Simms v. Charles R Schwab

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:19-cv-05642 BHS 11 Plaintiff, ORDER TO SUBMIT NEW 12 v. PROPOSED COMPLAINT, DISMISSING PROPOSED 13 CHARLES R. SCHWAB, et al., AMENDED COMPLAINT WITHOUT PREJUDICE, AND 14 Defendants. RENOTING PLAINTIFF’S APPLICATION TO PROCEED IN

16 17 Plaintiff, who proceeds pro se and is currently incarcerated, requests to proceed in forma 18 pauperis (“IFP”) in this civil matter alleging federal question jurisdiction. Pursuant to Amended 19 General Order 02-19, the District Court has referred plaintiff’s application to the undersigned. 20 The matter is before the Court on plaintiff’s first amended proposed complaint. 21 Plaintiff brings civil Racketeering Influenced and Corrupt Organizations Act (“RICO”) 22 claims against various Charles Schwab entities and employees as well as plaintiff’s wife. 23 Plaintiff’s theory of liability is that these defendants formed a scheme together to deprive 24 plaintiff of his separate property. However, plaintiff provides no factual allegations plausibly 1 establishing that defendants acted with a single, common purpose—as necessary to make out a 2 cognizable RICO claim. Plaintiff’s other federal claim—brought under 42 U.S.C. § 1985—fails 3 because plaintiff does not plead any facts to support the claim that defendants acted on the basis 4 of plaintiff’s membership in a protected class. And the Court will not exercise supplemental

5 jurisdiction over plaintiff’s state law claims absent a cognizable claim brought under federal law. 6 Therefore, before the Court will rule on plaintiff’s IFP motion, plaintiff must amend his proposed 7 amended complaint (Dkt. 6-1) to correct the deficiencies identified in this Order. 8 10 Plaintiff, who is incarcerated at the Clallum Bay Corrections Center, initiated this matter 11 by filing an IFP motion in July 2019. See Dkt. 1. The undersigned reviewed plaintiff’s IFP 12 application—including his proposed complaint—and, determining that the proposed complaint 13 failed to state a claim upon which relief could be granted, dismissed the proposed complaint 14 without prejudice, and directed plaintiff to submit a new proposed complaint in support of his

15 IFP application, if he wished to proceed. See Dkt. 4. 16 Plaintiff filed an “ex parte motion to amend complaint.” Dkt. 6. His new proposed 17 complaint (Dkt. 6-1) brings claims against 11 named defendants—first, two executives (the 18 “executive defendants”): Charles Schwab, allegedly the founder and Chairman of Charles 19 Schwab enterprises, and Walter Bettinger II, allegedly the CEO of Charles Schwab enterprises. 20 Dkt. 6-1, at 2. Second, plaintiff lists five Charles Schwab entities (the “company defendants”): 21 Charles Schwab Corporation, Charles Schwab Holdings, Charles Schwab & Co. Inc., Charles 22 Schwab Bank, and Charles Schwab Investment Management, Inc. Dkt. 6-1, at 2–3. Third, 23 plaintiff lists an employee (“defendant Daniel”) of “Charles Schwab enterprises,” who is

24 1 identified only by his first name and as an employee of a Lynwood, Washington branch. Dkt. 6- 2 1, at 3. Fourth, plaintiff lists “Michael Campion,” allegedly the “Senior Manager of the 3 Compliance Department of Charles Schwab enterprises[.]” Dkt. 6-1, at 3. Fifth, plaintiff lists a 4 “Client Advocacy Team” (“defendant team”), “an unknown amount of individuals” apparently

5 working for one of the company defendants. Dkt. 6-1, at 3. Sixth, plaintiff lists his wife, 6 defendant Simms. Dkt. 6-1, at 3. Plaintiff also lists 100 unnamed, Doe defendants who worked 7 for “Charles Schwab enterprises” at some point. See Dkt. 6-1, at 3. 8 In summary, the allegations of plaintiff’s first amended proposed complaint are as 9 follows: in August 2014, plaintiff and defendant Simms entered into a prenuptial agreement that 10 plaintiff intended “to protect funds earned before marriage.” Dkt. 6-1, at 5. In early 2017, 11 defendants Simms proposed opening a “convenience account”—“a Joint Account that enabled 12 [defendant Simms] to withdraw the separate funds only at [p]laintiff’s direction or for 13 [p]laintiff’s benefit.” Dkt. 6-1, at 6. Defendant Simms promised that she would not use 14 plaintiff’s funds from this account without his consent or direction. See Dkt. 6-1, at 6–7.

15 However, defendant Simms, defendant Daniel, and 10 unnamed defendant employees 16 then opened joint brokerage and bank accounts in plaintiff’s name. See Dkt. 6-1, at 7. Plaintiff 17 says he had not consented to opening this type of account and that he did not know that this type 18 of account had been opened. See Dkt. 6-1, at 7–8. Plaintiff later deposited approximately 19 $33,000 into the accounts. Dkt. 6-1, at 9. 20 After April 2018, the company defendants and defendant Simms then “secretly” changed 21 the mailing address for the accounts, so that plaintiff stopped receiving “Monthly Transaction 22 Statements, causing [p]laintiff to lose track of his separate funds.” Dkt. 6-1, at 12. In June or 23 July 2018, plaintiff wrote the company defendants to demand his account statements and notify

24 1 them of potential fraud. See Dkt. 6-1, at 13. He also demanded that defendant Simms change 2 the address back and send him the missing account statements. See Dkt. 6-1, at 13. Allegedly, 3 defendant Simms took over $5,000 of plaintiff’s separate funds from the accounts. See Dkt. 6-1, 4 at 14. Moreover, on November 30, 2018, a Doe defendant contacted defendant Simms to notify

5 her of plaintiff’s demand for account statements and threatened to close the accounts in 2019— 6 an action that allegedly allowed defendant Simms to drain the accounts, resulting in plaintiff 7 losing “over fifty-thousand dollars” of separate funds. Dkt. 6-1, at 15–16. Plaintiff alleges that 8 by failing to provide him with the account statements, the company defendants impeded 9 plaintiff’s attempt to institute state court proceedings against defendant Simms as well as federal 10 agency investigations. See Dkt. 6-1, at 15–16. 11 On November 30, 2018, and January 27, 2019, plaintiff alleges that he again wrote to 12 request documents about his accounts and notify “Charles Schwab” that there was unauthorized 13 activity occurring. See Dkt. 6-1, at 17, 20. However, Doe defendants failed to take action in 14 response to his requests. See Dkt. 6-1, at 21. Plaintiff also wrote defendant Simms in November

15 2018 and January 2019, demanding account statements and that she change the statement address 16 back. See Dkt. 6-1, at 18, 21. Defendant Simms failed to do so. See Dkt. 6-1, at 21. 17 In January 2019, plaintiff also wrote to the Financial Industry Regulatory Authority, 18 requesting that they investigate the matter. See Dkt. 6-1, at 25. The company and executive 19 defendants assigned defendant Campion, his compliance department, and ten Doe defendant 20 employees to plaintiff’s complaints. See Dkt. 6-1, at 25. Plaintiff contends that defendants 21 continued to refuse to disclose account statements, contracts, and proof of a change of address 22 notification. See Dkt. 6-1, at 26. In April 2019, plaintiff informed various agencies of 23 defendant Campion’s actions. See Dkt. 6-1, at 29. Plaintiff states that defendants then—

24 1 falsely—informed the agencies that plaintiff had concealed his “incarceration/identity.” See Dkt. 2 6-1, at 28, 31. 3 In sum, plaintiff contends that he lost $53,245.96 (see Dkt. 6-1, at 43), and he brings a 4 variety of federal and state law claims against defendants. He requests $10 million in damages,

5 as well as an additional $30 million in treble damages for his civil RICO claim. See Dkt. 6-1, at 6 49. 7 9 The matter is before the Court on plaintiff’s “ex parte motion to amend complaint” (Dkt. 10 6), which this Court interprets as plaintiff’s first amended proposed complaint, in response to the 11 Court’s order directing plaintiff to amend his proposed complaint. See Dkt. 4. Although 12 received shortly after the deadline that the Court gave plaintiff to amend his proposed complaint, 13 the Court will accept the proposed amended complaint as timely filed. 14 I. Legal Principles

15 When a plaintiff wishes to proceed IFP, “[n]otwithstanding any filing fee, or portion 16 thereof, that may have been paid, the court shall dismiss the case at any time if the court 17 determines that . . . the action or appeal . . . (i) is frivolous or malicious; (ii) fails to state a claim 18 upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is 19 immune from such relief.” 28 U.S.C. § 1915(e)(2). 20 A pleading must contain a “short and plain statement of the claim showing that the 21 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement demands “more than an 22 unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 23 678 (2009). The complaint must provide more than “‘labels and conclusions’ or ‘a formulaic

24 1 recitation of the elements of a cause of action[.]’” Id. (quoting Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 555 (2007)). Moreover, the complaint “must contain sufficient factual matter, 3 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 4 550 U.S. at 570).

5 Although this Court will interpret a pro se complaint liberally, it “may not supply 6 essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of 7 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). This Court will also grant leave to amend unless it 8 appears that there is no set of factual allegations that could cure the pleading. See Lopez v. 9 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 10 II. Civil RICO 11 Plaintiff brings claims against all defendants under civil RICO, 18 U.S.C. § 1962(c). See 12 Dkt. 6-1, at 33. 13 A. RICO Elements 14 The statute upon which plaintiff relies makes it unlawful “for any person employed by or

15 associated with any enterprise engaged in, or the activities of which affect, interstate or foreign 16 commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s 17 affairs through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 18 1962(c). The elements of a civil RICO claim are: “(1) conduct (2) of an enterprise (3) through a 19 pattern (4) of racketeering activity . . . (5) causing injury to plaintiff’s business or property.” See 20 United Bros. of Carpenters & Joiners of Am. v. Bldg. & Constr. Trades Dep’t, 770 F.3d 834, 837 21 (9th Cir. 2014). A “pattern of racketeering activity” requires at least two predicate acts of 22 racketeering activity. See 18 U.S.C. § 1961(5). Here, plaintiff alleges the commission of at least 23 two crimes listed under 18 U.S.C. § 1961 as predicate acts. See, e.g., Dkt. 6-1, at 11–13.

24 1 Because plaintiff’s civil RICO claim relies on a pattern of activity including various 2 alleged instances of fraud, plaintiff must plead the factual circumstances of the alleged fraud 3 underlying his civil RICO claim with particularity. See Odom v. Microsoft Corp., 486 F.3d 541, 4 553–54 (9th Cir. 2007).

5 B. “Conduct of an Enterprise” 6 An “enterprise” under RICO includes a group of individuals who are associated in fact, 7 even if they are not a legal entity. See 18 U.S.C. § 1961(4). The enterprise “is an entity separate 8 and apart from the pattern of activity in which it engages.” United States v. Turkette, 452 U.S. 9 576, 583 (1981). 10 An association-in-fact enterprise is “a group of persons associated together for a common 11 purpose of engaging in a course of conduct.” Turkette, 452 U.S. at 583; see also Boyle v. United 12 States, 556 U.S. 938, 946 (2009) (holding that an association-in-fact enterprise must have 13 structural features including “a purpose.”). There are three elements of an associated-in-fact 14 enterprise: “(1) a common purpose, (2) an ongoing organization, and (3) a continuing unit.”

15 Untied States v. Christensen, 828 F.3d 763, 780 (9th Cir. 2015). 16 Here, regarding common purpose, plaintiff states that all defendants “associat[ed] 17 together for the common purpose of furthering the scheme of unlawfully depriving Plaintiff of 18 his separate property/funds[.]” Dkt. 6-1, at 34. Plaintiff’s complaint is replete with this legal 19 conclusion. But in reviewing whether a complaint states a claim, the Court takes as true factual 20 allegations, not legal conclusions. See Iqbal, 556 U.S. at 678. Factual allegations that do not 21 plausibly give rise to an entitlement to relief do not state a claim. See id. at 679. 22 Setting aside plaintiff’s bare legal conclusions, the factual allegations regarding the 23 Charles Schwab defendants’ purposes in their various actions do not plausibly suggest that these

24 1 defendants’ common purpose was for defendant Simms to steal plaintiff’s separate property. 2 Instead, plaintiff’s allegations about intent support, at most, that the Charles Schwab defendants’ 3 intent was to open unauthorized accounts in order to increase profits—and then to cover up their 4 actions. For example, regarding the Charles Schwab defendants’ intent in opening the joint

5 accounts, plaintiff alleges, 6 [The company defendants] received new clients that generated fees and further interest, [defendant Daniel] obtained intracorporate benefits and/or commissions 7 for opening new deposits accounts, and [defendant Simms] was granted unrestricted access to Plaintiff’s funds. [The executive defendants] received 8 inflated account origination numbers, increased funds on deposit . . . that enable[d] them to loan more funds on margin and quote the new accounts in corporate filings 9 and quarterly earning[s] reports that appreciat[e] their stocks. Accordingly they are all responsible for creating a corrupt culture that values profits above all else. 10 11 Dkt. 6-1, at 8; see also Dkt. 6-1, at 9 (alleging that defendants overlooked the deficiencies in 12 opening the accounts and applicable safeguards because they wanted to “reap the benefits” 13 associated with opening new accounts). 14 Tellingly, plaintiff’s statement of the alleged enterprise’s common purpose under his 15 RICO claim is that all defendants “did continuously function as a unit as they all furthered the 16 purposes, whether for the structure of Charles Schwab et al[.] or their own pecuniary gain.” Dkt. 17 6-1, at 34. But the common purpose to establish an association-in-fact must be, in fact, 18 “common.” It is insufficient to allege that some defendants had one purpose—to inflate their 19 profits and account-generating statistics by opening unauthorized accounts, then to cover up their 20 misdeeds—and that another defendant had a different purpose—to take money that was not hers. 21 Plaintiff also repeatedly alleges that some of the 100 unidentified employee defendants 22 enabled defendant Simms’ actions by failing to intervene or even by warning defendant Simms 23 when plaintiff requested account statements. Plaintiff claims that when he wrote to the “Charles 24 1 Schwab address” in June or July 2018 to demand account statements, an unknown employee 2 called defendant Simms to warn her that plaintiff demanded the account statements, thereby 3 “willfully execut[ing] a scheme . . . that enabled [defendant Simms] to obtain Plaintiff’s separate 4 funds[.]” Dkt. 6-1, at 14–15. Again, these allegations are inadequate—plaintiff must plead

5 factual allegations to plausibly support that each defendant intended to further a common scheme 6 for defendant Simms to take plaintiff’s separate property. He must also plausibly allege that the 7 unknown defendant employee’s actions were the proximate cause of his injuries (that is, that 8 there is some direct relation between the injury asserted and the injurious conduct alleged). See 9 Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969, 981 (9th Cir. 2008). But here, plaintiff 10 alleges that in November 2018 and January 2019, plaintiff himself wrote defendant Simms to 11 demand account statements and a change of address—an allegation that appears to contradict 12 plaintiff’s claim that the unknown employee’s actions caused defendant Simms to drain the 13 accounts. See Dkt. 6-1, at 18. 14 Plaintiff’s complaint lacks any plausible allegations of a common purpose. For instance,

15 throughout the complaint, plaintiff ascribes conflicting “intents” to the unknown employee who 16 called defendant Simms—claiming at one point that the defendant intended to “deprive Plaintiff 17 of his right [to] honest services” (Dkt. 6-1, at 14), at another point that the employee’s intent was 18 to “reap the benefits” of opening accounts (Dkt. 6-1, at 9), and at yet another point that the 19 employee’s intent was to allow defendant Simms to act unhindered so that plaintiff would be 20 defrauded. See Dkt. 6-1, at 14. 21 Plaintiff’s allegations are essentially that the Charles Schwab defendants did not care 22 about the consequences of their actions. See, e.g., Dkt. 6-1 (“Defendants knew, or should [have] 23 known, that the refusal [to send the change of address notification] could deprive [p]laintiff of

24 1 his right to honest services and that said scheme could operate as a fraud upon [p]laintiff.”). But 2 disregarding the consequences of their actions is not the same as having a common purpose of 3 joining in defendant Simms’ fraudulent purpose, as a civil RICO claim would require. Accord 4 Baker v. Cohen, No. CV 09-3170-GHK (FMOx), 2010 WL 11515458, at *4 (C.D. Cal. Feb. 18,

5 2010) (“[T]he purported existence of an enterprise must rest on more than the mere assertion that 6 one entity’s alleged misconduct or negligence was beneficial to another entity.”). 7 Without a plausible claim that more than one defendant acted with a common purpose of 8 unlawfully taking plaintiff’s separate property, plaintiff has not alleged an associated-in-fact 9 enterprise, as required to make out a civil RICO claim. See Cedric Kushner Promotions, Ltd. v. 10 King, 533 U.S. 158, 161 (2001) (“[T]o establish liability under § 1962(c) one must allege and 11 prove the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not 12 simply the same ‘person’ referred to by a different name.”). Therefore, plaintiff’s amended 13 complaint fails to state a claim under civil RICO. 14 C. 42 U.S.C. § 1985

15 Plaintiff’s remaining federal-law claim is a claim that all defendants other than Simms 16 violated § 1985(3), regarding conspiracy to deprive plaintiff of his civil rights. See Dkt. 6-1, at 17 37. 18 To bring a cause of action successfully under § 1985(3), a plaintiff must allege and prove 19 four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, 20 any person or class of persons of the equal protection of the laws, or of equal privileges and 21 immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a person 22 is either injured in his person or property or deprived of any right or privilege of a citizen of the 23 United States. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). It is well-

24 1 settled that in a claim brought under § 1985(3), a plaintiff must allege that defendants acted from 2 “some racial, or perhaps otherwise class-based, invidiously discriminatory animus[.]” See 3 Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). The Ninth Circuit has extended § 1985(3) 4 beyond race “only when the class in question can show that there has been a governmental

5 determination that its members require and warrant special federal assistance in protecting their 6 civil rights.” Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985) (internal quotation omitted). 7 Thus, for example, a claim of conspiracy to retaliate, without more, does not give rise to a 8 cognizable cause of action under § 1985(3) for conspiracy to discriminate. Accord Saunders v. 9 Cty. of Sacramento, 2:10-cv-02559-GEB-KJN-PS, 2011 WL 6100295, at *9 (E.D. Cal. Dec. 6, 10 2011). 11 Here, plaintiff simply states that defendants other than Simms discriminated against him 12 by “provid[ing] Disparate Treatment than [sic] other classes of persons” and “did hinder, 13 obstruct, and prevent Plaintiff from Access to the courts and Redress of Grievances, in violation 14 of Equal Privileges [sic] protections.” Dkt. 6-1, at 37. He also claims that defendants other than

15 Simms deprived him of hi property “by refusing to provide ordinary care of good faith, without 16 Due Process of the Law, in violation of the Equal Protections of the Law.” Dkt. 6-1, at 38. 17 These allegations include no indication of whether plaintiff is a member of a protected class and 18 whether defendants’ actions were based on plaintiff’s membership in such a class. As such, 19 plaintiff fails to state a claim under § 1985. 20 III. State Law Claims 21 Plaintiff’s remaining claims sound in state law. Because the Court dismisses without 22 prejudice the portion of plaintiff’s proposed complaint bringing federal claims, the Court further 23 declines at this juncture to exercise supplemental jurisdiction over plaintiff’s remaining, state law

24 1 claims. Therefore, plaintiff’s entire, proposed complaint will be dismissed without prejudice 2 from his IFP application. 3 However, as the Court grants plaintiff leave to amend his complaint, the Court notes that 4 certain of plaintiff’s state law claims are not cognizable, in the respects discussed below.

5 First, although plaintiff states claims of both “outrage” and “intentional infliction of 6 emotional distress,” these are the same claim under Washington State law. See, e.g., Birklid v. 7 Boeing Co., 127 Wn.2d 853, 873 (1995). Moreover, an element of such a claim is that 8 defendants’ conduct was not merely tortious, criminal, intentional, or malicious—plaintiff must 9 plead that the conduct was “so outrageous in character, and so extreme in degree, as to go 10 beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in 11 a civilized community.” Id. at 868 (emphasis and internal quotation omitted). Plaintiff has not 12 pleaded that defendants’ conduct was “outrageous” and “beyond the bounds of decency” beyond 13 alleging that the conduct was malicious, criminal, and intentional. 14 Second, plaintiff includes a claim under Washington’s Consumer Protection Act

15 (“CPA”), RCW 19.86.020. See Dkt. 6-1, at 42. The elements of such a claim are “(1) an unfair 16 or deceptive act (2) in trade or commerce (3) that affects the public interest, (4) injury to the 17 plaintiff in his . . . business or property, and (5) a causal link between the unfair or deceptive act 18 complained of and the injury suffered.” Trujillo v. Nw. Trustee Servs., Inc., 183 Wn.2d 820, 19 834–35 (2015). Plaintiff does not allege how the Charles Schwab defendants’ actions “affected 20 the public interest”—that is, “a likelihood that other plaintiffs have been or will be injured in the 21 same fashion.” Id. at 835. Thus, as currently alleged, his claim under the CPA is not cognizable. 22 Third, plaintiff alleges a claim for malicious interference with contractual relations, 23 which, although somewhat unclear, appears to be brought against all defendants except

24 1 defendant Simms for allegedly preventing plaintiff from protecting his separate property. See 2 Dkt. 6-1, at 44. If plaintiff wishes to bring such a claim, he must allege the elements of a claim 3 of a claim of malicious interference with contractual relations: that a defendant “without a 4 privilege to do so, induc[ed] or otherwise purposely cause[d] a [t]hird person not to . . . perform a

5 contract with another[.]” See Houser v. City of Redmond, 16 Wn. App. 743, 745 (1977). 6 Fourth, plaintiff brings claims for alienation of his wife’s and child’s affections. See Dkt. 7 6-1, at 38–40. However, Washington law has not allowed a viable cause of action for alienation 8 of affections since 1980. See Madden v. Foley, 83 Wn. App. 385, 390–91 (1996). 9 Fifth, plaintiff brings a claim for “private nuisance” against defendants other than Simms 10 on the basis of their intrusion into his life and private matters. See Dkt. 6-1, at 40–41. However, 11 the tort of private nuisance is not applicable on these facts, as plaintiff makes no allegation of 12 interference with his use of any real property. See Highline Sch. Dist. No. 401 v. Port of Seattle, 13 87 Wn.2d 6, 17 n.7 (1976) (Nuisance involves substantial interference with “the use and 14 enjoyment of the land.”).

15 IV. Conclusion and Direction to Plaintiff and Clerk 16 Plaintiff’s proposed amended complaint (Dkt. 6-1) fails to state a cognizable federal 17 claim, so that it is dismissed without prejudice, meaning that plaintiff may file a second amended 18 proposed complaint in support of his application. 19 Plaintiff should amend his complaint to contain a short, plain statement of his entitlement 20 to relief. He must explain how he has shown the elements of his federal law claims, including 21 specifying how he has established a civil RICO claim with regard to each defendant—including 22 how each defendant acted with a common purpose. Plaintiff should include concrete factual 23 allegations and avoid relying on conclusory statements of liability.

24 1 The undersigned will not rule on plaintiff’s IFP application until plaintiff has submitted 2 an adequate proposed complaint. Moreover, plaintiff must either pay the filing fee and submit an 3 adequate proposed complaint or must be granted leave to proceed IFP if he wishes to proceed 4 with this matter. Because there is no adequate proposed complaint in this matter, the Court

5 declines to address any issues regarding service at this juncture. 6 The Clerk shall update the docket to reflect dismissal of plaintiff’s proposed complaint 7 (Dkt. 6-1) without prejudice and shall renote plaintiff’s IFP application (Dkt. 1) for November 8 29, 2019. Plaintiff shall submit a proposed second amended complaint or otherwise comply with 9 this Order on or before November 29, 2019. 10 Dated this 29th day of October, 2019. 11

12 A 13 J. Richard Creatura 14 United States Magistrate Judge

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