1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS MANUEL GARCES, No. 2:23-CV-1997-DMC-P 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint. See ECF No. 1. 19 The Court is required to screen complaints brought by litigants who, as here, have 20 been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this 21 screening provision, the Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B). 24 Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this Court must dismiss an 25 action if the Court determines that it lacks subject matter jurisdiction. Pursuant to Rule 12(h)(3), 26 the Court will also consider as a threshold matter whether it has subject-matter jurisdiction. 27 / / / 28 / / / 1 I. PLAINTIFF’S ALLEGATIONS 2 Plaintiff Luis Manuel Garces (“Plaintiff”) is a current inmate at California State 3 Prison, Corcoran (“CSPC”). Plaintiff names the following Defendants: (1) Gavin Newsom, 4 California State Governor (“Defendant Newsom”); (2) Ralph M. Diaz, Former Secretary of 5 California Department of Corrections and Rehabilitation (“CDCR”) (“Defendant Diaz”); (3) 6 Kathleen Allison, California State Prison Director (“Defendant Allison”); (4) S. Alfaro 7 (“Defendant Alfaro”); (5) C. Vanenburg, California Corrections Institution Specialist at CDCR 8 (“Defendant Vanenburg”); (6) B. Moak, employee of CDCR (“Defendant Moak”); (7) S. Smith, 9 employee of CDCR (“Defendant Smith”); (8) Redmon, employee of Kern Valley State Prison 10 (“KVSP”) (“Defendant Redmon”); (9) J. Sherman, employee of CSPC (“Defendant Sherman”); 11 (10) Duran, employee of CSPC (“Defendant Duran”); (11) Quezada, employee of CSPC 12 (“Defendant Quezada”); (12) Kirby, employee of KVSP (“Defendant Kirby”); and (13) R. 13 Hernandez (“Defendant Hernandez”). See ECF No. 1, at 1-4. Plaintiff’s first cause of action is 14 deliberate indifference to a prison condition against Defendant Newsom and Defendant Diaz. See 15 id. at 5. Plaintiff then generally asserts all Defendants collectively violated Plaintiff’s 16 constitutional rights to be free from cruel and unusual punishment and in Defendants’ conspiracy 17 to cause Plaintiff harm. See id. at 13. Lastly, Plaintiff includes factual allegations of Defendant 18 Quezada allegedly violating Plaintiff’s constitutional right by failing to prevent excessive force 19 and sexual assault. See id. at 12. 20 A. Background 21 Plaintiff asserts that since January of 2008, Plaintiff has suffered constant threats 22 of stabbings from gang members at CSPC. See id. at 28. Plaintiff states he repeatedly requested 23 to be moved to a facility away from these gang members but was denied. See id. Plaintiff 24 subsequently appealed this decision to the second level of review, to be transferred to High Desert 25 State Prison. See id. at 29. Plaintiff alleges prison records were suppressed in July of 2014 and 26 that he was forced into new housing circumstances. See id. Later, Plaintiff was wrongly accused 27 of fighting with his inmate and transferred to a housing unit with an alleged gang member. See 28 id. On February 23, 2015, Plaintiff was allegedly assaulted by this inmate. See id. In 2016, 1 Plaintiff claims CDCR personnel knowingly moved Plaintiff to a new housing assignment with 2 another alleged gang member. See id. at 30. In 2017, Plaintiff requested a new housing 3 assignment and was denied. See id. From 2017 through 2018, Plaintiff alleges Defendants 4 engaged in the later described conspiracy to hide information validating Plaintiff’s safety 5 concerns and CDCR alleged improper housing assignments. See id. at 30-31. 6 B. Allegations Against Defendants 7 1. Defendants Newsom, Diaz, and Allison 8 Plaintiff claims Defendant Newsom knowingly failed to supervise CSPC 9 employees and their creation of illegitimate prison rules. See id. at 5. Plaintiff claims he was 10 intentionally housed with violent inmates and wrongfully charged with a Rules Violation Report 11 (“RVR”) 115. See id. Furthermore, Plaintiff alleges Defendant Diaz knowingly allowed 12 sergeants and wardens to create their own policies and customs. See id. Similarly, Plaintiff 13 alleges Defendant Allison also knowingly permitted this harm to Plaintiff and separately on 14 March 8, 2019, ordered Plaintiff to be housed with the use of force. See id. at 6. Plaintiff claims 15 Defendant Allison’s actions caused Plaintiff to suffer two assaults, on June 12, 2019, and 16 November 5, 2021, from CDCR authorities and the wrongful charge of RVR 115. See id. 17 2. Defendants Alfaro and Moak 18 Plaintiff further asserts that Defendant Alfaro violated his constitutional rights, in 19 Defendant Alfaro’s participation in the creation of allegedly false testimony that supported 20 Defendant Allison’s decision to house Plaintiff. See id. at. 7. Plaintiff also alleges Defendant 21 Moak violated his rights in providing Defendant Allison false information regarding the violent 22 nature of inmates at Plaintiff’s proposed housing unit. See id. Therefore, Plaintiff claims 23 Defendant Moak’s actions also resulted in the June 12, 2019, and November 5, 2021, assaults. 24 See id. at 8. 25 / / / 26 / / / 27 / / / 28 / / / 1 3. Defendants Seibel, Sherman, Smith, and Redmon 2 Plaintiff has also alleged Defendant Seibel provided false information and failed to 3 review Plaintiff’s personnel files when deciding how to advise on the decision of Plaintiff’s 4 housing location. See id. at 9. Specifically, that these actions resulted in the covering of evidence 5 demonstrating a threat to Plaintiff’s life. See id. Additionally, Plaintiff alleges Defendant 6 Sherman violated Plaintiff’s rights by providing false statements on May 8, 2020, to intentionally 7 discredit violent threats Plaintiff faced. See id. at 10. Plaintiff also asserts that Defendant Smith 8 participated the above-mentioned conspiracy with other members of leadership at CDCR. See id. 9 at 11. 10 Next, Plaintiff claims Defendant Smith subjected Plaintiff to false imprisonment 11 for a period of about two months on a falsified quarantine status. See id. As a result of 12 Defendant Smith’s actions and Defendant Redmon’s actions, Plaintiff was subjected to physical 13 assaults and constant harassment through food contaminations. See id. 14 4. Defendants Duran, Martinez, and Quezada 15 Plaintiff argues Defendant Duran also failed to protect Plaintiff by failing to move 16 his housing placement after knowing alleged safety risks to Plaintiff. See id. Specifically, 17 Plaintiff states Defendant Duran, with Defendant Martinez and Defendant Quezada, had Plaintiff 18 moved on April 5, 2021. See id. Plaintiff also alleges Defendant Duran voluntarily distributed 19 Plaintiff’s personal information to other inmates. See id. 20 Plaintiff also asserts Defendant Quezada harassed Plaintiff at his housing unit and 21 instigated other inmates to cause harm to Plaintiff. See id. at 12. On November 5, 2021, Plaintiff 22 alleges Defendant Quezada violated Plaintiff’s rights to be free from excessive force and sexual 23 assault. See id.
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS MANUEL GARCES, No. 2:23-CV-1997-DMC-P 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint. See ECF No. 1. 19 The Court is required to screen complaints brought by litigants who, as here, have 20 been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this 21 screening provision, the Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B). 24 Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this Court must dismiss an 25 action if the Court determines that it lacks subject matter jurisdiction. Pursuant to Rule 12(h)(3), 26 the Court will also consider as a threshold matter whether it has subject-matter jurisdiction. 27 / / / 28 / / / 1 I. PLAINTIFF’S ALLEGATIONS 2 Plaintiff Luis Manuel Garces (“Plaintiff”) is a current inmate at California State 3 Prison, Corcoran (“CSPC”). Plaintiff names the following Defendants: (1) Gavin Newsom, 4 California State Governor (“Defendant Newsom”); (2) Ralph M. Diaz, Former Secretary of 5 California Department of Corrections and Rehabilitation (“CDCR”) (“Defendant Diaz”); (3) 6 Kathleen Allison, California State Prison Director (“Defendant Allison”); (4) S. Alfaro 7 (“Defendant Alfaro”); (5) C. Vanenburg, California Corrections Institution Specialist at CDCR 8 (“Defendant Vanenburg”); (6) B. Moak, employee of CDCR (“Defendant Moak”); (7) S. Smith, 9 employee of CDCR (“Defendant Smith”); (8) Redmon, employee of Kern Valley State Prison 10 (“KVSP”) (“Defendant Redmon”); (9) J. Sherman, employee of CSPC (“Defendant Sherman”); 11 (10) Duran, employee of CSPC (“Defendant Duran”); (11) Quezada, employee of CSPC 12 (“Defendant Quezada”); (12) Kirby, employee of KVSP (“Defendant Kirby”); and (13) R. 13 Hernandez (“Defendant Hernandez”). See ECF No. 1, at 1-4. Plaintiff’s first cause of action is 14 deliberate indifference to a prison condition against Defendant Newsom and Defendant Diaz. See 15 id. at 5. Plaintiff then generally asserts all Defendants collectively violated Plaintiff’s 16 constitutional rights to be free from cruel and unusual punishment and in Defendants’ conspiracy 17 to cause Plaintiff harm. See id. at 13. Lastly, Plaintiff includes factual allegations of Defendant 18 Quezada allegedly violating Plaintiff’s constitutional right by failing to prevent excessive force 19 and sexual assault. See id. at 12. 20 A. Background 21 Plaintiff asserts that since January of 2008, Plaintiff has suffered constant threats 22 of stabbings from gang members at CSPC. See id. at 28. Plaintiff states he repeatedly requested 23 to be moved to a facility away from these gang members but was denied. See id. Plaintiff 24 subsequently appealed this decision to the second level of review, to be transferred to High Desert 25 State Prison. See id. at 29. Plaintiff alleges prison records were suppressed in July of 2014 and 26 that he was forced into new housing circumstances. See id. Later, Plaintiff was wrongly accused 27 of fighting with his inmate and transferred to a housing unit with an alleged gang member. See 28 id. On February 23, 2015, Plaintiff was allegedly assaulted by this inmate. See id. In 2016, 1 Plaintiff claims CDCR personnel knowingly moved Plaintiff to a new housing assignment with 2 another alleged gang member. See id. at 30. In 2017, Plaintiff requested a new housing 3 assignment and was denied. See id. From 2017 through 2018, Plaintiff alleges Defendants 4 engaged in the later described conspiracy to hide information validating Plaintiff’s safety 5 concerns and CDCR alleged improper housing assignments. See id. at 30-31. 6 B. Allegations Against Defendants 7 1. Defendants Newsom, Diaz, and Allison 8 Plaintiff claims Defendant Newsom knowingly failed to supervise CSPC 9 employees and their creation of illegitimate prison rules. See id. at 5. Plaintiff claims he was 10 intentionally housed with violent inmates and wrongfully charged with a Rules Violation Report 11 (“RVR”) 115. See id. Furthermore, Plaintiff alleges Defendant Diaz knowingly allowed 12 sergeants and wardens to create their own policies and customs. See id. Similarly, Plaintiff 13 alleges Defendant Allison also knowingly permitted this harm to Plaintiff and separately on 14 March 8, 2019, ordered Plaintiff to be housed with the use of force. See id. at 6. Plaintiff claims 15 Defendant Allison’s actions caused Plaintiff to suffer two assaults, on June 12, 2019, and 16 November 5, 2021, from CDCR authorities and the wrongful charge of RVR 115. See id. 17 2. Defendants Alfaro and Moak 18 Plaintiff further asserts that Defendant Alfaro violated his constitutional rights, in 19 Defendant Alfaro’s participation in the creation of allegedly false testimony that supported 20 Defendant Allison’s decision to house Plaintiff. See id. at. 7. Plaintiff also alleges Defendant 21 Moak violated his rights in providing Defendant Allison false information regarding the violent 22 nature of inmates at Plaintiff’s proposed housing unit. See id. Therefore, Plaintiff claims 23 Defendant Moak’s actions also resulted in the June 12, 2019, and November 5, 2021, assaults. 24 See id. at 8. 25 / / / 26 / / / 27 / / / 28 / / / 1 3. Defendants Seibel, Sherman, Smith, and Redmon 2 Plaintiff has also alleged Defendant Seibel provided false information and failed to 3 review Plaintiff’s personnel files when deciding how to advise on the decision of Plaintiff’s 4 housing location. See id. at 9. Specifically, that these actions resulted in the covering of evidence 5 demonstrating a threat to Plaintiff’s life. See id. Additionally, Plaintiff alleges Defendant 6 Sherman violated Plaintiff’s rights by providing false statements on May 8, 2020, to intentionally 7 discredit violent threats Plaintiff faced. See id. at 10. Plaintiff also asserts that Defendant Smith 8 participated the above-mentioned conspiracy with other members of leadership at CDCR. See id. 9 at 11. 10 Next, Plaintiff claims Defendant Smith subjected Plaintiff to false imprisonment 11 for a period of about two months on a falsified quarantine status. See id. As a result of 12 Defendant Smith’s actions and Defendant Redmon’s actions, Plaintiff was subjected to physical 13 assaults and constant harassment through food contaminations. See id. 14 4. Defendants Duran, Martinez, and Quezada 15 Plaintiff argues Defendant Duran also failed to protect Plaintiff by failing to move 16 his housing placement after knowing alleged safety risks to Plaintiff. See id. Specifically, 17 Plaintiff states Defendant Duran, with Defendant Martinez and Defendant Quezada, had Plaintiff 18 moved on April 5, 2021. See id. Plaintiff also alleges Defendant Duran voluntarily distributed 19 Plaintiff’s personal information to other inmates. See id. 20 Plaintiff also asserts Defendant Quezada harassed Plaintiff at his housing unit and 21 instigated other inmates to cause harm to Plaintiff. See id. at 12. On November 5, 2021, Plaintiff 22 alleges Defendant Quezada violated Plaintiff’s rights to be free from excessive force and sexual 23 assault. See id. Specifically, that Defendant Quezada performed sexual acts on Plaintiff’s back 24 and choked Plaintiff. See id. 25 / / / 26 / / / 27 / / / 28 / / / 1 C. Request for Relief 2 Plaintiff alleges these violations have caused him mental stress, physical injury, 3 loss of education opportunities, and loss of inmate facility program opportunities. See id. at 12- 4 25. Plaintiff requests injunctive relief, compensatory damages of $20,000 from each Defendant, 5 and punitive damages of $40,000 against each Defendant. See id. 6 7 II. DISCUSSION 8 Plaintiff’s complaint suffers multiple defects. Specifically, Plaintiff has not 9 asserted sufficient factual allegations to establish the liability of Defendant Newsom, Defendant 10 Diaz, and Defendant Allison. Additionally, Plaintiff’s complaint suffers from a lack of 11 allegations beyond mere conclusions and vague assertions connecting the remaining Defendants 12 to any constitutional violations. 13 A. Supervisory Personnel 14 Supervisory personnel are generally not liable under § 1983 for the actions of their 15 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 16 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 17 violations of subordinates if the supervisor participated in or directed the violations. See id. The 18 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 19 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 20 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 21 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 22 personnel who implement a policy so deficient that the policy itself is a repudiation of 23 constitutional rights and the moving force behind a constitutional violation may, however, be 24 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 25 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 26 / / / 27 / / / 28 / / / 1 When a defendant holds a supervisory position, the causal link between such 2 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 3 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 4 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 5 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 6 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 7 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 8 Here, Plaintiff asserts claims against Defendant Newsom, Defendant Diaz, and 9 Defendant Allison. See ECF No. 1, at 1-4. In Defendant Newsom’s role as California State 10 Governor, Defendant Diaz’s role as Former Secretary of CDCR, and Defendant Allison’s role as 11 CSP Director, these Defendants are supervisory personnel. To state a cognizable claim, each 12 defendant must have personally acted in violation of the Constitution or Plaintiff’s statutory rights 13 because respnodeat superior is not a cognizable theory under § 1983. Plaintiff has not alleged 14 facts indicating these defendants’ personal involvement in the alleged violations of Plaintiff’s 15 rights. Plaintiff will be provided an opportunity to amend consistent with the standards outlined 16 above. 17 B. Causal Link 18 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 19 connection or link between the actions of the named defendants and the alleged deprivations. See 20 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 21 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 22 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 23 an act which he is legally required to do that causes the deprivation of which complaint is made.” 24 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 25 concerning the involvement of official personnel in civil rights violations are not sufficient. See 26 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 27 specific facts as to each individual defendant’s causal role in the alleged constitutional 28 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 1 1. Defendants Alfaro and Moak 2 In this case, Plaintiff’s complaint fails to assert facts sufficiently alleging a 3 connection between the remaining Defendants and violations of his rights. In the instance of 4 Defendant Alfaro, Plaintiff fails to explain, beyond vague and conclusory statements, what false 5 testimony Defendant Alfaro provided and how it resulted in a subsequent violation of Plaintiff’s 6 constitutional rights. Similarly, Plaintiff fails to explain what information Defendant Moak 7 provided and how this information resulted in a violation of Plaintiff’s rights. For example, 8 Plaintiff’s complaint must explain, in greater detail than a simple conclusion, how Plaintiff’s 9 allegations regarding Defendant Moak are connected to Plaintiff’s allegation of assaults. 10 2. Defendants Seibel, Sherman, Smith, and Redmon 11 Similarly, Plaintiff has failed to explain how Defendant Seibel provided false 12 testimony and the details of the alleged failure to review Plaintiff’s personnel records. Moreover, 13 Plaintiff should include additional factual allegations explaining how his housing assignment 14 determination constitutes a violation of his constitutional rights. Regarding Defendant Sherman, 15 Plaintiff’s claims are similarly inadequate. Plaintiff has not explained how Defendant Sherman 16 intended to discredit any threats to Plaintiff or the validity of these alleged violent threats. 17 Plaintiff’s claims against Defendant Smith are also defective. Plaintiff must allege 18 specific actions or omissions that connect Defendant Smith to Plaintiff’s alleged false 19 imprisonment and a conspiracy against Plaintiff. The allegations against Defendant Redmon are 20 no different. These allegations lack detail and the necessary link between actions of Defendant 21 Redmon and food contaminations that amount to constitutional violations. 22 3. Defendants Duran, Martinez, and Quezada 23 Lastly, Plaintiff’s claims against Defendant Duran, Defendant Martinez, and 24 Defendant Quezada fail to include necessary allegations. Specifically, Plaintiff has not presented 25 specific allegations regarding any safety risks, how each Defendant knew of these risks, and how 26 these actions constituted violations of Plaintiff’s rights. Furthermore, Plaintiff’s complaint lacks 27 the factual allegations explaining the specificity of his housing move and the connections each 28 Defendant had to this decision. For Defendant Quezada, Plaintiff plainly concludes that 1 Defendant Quezada has violated Plaintiff’s rights barring excessive force and assaults but has not 2 explained specific facts regarding Defendant’s causal role in the alleged constitutional 3 deprivations. Plaintiff cannot simply refer to Defendants’ behavior in a vague and summary 4 manner. Plaintiff’s complaint must include references to specific wrongful actions and set forth 5 the connection between those actions and the charged violation of Plaintiff’s constitutional 6 rights. Again, Plaintiff will be provided an opportunity to amend. 7 8 III. CONCLUSION 9 Because it is possible that the deficiencies identified in this order may be cured by 10 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 11 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 12 informed that, as a general rule, an amended complaint supersedes the original complaint. See 13 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 14 amend, all claims alleged in the original complaint which are not alleged in the amended 15 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 16 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 17 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 18 complete in itself without reference to any prior pleading. See id. 19 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 20 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 21 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 22 each named defendant is involved, and must set forth some affirmative link or connection 23 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 24 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 25 Finally, Plaintiff is warned that failure to file an amended complaint within the 26 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 27 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 28 with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 1 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiffs original complaint is dismissed with leave to amend; and 4 2. Plaintiff shall file a first amended complaint within 30 days of the date of 5 || service of this order. 6 7 || Dated: April 16, 2024 Svc 8 DENNIS M. COTA 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28