Reed v. Newsom

• Court: District Court, S.D. California
• Decided: June 25, 2021
• Docket: 3:20-cv-02439
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYCHAL ANDRA REED, Case No.: 3:20-cv-2439-AJB-MDD CDCR #AE-9821, 12 ORDER: 1) GRANTING MOTIONS Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS [ECF Nos. 3, 5] 14

GAVIN NEWSOM, SAL URIBE, 15 2) DISMISSING COMPLAINT FOR ALONDRA RUIZ, PAULETTE FAILING TO STATE A CLAIM 16 NANDER, M.D., C. HUGHES, CHRIS PURSUANT TO 28 U.S.C. CORNELL, HAROLD TATE, M.D., E. 17 § 1915(e)(2)(B) AND § 1915A(b) ZENDAJAS, DANIEL PARAMO,

18 MEGAN KEENER, EVERETT 3) DENYING MOTION TO BENYARD, PATRICK COVELLO, 19 TRANSFER BACK TO UNITED MARCUS POLLARD, G. STATES DISTRICT COURT FOR 20 HERNANDEZ, A. GARCIA, A. THE NORTHERN DISTRICT OF LAROCCO, F. ARMENTA, J. LUNA, 21 CALIFORNIA [ECF No. 13] RENALDO ANGELES, A. GARVEY, 22 Defendants. 23 24 25 Mychal Andra Reed (“Plaintiff”), incarcerated at R.J. Donavan Correctional 26 Facility (“RJD”) in San Diego, California, is proceeding pro se in this case with a civil 27 rights Complaint (“Compl.”) filed pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 28 / / / 1 1.) Plaintiff has also filed two Motions to Proceed In Forma Pauperis (“IFP”) pursuant 2 to 28 U.S.C. § 1915(a) along with a copy of his prison trust account statement. (See ECF 3 Nos. 3 & 5.) On March 1, 2021, Plaintiff filed a “Motion to Transfer Case Back to 4 Northern District.” (ECF No. 13.) 5 I. Motion to Proceed IFP 6 All parties instituting a civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 10 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 11 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 12 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 13 Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 14 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 15 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 16 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 21 1 The Complaint was originally filed in the United States District Court for the Northern District 22 of California on November 11, 2020. (ECF No. 1.) On December 10, 2020, the District Court for the Northern District of California concluded venue was more appropriate in the Southern 23 District of California and ordered the case transferred to this Court. (See ECF No. 7.) 24 2 The filing fee associated with civil actions was raised to $402 on December 1, 2020. See 28 25 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, 26 § 14 (eff. Dec. 1, 2020)). Because the Complaint was filed on November 11, 2020, the filing fee in this case is $400. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 27 Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The $400 filing fee includes the $350 statutory fee plus an administrative fee, which was $50 at the time of filing. Id. The 28 1 trust account statement, the Court assesses an initial payment of 20% of (a) the average 2 monthly deposits in the account for the past six months, or (b) the average monthly 3 balance in the account for the past six months, whichever is greater, unless the prisoner 4 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 5 custody of the prisoner then collects subsequent payments, assessed at 20% of the 6 preceding month’s income, in any month in which his account exceeds $10, and forwards 7 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 8 Bruce, 577 U.S. at 85. 9 In support of his IFP Motions, Plaintiff has submitted a copy of his California 10 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report as 11 well as a Prison Certificate completed by an accounting officer at RJD. (See ECF No. 5-2 12 at 1‒6); see also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 13 1119. These documents show Plaintiff had no available balance at the time of filing. (See 14 ECF No. 5-2 at 1, 3.) Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP 15 (ECF Nos. 3, 5), declines to exact any initial filing fee because his prison certificates 16 indicate he may have “no means to pay it,” Bruce, 577 U.S. at 85, and directs the 17 Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), or 18 her designee, to instead collect the entire $350 balance of the filing fees required by 28 19 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment 20 payment provisions set forth in 28 U.S.C. § 1915(b)(1). 21 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b) 22 A. Standard of Review 23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 24 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 25 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 27 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 28 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 1 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 2 the targets of frivolous or malicious suits need not bear the expense of responding.’” 3 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 4 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 8 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 12 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 15 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 17 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 18 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 19 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 20 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 21 (9th Cir. 2009). Finally, in deciding whether Plaintiff has stated a plausible claim for 22 relief, the Court may consider exhibits attached to his Complaint, including Plaintiff’s 23 Declaration. See Fed. R. Civ. R. 10(c) (“A copy of a written instrument that is an exhibit 24 to a pleading is a part of the pleading for all purposes.”); Hal Roach Studios, Inc. v. 25 Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citing Amfac 26 Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978) (“[M]aterial 27 which is properly submitted as part of the complaint may be considered” in ruling on a 28 Rule 12(b)(6) motion to dismiss.)). 1 B. Plaintiff’s Allegations 2 In his Complaint and accompanying Declaration, Plaintiff raises a host of 3 allegations starting with Plaintiff’s initial incarceration in 2010 and continuing through 4 2020. (See Compl., ECF No. 1; see also Pla.’s Decl., ECF No. 1-4.) Plaintiff lists some 5 twenty defendants, including the governor of California, wardens (or past wardens) and 6 correctional officers from several different prisons within CDCR. (Compl., ECF No. 1 at 7 2.) 8 Plaintiff’s allegations include incidents which occurred at RJD, California State 9 Prison, Los Angeles County (“LAC”), California Correctional Institution (“CCI”), 10 Pelican Bay State Prison (“PBSP”), Kern Valley State Prison (“KVSP”), California 11 Substance Abuse Treatment Facility (“SATF”) and Corcoran State Prison (“COR”). (See 12 Pla.’s Decl., ECF No. 1-4 at 2, 4, 11, 15, 18–20, 23.) Plaintiff’s Declaration details claims 13 “pertaining to [his] almost 10 years[’] experience in the custody of the California 14 Department of Corrections and Rehabilitation (CDCR) prison system.” (Id. at 1.) He 15 alleges that during this ten-year time period, his First, Fifth, Eighth and Fourteenth 16 Amendment rights were violated, along with his rights under the Americans with 17 Disabilities Act. (Compl., ECF No. 1 at 3.) 18 C. 42 U.S.C. § 1983 19 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 20 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 21 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, Plaintiff must allege two 22 essential elements: (1) that a right secured by the Constitution or laws of the United 23 States was violated and (2) that the alleged violation was committed by a person acting 24 under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 25 789 F.3d 1030, 1035‒36 (9th Cir. 2015). 26 D. Rule 8 27 Federal Rule of Civil Procedure 8 requires “a short and plain statement of the 28 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To comply 1 with Rule 8, “[s]pecific facts are not necessary; the statement need only give the 2 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” 3 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). While a complaint “does 4 not need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ 5 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 6 recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Factual allegations must be 8 “enough to raise a right to relief above the speculative level.” Id. A complaint must 9 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 10 “While legal conclusions can provide the complaint’s framework, they must be supported 11 by factual allegations.” Iqbal, 556 U.S. at 679. 12 Here, Plaintiff’s Complaint and accompanying Declaration total 46 pages. (See 13 ECF Nos. 1 & 1-4.) As discussed above, Plaintiff lists twenty defendants from different 14 CDCR facilities and includes factual allegations beginning in 2010 and continuing 15 through 2020. (See id.) The allegations contained in the Complaint and Declaration are 16 extraordinarily broad and appear to touch upon numerous instances Plaintiff found 17 objectionable while incarcerated in CDCR facilities over the past ten years. He describes 18 incidents that occurred at seven different prisons, including RJD, LAC, CCI, PBSP, 19 KVSP, SATF and COR. (See generally, Pla’s Decl., ECF No. 1-4.) Plaintiff generally 20 alleges violations of his First, Fifth, Eighth and Fourteenth Amendments as well as the 21 Americans with Disabilities Act (Compl., ECF No. 1 at 3), but fails to clearly tie any of 22 his factual allegations to specific legal claims.3 Furthermore, Plaintiff does not directly 23 link some individual defendants (some of whom are not mentioned in his statement of 24 facts) to his claims. And the allegations in the Complaint are so lengthy and detailed that 25

26 27 3 Some of the named Defendants are supervisory officials, against whom liability appears to be alleged solely in their respondent superior capacity, which is improper. There is no respondeat 28 1 the Court cannot readily determine all of the injuries for which each of the twenty 2 defendants is allegedly liable. Even when Plaintiff’s claims are liberally construed, he has 3 failed to provide a simple, concise, narrative that sets forth all of the injuries attributed to 4 each individual defendant. Fed. R. Civ. P. 8(a). 5 Therefore, because Plaintiff has failed to provide adequate information for the 6 Court to determine whether the allegations in the Complaint state cognizable claims for 7 relief with respect to each of the twenty defendants, the Complaint must be dismissed. 8 See Cafasso v. Gen’l Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) 9 (“‘While the proper length and level of clarity for a pleading cannot be defined with any 10 great precision,’ Rule 8(a) has ‘been held to be violated by a pleading that was . . . highly 11 repetitious, or confused, or consisted of incomprehensible rambling.’”) (quoting 5 Wright 12 & Miller, Fed. Prac. & Proc., § 1217 (3d ed. & Supp. Aug. 2019)); see also Hearns v. 13 San Bernardino Police Dept., 530 F.3d 1124, 1132 (9th Cir. 2008) (“[I]t is not the district 14 court’s job to stitch together cognizable claims for relief from [a] wholly deficient 15 pleading.”) (citation omitted); Morrison v. United States, 270 F. App’x 514, 515 (9th Cir. 16 2008) (affirming Rule 8 dismissal of pro se complaint “contain[ing] a confusing array of 17 vague and undeveloped allegations,” and which “did not allege sufficient facts or 18 jurisdictional basis for any federal claim for relief.”). 19 E. Misjoinder 20 In addition, the Count notes the Complaint includes claims that are improperly 21 joined. A plaintiff may properly join as many claims as he has against an opposing party. 22 Fed. R. Civ. P. 18(a). Nevertheless, while multiple claims against a single party may be 23 alleged in a single complaint, unrelated claims against different defendants must be 24 alleged in separate complaints. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) 25 (finding, under Rule 18(a), prisoner improperly brought complaint raising fifty distinct 26 claims against twenty-four defendants). Rule 20(a)(2) allows joinder of defendants only if 27 the following two requirements are met: (1) any right to relief is asserted against them 28 jointly, severally, or in the alternative with respect to or arising out of the same 1 transaction, occurrence, or series of transactions or occurrences; and (2) any question of 2 law or fact common to all defendants will arise in the action. See Fed. R. Civ. P. 3 20(a)(2)(A)–(B); Rush v. Sport Chalet, Inc., 779 F.3d 973, 974 (9th Cir. 2015). 4 “Unrelated claims involving different defendants belong in different suits.” What v. 5 Honolulu Police Dep’t, 2014 WL 176610, at *4–5 (D. Haw. Jan. 13, 2014); see also 6 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“[M]ultiple claims against a single 7 party are fine, but Claim A against Defendant 1 should not be joined with unrelated 8 Claim B against Defendant 2.”). As such, claims involving different parties cannot be 9 joined together in one complaint if the facts giving rise to the claims were not factually 10 related in some way—that is, if there was not “similarity in the factual background.” 11 Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). General allegations are not 12 sufficient to constitute similarity when the specifics are different. Id. The court, on its 13 own initiative, may dismiss misjoined parties from an action, and any claim against a 14 misjoined party may be severed and proceeded with separately. Fed. R. Civ. P. 21. 15 Here, the complaint contains claims against Defendants that are not properly joined 16 under Rule 20(a). Specifically, Plaintiff’s claims against the twenty defendants cover a 17 broad array of different incidents by different individuals taking place at several different 18 institutions over the course of approximately ten years. Plaintiff may only allege claims 19 that (a) arise out of the same transaction, occurrence, or series of transactions or 20 occurrences and (b) present questions of law or fact common to all defendants named 21 therein. Plaintiff may not include in a single complaint everything that has happened to 22 him over ten-year period that he finds objectionable. See Fed. R. Civ. P. 20(a); Rush, 779 23 F.3d at 974. 24 F. Statute of Limitations 25 Federal courts apply the forum state’s statute of limitations for personal injury 26 actions. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). The limitations period in 27 California for such actions is two years, id. (citing Cal. Civ. Proc. Code § 335.1), and is 28 tolled for two years for inmates serving less than a life sentence. Cal. Civ. Proc. Code 1 § 352.1; see also Wallace v. Kato, 549 U.S. 384, 394 (2007) (citing Hardin v. Straub, 490 2 U.S. 536, 538–39 (1989)); Jones, 393 F.3d at 927 (noting that in actions where the 3 federal court borrows the state statute of limitation, the federal court also borrows all 4 applicable provisions for tolling the limitations period found in state law). 5 Unlike the length of the limitations period, however, “the accrual date of a § 1983 6 cause of action is a question of federal law that is not resolved by reference to state law.” 7 Id. at 388; Hardin, 490 U.S. at 543–44 (federal law governs when a § 1983 cause of 8 action accrues). “Under the traditional rule of accrual . . . the tort cause of action accrues, 9 and the statute of limitation begins to run, when the wrongful act or omission results in 10 damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder federal law, a claim 11 accrues when the plaintiff knows or has reason to know of the injury which is the basis of 12 the action.” Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004); TwoRivers v. Lewis, 13 174 F.3d 987, 991 (9th Cir. 1999). In his Complaint, Plaintiff raises numerous factual 14 allegations which appear to fall far outside California’s two-year statute of limitations, 15 even including all presumed periods of tolling provided by statute. See Wallace, 591 U.S. 16 at 391; Maldonado, 370 F.3d at 955; Cal. Code Civ. Proc. § 335.1. 17 G. Claims Involving Incidents at RJD 18 Many of Plaintiff’s factual allegations relate to incidents which allegedly occurred 19 while Plaintiff was housed at RJD. Plaintiff also names several staff members of RJD as 20 Defendants. Some of these claims appear to be duplicative of claims raised in a case 21 currently pending before this Court in Case No. 3:18-cv-0361-JLS-DEB. In that case, 22 Plaintiff is pursuing claims related to Rules Violation Reports that he received while at 23 RJD, which he alleges were improper. Plaintiff is cautioned that any amended complaint 24 filed in this Court that duplicates pending or previously litigated claims, including those 25 pending in Reed v. Paramo, et al., Case No. 3:18-cv-0361-JLS-DEB, will be subject to 26 dismissal under 28 U.S.C. § 1915. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th 27 Cir. 1995) (stating that district courts may dismiss a complaint under § 1915(d) “that 28 / / / 1 merely repeats pending or previously litigated claims”) (quoting Bailey v. Johnson, 846 2 F.2d 1019, 1021 (5th Cir. 1988)). 3 H. Relief Sought 4 Finally, Plaintiff appears, a least in part, to be seeking relief that is unavailable 5 under 42 U.S.C. § 1983. In his Complaint, Plaintiff requests the Court “adjudicate and/or 6 order his immediate release from state (CDCF) custody due to ‘habitual’ and ‘extensive’ 7 violations of his United State Constitutional rights he has been subjected to which were 8 not mandated by his trial court.” (Compl., ECF No. 1 at 3.) Any claim by a prisoner 9 attacking the validity or duration of his confinement must be brought under the habeas 10 sections of Title 28 of the United States Code. See Calderon v. Ashmus, 523 U.S. 740, 11 747 (1998); Preiser v. Rodriguez, 411 U.S. 475 (1973). A civil rights complaint seeking 12 habeas relief should be dismissed without prejudice. See Trimble v. City of Santa Rosa, 13 49 F.3d 583, 586 (9th Cir. 1995). Insofar as Plaintiff seeks to be released from state 14 custody because of an invalid state court conviction or sentence, he is seeking habeas 15 relief. See 28 U.S.C. § 2254(a). 16 I. Leave to Amend 17 In sum, even when Plaintiff’s claims are liberally construed, he has failed to 18 provide adequate information for the Court to determine whether the allegations in the 19 Complaint state cognizable claims for relief with respect to each of the twenty 20 defendants. Plaintiff also has failed to provide a simple, concise, narrative that sets forth 21 all of the injuries attributed to each individual defendant. See Fed. R. Civ. P. 8(a). 22 Furthermore, Plaintiff has failed to allege that they meet proper joinder requirements. 23 Fed. R. Civ. P. 20(a). Because Plaintiff has joined unrelated claims from myriad alleged 24 incidents at different prisons against different defendants, the Complaint must be 25 dismissed. Accordingly, Plaintiff will be given leave to file an amended complaint in 26 which he clearly links each defendant to the alleged injury, or injuries, for which that 27 defendant is alleged to be responsible. 28 / / / 1 In filing his amended complaint, Plaintiff must provide sufficient information to 2 give the defendants fair notice of the nature of the claims against them. Plaintiff need not, 3 however, provide a lengthy narrative with respect to each defendant to satisfy the 4 pleading requirements of Rule 8. If Plaintiff chooses to amend the complaint, he may join 5 multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). If Plaintiff 6 has more than one claim against the same defendant based upon separate transactions or 7 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). As 8 discussed above, unrelated claims against different defendants must be pursued in 9 separate lawsuits. 10 In addition, Plaintiff must demonstrate how the conditions about which he 11 complains resulted in a deprivation of his constitutional rights. See, e.g., West, 487 U.S. 12 at 48. The amended complaint must allege in specific terms how each named defendant is 13 involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no liability under 42 14 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s 15 actions and the claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 16 1980). Furthermore, vague and conclusory allegations of official participation in civil 17 rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 18 1982). The amended complaint must be complete in itself without reference to any prior 19 pleading. This requirement exists because, as a general rule, an amended complaint 20 supersedes the original complaint. See Ramirez v. County of San Bernardino, 806 F.3d 21 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the original, the latter 22 being treated thereafter as non-existent.’” (internal citation omitted)). Finally, in his 23 amended complaint, Plaintiff may only allege claims that (a) arise out of the same 24 transaction, occurrence, or series of transactions or occurrences and (b) present questions 25 of law or fact common to all defendants named. See Fed. R. Civ. P. 20(a). He must 26 choose what claims he wants to pursue that meet the joinder requirements; if he asserts 27 improperly joined claims in his amended complaint, they will be dismissed. 28 / / / 1 III. Motion to Transfer 2 Finally, Plaintiff has filed a “Motion to Transfer Back to the Northern District 3 Court,” in which Plaintiff asks that this case, which was transferred to this Court by the 4 United States District Court for the Northern District of California, be transferred back to 5 that same court. (ECF No. 13.) Venue may be raised by a court sua sponte where the 6 defendant has not yet filed a responsive pleading and the time for doing so has not run. 7 Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). Section 1391(b) of Title 28 of the 8 U.S. Code provides, in pertinent part, that a “civil action may be brought in–(1) a judicial 9 district in which any defendant resides, if all defendants are residents of the State in 10 which the district is located; [or] (2) a judicial district in which a substantial part of the 11 events or omissions giving rise to the claim occurred, or a substantial part of property that 12 is the subject of the action is situated[.]” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; 13 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The 14 district court of a district in which is filed a case laying venue in the wrong division or 15 district shall dismiss, or if it be in the interests of justice, transfer such case to any district 16 or division in which it could have been brought.” 28 U.S.C. § 1406(a). 17 Here, while Plaintiff’s Complaint does include allegations arising from an incident 18 at PBSP, located in the Northern District of California, Plaintiff’s remaining allegations 19 stem from incidents alleged to have happened in prisons located in the Eastern District of 20 California (CCI, KVSP, SATF, and COR), the Central District of California (LAC) and 21 the Southern District of California (RJD). Because the Complaint must be dismissed 22 under Rule 8 and for the reasons discussed above, the Court DENIES Plaintiff’s request 23 for transfer.4 24

25 26 4 As discussed above, the Complaint is dismissed is without prejudice. Thus, if Plaintiff seeks to pursue those claims which arose in the Northern District of California and/or are against 27 Defendants who reside there, he may file a complaint that complies with the Federal Rules of Civil Procedure in that court. See 28 U.S.C. § 84(a). Likewise, if Plaintiff seeks to pursue claims 28 1 IV. Conclusion and Orders 2 For the reasons discussed, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF Nos. 2, 4.) 5 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from 6 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 7 monthly payments from his account in an amount equal to twenty percent (20%) of the 8 preceding month’s income and forwarding those payments to the Clerk of the Court each 9 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 10 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 11 ASSIGNED TO THIS ACTION. 12 3. DIRECTS the Clerk of Court to serve a copy of this Order by mail on 13 Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283- 14 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov; 15 4. DISMISSES this civil action sua sponte based on Plaintiff’s failure to state 16 a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 17 § 1915A(b)(1). 18 5. DENIES Plaintiff’s “Motion to Transfer Case Back to Northern District” 19 (ECF No. 13.) 20 6. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 21 which to file an Amended Complaint which cures the deficiencies of pleading noted 22 above. The Amended Complaint must be complete by itself without reference to his 23 24 25 reside there, he should pursue those claims in the proper court. See 28 U.S.C. §§ 84(b) & (c). To 26 the extent Plaintiff alleges events or omissions giving rise to claims which occurred at RJD (which is located in San Diego County) and/or were committed by defendants who reside in San 27 Diego or Imperial Counties, he may pursue them in this Court by filing an amended complaint in this case. See 28 U.S.C. § 84(d) (“The Southern District comprises the counties of Imperial 28 1 original pleading. Defendants not named and any claim not re-alleged in his Amended 2 || Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, 896 3 || F.2d at 1546 (‘[A]n amended pleading supersedes the original.”); Lacey v. Maricopa 4 || Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to 5 ||amend which are not re-alleged in an amended pleading may be “considered waived if 6 || not repled.”). 7 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 8 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to 9 || state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 10 1915A(b), and his failure to prosecute in compliance with a court order requiring 11 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 12 || not take advantage of the opportunity to fix his complaint, a district court may convert the 13 || dismissal of the complaint into dismissal of the entire action.”’). 14 IT IS SO ORDERED. 15 || Dated: June 25, 2021 © 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 14 oe □□