Sepulveda v. Galindo

• Court: District Court, S.D. California
• Decided: March 2, 2021
• Docket: 3:20-cv-02079
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AURELIO MARTIN SEPULVEDA, Case No.: 3:20-CV-2079 JLS (MDD) CDCR #J-76828, 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA 14 PAUPERIS, (2) DENYING MOTION TO APPOINT COUNSEL, AND 15 vs. (3) DISMISSING COMPLAINT FOR 16 FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. 17 E. GALINDO, Correctional Officer; §§ 1915(e)(2)(B) AND 1915A(b) JOHN DOE #1, Correctional Officer; and 18 JOHN DOE #2, Correctional Sergeant, (ECF Nos. 2, 4, 6, 8) 19 Defendants. 20 21 22 23 Plaintiff Aurelio Martin Sepulveda (“Plaintiff”), incarcerated at R.J. Donavan 24 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this case 25 with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). 26 / / / 27 / / / 28 / / / 1 Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a); instead, 2 he filed a Motion to Proceed in Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), 3 along with copies of his prison trust account statement.2 See ECF Nos. 2, 4, 6. Plaintiff 4 has also filed a Motion for Appointment of Counsel. See ECF No. 8. 5 MOTION TO PROCEED IN FORMA PAUPERIS 6 All parties instituting any civil action, suit, or proceeding in a district court of the 7 United States before December 1, 2020, except an application for writ of habeas corpus, 8 must pay a filing fee of $400.3 See 28 U.S.C. § 1914(a). The action may proceed despite 9 a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP 10 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 11 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner 12 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 13 “installments,” Bruce v. Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 14 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately dismissed. See 15 28 U.S.C. §§ 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

20 21 1 On December 1, 2020, after Plaintiff filed his Complaint, the filing fee associated with civil actions was raised from $400 to $402. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 22 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). Because Plaintiff filed his Complaint on October 14, 2020, however, the new filing fee does not apply here. 23 2 Plaintiff submitted a Trust Account Statement Request form (ECF No. 2) and a copy of his Trust Account 24 Statement (ECF No. 4) on October 19, 2020. On November 23, 2020, Plaintiff filed a “Motion to Proceed 25 in Forma Pauperis,” which included another (duplicate) copy of his prison trust account statement. See ECF No. 6. 26 3 The $400 filing fee includes the $350 statutory fee plus an administrative fee, which was $50 at the time 27 of filing. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016)). The administrative fee does not apply to persons granted leave to 28 1 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 2 trust account statement, the Court assesses an initial payment of 20% of (a) the average 3 monthly deposits in the account for the past six months, or (b) the average monthly balance 4 in the account for the past six months, whichever is greater, unless the prisoner has no 5 assets. See 28 U.S.C. § 1915(b)(1); id. § 1915(b)(4). The institution having custody of the 6 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s 7 income, in any month in which the account exceeds $10, and forwards those payments to 8 the Court until the entire filing fee is paid. See id. § 1915(b)(2); Bruce, 577 U.S. at 85. 9 In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his 10 California Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement 11 Report, as well as a Prison Certificate completed by an accounting officer at RJD. See ECF 12 No. 4 at 1‒3; ECF No. 6 at 7; see also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 13 Andrews, 398 F.3d at 1119. These documents show Plaintiff had no available balance at 14 the time of filing. See, e.g., ECF No. 6 at 7. 15 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Nos. 2, 4, 16 6); declines to exact any initial filing fee, because Plaintiff’s prison certificates indicate he 17 may have “no means to pay it,” Bruce, 577 U.S. at 85; and directs the Secretary of CDCR, 18 or her designee, to instead collect the entire $350 balance of the filing fee required by 28 19 U.S.C. § 1914 and forward it to the Clerk of the Court pursuant to the installment payment 20 provisions set forth in 28 U.S.C. § 1915(b)(1). 21 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 22 I. Legal Standard 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 statutes, 25 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 26 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 27 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 1 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 2 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 F.3d 8 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 9 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 relief 17 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 19 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 20 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 21 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the Court 22 may consider exhibits attached to his Complaint. See Fed. R. Civ. R. 10(c) (“A copy of a 23 written instrument that is an exhibit to a pleading is a part of the pleading for all 24 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 25 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 26 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be 27 considered” in ruling on a Rule 12(b)(6) motion to dismiss.)). 28 / / / 1 II. Plaintiff’s Allegations 2 In his Complaint, Plaintiff alleges that, while incarcerated at RJD in October 2019, 3 he was admitted to Tri-City Medical Center for two inpatient surgeries. See Compl. at 14. 4 The first procedure took place on October 23, 2019, when a cardiologist performed a 5 “PTCA of [Plaintiff’s] proximal left circumflex artery” and “left heart catheterizations and 6 [a] selective coronary angiogram,” among other things.4 Id. The next day, October 24, 7 2019, Plaintiff underwent a “left ray amputation” of his fourth and fifth toes, which had 8 become gangrenous as a result of diabetes complications. Id.; see also id. Ex. F at 56. 9 Plaintiff’s “post-operative plan” included an order to “remain non-weightbearing” until the 10 wound on his left foot was fully healed in “2–6 weeks.”5 Id. at 15; see also id. Ex. H at 58. 11 Plaintiff was discharged from Tri-City Medical Center on October 28, 2019, and 12 transported back to RJD by Defendants Galindo and John Doe #1, both RJD correctional 13 officers. See id. at 14–15. Plaintiff arrived back at RJD at approximately 8:00 p.m. and 14 was assessed by medical staff at RJD’s Triage Treatment Area (“TTA”). An RJD doctor 15 reviewed the medical records prepared by Plaintiff’s hospital physicians and Plaintiff was 16 ultimately “medically cleared to be housed.” Id. at 15. 17 Defendant John Doe #2, an RJD correctional sergeant, was tasked with determining 18 Plaintiff’s housing assignment. According to Plaintiff, Doe #2 knew of Plaintiff’s medical 19 condition and disabilities as a result of his recent surgeries, including that Plaintiff was 20 unable to walk and required a wheelchair. See id. at 16. Nonetheless, Doe #2 assigned 21

22 4 PTCA, which stands for “percutaneous transluminal coronary angioplasty,” is a cardiovascular 23 procedure performed to “widen the lumen of a partially or fully occluded blood vessel (as the femoral or coronary artery)” that has been narrowed or blocked by “passing a balloon catheter through the skin and 24 into a blood vessel (as of the groin or arm) to be guided to the site of obstruction,” where the balloon 25 catheter is inflated to clear the plaque causing the blockage. See Merriam–Webster Medical Dictionary, https://www.merriam-webster.com/medical/ percutaneous%20transluminal%20angioplasty (visited Feb. 26 16, 2021).

27 5 On December 13, 2019, Plaintiff had a follow-up appointment with a physician at Tri-City Medical Center, who indicated that the wound had healed sufficiently for Plaintiff to “advance to weightbearing as 28 1 Plaintiff to a cell in “D Facility,” which, according to Plaintiff, “did not house inmates with 2 wheelchairs, other than on a temporary basis.” Id. at 18. Plaintiff claims Doe #2 knew the 3 cell he assigned to Plaintiff recently had been out-of-use because of a broken window and 4 “failed to verify” that the window had been repaired before assigning the cell to Plaintiff. 5 Id. at 17. 6 When Plaintiff learned he was being assigned a cell in D Facility, he objected to 7 Galindo and asked to be placed in “E Facility,” where he had been housed prior to his 8 surgery. Id. at 18. Galindo told Plaintiff his former cell in E Facility was no longer 9 available. Id. Plaintiff told Galindo he would rather stay in a “holding cell” until a bed in 10 E Facility could be found, but his request was denied. Id. Galindo told Plaintiff he was 11 being assigned a cell in D Facility because “there was nowhere else to house him because 12 it was late.” Id. Galindo then handed Plaintiff “dirty, stinky clothes” to change into from 13 his hospital jumpsuit. Id. Plaintiff complained, and Galindo told him “there was nowhere 14 else for him to get any more clothes” at that time. Id. at 19. 15 At approximately 11:00 p.m., Galindo and Doe #1 transported Plaintiff by 16 wheelchair to his newly assigned cell in D Facility. Id. at 21. Upon arriving, Plaintiff 17 discovered the cell’s window had a “softball size hole and cracked back window with 18 shattered glass all over the desk and floor of the cell.” Id. at 17, 19. Moreover, there were 19 “no sheets, blankets or toilet paper in the cell.” Id. at 19. Plaintiff claims he asked to be 20 placed somewhere else because of the condition of the cell, but Galindo told him “there 21 was no one there to ask, because it was late.” Id. Plaintiff “stood off the wheelchair and 22 hopped into the cell as ordered by Galindo, despite being in extreme pain and it being 23 visibly unsafe.” Id. Plaintiff argues Galindo and Doe #1 “had an opportunity to walk over 24 to the staff restroom and get a roll of toilet paper for Plaintiff,” but they ignored his request. 25 Id. at 20. Galindo and Doe #1 closed the cell door behind Plaintiff and left. Id. at 19. 26 Plaintiff contends that, due to the hole in the window, he “endured extreme cold 27 temperatures coming from outside through the broken window.” Id. at 19–20. He states 28 he was forced to lay on the “cold metal bunk” without a mattress, which caused him stress 1 and elevated his blood pressure. Id. at 20. During the night, Plaintiff had severe diarrhea 2 and “was forced to humiliate himself and use the toilet without any toilet paper.” Id. He 3 suffered pain when he had to put weight on his left leg to get to the toilet. Id. 4 At approximately 6:30 a.m. the next morning, October 29, 2019, Plaintiff contacted 5 a correctional staff member and complained about not having a mattress, bedding, and 6 toilet paper. Id. at 21–22. The broken window of Plaintiff’s cell was repaired at some 7 point on October 29, 2019. Id. at 15; see also id. Ex. H at 65–66. Plaintiff also saw a nurse 8 on October 29, 2019 for a follow up. Id. at 18. The nurse told Plaintiff that Doe #2 had 9 ordered Plaintiff classified as “Temporary Wheelchair Status,” instead of a more elevated 10 classification, “DPO,” which includes inmates who use a wheelchair more regularly. Id. 11 at 18. Plaintiff contends Doe #2 did this so that he could facilitate Plaintiff being housed 12 in D Facility, despite Plaintiff needing a wheelchair. Id. The nurse then referred Plaintiff’s 13 case to a doctor, who ultimately “changed [Plaintiff’s] status [from] Temporary Status to 14 DPO-Intermittent Wheelchair user, [in order] to secure that Plaintiff be moved off of D 15 Facility.” Id. Plaintiff was later moved to a different cell.6 16 Plaintiff asserts three claims in his Complaint. He contends that Defendants violated 17 the Eighth Amendment and the American with Disabilities Act (“ADA”) when they 18 deprived him of safe and appropriate housing. Id. at 22–23. Plaintiff further claims 19 Defendants were negligent under California tort law. Id. at 23–24. Plaintiff seeks both 20 compensatory and punitive damages. Id. at 24. 21 III. Eighth Amendment Claim 22 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 23 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 24 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, Plaintiff must allege two 25 essential elements: (1) that a right secured by the Constitution or laws of the United States 26

27 6 While not clear from the Complaint, in one of the attached exhibits, Plaintiff indicates he was moved to 28 1 was violated, and (2) that the alleged violation was committed by a person acting under 2 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789 F.3d 3 1030, 1035‒36 (9th Cir. 2015). 4 Plaintiff alleges his Eighth Amendment rights were violated by Galindo, Doe #1, 5 and Doe #2. Specifically, he argues Doe #2 “failed to protect his health and safety” when 6 he assigned Plaintiff to a cell that was not suitable for his medical needs and was unsafe 7 because of a broken window. See Compl. at 22–23. Plaintiff contends Galindo and Doe 8 #1 violated his Eighth Amendment rights when they locked him in the cell for 7.5 hours, 9 despite the broken window and without “reasonable access to a mattress, bedding and basic 10 personal hygiene materials, such as toilet paper and clean clothing.” Id. at 23. 11 A. Legal Standard 12 The Eighth Amendment prohibits cruel and unusual punishment of a person 13 convicted of a crime. U.S. Const. amend. VIII. “After incarceration, only the unnecessary 14 and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by 15 the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (ellipsis in original) 16 (internal quotation and citation omitted). While the Eighth Amendment does not mandate 17 that prisons be comfortable, they cannot be inhumane. Rhodes v. Chapman, 452 U.S. 337, 18 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). To that end, 19 “prison officials must ensure that inmates receive adequate food, clothing, shelter, and 20 medical care, and must take reasonable measures to guarantee the safety of the inmates.” 21 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotations and citations omitted). 22 To state an Eighth Amendment claim with regard to prison conditions, a prisoner 23 must satisfy both an objective prong and a subjective one. Id. at 834. First, the plaintiff 24 must make an objective showing that the deprivation was “sufficiently serious” and 25 resulted in the denial of the “minimal civilized measure of life’s necessities.” Wilson v. 26 Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 347). Second, the plaintiff 27 must adequately allege the prison official subjectively had a “sufficiently culpable state of 28 mind” by showing he or she was “deliberately indifferent” to the inmate’s health or safety 1 in allowing the deprivation to take place. Farmer, 511 U.S. at 834; Mendiola-Martinez v. 2 Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). Finally, plaintiffs alleging deliberate 3 indifference must also “demonstrate that the defendants’ actions were both an actual and 4 proximate cause of their injuries.” Lemire v. Cal. Dep’t Corr. Rehab., 726 F.3d 1062, 1082 5 (9th Cir. 2013). 6 B. Doe #2 7 Plaintiff alleges Doe #2 was deliberately indifferent when he assigned Plaintiff to a 8 cell in D Facility that was (1) not adequately wheelchair accessible and (2) unsafe because 9 of a broken window. Compl. at 16–17. He contends Doe #2 was “cognizant of all factors 10 to be considered before rehousing Plaintiff,” including his “vulnerability due to his medical 11 conditions and disabilities that included his need for a wheelchair and inability to walk” 12 after his recent toe amputations. Id. at 16. Specifically, Plaintiff argues Doe #2 “directed” 13 Plaintiff be given “14-day Temporary Wheelchair” status and assigned Plaintiff to a cell in 14 D Facility, which houses inmates who use wheelchairs “on a temporary basis,” as opposed 15 to inmates who require a wheelchair long-term. Id. at 18. Plaintiff asserts Doe #2 failed 16 to give him DPO status7 so that Doe #2 could place Plaintiff in D Facility that night instead 17 of E Facility, where Plaintiff had previously been housed and where Plaintiff had asked to 18 be rehoused. Id. He further alleges that Doe #2 assigned him the cell despite knowing it 19 had a broken window. Id. at 17. 20 First, Plaintiff has not sufficiently alleged that Doe #2 objectively deprived him of 21 something “sufficiently serious” when he assigned him to a cell in D Facility. See Foster 22 v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009). When considering whether a deprivation is 23 sufficiently serious, courts look to the totality of the conditions of confinement, including 24

25 26 7 DPO status is for “Intermittent Wheelchair Users.” See Polley v. Davis, 17-cv-03793-JST, 2018 WL 4352958, at *5 (N.D. Cal. Sept. 11, 2018); see also Compl. at 18. DPO status is for inmates “who do not 27 require a wheelchair full time but are medically prescribed a wheelchair for use outside of the assigned cell.” See Miller v. Adonis, 1:12-cv-00353-DAD-EPG-PC, 2019 WL 4076441, at *9 (E.D. Cal. Aug. 29, 28 1 the “circumstances, nature, and duration of [the] deprivation.” Johnson v. Lewis, 217 F.3d 2 726, 731 (9th Cir. 2000). For instance, a deprivation of a basic necessity that lasts only a 3 few days may rise to the level of an Eighth Amendment violation, while more “modest 4 deprivations can also form the objective basis of a violation, but only if such deprivations 5 are lengthy or ongoing.” Id. at 731–32 (citing Keenan v. Hall, 83 F.3d 1083, 1090–91 (9th 6 Cir. 1996)). 7 Here, Plaintiff acknowledges that cells in D Facility are used for inmates who, like 8 Plaintiff, need only temporary wheelchair access. Compl. at 18. Plaintiff also admits he 9 was only in the cell for 7.5 hours, from 11:00 p.m. to 6:30 a.m., when most inmates would 10 be sleeping. Id. at 17, 20. While doctors had advised Plaintiff to avoid putting weight on 11 his left foot after having his fourth and fifth toes amputated, Plaintiff was not unable to 12 move without the wheelchair. He admits he was able to transfer from the wheelchair to 13 the cell bunk. Id. at 19. The only deprivation Plaintiff points to as a result of being placed 14 in the cell is that he was forced to hop from the wheelchair into the cell, “despite being in 15 extreme pain,” and had to put weight on his left foot at one point in order to use the toilet.8 16 Id. at 20. Such brief deprivations do not amount to a denial of the “minimal civilized 17 measure of life’s necessities.” Wilson, 501 U.S. at 298; see also e.g., Marlin v. Raper, No. 18 2:06-cv-0004-SWW/BD, 2007 WL 779710, at *5 (E.D. Ark. Mar. 13, 2007) (stating “lack 19 of special facilities for temporarily wheelchair-bound inmates do not objectively constitute 20 serious deprivation”); Serrano v. Doe, No. 3:17-CV-01606 (CSH), 2018 WL 3315580, at 21 *6 (D. Conn. July 5, 2018) (concluding there was no “serious deprivation” when an inmate 22 who injured his ankle was denied a wheelchair and forced to “hop[] to the medical 23 department on his uninjured leg”). While it may well have been more comfortable for 24 Plaintiff to be housed in cell that was fully wheelchair accessible, the Eighth Amendment 25

26 27 8 It is not clear how Plaintiff’s having a wheelchair would have eliminated any risk of him having to put weight on his left foot since, presumably, Plaintiff would have still had to stand in order to transfer from 28 1 does not require prison officials to provide comfortable prisons. Farmer, 511 U.S. at 832. 2 In sum, Plaintiff has not alleged the type of “extreme deprivation” of the “minimal civilized 3 measures of life’s necessities” required to state a claim against Doe #2 for assigning him 4 to a cell in D Facility. See Hudson v. McMillian, 503 U.S. 1, 9 (1992). 5 Even assuming Plaintiff alleged a sufficiently serious deprivation, however, Plaintiff 6 nonetheless fails to allege sufficient facts to state a claim because Plaintiff alleges no facts 7 tending to show that Doe #2 was deliberately indifferent when he made the cell assignment. 8 As noted above, Plaintiff admits D Facility was used to house inmates with temporary 9 wheelchair needs. Compl. at 18. He also acknowledges that, when he protested his 10 assignment to D Facility and asked to be housed in E Facility, he was told there was 11 nowhere else to house him at that time because it was late at night. Id. There is nothing 12 alleged in the Complaint from which to infer Doe #2 knew of and disregarded an “excessive 13 risk” to Plaintiff’s safety when he assigned Plaintiff to the cell in D Facility for the night. 14 See Farmer, 511 U.S. at 837. Thus, Plaintiff fails to satisfy the subjective deliberate 15 indifference prong and, as such, fails to state an Eight Amendment claim against Doe #2 16 for assigning him to a cell in D Facility. See id. 17 Likewise, Plaintiff has failed to allege adequately that Doe #2 violated his Eighth 18 Amendment rights when he assigned Plaintiff to the cell without first confirming that a 19 previously broken window in the cell had been repaired. As discussed above, the 20 subjective component of deliberate indifference is met when a prison official “knows of 21 and disregards an excessive risk to inmate health or safety.” Id. As such, a defendant must 22 be both “aware of the facts from which the inference could be drawn that a substantial risk 23 of serious harm exists, and he must also draw that inference.” Id. at 837, 842. 24 Plaintiff contends that when Doe #2 assigned him the cell in D Facility, he “knew or 25 should have known” that the cell window was broken because a work order had been issued 26 for its repair on the morning of October 28, 2019. Compl. at 17. Plaintiff claims Doe #2 27 “failed to verify” that the repairs had been completed before assigning him to the cell. Id. 28 But Plaintiff misstates the standard for deliberate indifference. It is not enough that a 1 defendant “should have known” of the risk. The “subjective approach” focuses only “on 2 what a defendant’s mental attitude actually was.” Farmer, 511 U.S. at 839. “If a [prison 3 official] should have been aware of the risk, but was not, then the [official] has not violated 4 the Eighth Amendment, no matter how severe the risk.” Toguchi v. Chung, 391 F.3d 1051, 5 1057 (9th Cir. 2004) (quoting Gibson v. Cty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 6 2002) (citation omitted)). Plaintiff’s allegations are insufficient to show Doe #2 knew the 7 window had been broken and not repaired. Plaintiff states Doe #2 should have known the 8 window had been broken because a work order had issued for its repair. Compl. at 17. 9 But, even assuming Doe #2 knew the window had been broken, there is nothing in the 10 Complaint to suggest Doe #2 knew the ordered repairs had not been completed. Thus, 11 Plaintiff fails to state a claim of subjective deliberate indifference on Doe #2’s part. See 12 Toguchi, 391 F.3d at 1057. 13 Based on the foregoing, the Court finds Plaintiff has failed to state an Eighth 14 Amendment claim against Doe #2 and, as such, the Court sua sponte DISMISSES the 15 claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Watison, 668 F.3d at 1112; 16 Wilhelm, 680 F.3d at 1121. 17 C. Galindo and Doe #1 18 Plaintiff contends that Galindo and Doe #1 violated his Eighth Amendment rights 19 when they left him in the cell with a broken window without a mattress, bedding, clean 20 clothing, and toilet paper for 7.5 hours—from 11:00 p.m. to 6:30 a.m. Compl. at 18–23. 21 Plaintiff’s allegations do not amount to “serious deprivations” resulting in the denial 22 of the “minimal civilized measure of life’s necessities.” See Wilson, 501 U.S. at 298. 23 When considering conditions of confinement, courts must consider the amount of time the 24 prisoner was subjected to the condition. See Hearns v. Terhune, 413 F.3d 1036, 1042 (9th 25 Cir. 2005). Plaintiff acknowledges he was only subjected to the alleged conditions for 7.5 26 hours during a single night. Compl. at 18–22. The Ninth Circuit has held claims for 27 sleeping without a mattress for one night “insufficient to state an Eighth Amendment 28 violation and no amendment can alter that insufficiency.” Hernandez v. Denton, 861 F.2d 1 1421, 1424 (9th Cir. 1988), vacated on other grounds by Denton v. Hernandez, 493 U.S. 2 801 (1989). 3 Additionally, California district courts have held an inmate’s deprivation of toilet 4 paper for a short time is not sufficiently serious to rise to the level of an Eighth Amendment 5 violation. See Mitchell v. Cate, No. 2:11-cv-1240-JAM-AC, 2015 WL 5255339, at *6 6 (E.D. Cal. Sept. 9, 2015) (finding no Eighth Amendment violation when the plaintiff 7 alleged he was denied soap, toilet paper, toothpaste, and a toothbrush for five days); see 8 also Murillo v. Bueno, No. 1:12-cv-00095-LJO-DLB (PC), 2013 WL 1731393, at *1–2 9 (E.D. Cal. Apr. 22, 2013) (concluding a prisoner not provided with toothbrush, toothpaste, 10 soap, toilet paper, or deodorant for approximately five days while housed in holding cell 11 failed to state a claim) (report and recommendation adopted in full May 17, 2013). 12 Likewise, having to wear unclean clothes for 7.5 hours does not amount to a serious 13 deprivation. See Bejarano v. Allison, 1:11-cv-0589-LJO-GBC (PC), 2012 WL 5451810, 14 at *2 (Nov. 7, 2012, E.D. Cal.) (“[B]eing deprived of clean clothes for three days does not 15 amount to an objectively serious deprivation within the meaning of the Eighth 16 Amendment.”). Finally, to the extent Plaintiff alleges the broken window in the cell made 17 it unsafe9 and uncomfortably cold, these types of sort of short-term discomforts do not 18 amount to an Eighth Amendment violation. See Johnson, 217 F.3d at 729–32 (finding no 19 serious deprivation when inmates were kept outside overnight in December in 22-degree 20 weather); Keenan, 83 F.3d at 1091 (concluding allegation that temperatures were “well 21 above” or “well below” room temperature was not sufficient to support Eighth Amendment 22 claim). 23 / / / 24 25 9 Plaintiff alleges there was broken glass in the cell, on the desk and floor below the windowsill, which 26 made the cell unsafe. Compl. at 19. He does not allege, however, that Galindo or Doe #1 knew about the broken glass. See id. He states only that he told the officers that “the window was broken” and that there 27 was “no mattress . . .sheets, blankets or toilet paper in the cell.” Id. Thus, Plaintiff also has failed to allege deliberate indifference because there is no indication the defendants in question knew of and disregarded 28 1 Even when considering the purported deprivations as a whole, Plaintiff fails to allege 2 a serious deprivation. See Hebert v. Moreno, 2016 WL 1729185, at *4 (C.D. Cal. Mar. 29, 3 2016), report and recommendation adopted, 2016 WL 1733425 (C.D. Cal. Apr. 29, 2016) 4 (“The Ninth Circuit and other federal courts have also found that isolated instances of a 5 prisoner being deprived a bed, mattress, and/or conditions conducive to sleeping for 24 6 hours or more do not satisfy the objective prong of an Eighth Amendment violation.”); see 7 also Williams v. Delo, 49 F.3d 442, 444–45 (8th Cir. 1995) (concluding placement in strip 8 cell without water, mattress, a toothbrush, toothpaste, deodorant, soap, sheets, blankets, 9 pillow cases, pillows, the plaintiff’s legal mail, and/or the plaintiff’s clothing, for a period 10 of four days, did not violate Eighth Amendment). 11 Based on the above, Plaintiff has failed to allege a “risk so grave that it violates 12 contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling 13 v. McKinney, 509 U.S. 25, 36 (1993); see also Estelle, 429 U.S. at 102. Therefore, the 14 Court DISMISSES the Eighth Amendment claims against Galindo and Doe #1 sua sponte 15 based on Plaintiff’s failure to state a claim against them. See 28 U.S.C. 16 §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 17 IV. ADA Claim 18 Plaintiff also seeks to hold Galindo, Doe #1, and Doe #2 liable under the Americans 19 with Disabilities Act (“ADA”). The ADA applies in the prison context. See 42 U.S.C. 20 § 12131(1)(B); United States v. Georgia, 546 U.S. 151, 154 (2006). In order to state a 21 claim under Title II of the ADA, however, a plaintiff must allege: 22 (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, 23 or activities; (3) he was either excluded from participation in or denied the 24 benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, 25 denial of benefits, or discrimination was by reason of [his] disability. 26

27 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citations 28 and internal quotation marks omitted). 1 The Court notes as an initial matter that Plaintiff may not pursue an ADA claim 2 against the individual defendants in their individual capacities. See Walsh v. Nev. Dep’t of 3 Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006) (holding that the “bar on suits against 4 individual defendants” applies to the ADA); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th 5 Cir. 2002) (holding that the “ADA applies only to public entities.”) CDCR can be liable 6 under the ADA “if it intentionally or with deliberate indifference fails to provide 7 meaningful access or reasonable accommodation to disabled persons.” Mark H. v. 8 Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008). But, because Plaintiff names only 9 individuals as Defendants, his Complaint fails to state an ADA claim upon which relief 10 can be granted. See id.; see also Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002) (“[A] 11 plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in [his or] 12 her individual capacity to vindicate rights created by Title II of the ADA.”) 13 Plaintiff has also failed to allege facts from which a plausible inference could be 14 drawn that Defendants actions were taken “by reason of his disability,” 10 as opposed to 15 what Defendants told Plaintiff at the time—that it was late at night and the cell Plaintiff 16 was assigned was the only available option at the time. This rationale is supported by the 17 fact that Plaintiff was promptly removed from the cell at 6:30 a.m. the next morning, 18 October 29, 2019, and the broken window was repaired later that same day. Compl. Ex. H 19 at 65–66. Further, based on documents attached to the Complaint, it appears Plaintiff was 20 / / / 21 22 10 The Court notes that, generally, temporary conditions do not qualify as a disability under the ADA. See 23 Sanders v. Arneson Prods., Inc., 91 F.3d 1351 (holding that temporary condition that lasted less than four months was not a disability under the ADA) (citing 29 C.F.R. Part 1630 App., § 1630.2(j)); Johnson v. 24 City & Cty. of San Francisco, Case Nos. C 99–4375 JL, C 00–0221 JL, 2001 WL 263298, *4 (N.D. Cal. 25 March 8, 2001) (“[T]he ADA does not cover disabilities which are temporary in nature.”). Regulations list three factors to consider in determining whether an individual is substantially limited in a major life 26 activity, two of which relate to the duration of the impairment and its impact. See 29 C.F.R. § 1620.2(j). Those factors are: “(i) The nature and severity of the impairment; (ii) The duration or expected duration 27 of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” Id. 28 1 moved to a cell in A Facility, which houses DPO status inmates, on October 30, 2019, 2 see id. Ex. B at 32, further suggesting that his original assignment to D Facility was not 3 made due to Plaintiff’s disability, but because of his “Temporary Status,” the late hour, and 4 limited cell availability. See O’Guinn, 502 F.3d at 1060; Iqbal, 566 U.S. at 682 (analyzing 5 “obvious alternative explanations” and rejecting purposeful discrimination as a “plausible 6 conclusion” sufficient to survive a motion to dismiss). 7 Therefore, because Plaintiff names only individual defendants and has not alleged 8 facts tending to show that Defendants intentionally discriminated against him based on his 9 purported disability, he fails to state a claim for violation of the ADA. Accordingly, the 10 Court DISMISSES the ADA claim sua sponte based on Plaintiff’s failure to state a claim. 11 See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 12 F.3d at 1121. 13 V. State Law Negligence Claim 14 In his third ground for relief, Plaintiff argues Doe #1, Doe #2, and Galindo were 15 negligent under California state law when they failed to provide him with safe and secure 16 living conditions of confinement and “failed to use reasonable care to avoid foreseeable 17 risk of injury” when assigning him to the cell in D Facility on October 28, 2019. Compl. 18 at 23–24. 19 “In any civil action of which the district courts have original jurisdiction, the district 20 courts shall have supplemental jurisdiction over all other claims that are so related to claims 21 in the action within such original jurisdiction that they form part of the same case or 22 controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). 23 However, “once judicial power exists under § 1367(a), retention of supplemental 24 / / / 25

26 27 11 Plaintiff states he saw a nurse on October 29, 2019, and, after a review of his medical status, Plaintiff’s classification was changed from “Temporary Wheelchair Status” to “DPO-Intermittent Wheelchair user,” 28 1 jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., 2 Inc., 114 F.3d 999, 1000 (9th Cir. 1997). 3 “The district courts may decline to exercise supplemental jurisdiction over a claim 4 under subsection (a) if “the district court has dismissed all claims over which it has original 5 jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that “if the federal 6 claims are dismissed before trial, . . . the state claims should be dismissed as well.” United 7 Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). As discussed above, the Court 8 has found Plaintiff’s Complaint fails to state a plausible claim for relief under Section 1983 9 or the ADA. Therefore, in the absence of any viable federal claim upon which relief may 10 be granted, the Court exercises its discretion and DISMISSES Plaintiff’s supplemental 11 state law claim without prejudice pursuant to 28 U.S.C. § 1367(c)(3). 12 VI. Leave to Amend 13 Based on the foregoing, the Court finds that Plaintiff’s Complaint fails to state any 14 claim upon which relief can be granted, and that it therefore must be dismissed sua sponte 15 and in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See 16 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because Plaintiff is proceeding pro 17 se, however, the Court, having now provided him with “notice of the deficiencies in his 18 complaint,” will also grant him an opportunity to fix those deficiencies. See Akhtar v. 19 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 20 (9th Cir. 1992)). 21 In light of Plaintiff’s pro se status, the Court grants Plaintiff leave to amend his 22 pleading to attempt to reallege sufficiently his claims against Galindo and those defendants 23 he is able to identify by name, if he can.12 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 24 25 12 As noted above, Plaintiff states that he does not currently know the identity of Doe #1 and Doe #2. The 26 Federal Rules of Civil Procedure neither authorize nor prohibit the use of fictitious parties, although Rule 10 does require a plaintiff to include the names of all parties in his complaint. See Fed. R. Civ. P. 10(a). 27 Courts especially disfavor Doe pleading in an IFP case because, in the event the plaintiff’s complaint alleges a plausible claim for relief, it is effectively impossible for the United States Marshal or Deputy 28 1 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend 2 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies 3 of the complaint could not be cured by amendment.’”) (quoting Akhtar, 698 F.3d at 1212). 4 MOTION FOR APPOINTMENT OF COUNSEL 5 Plaintiff has also filed a Motion for Appointment of Counsel,13 because he is unable 6 to afford a lawyer and claims his imprisonment, particularly with current COVID-19 7 restrictions placed on inmates housed at RJD, will limit his ability to litigate. See ECF No. 8 8 at 1–2, see also ECF No. 9. Plaintiff argues that an eventual trial will likely involve 9 conflicting testimony and evidence that trained counsel will be better able to evaluate and 10 present. See ECF No. 8 at 1–2. Plaintiff further contends that severe restrictions at RJD 11 related to COVID-19 additionally have hampered his ability to adequately represent 12 himself because, inter alia, he lacks access to the law library. Id. at 11–12. 13 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social 14 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). And, 15 while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” that 16 an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of Am., 390 F.3d 17 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under “exceptional 18 circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A 19 finding of exceptional circumstances requires the Court “to consider whether there is a 20 ‘likelihood of success on the merits’ and whether ‘the prisoner is unable to articulate his 21

22 23 § 1915(d). Assuming Plaintiff is able to amend his Complaint to state a claim, he may seek discovery to obtain the names of the Does and later amend his pleading in order to substitute the true names of those 24 defendants, unless it is clear that discovery will not uncover their identities, or that Plaintiff’s amended 25 complaint is subject to dismissal on other grounds. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (“As a general rule, the use of 26 ‘John Doe’ to identify a defendant is not favored.”)).

27 13 Plaintiff filed a “Motion for Appointment of Counsel” on January 21, 2021. See ECF No. 8. On February 9, 2021, Plaintiff filed a “Supplement” to his motion, see ECF No. 9, which, upon review, is 28 1 claims in light of the complexity of the legal issues involved.’” Harrington v. Scribner, 2 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). 3 As currently pleaded, Plaintiff’s Complaint demonstrates neither the likelihood of 4 success nor the legal complexity required to support the appointment of pro bono counsel 5 pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at 6 970. First, while Plaintiff may not be formally trained in law, his allegations, as liberally 7 construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully 8 capable of legibly articulating the facts and circumstances relevant to his claims, which are 9 not legally “complex.” Agyeman, 390 F.3d at 1103. Second, for the reasons discussed 10 above, Plaintiff’s Complaint requires sua sponte dismissal pursuant to 28 U.S.C. 11 §§ 1915(e)(2) and 1915A, and thus it is simply too soon to tell whether he will be likely to 12 succeed on the merits of any potential constitutional claim against any of the defendants. 13 Id. 14 Furthermore, while the Court is sympathetic to the difficulties Plaintiff is 15 experiencing due to the COVID-19 pandemic, minimal-to-no access to the law library does 16 not establish exceptional circumstances. Indeed, lacking legal expertise is the norm rather 17 than an “exceptional circumstance” in pro se civil rights cases. See, e.g., Wood v. 18 Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 1990) (denying appointment of counsel 19 where plaintiff complained that he had limited access to law library and lacked a legal 20 education). Moreover, courts in the Ninth Circuit have declined to find that challenges 21 presented by the COVID-19 pandemic alone establish exceptional circumstances. See, 22 e.g., Pitts v. Washington, No. C18-526-RSL-MLP, 2020 WL 2850564, at *1 (W.D. Wash. 23 June 2, 2020) (denying motion for appointment of counsel because, “[a]lthough Plaintiff 24 contends he is unable to access the law library because of social distancing, this bare 25 assertion does not justify the appointment of counsel at this time, nor does the COVID-19 26 pandemic”); Faultry v. Saechao, No. 18-cv-1850-KJM-AC-P, 2020 WL 2561596, at *2 27 (E.D. Cal. May 19, 2020) (denying motion for appointment of counsel and explaining that 28 “[c]ircumstances common to most prisoners, such as lack of legal education and limited 1 law library access, do not establish exceptional circumstances supporting appointment of 2 counsel . . . . The impacts of the COVID-19 health crisis on prison operations are also 3 common to all prisoners.”); see also Snowden v. Yule, No. 2:17-cv-2167-TLN-AC-P, 2020 4 WL 2539229, at *1 (E.D. Cal., May 19, 2020) (stating that “limited access to the prison 5 law library and resources, particularly during the current COVID-19 health crisis,” is a 6 circumstance that plaintiff shares with many other prisoners); Raya v. Barka, No. 3:19-cv- 7 2295-WQH-AHG, 2020 WL 5877848, at *3 (S.D. Cal., Oct. 2, 2020) (noting that “courts 8 in this circuit have declined to find that the COVID-19 pandemic establishes exceptional 9 circumstances”) (citing Pitts, 2020 WL 2850564, at *1; Montgomery v. Crane, No. 18-cv- 10 02911-RM-NYW, 2020 WL 2848149, at *1 (D. Colo. June 2, 2020) (denying motion for 11 appointment of counsel and finding that plaintiff’s inability to access the law library due 12 to the COVID-19 pandemic was not an exceptional circumstance that justified appointment 13 of counsel because plaintiff could have requested an extension to file his responsive 14 briefing)). 15 Therefore, the Court finds no “exceptional circumstances” currently exist and 16 DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 8) without prejudice. 17 See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel 18 where prisoner could articulate his claims in light of the complexity of the issues involved 19 and did not show likelihood of succeed on the merits). 20 CONCLUSION 21 For the above-provided reasons, the Court: 22 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 23 (ECF Nos. 2, 4, 6). 24 2. DIRECTS the Secretary of CDCR, or her designee, to collect from Plaintiff’s 25 prison trust account the $350 filing fee owed in this case by garnishing monthly payments 26 from his account in an amount equal to twenty percent (20%) of the preceding month’s 27 income and forwarding those payments to the Clerk of the Court each time the amount in 28 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE | || CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 2 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 3 || Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 4 4. DENIES Plaintiff's Motion for Appointment of Counsel (ECF No. 8) without 5 || prejudice. 6 5. DISMISSES this civil action sua sponte based on Plaintiff's failure to state a 7 |{claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i1) and 8 |} 1915A(b)(1). 9 6. GRANTS Plaintiff forty-five (45) days’ leave from the date of the electronic 10 || docketing of this Order in which to file an Amended Complaint that cures the deficiencies 11 pleading noted above. The Amended Complaint must be complete by itself without 12 ||reference to his original pleading. Defendants not named and any claim not realleged in 13 Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 14 || Studios, 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); Lacey v. 15 || Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave 16 amend which are not re-alleged in an amended pleading may be “considered waived if 17 ||not repled”). 18 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 19 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to state 20 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 21 || 1915A(b) and on Plaintiffs failure to prosecute in compliance with a court order requiring 22 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 23 ||not take advantage of the opportunity to fix his complaint, a district court may convert the 24 || dismissal of the complaint into dismissal of the entire action.”). 25 IT IS SO ORDERED. 26 || Dated: March 2, 2021 . tt f Le 27 on. Janis L. Sammartino United States District Judge