documents show that 4 Plaintiff had an available balance of $0.08 at the time of filing. (See ECF No. 3 at 1–3.) 5 The Court therefore GRANTS Plaintiff’s Motion to Proceed IFP, declines to exact the 6 initial filing fee because his trust account statement indicates he may have “no means to 7 pay it,” Bruce, 577 U.S. at 85, and DIRECTS the Secretary of CDCR or his designee, to 8 instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 9 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2) and 10 forward them to the Clerk of the Court. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n 11 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 12 action or criminal judgment for the reason that the prisoner has no assets and no means by 13 which to pay the initial partial filing fee”); Bruce, 577 U.S. at 85; Taylor, 281 F.3d at 850 14 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 15 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 16 to him when payment is ordered”). 17 II. Legal Standards 18 A. Initial Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & § 1915A(b) 19 Because Plaintiff is incarcerated, his Complaint requires a pre-answer screening 20 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under those statutes, the Court 21 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it that is frivolous, 22 malicious, fails to state a claim, or seeks damages from defendants who are immune from 23 relief. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 24 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 25 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 26 targets of frivolous or malicious suits need not bear the expense of responding.’” 27 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 28 / / / 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 5 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 9 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 13 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 14 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 15 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 16 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 17 B. 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 citation 23 omitted). “To establish § 1983 liability, a plaintiff must show both (1) a deprivation of a 24 right secured by the Constitution and laws of the United States, and (2) that the deprivation 25 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 26 698 F.3d 1128, 1138 (9th Cir. 2012). 27 / / / 28 / / / 1 III. Plaintiff’s Allegations 2 Plaintiff alleges that on January 6, 2023, RJD mail room employees discovered 3 letters from inmates detailing Plaintiff’s alleged plan to kill Correctional Officer Enriquez. 4 (Compl. at 3.) Plaintiff was placed in Administrative Segregation (“Ad Seg”) pending an 5 investigation, where he remained for two months. (Id.) According to Plaintiff, the letters 6 were determined to be fake. (Id.) Plaintiff claims his Fourteenth Amendment rights were 7 violated because no one ever contacted him regarding the investigation while he was in Ad 8 Seg. (Id. at 4.) Plaintiff also alleges that the amount of time he spent in Ad Seg was 9 excessive and violated his Eighth Amendment rights because the investigation could have 10 been concluded sooner and because he is particularly sensitive to being placed in isolation. 11 (Id. at 3, 5.) In addition, Plaintiff claims his placement in Ad Seg may have been in 12 retaliation for a grievance he submitted about Correctional Officer Serrano, or it may have 13 been orchestrated by Defendant Lewis because Plaintiff is transgender and the father of an 14 ex-correctional officer’s grandson. (Id. at 3–4.) 15 IV. Analysis 16 A. Defendant CDCR 17 To the extent Plaintiff seeks to sue the entire CDCR, his suit is barred by the Eleventh 18 Amendment. Absent “a waiver by the state or a valid congressional override,” Dittman v. 19 California, 191 F.3d 1020, 1025 (9th Cir. 1999), “[t]he Eleventh Amendment bars suits for 20 money damages in federal court against a state, its agencies, and state officials acting in 21 their official capacities,” Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 22 2007). “The State of California has not waived its Eleventh Amendment immunity with 23 respect to claims brought under § 1983 in federal court.” Dittman, 191 F.3d at 1025–26 24 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. 25 Cal. Dep’t. of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (finding California Department of 26 Corrections and California Board of Prison Terms entitled to Eleventh Amendment 27 immunity). Accordingly, because the CDCR is not a “person” subject to suit under § 1983, 28 and is instead an agency of the State of California, it is immune from suit under the 1 Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 2 (1984) (holding that Eleventh Amendment immunity extends to state agencies); Groten v. 3 California, 251 F.3d 844, 851 (9th Cir. 2001) (“[T]he State is not a ‘person’ for purposes 4 of § 1983.”); Hale v. Arizona, 993 F.2d 1387, 1398‒99 (9th Cir. 1993) (holding that a state 5 department of corrections is an arm of the state, and thus, not a “person” within the meaning 6 of § 1983); see also Dragasits v. California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 7 6804947, at *3 (S.D. Cal. Nov. 15, 2016) (“The State of California’s Department of 8 Corrections and Rehabilitation and any state prison, correctional agency, sub-division, or 9 department under its jurisdiction, are not ‘persons’ subject to suit under § 1983.”). 10 B. Eighth Amendment 11 Plaintiff contends his Eighth Amendment right to be free from cruel and unusual 12 punishment was violated when he was placed in Ad Seg pending the investigation of the 13 threat against Correctional Officer Enriquez. (Compl. at 3.) “The Constitution ‘does not 14 mandate comfortable prisons,’ but neither does it permit inhumane ones.” Farmer v. 15 Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 16 (1981)). A prison official violates the Eighth Amendment only when two requirements are 17 met. “First, the deprivation alleged must be, objectively ‘sufficiently serious.’” Farmer, 18 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, Plaintiff 19 must allege the prison official he seeks to hold liable had a “sufficiently culpable state of 20 mind,” that is “one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting 21 Wilson, 501 U.S. at 302–03). “A prison official acts with ‘deliberate indifference . . . only 22 if the [prison official] knows of and disregards an excessive risk to inmate health and 23 safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (citation omitted). 24 “Under this standard, the prison official must not only ‘be aware of facts from which the 25 inference could be drawn that a substantial risk of serious harm exists,’ but that person 26 ‘must also draw the inference.’” Id. (quoting Farmer, 511 U.S. at 837). 27 Plaintiff claims his two-month placement in Ad Seg during an investigation into the 28 letters was disproportionate and unduly prolonged because “they knew within 10 days the 1 letters and any potential for [an] assault on the c/o was non-existent.” (Compl. at 3.) 2 Plaintiff further claims Defendant Lewis knew he was particularly sensitive to the isolation 3 he experienced in Ad Seg, but Lewis nevertheless refused to communicate with Plaintiff 4 about the investigation into the inmate letters and prolonged the time Plaintiff was confined 5 to Ad Seg by refusing to acknowledge that the threats in the inmate letters were fake. (Id. 6 at 5.) He also claims he is a suicide risk, but he does not allege any specific facts to support 7 that claim. (Id.) 8 Plaintiff’s allegations are too conclusory to support an Eighth Amendment claim. 9 He has not made specific allegations as to what any individual defendant did or did not do 10 to violate his constitutional rights. To state a § 1983 claim, Plaintiff must allege how “each 11 Government-official defendant, through the official’s own individual actions” violated his 12 constitutional rights. See Iqbal, 556 U.S. at 676–77. Allegations “must be individualized 13 and focus on the duties and responsibilities of each individual defendant whose acts or 14 omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 15 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370–71 (1976)). The 16 pleadings must show each defendant “[performed] an affirmative act, participate[d] in 17 another’s affirmative acts, or omit[ted] to perform an act which he is legally required to do 18 that causes the deprivation of which [the plaintiff complains].” Johnson v. Duffy, 588 F.2d 19 740, 743 (9th Cir. 1978). 20 Plaintiff’s Complaint contends only that “they” delayed the investigation into the 21 letters and that “they” knew early on in the investigation that the letters were fake but did 22 not release Plaintiff from Ad Seg for two months. (Compl. at 3.) The only specific 23 allegation Plaintiff makes against Defendant Lewis is that “there is also a chance Capt. 24 Lewis was actually perpetrating an attack against [him]” and that Lewis did not respond to 25 letters he wrote asking to be released from Ad Seg. (Id. at 3, 5.) But Plaintiff does not 26 state what Lewis did or did not do that violated his Eighth Amendment rights. Moreover, 27 he makes no allegations about Defendant Godinez. His Complaint contains only broad and 28 / / / 1 conclusory allegations that do not explain how any individual Defendant violated his 2 Eighth Amendment rights. 3 Further, to state an Eighth Amendment claim, Plaintiff must show that being placed 4 in Ad Seg for two months pending an investigation of the letters was “sufficiently serious.” 5 Farmer, 511 U.S. at 834. He must present specific, plausible allegations that he was 6 subjected to the “unnecessary and wanton infliction of pain,” Estelle v. Gamble, 429 U.S. 7 97, 103 (1976), or that he was deprived of humane conditions of confinement, such as a 8 lack of adequate food, clothing, shelter, sanitation, medical care, or personal safety while 9 he was in Ad Seg, see Hudson v. Palmer, 468 U.S. 517, 526–527 (1984). “[R]outine 10 discomfort,” such as placement in Ad Seg, “is part of the penalty that criminal offenders 11 pay for their offenses against society, [and] only those deprivations denying the minimal 12 civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth 13 Amendment violation.” See Hudson v. McMillian, 503 U.S. 1, 9 (1992); Toussaint v. 14 McCarthy, 801 F.2d 1080, 1092–93 (9th Cir. 1986) (“[A]dministrative segregation is the 15 sort of confinement that inmates should reasonably anticipate receiving at some point in 16 their incarceration.” (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983))), overruled on 17 other grounds by Sandin v. Conner, 515 U.S. 472 (1995); Shotwell v. Brandt, No. C 10- 18 5232 CW (PR), 2012 WL 6569402, at *3 (N.D. Cal. Dec. 17, 2012) (“[T]he usual hardships 19 associated with administrative segregation do not violate the Eighth Amendment.”); 20 Brownsword v. Cal. Dep’t of Corr. & Rehab., No. CIV S-06-0002 GEB DAD P, 2007 WL 21 2902969, at *1 (“Administrative segregation falls within the terms of confinement 22 ordinarily contemplated by a criminal sentence.”). 23 Plaintiff alleges no facts, such as a deprivation of food, water, adequate sanitation, 24 or medical care, that plausibly show he was subjected to the “unnecessary and wanton 25 infliction of pain” or that he was denied “the minimal civilized measure of life’s 26 necessities.” Estelle, 429 U.S. at 103; Hudson, 503 U.S. at 9. Accordingly, he has not 27 alleged a plausible Eighth Amendment claim for which relief can be granted. See Iqbal, 28 556 U.S. at 678. 1 C. Fourteenth Amendment 2 Plaintiff claims his confinement in Ad Seg violated his due process rights because 3 no one spoke to him about the pending investigation while he was confined there. (Compl. 4 at 4.) The Due Process Clause of the Fourteenth Amendment provides that “[n]o state shall 5 . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. 6 amend. XIV, § 1. To state a due process claim, Plaintiff must allege: “(1) a liberty or 7 property interest protected by the Constitution; (2) a deprivation of the interest by the 8 government; [and] (3) lack of process.” See Wright v. Riveland, 219 F.3d 905, 913 (9th 9 Cir. 2000) (quoting Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). 10 A disciplinary action implicates a protected liberty interest only when it imposes an 11 “atypical and significant hardship on the inmate in relation to the ordinary incidents of 12 prison life.” Sandin, 515 U.S. at 484. 13 To meet this standard, Plaintiff must allege facts that show “a dramatic departure 14 from the basic conditions” of his confinement. Sandin, 515 U.S. at 485. He has not done 15 so here. Placement in Ad Seg, by itself, does not implicate a protected liberty interest 16 because the conditions prisoners are subjected to in Ad Seg are “within the expected 17 perimeters of the sentence imposed.” Austin v. Terhune, 367 F.3d 1167, 1170 (9th Cir. 18 2004) (citation omitted); see Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). The 19 Complaint contains no facts plausibly alleging Plaintiff was subjected to anything other 20 than the ordinary conditions of Ad Seg. Because Plaintiff fails to allege a liberty interest, 21 he fails to state a due process claim against Defendants.3 See Sandin, 515 U.S. at 486. 22 Accordingly, Plaintiff’s due process claim must be dismissed. See 28 U.S.C. § 1915A; 23 Wilhelm, 680 F.3d at 1121. 24 25 3 Under the Due Process Clause, a prisoner is entitled to minimal due process protections when 26 charged with a disciplinary violation. Wolff v. McDonnell, 418 U.S. 539, 564–571 (1974). Such protections include the right to call witnesses, to present documentary evidence, and to have a written 27 statement by the fact finder as to the evidence relied upon along with the reasons for the disciplinary action taken. Id. These procedural protections, however, only apply when the disciplinary action implicates a 28 1 D. Retaliation 2 Plaintiff states in his Complaint that his time in Ad Seg was extended because “[t]hey 3 either didn’t care [he] was isolated, they didn’t realize [he] was still in Ad Seg, or it was in 4 retaliation for writing 602s [(grievances)] against C/O Serrano . . . .” (Compl. at 3.) 5 “Prisoners have a First Amendment right to file grievances against prison officials and to 6 be free from retaliation for doing so.” Watison, 668 F.3d at 1114 (citing Brodheim v. Cry, 7 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of First 8 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 9 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, 10 and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 11 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 12 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). 13 Plaintiff does not plausibly allege any Defendant took an adverse action against him, 14 only that retaliation may have been the reason for his two-month Ad Seg stay. (Compl. at 15 3.) Further, a plaintiff alleging retaliation “bears the burden of pleading . . . the absence of 16 legitimate correctional goals for the conduct of which he complains.” Pratt v. Rowland, 17 65 F.3d 802, 806 (9th Cir. 1995); see Medina v. Morris, No. 09-cv-169-JAH (MSC), 2014 18 WL 12686744, at *10 (S.D. Cal. June 2, 2014). “A plaintiff successfully pleads this 19 element by alleging, in addition to a retaliatory motive, that the defendant’s actions were 20 arbitrary and capricious, or that they were ‘unnecessary to the maintenance of order in the 21 institution.’” Watison, 668 F.3d at 1114–15 (citations omitted). Plaintiff has not plausibly 22 alleged his two-month stay in Ad Seg did not reasonably advance the legitimate 23 correctional goal of investigating the letters that claimed he was planning to kill a 24 correctional officer. Rhodes, 408 F.3d at 567–68. Accordingly, Plaintiff has failed to state 25 a retaliation claim. See Iqbal, 556 U.S. at 678. 26 V. Conclusion 27 For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Proceed IFP 28 pursuant to 28 U.S.C. § 1915(a). (ECF No. 2). The Court ORDERS the Secretary of the 1 CDCR, or his designee, to collect from Plaintiff’s trust account the $350 filing fee owed in 2 this case by garnishing monthly payments from his account in an amount equal to twenty 3 percent (20%) of the preceding month’s income and forwarding those payments to the 4 Clerk of the Court each time the amount in Plaintiff’s account exceeds $10 pursuant to 28 5 U.S.C. § 1915(b)(2). All payments SHALL be clearly identified by the name and number 6 assigned to this action. The Court also DIRECTS the Clerk of the Court to serve a copy 7 of this Order on Jeff Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, 8 California, 94283-0001, by U.S. Mail, or by forwarding an electronic copy to 9 trusthelpdesk@cdcr.ca.gov. 10 In addition, the Court concludes that Plaintiff has failed to state plausible Eighth and 11 Fourteenth Amendment claims for relief pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 12 Accordingly, the Court DISMISSES Plaintiff’s Complaint without prejudice. Because 13 Plaintiff is proceeding pro se, however, the Court GRANTS him leave to amend. See 14 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 15 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 16 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 17 [cannot] be cured by amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 18 2012))). 19 Plaintiff may file a First Amended Complaint that cures the deficiencies outlined in 20 this Order no later than forty-five (45) days from the date of this Order. Any amended 21 complaint must be complete by itself without reference to Plaintiff’s original pleading. See 22 S.D.Cal. CivLR 15.1(a). Defendants not named and any claims not re-alleged in the 23 Amended Complaint will be considered waived. See Studios, Inc. v. Richard Feiner & Co., 24 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); 25 see also Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 26 dismissed with leave to amend that are not re-alleged in an amended pleading may be 27 considered waived if not repled). 28 / / / 1 If Plaintiff fails to timely amend his Complaint, the Court will enter a final order 2 || dismissing this civil action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If 3 ||a plaintiff does not take advantage of the opportunity to fix his complaint, a district court 4 convert the dismissal of the complaint into dismissal of the entire action.”). The Court 5 || further DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its form 6 ||Complaint under the Civil Rights Act, 42 U.S.C. § 1983, for his use and convenience. 7 IT IS SO ORDERED. 8 ||Dated: August 21, 2023 —_—— 9 dd) (2 D (oe 10 Honorable Todd W. Robinson United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12