Salmen v. California Department of Correction Rehabilitation

• Court: District Court, S.D. California
• Decided: November 2, 2020
• Docket: 3:20-cv-02088
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:20-cv-2088-GPC-KSC JUSTIN SALMEN, 12 CDCR # BK-5881, ORDER: 13 Plaintiff, 1) GRANTING PLAINTIFF’S 14 v. MOTION TO PROCEED IN FORMA 15 PAUPERIS PURSUANT TO 28 U.S.C. CALIFORNIA DEP’T OF § 1915(a) (ECF No. 2); 16 CORRECTIONS AND

REHABILITATION; S. ROBERTS; 17 2) DENYING MOTION TO APPOINT M. GLYNN; DR. J. HODGES; A. COUNSEL (ECF No. 3); AND 18 KENDALL; DR. CHAU; H. FRANKLIN;

S. ANDERSON; A. SHITTU; 19 3) DISMISSING COMPLAINT S. GATES, PURSUANT TO 28 U.S.C. § 1915(e)(2) 20 Defendants. AND 28 U.S.C. § 1915A(b) 21

22 23 24 Justin Salmen (“Plaintiff”), incarcerated at the Richard J. Donovan Correctional 25 Facility (“RJD”) in San Diego, California filed a pro se civil rights Complaint pursuant to 26 42 U.S.C. Section 1983. (See ECF No. 1, Compl.) Plaintiff claims that Defendants 27 violated his Eighth Amendment rights by failing to provide adequate medical care and 1 denying his grievance and subsequent appeals. (See id. at 5-6.) 2 Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his 3 Complaint, instead filing a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 4 U.S.C. § 1915(a). (See ECF No. 2.) In addition, Plaintiff has filed a Motion to Appoint 5 Counsel. (See ECF No. 3.) 6 I. Plaintiff’s Motion to Proceed IFP 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 12 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 13 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 14 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 15 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 16 dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 17 Cir. 2002). 18 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 19 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 20 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 21 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 22 trust account statement, the Court assesses an initial payment of 20% of (a) the average 23 monthly deposits in the account for the past six months, or (b) the average monthly 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does 27 not apply to persons granted leave to proceed IFP. Id. 1 balance in the account for the past six months, whichever is greater, unless the prisoner 2 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 3 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 4 preceding month’s income, in any month in which his account exceeds $10, and forwards 5 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 6 § 1915(b)(2); Bruce, 136 S. Ct. at 629. 7 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 8 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. 9 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as 10 well as the attached prison certificate verifying his available balances. (See ECF No. 5, at 11 1-3.) These documents show that he carried an average monthly balance of $1.49 and 12 had $1.45 in average monthly deposits to his trust account for the six months preceding 13 the filing of this action, and that Plaintiff had an available balance of just $0.30 at the 14 time of filing. (See id.) 15 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), and 16 declines to impose the initial partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1), 17 because his prison certificate indicates he may currently have “no means to pay it.” See 18 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from 19 bringing a civil action or appealing a civil action or criminal judgment for the reason that 20 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); 21 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. Section 1915(b)(4) acts as a “safety- 22 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . 23 due to the lack of funds available to him when payment is ordered.”). Instead, the Court 24 directs the Secretary of the California Department of Corrections and Rehabilitation 25 (“CDCR”), or her designee, to collect the entire $350 balance of the filing fees required 26 by 28 U.S.C. Section 1914 and to forward them to the Clerk of the Court pursuant to the 27 installment payment provisions set forth in 28 U.S.C. Section 1915(b)(1). 1 II. Motion to Appoint Counsel 2 Plaintiff also seeks the appointment of counsel because he is unable to afford a 3 lawyer and claims his imprisonment will limit his ability to litigate. (See ECF No. 3, Pl.’s 4 Mot. at 1.) 5 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. 6 of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 7 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to 8 “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of 9 America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only 10 under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 11 (9th Cir. 1991). A finding of exceptional circumstances requires the Court “to consider 12 whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is 13 unable to articulate his claims in light of the complexity of the legal issues involved.’” 14 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d 15 at 970). 16 As currently pleaded, Plaintiff’s Complaint demonstrates neither the likelihood of 17 success nor the legal complexity required to support the appointment of pro bono counsel 18 pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at 19 970. First, while Plaintiff may not be formally trained in law, his allegations, as liberally 20 construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully 21 capable of legibly articulating the facts and circumstances relevant to his claims which 22 are not legally “complex.” Agyeman, 390 F.3d at 1103. Second, for the reasons discussed 23 more fully below, Plaintiff’s Complaint requires sua sponte dismissal pursuant to 28 24 U.S.C. § 1915(e)(2) and § 1915A, and it is simply too soon to tell whether he will be 25 likely to succeed on the merits of any potential constitutional claim against any of the 26 named Defendants. Id. 27 1 Therefore, the Court finds no “exceptional circumstances” currently exist and 2 DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 3) without prejudice on that 3 basis. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of 4 counsel where prisoner could articulate his claims in light of the complexity of the issues 5 involved, and did not show likelihood of succeed on the merits). 6 II. Initial Screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A 7 A. Standard of Review 8 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 9 Answer screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b). Under these 10 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 11 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 12 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 13 (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 14 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to 15 ensure that the targets of frivolous or malicious suits need not bear the expense of 16 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting 17 Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 18 “The standard for determining whether a plaintiff has failed to state a claim upon 19 which relief can be granted under [Section] 1915(e)(2)(B)(ii) is the same as the Federal 20 Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 21 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 22 (9th Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the 23 familiar standard applied in the context of failure to state a claim under Federal Rule of 24 Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient 25 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 26 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 27 680 F.3d at 1121. While the court “ha[s] an obligation where the petitioner is pro se, 1 particularly in civil rights cases, to construe the pleadings liberally and to afford the 2 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 3 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 4 “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents 5 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 6 B. Factual Allegations 7 Plaintiff claims he “arrived to the California Department of Corrections and 8 Rehabilitation with pains in [his] neck, spine, and shoulder” on October 15, 2019. 9 (Compl. at 5.) Plaintiff alleges that his “injuries were partially addressed to 10 unsatisfactory levels.” (Id.) Plaintiff “began requesting adequate pain medication, 11 appropriate housing and treatment by specialists” for his medical conditions. (Id.) 12 Plaintiff claims he submitted “numerous medical requests and health care grievances, 13 accommodation requests and verbal requests to get [his] basic necessities and medical 14 care.” (Id.) 15 Plaintiff fell down stairs “crushing [his] injured shoulder and smacking [his] face 16 against the metal steps.” (Id.) Plaintiff claims he sustained cuts on his face and was 17 knocked unconscious. (See id.) Plaintiff was “admitted as a trauma patient” to the 18 UCSD emergency medical services on October 17, 1020 and “luckily suffered no broken 19 bones or severe life-threatening injuries.” (Id.) 20 Plaintiff alleges that prison officials “blame delays” in obtaining medical treatment 21 on the coronavirus. (Id. at 5-6.) While at UCSD, Plaintiff was “provided appropriate 22 pain medication.” (Id. at 6.) However, since his return to RJD he has been forced to 23 climb stairs, denied adequate pain medication, and claims staff does not bring him his 24 HIV medication. (Id.) 25 Plaintiff seeks injunctive relief in the form of “appropriate pain medication” and 26 assignment to “lower tier housing.” (Id. at 9.) Plaintiff also seeks compensatory and 27 punitive damages against all named Defendants. (See id.) 1 C. Individual Causation 2 As an initial matter, the Court finds that Plaintiff has failed to state a claim against 3 any of the named Defendants as to his Eighth Amendment inadequate medical care 4 claims. Specifically, Plaintiff’s Complaint fails to contain any factual allegations against 5 Defendants whom he claims violated his constitutional rights and contains no “further 6 factual enhancement” which describes how, or to what extent, these individuals became 7 aware of, or were actually aware of, any alleged constitutional violation. “Because 8 vicarious liability is inapplicable to . . . §1983 suits, a plaintiff must plead that each 9 Government-official defendant, through the official’s own individual actions, has 10 violated the Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. Community 11 Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even 12 pro se plaintiff must “allege with at least some degree of particularity overt acts which 13 defendants engaged in” in order to state a claim). 14 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks 15 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must 16 be individualized and focus on the duties and responsibilities of each individual 17 defendant whose acts or omissions are alleged to have caused a constitutional 18 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 19 423 U.S. 362, 370-71 (1976)). There are no factual allegations directly linking 20 Defendants to any of his claims regarding alleged constitutional violations.2 21 Plaintiff’s Complaint sets forth no facts which might be liberally construed to 22 support any individualized constitutional claim against Defendants. Therefore, the Court 23 finds sua sponte dismissal of his Complaint is required pursuant to 28 U.S.C. 24

25 2 The only allegation attributed to a specific Defendant is Plaintiff’s claim that Hodges intercepted his 26 request for interview to speak with the Health Care Captain Supervisor. (Compl. at 8). However, even if this were considered a sufficiently detailed factual allegation linking Hodges to Plaintiff’s due process 27 claim, as explained below, this allegation fails to state a claim against Hodges. 1 § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126–27; Wilhelm, 680 F.3d at 2 1121. 3 D. California Department of Corrections and Rehabilitation 4 Second, to the extent Plaintiff wishes to impose liability on state departments or 5 agencies like the CDCR, it is immune from suit under the Eleventh Amendment. See 28 6 U.S.C. § 1915(e)(2)(B)(iii); § 1915A(b)(2); Will v. Michigan Dep’t of State Police, 491 7 U.S. 58, 66 (1989); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 8 curiam) (holding that prisoner’s Eighth Amendment claims against CDCR for damages 9 and injunctive relief were barred by Eleventh Amendment immunity); Pennhurst State 10 Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment immunity 11 extends to state agencies); see also Cooksey v. California Corr. Health Care Servs., No. 12 2:16-CV-1282-JAM-EFB P, 2017 WL 1495164, at *3 (E.D. Cal. Apr. 26, 2017) 13 (dismissing claims alleged against Defendant CDCR sua sponte pursuant to 28 U.S.C. 14 § 1915A as barred by the Eleventh Amendment). 15 For these reasons, the Court dismisses Defendant CDCR as a party to this action 16 sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); Lopez, 203 17 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121. 18 E. Eighth Amendment inadequate health care claims 19 In addition, Plaintiff has also failed to state a claim based on a denial of medical 20 care. In order to allege a violation of the Eighth Amendment for inadequate medical 21 care, Plaintiff must satisfy both an objective and a subjective standard. Colwell v. 22 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). Only “deliberate indifference to serious 23 medical needs of prisoners constitutes the unnecessary and wanton infliction of pain 24 proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) 25 (citation and internal quotation marks omitted). “A determination of ‘deliberate 26 indifference’ involves an examination of two elements: the seriousness of the prisoner’s 27 medical need and the nature of the defendant’s response to that need.” McGuckin v. 1 Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., 2 Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 3 Plaintiff must plead the existence of an objectively serious medical need. 4 McGuckin, 974 F.2d at 1059-60 (“The existence of an injury that a reasonable doctor or 5 patient would find important and worthy of comment or treatment; the presence of a 6 medical condition that significantly affects an individual’s daily activities; or the 7 existence of chronic and substantial pain are examples of indications that a prisoner has a 8 ‘serious’ need for medical treatment.”) Here, Plaintiff refers to unspecified medical 9 needs and makes general allegations regarding the lack of adequate medication or 10 appropriate treatment for existing injuries, and fails to offer any specific allegations that 11 identify a serious medical need.3 It is clear, for the following reasons, the Complaint fails 12 to include any further “factual content” to show that any Defendant acted with “deliberate 13 indifference to [his] serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th 14 Cir. 2006), quoting Gamble, 429 U.S. at 104. Plaintiff must provide more specific factual 15 allegations regarding the nature of his medical needs. 16 The Complaint lacks any specific allegations that the Defendants acted with 17 deliberate indifference to his plight by “knowing of and disregarding an excessive risk to 18 his health and safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); Iqbal, 556 U.S. at 19 678; Twombly, 550 U.S. at 557. 20 For these reasons, the Court dismisses Plaintiff’s Eighth Amendment claims sua 21 sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); Lopez, 203 F.3d 22 at 1126-27; Wilhelm, 680 F.3d at 1121. 23 \ \ \ 24 \ \ \ 25 26 3 Plaintiff does claim that he has been denied HIV medication, see Compl. at 6, but it is not clear if HIV is the serious medical need that forms the basis of his Eighth Amendment inadequate medical care 27 claims. 1 F. Grievance claims 2 Plaintiff seeks to hold Defendants Roberts, Glynn, Hodges, Kendall, Franklin, 3 Anderson, Shittu, and Gates liable for reviewing, processing, and denying his grievance 4 and appeals. (See Compl. at 6-7.) However, a prison official’s allegedly improper 5 processing of an inmate’s grievances or appeals, without more, cannot serve as a basis for 6 Section 1983 liability. See generally Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 7 2003) (prisoners do not have a “separate constitutional entitlement to a specific prison 8 grievance procedure.” (citation omitted)); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 9 1988) (due process not violated simply because defendant fails properly to process 10 grievances submitted for consideration); see also Todd v. Cal. Dep’t of Corrs. & Rehab., 11 615 F. App’x 415, 415 (9th Cir. 2015) (district court properly dismissed claim based on 12 improper “processing and handling of [. . .] prison grievances,” since prisoners have no 13 “constitutional entitlement to a specific prison grievance procedure.” (citing Ramirez, 334 14 F.3d at 860) (quotation marks omitted)); Shallowhorn v. Molina, 572 F. App’x 545, 547 15 (9th Cir. 2014) (district court properly dismissed section 1983 claims against defendants 16 who “were only involved in the appeals process” (citing Ramirez, 334 F.3d at 860)); 17 Wright v. Shapirshteyn, No. CV 1-06-0927-MHM, 2009 WL 361951, at *3 (E.D. Cal. 18 Feb. 12, 2009) (“[W]here a defendant’s only involvement in the allegedly 19 unconstitutional conduct is the denial of administrative grievances, the failure to 20 intervene on a prisoner’s behalf to remedy alleged unconstitutional behavior does not 21 amount to active unconstitutional behavior for the purposes of [Section] 1983.” (citing 22 Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999))). 23 For these reasons, Plaintiff’s claims against Defendants Roberts, Glynn, Hodges, 24 Kendall, Franklin, Anderson, Shittu, and Gates are dismissed sua sponte for failure to 25 state a plausible claim upon which Section 1983 relief may be granted. See Iqbal, 556 26 U.S. at 680-84; Valdivia v. Tampkins, No. EDCV 16-1975 JFW (JC), 2016 WL 7378887, 27 at *6 (C.D. Cal. Dec. 19, 2016) (dismissing sua sponte claims predicated upon the 1 allegedly improper processing of inmate grievances); see also 28 U.S.C. 2 §§ 1915(e)(2)(b)(ii), 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 3 G. Leave to Amend 4 Because Plaintiff is proceeding pro se, however, the Court having now provided 5 him with “notice of the deficiencies in his complaint,” will also grant him an opportunity 6 to fix them. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 7 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). However, the Court cautions Plaintiff 8 that if he chooses to file an Amended Complaint, he must clearly identify, by name, each 9 individual person he seeks to hold liable for violating his Eighth Amendment rights. He 10 must also be careful to allege facts showing the basis for liability for each individual 11 Defendant. He must also name each Defendant and link them to his claims by explaining 12 what each person did or failed to do that caused him constitutional injury. See Barren v. 13 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A plaintiff must allege facts, not 14 simply conclusions, t[o] show that [the Defendant] was personally involved in the 15 deprivation of his civil rights.”). 16 III. Conclusion and Order 17 For the reasons discussed, the Court: 18 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2); 19 2) DIRECTS the Secretary of the CDCR, or her designee, to collect from 20 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 21 monthly payments from his account in an amount equal to twenty percent (20%) of the 22 preceding month’s income and forwarding those payments to the Clerk of the Court each 23 time the amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). 24 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND 25 NUMBER ASSIGNED TO THIS ACTION; 26 27 1 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 2 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 3 942883, Sacramento, California, 94283-0001; 4 4) DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 3); 5 5) DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 6 upon which relief may be granted and for seeking monetary damages against immune 7 defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1); 8 6) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 9 which to file an Amended Complaint which cures the deficiencies of pleading noted. 10 Plaintiff’s Amended Complaint must be complete by itself without reference to his 11 original pleading. Defendants not named and any claim not re-alleged in his Amended 12 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 13 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 14 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 15 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 16 amended pleading may be “considered waived if not repled.”). 17 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 18 a final Order dismissing this civil action based both on his failure to state a claim upon 19 which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and 20 his failure to prosecute in compliance with a court order requiring amendment. See Lira 21 v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage 22 of the opportunity to fix his complaint, a district court may convert the dismissal of the 23 complaint into dismissal of the entire action.”). 24 7) The Clerk of Court is directed to mail Plaintiff a court approved civil rights 25 form complaint for his use in amending. 26 \ \ \ 27 \ \ \ 1 IT IS SO ORDERED. 2 Dated: November 2, 2020 Casto 0h 3 Hon. Gonzalo P. Curiel 4 United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27