Scott v. Yoo

• Court: District Court, S.D. California
• Decided: February 23, 2022
• Docket: 3:21-cv-01319
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BILLIE D. SCOTT, Case No.: 21-cv-1319-MMA (KSC) CDCR #AY-8804 12 ORDER DISMISSING FIRST 13 AMENDED COMPLAINT FOR Plaintiff, FAILURE TO STATE A CLAIM 14 vs. PURSUANT TO 28 U.S.C. 15 § 1915(e)(2)(B) AND § 1915A(b) AND

DENYING MOTION TO PROCEED 16 FRANK YOO, M.D., TRI CITY IN FORMA PAUPERIS AS MOOT 17 MEDICAL CENTER, et al., 18 Defendants. [Doc. No. 12] 19 20 On July 21, 2021, Billie D. Scott (“Plaintiff”), a state inmate currently incarcerated 21 California Health Care Facility (“CHCF”), located in Stockton, California and proceeding 22 pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 23 (“Compl.”). Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to 24 commence a civil action when he filed his Complaint; instead, he filed a Motion to 25 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), along with a Motion 26 for Extension of Time to submit his prison trust account statement. See Doc. Nos. 2, 3. 27 On August 24, 2021, the Court denied Plaintiff’s request to proceed IFP, dismissed 28 the Complaint without prejudice and granted Plaintiff an extension of time to either 1 prepay the $402 filing fee or file a renewed Motion to Proceed IFP. Doc. No. 4. On 2 August 30, 2021, Plaintiff filed a Motion to Proceed IFP, along with a copy of his prison 3 trust account statement. Doc. No. 5. On October 10, 2021, the Court granted Plaintiff’s 4 Motion to Proceed IFP and dismissed the Complaint for failing to state a claim, pursuant 5 to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), but granted leave to amend. Doc. No. 6. 6 On November 5, 2021, Plaintiff filed a First Amended Complaint, Doc. No. 10 (“FAC”), 7 but simultaneously filed a Motion for Extension of time to file an amended complaint, 8 Doc. No. 9. The Court granted Plaintiff an extension of time to file a second amended 9 complaint, should he so choose, no later than December 16, 2021. Doc. No. 11 at 2. 10 Plaintiff did not file a second amended complaint by the deadline. However, he filed 11 second IFP Motion on January 7, 2022. Doc. No. 12. 12 I. MOTION TO PROCEED IN FORMA PAUPERIS 13 All parties instituting any civil action, suit or proceeding in a district court of the 14 United States, except an application for writ of habeas corpus, must pay a filing fee of 15 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 16 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 17 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). On October 18 10, 2021, the Court granted Plaintiff’s original IFP Motion and assessed an initial partial 19 filing fee of $122.47, pursuant to 28 U.S.C. § 1915(b)(1). Doc. No. 5 at 3, 11. The Court 20 further noted that the remaining balance of the $350 total fee owed in this case was to be 21 collected by the agency having custody of the prisoner and forwarded to the Clerk of the 22 Court pursuant to 28 U.S.C. § 1915(b)(2). Id. at 11. Because Plaintiff has already been 23 granted leave to proceed in forma pauperis, the Court DENIES Plaintiff’s January 7, 24 2022 IFP Motion as moot. 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to 28 1 II. SCREENING AMENDED COMPLAINT PER 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 2 A. Legal Standard 3 Because Plaintiff is a prisoner and is proceeding IFP, his First Amended Complaint 4 requires a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 5 Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or 6 any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages 7 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 8 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 9 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is 10 ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of 11 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation 12 omitted). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 16 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 17 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 18 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 20 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 22 In deciding whether to dismiss the complaint for failing to state a claim, the court is 23 generally bound by the facts and allegations contained within the four corners of the 24 complaint. Hydrick v. Hunter, 500 F.3d 978, 985 (9th Cir. 2007). 25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 27 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 28 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 1 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 2 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 3 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 4 (9th Cir. 2009). 5 B. Plaintiff’s Allegations 6 In the FAC, Plaintiff makes the same factual allegations as those contained in the 7 original complaint. See FAC. Indeed, the section containing the factual allegations in the 8 FAC appears to be an exact duplicate or photocopy of the allegations contained in the 9 original complaint. Compare, Compl. at 3–5 with FAC at 4–6. Plaintiff again alleges 10 that in August 2019, while he was an inmate at R.J. Donovan State Prison (“RJD”), he 11 was referred to Tri City Medical Center (“TCMC”) in Oceanside, California for spinal 12 surgery. FAC at 3. The California Department of Corrections and Rehabilitation 13 (“CDCR”) had a contract with TCMC at the time to treat RJD patients referred there by 14 prison doctors. Id. Plaintiff was seen by Dr. Yoo, who reviewed his MRI results and told 15 him he needed “corrective surgery on his spine to infuse his vertebral T-11 and T-12, to 16 alleviate the debilitating pain in Plaintiff’s lower back.” Id. The surgery was scheduled 17 for some time in September 2019. Id. But shortly after seeing Yoo, Plaintiff’s pain 18 worsened and became “unmanageable, causing nerve damage and uncontrollable 19 incontinence and . . . rather than wait for the scheduled September procedure, . . . 20 Plaintiff was sent to TCMC” on August 31, 2021 for an “emergency visit.” Id. Plaintiff 21 was seen by Yoo again, who recommended they “expedite the surgery to fuse T-11 and 22 T-12.” Id. Plaintiff was told this was “standard procedure” and that Yoo had performed 23 similar procedures successfully a number of times. Plaintiff consented to the surgery. Id. 24 After the surgery, Plaintiff experienced severe pain and learned that “instead of 25 fusing T-11 and T-12, as was agreed during consultations,” Yoo had “installed 26 bolts/hardware into Plaintiff’s spin[al] cord [at] T-10.” Id. This required “swift 27 corrective surgery” which was ordered by RJD medical staff. Id. On September 5, 2019, 28 Plaintiff was sent back to TCMC for corrective surgery and removal of the wrongly 1 installed bolts/hardware into T-10. While Plaintiff was at TCMC, Yoo visited him and 2 apologized for his error. Id. at 4. Plaintiff states that after Yoo performed the second 3 surgery, Yoo “abandoned him.” Id. As a result of Yoo performing surgery on the wrong 4 vertebrae, Plaintiff states he has suffered pain, “lifelong mobility impairment and 5 incontinence.” Id. at 5. 6 In his FAC, Plaintiff names five defendants: Yoo, TCMC, the Chief Medical 7 Officer of TCMC, Does #1 and # 2, both TCMC ICU Registered Nurses. Id. at 2–3. 8 Plaintiff contends his Eighth Amendment rights were violated when Defendants were 9 deliberately indifferent to his serious medical needs during and following spinal surgery 10 performed at TCMC by Yoo. Id. at 4–5. He also alleges state tort claims, including 11 medical malpractice, negligence and battery. Id. at 5–6. He seeks compensatory and 12 punitive damages in a sum to be determined by the factfinder, as well as injunctive relief. 13 Id. at 10. 14 C. 42 U.S.C. § 1983 15 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 16 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 17 F.3d 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, Plaintiff must 18 allege two essential elements: (1) that a right secured by the Constitution or laws of the 19 United States was violated and (2) that the alleged violation was committed by a person 20 acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe 21 v. Frey, 789 F.3d 1030, 1035‒36 (9th Cir. 2015). 22 D. Eighth Amendment Medical Care 23 To state a claim under the Eighth Amendment, Plaintiff must plead facts to 24 plausibly suggest that Defendants: (1) exposed him to a substantial risk of serious harm; 25 and (2) did so with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 837, 26 842 (1994); Iqbal, 556 U.S. at 678. Specifically, in a medical care case such as this, 27 Plaintiff must first allege he suffered from or faced an objectively “serious medical 28 need.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Mendiola-Martinez 1 v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). “A medical need is serious when the 2 failure to treat it could result in significant injury or the unnecessary and wanton 3 infliction of pain.” Jett, 439 F.3d at 1096. 4 In addition, Plaintiff must allege facts sufficient to demonstrate Defendants acted 5 with “deliberate indifference” to his serious medical needs. See Erickson v. Pardus, 551 6 U.S. 89, 90 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[D]eliberate 7 indifference to serious medical needs of prisoners constitutes the unnecessary and wanton 8 infliction of pain . . . proscribed by the Eighth Amendment,” and this includes 9 “indifference. . . manifested by prison doctors in their response to the prisoner’s 10 needs.”)). “Deliberate indifference is a high legal standard.” Hamby v. Hammond, 821 11 F.3d 1085, 1092 (9th Cir. 2016) (citing Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 12 2004)). Inadvertent failures to provide adequate medical care, mere negligence or 13 medical malpractice, delays in providing care (without more), and differences of opinion 14 over what medical treatment or course of care is proper, are all insufficient to constitute 15 an Eighth Amendment violation. Estelle, 429 U.S. at 105–07; Sanchez v. Vild, 891 F.2d 16 240, 242 (9th Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 17 (9th Cir. 1985). 18 1. Defendant Yoo 19 As he did in his original complaint, Plaintiff alleges his Eighth Amendment rights 20 were violated when Dr. Yoo was deliberately indifferent to his serious medical needs. 21 FAC at 3–5. Plaintiff again claims Yoo was supposed to perform a fusion of his T-11 22 and T-12 vertebrae but instead, Yoo “installed bolts/hardware into Plaintiff’s spinal cord 23 at T-10 [vertebrae] instead of fusing T-11 with T-12, as was agreed [upon] during 24 consultations based on MRIs [and] X-rays.” Id. at 3. As a result of Yoo’s error, Plaintiff 25 required corrective surgery a few days later to remove the bolts and hardware from T-10 26 and to fuse the T-11 and T-12, as originally intended. Id. 27 As discussed in this Court’s October 10, 2021 Order, to state an Eighth 28 Amendment claim based on inadequate medical care, Plaintiff must also allege facts to 1 show Yoo was “deliberately indifferent” to those medical needs. To meet this high 2 standard, prison officials must have “a sufficiently culpable state of mind.” Farmer, 511 3 U.S. at 834; see also Toguchi, 391 F.3d at 1060. There is no Eighth Amendment liability 4 unless the official knows of and disregards a substantial risk to inmate health or safety. 5 “[T]he official must both be aware of facts from which the inference could be drawn that 6 a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 7 511 U.S. at 837; see also, Hunt, 865 F.2d at 200. The state actor must “recognize[ ][an] 8 unreasonable risk and actually intend[ ] to expose the plaintiff to such risks without 9 regard to the consequences to the plaintiff.” L.W. v. Grubbs, 92 F.3d 894, 898–900 (9th 10 Cir. 1996)). In other words, the defendant “knows that something is going to happen but 11 ignores the risk and exposes [the plaintiff] to it.” Id. at 900. 12 Here, Plaintiff repeats the exact same allegations raised in his original complaint 13 and as such, the claim is subject to dismissal for the same reasons discussed in this 14 Court’s October 10, 2021 Order. See Doc. No. 6 at 7–9. While Yoo’s purported mistake 15 in operating on the wrong vertebrae is alarming, Plaintiff alleges no facts to suggest Yoo 16 purposely operated on the wrong vertebrae with the intention to “expose [Plaintiff] to 17 such risks without regard to the consequences.” Grubbs, 92 F.3d. at 899. Based 18 allegations in the FAC, Yoo seemingly made a terrible mistake. Allegations of medical 19 malpractice alone, however, do not rise to a constitutional violation. Estelle, 429 U.S. at 20 106; see also, e.g., Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); 21 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). Even gross 22 negligence is insufficient to establish deliberate indifference to serious medical needs. 23 See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Instead, Plaintiff must 24 allege that “the course of treatment the doctors chose was medically unacceptable under 25 the circumstances’ and that the defendants ‘chose this course in conscious disregard of an 26 excessive risk to [his] health.’” Hamby, 821 F.3d at 1092 (citations omitted). Here, the 27 facts as alleged are insufficient to state an Eighth Amendment claim of deliberate 28 indifference against Yoo. See id.; see also Fulford v. Griffen, No. C 13-2535 CW (PR), 1 2013 WL 5371878, at *2 (N.D. Cal. Sept. 24, 2013) (concluding plaintiff failed to state a 2 claim for deliberate indifference when he alleged the prison doctor removed half the bone 3 in a toe that was not injured). 4 2. Tri City Medical Center 5 Next, Plaintiff again alleges his Eighth Amendment right to adequate medical care 6 was violated by TCMC. FAC at 6. As discussed in the Court’s October 10, 2021 Order, 7 Plaintiff has sufficiently alleged TCMC is a state actor. See Doc. No. 6 at 9, citing Lopez, 8 939 F.2d at 883. His Eighth Amendment claim against TCMC, however, fails for the 9 same reason as his claim against Yoo. Plaintiff contends TCMC staff “abandoned” him 10 after his “second surgery by Dr. Yoo, their employee.” Doc. No. 10 at 5. He states that 11 after the surgery, TCMC staff used an air pump during his recovery to assist him with 12 breathing but the pump was “broken” and caused him to develop fluid in his lungs. Id. 13 This, he alleges, required another corrective procedure to drain the fluid from his lungs. 14 Id. Plaintiff also contends TCMC “refused to apologize or attempt [to] remedy this 15 malpractice and battery or this deliberate and ‘malicious’ indifference.” Id. 16 Plaintiff alleges no facts specific to TCMC that rise to the level of deliberate 17 indifference with regard to the surgeries performed by Yoo. Further, to the extent he 18 alleges deliberate indifference by other TCMC staff related to the use of an allegedly 19 defective “air pump,” he does not allege that TCMC staff knew the pump was defective 20 when it was initially used to assist Plaintiff after surgery; nor does he allege that when the 21 purported defect was discovered, TCMC staff failed to take corrective action. See id. at 22 6. Indeed, Plaintiff has not alleged facts to show TCMC “actually intended to expose the 23 plaintiff to [the] risk[] [of a faulty pump] without regard to the consequences.” See 24 Grubbs, 92 F.3d at 898–900. Thus, the Court finds Plaintiff has failed to state an Eighth 25 Amendment claim of deliberate indifference against TCMC. 26 3. TCMC Chief Medical Officer 27 In his FAC, Plaintiff also names TCMC Chief Medical Officer as a defendant. 28 FAC at 2. He fails, however, to make any specific allegations against the TCMC Chief 1 Medical Officer. See generally, id. at 4–6. To the extent Plaintiff seeks to hold the 2 TCMC Chief Medical Officer liable for the actions of Yoo and other TCMC staff, he fails 3 to state a claim because there is no vicarious liability under § 1983. In other words, an 4 individual defendant is not responsible for the actions or omissions of another. Taylor 5 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home 6 Village, 723 F.2d 675, 680–81 (9th Cir. 1984). “Because vicarious liability is 7 inapplicable to . . . § 1983 suits,” Plaintiff “must plead that each Government-official 8 defendant, through the official’s own individual actions, has violated the Constitution.” 9 Iqbal, 556 U.S. at 676. He has failed to do so in his FAC. Plaintiff includes no specific 10 factual allegations describing any individual acts or omissions taken by the TCMC Chief 11 Medical Officer. His broad and generalized allegations fail to show how, or to what 12 extent, the Chief Medical Officer may be held individually liable for any constitutional 13 injury. See id. at 676–77; Jones v. Cmty. Redevelopment Agency of City of Los Angeles, 14 733 F.2d 646, 649 (9th Cir. 1984) (stating that even a pro se plaintiff must “allege with at 15 least some degree of particularity overt acts which defendants engaged in” in order to 16 state a claim). Therefore, Plaintiff fails to state an Eighth Amendment claim against the 17 TCMC Chief Medical Officer. 18 4. ICU Nurses Doe #1 and Doe #1 19 Finally, Plaintiff claims TCMC ICU Nurses Doe #1 and Doe #2 were deliberately 20 indifferent to his serious medical needs. FAC at 2–3. Again, however, Plaintiff fails to 21 allege specific facts related to Nurses Doe #1 and Doe #2. Plaintiff makes only one 22 reference to nurses in his FAC: he alleges that after his second, corrective, surgery, he 23 was “abandoned by TCMC staff (nurses and Dr. Yoo) in recovery, this includes 24 installation of [an] air pump during recovery to assist [Plaintiff’s] breathing.” Id. at 6. 25 Plaintiff contends the air pump was “broken and no one noticed for several days” and as a 26 result, he developed fluid in his lungs which required a procedure to drain. Id. 27 As discussed above, deliberate indifference is established only where the defendant 28 subjectively knows of and disregards an excessive risk to inmate health and safety. 1 Toguchi, 391 F.3d at 1057. Here, Plaintiff has failed to plead facts demonstrating “a 2 purposeful act or failure to respond” on the part of the two nurses. See Jett, 439 F.3d at 3 1096 (emphasis added). It not enough that a reasonable person would have known of the 4 risk or should have known of the risk. Farmer, 511 U.S. at 842. Even if Plaintiff had 5 sufficiently alleged Nurses Doe #1 and Doe #2 failed to timely notice the air pump was 6 faulty, Plaintiff fails to adequately allege they did so while purposefully disregarding an 7 excessive risk to his health. As noted above, inadequate treatment due to malpractice, or 8 even gross negligence, does not amount to a constitutional violation. Estelle, 429 U.S. at 9 106; Toguchi, 391 F.3d at 1060. Accordingly, Plaintiff has failed to state an Eighth 10 Amendment claim against ICU Nurses Doe #1 and Doe #2. 11 E. State Law Negligence, Medical Malpractice, and Intentional Tort Claims 12 As he did in his original Complaint, Plaintiff alleges Defendants were negligent 13 and committed malpractice. FAC at 4–6. Plaintiff also claims that Yoo committed the 14 battery under California tort law when he operated on the T-10 vertebrae without his 15 consent. Id. at 4–5. “In any civil action of which the district courts have original 16 jurisdiction, the district courts shall have supplemental jurisdiction over all other claims 17 that are so related to claims in the action within such original jurisdiction that they form 18 part of the same case or controversy under Article III of the United States Constitution.” 19 28 U.S.C. § 1367(a). However, “once judicial power exists under § 1367(a), retention of 20 supplemental jurisdiction over state law claims under 1367(c) is discretionary.” Acri 21 v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). 22 “The district courts may decline to exercise supplemental jurisdiction over a claim 23 under subsection (a) if – (3) the district court has dismissed all claims over which it has 24 original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that “if 25 the federal claims are dismissed before trial, . . . the state claims should be dismissed as 26 well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). As 27 discussed above, the Court has found Plaintiff’s Complaint fails to state a plausible claim 28 for relief. Therefore, in the absence of any viable federal claim upon which relief may be 1 granted, the Court exercises its discretion and DISMISSES Plaintiff’s supplemental state 2 law claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3). Id. 3 F. Leave to Amend 4 Based on the foregoing, the Court finds Plaintiff’s First Amended Complaint fails 5 to state any § 1983 claim upon which relief can be granted, and that it must be dismissed 6 sua sponte and in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 7 § 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because 8 Plaintiff is proceeding pro se, however, the Court having now provided him with “notice 9 of the deficiencies in his complaint,” will also grant him an opportunity to fix them. See 10 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 11 1258, 1261 (9th Cir. 1992)). 12 In light of Plaintiff’s pro se status, the Court grants him a second opportunity to 13 amend his pleading to attempt to sufficiently allege § 1983 claims against Defendants. 14 See 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 could not be cured by amendment.’”) (quoting Akhtar, 698 F.3d at 1212). 18 III. CONCLUSION 19 For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Proceed IFP as 20 moot and DISMISSES the First Amended Complaint for failure to state a claim upon 21 which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 22 The Court GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 23 which to file a Second Amended Complaint that cures the deficiencies of pleading noted 24 above. The Second Amended Complaint must be complete by itself without reference to 25 his original pleading. Defendants not named and any claim not re-alleged in his Second 26 Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 27 Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 28 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 1 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 2 ||amended pleading may be “considered waived if not repled.’’). 3 If Plaintiff fails to file a Second Amended Complaint within the time provided, the 4 || Court will enter a final Order dismissing this civil action based both on Plaintiff's failure 5 ||to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 6 1915A(b), and his failure to prosecute in compliance with a court order requiring 7 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff 8 || does not take advantage of the opportunity to fix his complaint, a district court may 9 || convert the dismissal of the complaint into dismissal of the entire action.”). 10 IT IS SO ORDERED. 11 Dated: February 23, 2022 12 BWiiduh UM —£ hiphtr 13 HON. MICHAEL M. ANELLO 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28