Spinks v. California Department of Transportation

• Court: District Court, N.D. California
• Decided: March 2, 2023
• Docket: 3:22-cv-05067
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HENRY OLIVER SPINKS, Case No. 3:22-cv-05067-WHO

8 Plaintiff, ORDER ON MOTION TO DISMISS v. 9 Re: Dkt. No. 20 10 CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al., 11 Defendants.

12 13 Pro se plaintiff Henry Oliver Spinks, a former resident of a homeless encampment in 14 Oakland, California, sued the California Department of Transportation (“Caltrans”) for various 15 alleged injuries arising from the closure of that encampment. For the reasons that follow, Spinks’ 16 amended complaint is dismissed with leave to amend particular claims. 17 Additionally, as described further below and based on Spinks’ failure to appear at the 18 hearing for this motion, Spinks is ORDERED TO SHOW CAUSE why this case should not be 19 dismissed for failure to prosecute. Spinks may expunge this Order to Show Cause by filing 20 an amended complaint by March 24, 2023, addressing the issues analyzed below. 21 BACKGROUND 22 I. Procedural Background 23 This case was filed by pro se plaintiff Henry Oliver Spinks, who at the time of filing 24 resided at a homeless encampment on Wood Street in Oakland, California (the “Wood Street 25 Encampment”). Complaint (“Compl.”) [Dkt. No. 1]. His complaint is factually related to another 26 case previously before me, Blain v. California Department of Transportation, 3:22-cv-04178- 27 WHO (N.D. Cal. Feb. 8, 2023) (“Blain”). 1 which he sought to restrain Caltrans from allegedly violating the TRO I had previously granted 2 and then dissolved in Blain. [Dkt. No. 6]. I wrote that Spinks’ only justification for the TRO was 3 to ensure that Caltrans would not destroy his vehicles located at the encampment, but Spinks had 4 not shown any likelihood of imminent legal violation. Id. 5 Caltrans filed its first motion to dismiss on November 23, 2022, Dkt. No. 10, to which 6 Spinks did not respond. I issued an Order to Show Cause (“OSC”) as to why the case should not 7 be dismissed for failure to prosecute, Dkt. No. 16, and in response Spinks filed a First Amended 8 Complaint (“FAC”), Dkt. No. 17. The FAC vacated the OSC and mooted the motion to dismiss. 9 [Dkt. No. 18]. 10 Caltrans filed a renewed motion to dismiss on January 25, 2022. (“Mot.”) [Dkt. No. 20]. 11 Attached to the motion was a declaration by Caltrans engineer Maxime Dabilly. (“Dabilly Decl.”) 12 [Dkt. No. 20] Ex. 1. Spinks filed a response, which I will construe as an opposition to the motion. 13 (“Oppo.”) [Dkt. No. 21]. Caltrans replied. (“Repl.”) [Dkt. No. 22]. I held a hearing at which 14 counsel for Caltrans appeared, but Spinks failed to appear. 15 II. Factual Background 16 As outlined in the FAC, Spinks alleges that Caltrans and certain Caltrans officials— 17 including Cheryl Chambers, Dina El-Tawansy, Tony Tavares, and Toks Omishakin—along with 18 Governor Gavin Newsom, an individual named Derek Smith who is allegedly the Chief Executive 19 Officer of Marinship Development Interest LLC, and perhaps the Oakland Fire Department 20 (“OFD”) and Oakland Police Department (“OPD”) violated various provisions of the 21 Constitution.1 See FAC at 2-6. The claims against the individuals are brought against them in 22 1 Only Caltrans was served in this proceeding. [Dkt. No. 14]. It seems that those defendants were 23 served with the initial complaint, and that the FAC added Governor Newsom and Smith as new defendants. 24

Governor Newsom is immune from liability for all claims in this suit. Even if he were 25 properly served, any claims against him would be DISMISSED with prejudice. See, e.g., Blain, 3:22-cv-04178-WHO, Dkt. No. 148 (Order Granting Motions to Dismiss). 26

It is unclear who Smith is or what role the “Marinship Development Interest LLC” played 27 in this complaint. Even if he were properly served, all allegations against Smith would be 1 their official and personal capacities. Id. at 15. The factual allegations broadly fall into two 2 categories: those related to the investigations into the fires at the Wood Street Encampment and 3 those related to the closure, clean-up, and removal of items from the Wood Street Encampment. 4 With respect to the fire investigations, Spinks seems to say that he and other Wood Street 5 residents were unfairly accused of starting fires at the encampment, the danger from which played 6 a role in the ultimate closure of the encampment. See Blain, 3:22-cv-04178-WHO, Dkt. No. 148 7 (N.D. Cal. Nov. 3, 2022, Order Granting Motions to Dismiss),2 9:7-12; 14:5-8; 22:5-7; 28:8-10 8 (discussing the demonstrated danger from the many fires that occurred at the Wood Street 9 Encampment, in a separate proceeding). Spinks states that he did not cause any fires, FAC at 4, 5; 10 that it was unfair to “lump[]” all residents of Wood Street together in assessing blame for the fires, 11 id. at 1, 5, 7; that OFD and OPD failed to properly investigate the fires, id. at 5-6; and that 12 Caltrans may be responsible for some of the fires, id. at 8-9. 13 With respect to the closure of the encampment, Spinks says that he lost community, id. at 14 10-12; that his possessions were damaged or destroyed, including vehicles and tools, id. at 9, 11, 15 15; that he lost access to the land, which he refers to as “public land,” id. at 12, 14, 16; that he was 16 prevented from freely assembling at the encampment; id. at 13; and that he cannot move to a 17 homeless shelter without giving up freedom, friends, family, and pets, id. at 14. Spinks 18 specifically alleges that two of his vehicles were damaged and rendered unusable when they were 19 in Caltrans’ storage, id. at 11, and that he lost 60 percent of the tools he needs for work, id. at 11. 20 He also outlines specific losses with accompanying dollar amounts for his shelter buildings, tools, 21 clothing, and vehicles, totaling $59,600. Id. at 16-17. He “charge[s] Caltrans” $9.1 million for 22 various violations of his Constitutional rights and for trauma, emotional distress, loss of 23 community, loss of access to land for its soil to harvest, decreased life expectancy, increased 24 exposure to violence and theft, loss of income, and loss of other freedoms. Id. at 17-18. 25 It appears that Spinks asserts five causes of action in total: (1) violation of the Fifth 26 2 Because courts may take judicial notice of public records like court proceedings, I take judicial 27 notice of the proceedings in Blain. See Astre v. McQuaid, No. 3:18-CV-00138-WHO, 2018 WL 1 Amendment right to Due Process, id. at 2-7, 12, 14; (2) violation of the Fourth Amendment right 2 against unlawful seizure, id. at 4, 9-11; (3) violation of the Eighth Amendment right against cruel 3 and unusual punishment, id. at 4; (4) violation of the First Amendment for interfering with 4 community and free assembly, id. at 11, 13; and (5) conspiracy, id. at 2-3. Spinks seeks money 5 damages and equitable relief in the form of “restor[ing] to me the public land underneath my 6 compound at Wood Street.” Id. at 16-18. 7 LEGAL STANDARD 8 A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1) is a 9 challenge to the court’s subject matter jurisdiction. See Fed. R. Civ. Proc. 12(b)(1). “Federal 10 courts are courts of limited jurisdiction,” and it is “presumed that a cause lies outside this limited 11 jurisdiction.” Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The party 12 invoking the jurisdiction of the federal court bears the burden of establishing that the court has the 13 requisite subject matter jurisdiction to grant the relief requested. Id. 14 A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d 15 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the 16 allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 17 The challenger asserts that the allegations in the complaint are insufficient “on their face” to 18 invoke federal jurisdiction. See Safe Air Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th 19 Cir. 2004). To resolve this challenge, the court assumes that the allegations in the complaint are 20 true and draws all reasonable inference in favor of the party opposing dismissal. See Wolfe, 392 21 F.3d at 362. 22 “By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 23 themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. To resolve 24 this challenge, the court “need not presume the truthfulness of the plaintiff’s allegations.” Id. 25 (citation omitted). Instead, the court “may review evidence beyond the complaint without 26 converting the motion to dismiss into a motion for summary judgment.” Id. (citations omitted). 27 Once the moving party has made a factual challenge by offering affidavits or other evidence to 1 any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses 2 subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also 3 Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). 4 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 5 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 6 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 7 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 8 the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant 9 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 10 omitted). This standard is not akin to a probability requirement, but there must be “more than a 11 sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require 12 “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to 13 relief above the speculative level.” Twombly, 550 U.S. at 555, 570. 14 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 15 court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 16 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is 17 not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 18 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 19 2008). 20 If the court dismisses the complaint, it “should grant leave to amend even if no request to 21 amend the pleading was made, unless it determines that the pleading could not possibly be cured 22 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making 23 this determination, the court should consider factors such as “the presence or absence of undue 24 delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, 25 undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport 26 Package Express, 885 F.2d 531, 538 (9th Cir. 1989). Pro se complaints are held to “less stringent 27 standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). 1 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’” 2 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted)). However, pro se pleadings must 3 still allege facts sufficient to allow a reviewing court to determine whether a claim has been stated. 4 Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “A pro se litigant 5 must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is 6 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Cato v. 7 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation omitted). 8 DISCUSSION 9 I. Claims Against Caltrans as an Agency 10 Construing the FAC liberally, see Erickson, 551 U.S. at 94, Spinks asserts each cause of 11 action against Caltrans as a state agency. But Caltrans is immune from suit in these circumstances 12 under the Eleventh Amendment because “[s]tate immunity extends to state agencies and to state 13 officers, who act on behalf of the state and can therefore assert the state’s sovereign immunity.” 14 Nat’l Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 421 (9th Cir. 1996) (first citing P.R. 15 Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-46 (1993); and then citing 16 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)); see also id. (“[Caltrans] is 17 a California state agency which is entitled to immunity from suit.” (citing P.R. Aqueduct, 506 U.S. 18 at 142-46)). 19 There are three exceptions to Eleventh Amendment immunity: (1) “a state may waive its 20 Eleventh Amendment defense”; (2) “Congress may abrogate the States’ sovereign immunity by 21 acting pursuant to a grant of constitutional authority”; and (3) “under Ex parte Young doctrine, the 22 Eleventh Amendment does not bar ‘a suit against a state official when that suit seeks . . . 23 prospective injunctive relief.’” Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 817-18 (9th 24 Cir. 2001) (citations omitted). But there are no allegations in the complaint, and Caltrans does not 25 concede, that Caltrans waived its Eleventh Amendment immunity or that the underlying 26 Constitutional clauses somehow abrogated Caltrans’ immunity. See id. And Caltrans as a state 27 agency is different from Caltrans officials, who may not claim Eleventh Amendment immunity in 1 because there are no facts that Spinks could plead to avoid the immunity bar. 2 II. Claims Against Caltrans Officials 3 Again construing the FAC liberally, see Erickson, 551 U.S. at 94, Spinks asserts all causes 4 of action against the named Caltrans officials, Chambers, El-Tawansy, Tavares, and Omishakin.3 5 See FAC at 3. Assuming that the Caltrans officials were properly served, see Mot. 4:20-5:2, 6 Spinks’ claims against them fail. 7 A. Claims Against Officials in Their Official Capacity 8 Spinks cannot bring claims for money damages against the officials in their official 9 capacity because the Eleventh Amendment “shields state officials from official capacity suits” 10 except for those seeking prospective declaratory or injunctive relief. Krainski v. Nevada ex rel. 11 Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (citation omitted); 12 Ex parte Young, 209 U.S. 123, 160 (1908). The claims for money damages against the Caltrans 13 officials in their official capacities are barred by the Eleventh Amendment and are DISMISSED 14 with prejudice because there are no facts that Spinks could plead to avoid the immunity bar. 15 The only claim for equitable relief in the FAC—asking to “restore to me the public land 16 underneath my compound at Wood Street,” FAC at 16—is also barred by the Eleventh 17 Amendment because Spinks fails to plead “factual allegations from which [I] could plausibly 18 conclude” that the state officials had a “fairly direct connection with the enforcement” of the 19 provision at issue. Bolbol v. Brown, 120 F. Supp. 3d 1010, 1018 (N.D. Cal. 2015); L.A. Cnty. Bar 20 Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992); Almond Hill Sch. v. U.S. Dep’t of Ag., 768 F.2d 21 1030, 1034 (9th Cir. 1985). There are no allegations specific to the state officials except that 22 Chambers “made the fraudulent public declaration” that “impl[ied]” residents of Wood Street 23 caused 240 fires at the encampment. FAC at 3. This allegation is related to the allegations about 24 the failure to investigate the fires and the unfairness in assigning blame to the entire community, 25 but not related to the claims about the closure of the encampment and therefore untethered to the 26

27 3 Caltrans notes that Omishakin is not a Caltrans official and so had no role in the allegations in 1 claim for equitable relief. Accordingly, the allegations about Chambers are not sufficiently direct 2 to connect her to the closure. See Bolbol, 120 F. Supp. at 1018. All claims for equitable relief 3 against the Caltrans officials are DISMISSED. This dismissal is with prejudice because 4 amendment would be futile; Spinks can plead no facts showing that he has a legal right to be given 5 Caltrans’ land. See Cato, 70 F.3d at 1106 (noting leave to amend need not be granted to pro se 6 litigants where “it is absolutely clear that the deficiencies of the complaint could not be cured by 7 amendment”). 8 B. Claims Against Officials in Their Individual Capacities 9 Spinks fails to state a claim against any of the officials in their individual capacities 10 because the FAC does not include any sufficient allegations specific to the individuals.4 Though 11 “a plaintiff may sue a state officer in his individual capacity for alleged wrongs committed by the 12 officer in his official capacity” and may recover retroactive damages, Spinks must still plead facts 13 plausibly connecting each individual to the alleged violations and damages, but he does not do so 14 here. Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990), as amended. 15 1. Fifth Amendment 16 Spinks’ Fifth Amendment allegations seem to span two concerns: that he was unfairly 17 blamed for causing fires at the Wood Street Encampment and that he was forced to give up certain 18 liberties by leaving the encampment and moving to a homeless shelter. See FAC at 2-7, 12, 14. 19 His only specific allegation against any Caltrans official is that Chambers “made the fraudulent 20 public declaration . . . implying that I and the members of my community are guilty of causing all 21 240 fires at Wood Street.” Id. at 3. Even if I accept this as true, it is not clear what injury Spinks 22 believes he suffered because of this statement, and it is not clear how Chambers’ belief that Spinks 23 contributed to the fires might violate the Fifth Amendment. Accordingly, Spinks has not stated a 24 claim for violation of the Fifth Amendment based on the statements about causing fires. 25 Additionally, Spinks does not state a claim for violation of his due process rights based on 26 having to leave the Wood Street Encampment and being given the option of moving into a shelter. 27 1 Spinks does not have a legal right to be on Caltrans-owned land. Though there are examples of 2 Caltrans and other government entities being temporarily restrained from removing unhoused 3 individuals living on their properties, those cases are distinct because the alleged Fifth 4 Amendment violations asserted claims of state-created danger, which were found imminent due to 5 concerns about lack of notice, severe weather, and lack of available shelter. See, e.g., Janosko v. 6 City of Oakland, No. 3:23-CV-00035-WHO, 2023 WL 187499 (N.D. Cal. Jan. 13, 2023), order 7 dissolved, Dkt. No. 32, (N.D. Cal. Feb. 27, 2023); Blain v. Cal. Dept. of Trans., No. 3:22-CV- 8 04178-WHO, 2022 WL 2919646 (N.D. Cal. July 22, 2002), order dissolved, 2022 WL 3702106 9 (N.D. Cal. Aug. 26, 2022). Spinks does not bring a state-created danger claim, nor could he here: 10 the Caltrans-owned section of the Wood Street Encampment is closed, so the claim would be 11 moot, and at any rate he was provided months of notice of the closure, there were available shelter 12 beds at the time, and there are no allegations of severe weather. See also Blain, Dkt. No. 148. 13 Because Spinks fails to state a claim against the Caltrans officials under the Fifth 14 Amendment, the claim is DISMISSED. To the extent that he can clarify how his Fifth 15 Amendment rights were violated and the specific actions each official took that led to those 16 violations, Spinks has leave to amend this claim. 17 2. Fourth Amendment 18 The Fourth Amendment protects individuals experiencing homelessness from “some 19 meaningful interference” with their “possessory interest in the[ir] property.” Lavan v. City of Los 20 Angeles, 693 F.3d 1022, 1028 (9th Cir. 2012) (citation omitted). In Lavan, the Ninth Circuit 21 determined that “by seizing and destroying [individuals’] unabandoned legal papers, shelters, and 22 personal effects, the City meaningfully interfered with [those individuals’] possessory interests in 23 that property.” Id. at 1030. The court noted that even if the unhoused plaintiffs had violated a city 24 ordinance prohibiting leaving personal property in public spaces, “the seizure and destruction of 25 [their] property remains subject to the Fourth Amendment’s reasonableness requirement.” Id. at 26 1029. 27 Spinks pleads specific facts concerning the alleged seizure and destruction of his property, 1 of the Fourth Amendment under Lavan. See FAC at 4, 9-11, 16-18. But, while he pleads that 2 Chambers was the “manager” of the eviction process, id. at 3, he pleads no facts connecting any of 3 the Caltrans officials to the destruction or the closure more generally. Accordingly, without more, 4 these claims are DISMISSED with leave to amend to assert specific facts against the Caltrans 5 officials.5 If Spinks files an amended complaint, he should say exactly what actions each official 6 took that he thinks violated his Fourth Amendment rights and what his damages are. 7 3. Eighth Amendment 8 The Eighth Amendment’s Cruel and Unusual Punishments Clause “circumscribes the 9 criminal process.” Martin v. City of Boise, 920 F.3d 584, 615 (9th Cir. 2019) (quoting Ingraham 10 v. Wright, 430 U.S. 651, 667 (1977)). There must be something in the complaint that connects the 11 allegations to the criminal process to state a claim. Unlike in Martin, which involved a 12 “sweeping” local ordinance that criminalized homelessness, here there are no allegations 13 connecting the facts of the complaint to the criminal process. Id. at 616-17. And, even if there 14 were such an ordinance here, neither Caltrans nor its officials have authority to enforce criminal 15 statutes. Therefore, this cause of action is DISMISSED with prejudice because amendment would 16 be futile. 17 4. First Amendment 18 “The First Amendment, incorporated against the states by the Fourteenth Amendment, 19 prohibits states from enacting laws “abridging the freedom of speech, . . . or the right of the people 20 peaceably to assemble.” Tandon v. Newsom, 517 F. Supp. 3d 922, 961 (N.D. Cal. 2021) 21 (subsequent history and internal quotation marks omitted) (quoting Long Beach Area Peace 22 Network v. City of Long Beach, 574 F.3d 1011, 1020-21 (9th Cir. 2009)); see also U.S. Const. 23 Amend. I. Free assembly claims are evaluated under the same analysis as free speech claims. 24 25 5 Caltrans asserts that the allegations are unsubstantiated so the claim should be dismissed, 26 apparently without leave. See Mot. 12:25-13:14. But the allegations in the FAC are concerning and it seems that Spinks could state a claim for relief, so Spinks has leave to amend to clarify how 27 any of Caltrans’ officials’ actions failed to comply with the Sanchez settlement and the Fourth 1 Tandon, 517 F. Supp. 3d at 959 (citations omitted). And, in a nonpublic forum,6 the government 2 may restrict First Amendment rights so long as the restrictions are “reasonable and not an effort to 3 suppress expression merely because public officials oppose the speaker’s views.” Wright v. 4 Incline Vill. Gen. Improvement Dist., 665 F.3d 1128, 1134 (9th Cir. 2011) (citation omitted). 5 Spinks fails to state a claim because he does not plead that he was forced to leave the 6 encampment or that he lost his community “merely” because Caltrans or its officials opposed his 7 views. See id. Additionally, Spinks concedes in the FAC—which Caltrans has repeatedly 8 noted—that one of the motivating reasons for closing the encampment was the risk of danger from 9 the hundreds of fires. Spinks therefore cannot show that the closure or its impact on his First 10 Amendment rights were “merely” an effort to oppose his views, given the undisputed role that the 11 fire danger played in the decision; it would be futile for him to amend his pleadings to say 12 otherwise. This claim is DISMISSED with prejudice. 13 5. Conspiracy 14 Finally, Spinks seems to assert that the Caltrans officials conspired with Caltrans, 15 Governor Newsom, OFD, and OPD to deprive him of certain rights. See FAC at 2-3. It is not 16 clear what rights he says were subject to the conspiracy, who was involved or how, or what statute 17 he thinks was violated. This claim is DISMISSED with leave to amend. If Spinks chooses to 18 amend the claim, he must clearly state the actions taken by Caltrans officials and he must try to 19 clarify what statute he thinks was violated. 20 CONCLUSION 21 Caltrans’ motion is granted and Spinks’ claims are DISMISSED. He has leave to amend 22 the Fifth Amendment, Fourth Amendment, and conspiracy claims against the officials in their 23 individual capacity, if he can do so. If Spinks chooses to amend his complaint, he must ensure 24 that he signs the document he submits to this court. 25 Further, Spinks is ORDERED TO SHOW CAUSE why judgment should not be entered in 26

27 6 Public property that has not been traditionally available for public expression and which is not 1 light of this order and/or why the case should not be dismissed for failure to prosecute. Spinks 2 || may expunge this Order to Show Cause by filing his (signed) amended complaint by March 24, 3 2023. If he fails to do so, this action will be DISMISSED with prejudice to failure to 4 || prosecute. Fed. R. Civ. Proc. 41(b). 5 IT IS SO ORDERED. 6 Dated: March 2, 2023 \ g ® Hiam H. Orrick 9 United States District Judge 10 11 12

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