Stevenson v. Beard

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVIE J. STEVENSON, Case No.: 16-CV-3079 JLS (RBM)

12 Plaintiff, ORDER (1) DENYING PLAINTIFF’S 13 v. MOTION FOR PRELIMINARY INJUNCTION, AND 14 JEFFREY BEARD, Ph.D., et al., (2) GRANTING PLAINTIFF LEAVE 15 Defendants. TO FILE SECOND AMENDED COMPLAINT 16

17 (ECF No. 95)

18 Plaintiff Stevie J. Stevenson, a prisoner currently incarcerated at Solano State Prison 19 (“Solano”), proceeds pro se and in forma pauperis, see ECF No. 6, on a First Amended 20 Complaint (“FAC,” ECF No. 8) filed pursuant to 42 U.S.C. § 1983. There are currently 21 five Defendants: Jeffrey Beard, former Secretary of the California Department of 22 Corrections and Rehabilitation (“CDCR”); C. Walker, a mailroom staff member at 23 Centinela State Prison (“Centinela”); C. Bell, a mailroom supervisor at Centinela; 24 N. Telles, a litigation coordinator at Centinela; and R. Madden, Warden of Centinela.1 See 25 ECF Nos. 8, 61. 26

27 1 The Court’s July 11, 2018 Order dismissed S. Kernan, the former Secretary of CDCR, as a Defendant. 28 1 Plaintiff filed the instant Motion for Preliminary Injunction or Temporary 2 Restraining Order (“Mot.,” ECF No. 95) seeking to stop CDCR from destroying and/or 3 removing all law books from its law libraries. The Court accepted the Motion nunc pro 4 tunc to March 7, 2019.2 See id. The Court held its ruling in abeyance pending Plaintiff’s 5 appeal of this Court’s Order dismissing Claim One of the First Amended Complaint, see 6 infra pages 4–5, which asserted a cause of action relating to deprivation of a state-created 7 liberty interest affording inmates adequate access to law libraries. See FAC at 5–18. The 8 Motion is now ripe, as the Ninth Circuit denied Plaintiff’s appeal. See ECF Nos. 101, 104. 9 Having considered the Parties’ arguments and the applicable law, the Court DENIES 10 Plaintiff’s Motion. 11 BACKGROUND 12 This case has a lengthy and complicated procedural history with intermingled causes 13 of action regarding law library access. Given that the instant Motion directly concerns law 14 library access and an underlying access-to-court cause of action, the Court outlines the 15 procedural history.3 16 I. First Amended Complaint and Motion to Dismiss 17 On June 8, 2017, Plaintiff filed the operative First Amended Complaint asserting the 18 following causes of action: (1) Plaintiff and other inmates housed in California state 19 prisons have been deprived of their due process rights as a result of CDCR amending 20 statutes governing law libraries in prisons; (2) Plaintiff’s rights were violated when 21 Centinela staff opened his legal mail outside of his presence; (3) Plaintiff was subject to 22 23 24 2 Plaintiff’s moving papers contained the following discrepancies: (1) failure to file a memorandum of 25 points and authorities in support of the Motion as a separate document; and (2) failure to state the time and date of the hearing on the Motion. See S.D. Cal. CivLR 5.1(j); 7.1(b), (f). The Court accepted the 26 Motion despite such discrepancies. (ECF No. 98.)

27 3 Portions of the Procedural History are incorporated from Magistrate Judge Peter C. Lewis’ Report and Recommendation of Defendants’ Motion to Dismiss, see ECF No. 47, which the Court fully adopted in 28 1 retaliation by Centinela prison staff in that he was not allowed to mail outgoing documents 2 to courts, attorneys, or the California Innocence Project; (4) Plaintiff’s rights have been 3 violated because Centinela’s litigation coordinator has withheld from Plaintiff an audio CD 4 recording of an allegedly exculpatory witness statement; and (5) altogether, the cumulative 5 effect of these deprivations have effectively denied Plaintiff the right to access the courts 6 to present a “non-frivolous claim.” See ECF Nos. 8, 47. 7 As to Claim One, Plaintiff contended law library changes rendered the library 8 ineffective and prevented Plaintiff from conducting meaningful legal research to challenge 9 “sentences . . . convictions . . . and conditions of confinement.” FAC at 5–10, 13. The 10 First Amended Complaint cited Plaintiff’s petitions for writ of habeas corpus challenging 11 these same issues. Id. at 10–11; see also ECF No. 32-2. 12 On January 18, 2018, all named Defendants filed a Motion to Dismiss portions of 13 the First Amended Complaint. See generally ECF No. 32. Defendants moved to dismiss 14 Claims One and Five as barred by res judicata/claim preclusion. Id. at 3–5. As to res 15 judicata/claim preclusion, both parties requested the Court take judicial notice of Plaintiff’s 16 previously-filed petitions for writ habeas corpus challenging Defendant Beard’s actions in 17 amending statutes governing law libraries in prisons. See ECF Nos. 32-2, 38-1, 38-2, 39. 18 Given these previously filed petitions, Defendants argued Claim One “involve[d] the same 19 parties, in the same locations, with the same actions for the same incident.” ECF No. 32 20 at 5. Defendants also sought dismissal of Defendant Beard based upon this same rationale. 21 Id. at 3–5. Defendants contended Claim Five should be treated the same as Claim One, as 22 it merely fleshed out Claim One’s allegations. Id. at 3 n.1. Defendants also moved to 23 dismiss Defendants Kernan and Madden based upon their lack of personal participation in 24 any alleged constitutional violation. (Id. at 5-9.) 25 II. The Orders on Defendants’ Motion and Plaintiff’s Motion for Reconsideration 26 On April 26, 2018, Magistrate Judge Lewis issued a Report and Recommendation 27 on Defendants’ motion to dismiss recommending dismissal of Claim One based upon res 28 judicata grounds. ECF No. 47. Ultimately, he recommended, Plaintiff’s habeas petition 1 filed in the California Court of Appeal and the Supreme Court of California barred re- 2 litigation of Claim One. Id. at 7–13. But, Magistrate Judge Lewis left Claim Five 3 “untouched” by the res judicata analysis. Id. at 10 n.2. While Defendants argued that 4 Claims Five and One were the same, Judge Lewis disagreed. Id. Consequently, Magistrate 5 Judge Lewis did not analyze Claim Five and therefore recommended denying the motion 6 to dismiss as to Claim Five. Id. 7 As to Defendants’ request to dismiss Defendant Beard from the litigation, Magistrate 8 Judge Lewis recommended denial of the motion to dismiss on this ground because 9 Defendant Beard is named in Claim Five. Id. at 12. On the other hand, Magistrate Judge 10 Lewis recommended dismissal of Defendant Kernan because the First Amended Complaint 11 contained “no facts to indicate Kernan personally participated in or directed Plaintiff’s 12 alleged constitutional violation” or “showing Kernan was ever even aware of Plaintiff’s 13 claim before Plaintiff filed the present suit.” Id. at 16. Finally, Magistrate Judge Lewis 14 recommended denying the motion to dismiss as to Defendant Madden. Id. 15 On July 11, 2018, the Court adopted Magistrate Judge Lewis’ report and 16 recommendation in full and granted Plaintiff an additional thirty days to file a second 17 amended complaint to cure the deficiencies relating to Plaintiff’s claims against Defendant 18 Kernan. ECF No. 61 at 8. The Court cautioned that, “[i]f Plaintiff chooses not to file a 19 second amended complaint within thirty days, the case will proceed on Plaintiff’s 20 remaining claims.” Id. at 9. 21 After the Court dismissed Claim One and Defendant Kernan, Plaintiff filed a Motion 22 for Reconsideration and an appeal before the Ninth Circuit. ECF Nos. 63, 64. On 23 August 2, 2018, the Court issued an Order: (1) requesting Defendants to file a response to 24 Plaintiff’s Motion for Reconsideration; and (2) vacating the deadline for Plaintiff to file a 25 second amended complaint. ECF No. 69. The Court’s Order stated it will “re-set the filing 26 deadline after it rules on Plaintiff’s motion for reconsideration.” Id. 27 On September 14, 2018, the Ninth Circuit dismissed Plaintiff’s appeal for lack of 28 jurisdiction. ECF No. 81. On February 25, 2019, this Court denied Plaintiff’s Motion for 1 Reconsideration, see ECF No. 89, which Plaintiff appealed on March 11, 2019. See ECF 2 No. 91. The Ninth Circuit dismissed Plaintiff’s appeal on November 7, 2019. See ECF 3 Nos. 104–05. Now that Plaintiff’s motion for reconsideration is fully resolved, the Court 4 resets the time in which Plaintiff may file a second amended complaint as outlined herein. 5 See supra page 12. 6 III. The Instant Motion 7 The instant Motion, accepted nunc pro tunc to March 7, 2019, see ECF No. 94, seeks 8 an order stopping CDCR from removing and/or destroying “all law books once protected 9 by the Gilmore v. Lynch . . . injunction.” See Mot. at 3 (citing Gilmore, 319 F. Supp. 105 10 (N.D. Cal. 1970). Plaintiff seeks to stop “Defendant Kernan and/or his agents from 11 ignoring [the] clearly established ruling.” Id. at 4. Plaintiff contends CDCR’s promulgated 12 regulations and the underlying Gilmore decision continue to impose a “non-discretionary 13 duty . . . not to destroy or remove the law books in its prisons.” Id. at 3 (citing Murphy v. 14 Smith, 583 U.S. ___, 138 S. Ct. 784, 787 (2017)). 15 To support the Motion, Plaintiff attaches the following exhibits: an Inmate 602 16 Appeal (the “602 Appeal”) concerning Centinela’s law library resources; a First-Level 17 Appeal Response (the “Response”) executed by a supervisor at Centinela, including a copy 18 of a news release cited within the Response pertaining to termination of the Gilmore 19 injunction; Plaintiff’s appeal of the Response; and various provisions from the California 20 Code of Regulations pertaining to prison law libraries and the resources provided within 21 the libraries. See Mot Exs. 0–3 at 7–22; see also 15 C.C.R. § 3124. 22 Plaintiff submitted the 602 Appeal while housed at Centinela. Mot. Ex. 0 at 7–12. 23 The 602 Appeal requested, in part, legal materials from Sacramento and a case with key 24 numbers allowing Plaintiff to request additional cases pertaining to that key number topic. 25 Id. The 602 Appeal states that Centinela’s Senior Law Librarian advised Plaintiff that he 26 “could not ask for a case with key numbers.” Id. at 10; see also FAC at 33 ¶ 4 (“Centinela 27 State Prison Senior Librarian J. Roher . . . deprived [Plaintiff] of the right to use legal 28 resource material to conduct meaningful and timely research to prepare his legal 1 material.”). Centinela’s Response stated, “West[l]aw is one publisher of cases and 2 Lexis[N]exis is another. Lexis and West both take case law as written . . . and add their 3 own annotations . . . [Plaintiff] is not entitled to one particular version of case law . . . so 4 we are not providing him the West version.” Mot. Ex. 1 at 14–15. 5 Plaintiff cites the 602 Appeal in the instant Motion. Plaintiff claims his 602 Appeal 6 requested Kernan and his staff to take notice of the Gilmore decision and its requirement 7 to provide law books to inmates. Mot. at 2; see also Ex. 0 at 10. The Response stated, 8 “[i]nitially law library books were to be physically kept until the year 2020, [but] each 9 institution was given the option to dispose of them earlier.” Mot. Ex. 1 at 15. Plaintiff 10 contends this Response establishes CDCR’s position that it may “remove and destroy all 11 law books in its institutions” in violation of Gilmore. Mot. at 2–3; Mot. Ex. 1 at 14–15. 12 Plaintiff appealed the Response on February 12, 2019, arguing Gilmore requires law books 13 to remain in prison libraries. Mot. Ex. 0 at 9. 14 LEGAL STANDARD 15 “A preliminary injunction is an extraordinary remedy never awarded as of right.” 16 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (internal citation omitted). 17 Indeed, it may only be awarded upon a “clear showing that the plaintiff is entitled to such 18 relief.” Id. at 22 (citation omitted); see also Lopez v. Brewer, 680 F.3d 1068, 1072 (9th 19 Cir. 2012) (it is movant’s burden of persuasion to make a clear showing of entitlement to 20 preliminary injunctive relief) (citation omitted). When a request for injunctive relief 21 against a government agency is involved, the Court must also “observe the requirement 22 that the government be granted the widest latitude in the dispatch of its own affairs.” 23 Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (internal quotations and citations 24 omitted); see also Lewis v. Casey, 518 U.S. 343, 349 (1996) (it is not the Court’s role to 25 shape government institutions to comply with the laws and Constitution). 26 A threshold requirement for preliminary injunctive relief is “a relationship between 27 the injury claimed in the motion for injunctive relief and the conduct asserted in the 28 underlying complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 1 631, 636 (9th Cir. 2015). A sufficient nexus between the injury claimed in the motion and 2 complaint exists when the “preliminary injunction would grant relief of the same character 3 as that which may be granted finally.” Id. (citing De Beers Consol. Mines v. U.S., 325 U.S. 4 212, 220 (1989)). Notably, there is no basis to grant an injunction when the injunction 5 “deals with a matter lying wholly outside the issues in the suit.” De Beers, 325 U.S. at 220. 6 As to the merits of a motion for preliminary injunctive relief, the party seeking relief 7 must demonstrate four factors: “[plaintiff] is likely to succeed on the merits, that he is 8 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 9 equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. 10 at 20; see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing 11 Winter, supra). In circumstances where the moving party is incarcerated, the well- 12 established standard for injunctive relief must be viewed in conjunction with the 13 requirements of the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626. Before 14 granting any prospective relief under the PLRA, the Court must find that the prospective 15 relief is “narrowly drawn, extends no further than necessary to correct the violation of the 16 Federal right, and is the least intrusive means necessary to correct the violation of the 17 Federal right.” See 18 U.S.C. § 3626(a)(1). In doing so, the Court must also give 18 “‘substantial weight to any adverse impact on public safety or the operation of a criminal 19 justice system caused by the relief.’” See Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 20 1998) (citing 18 U.S.C. § 3626(a)(1)). While the PLRA affects the type of prospective 21 relief the Court may award, “it has not substantially changed the threshold findings and 22 standards required to justify an injunction.” Gomez, 255 F.3d at 1129. 23 ANALYSIS 24 I. Authority to Seek Class-Wide Injunctive Relief 25 As an initial matter, Plaintiff’s Motion seeks broad, generalized relief to enjoin 26 CDCR “from destroying and/or removing all law books from its prison libraries.” Mot. at 27 4. Plaintiff claims “other prisoners from Calipatria, Centinela Facility ‘C,’ North Kern 28 / / / 1 State Prison and Solano . . . have stated that the prison libraries are removing all law 2 books.” Id. at 2. 3 The Court’s screening order on Plaintiff’s original Complaint cautioned Plaintiff that 4 he has no authority to seek class-wide relief. See ECF No. 6 at 7–8. To be sure, “[a] litigant 5 appearing in propria persona has no authority to represent anyone other than himself.” 6 Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962); see also Oxendine v. Williams, 7 509 F.2d 1405–07 (4th Cir. 1975) (“It is plain error to permit [an] imprisoned litigant who 8 is unassisted by counsel to represent his fellow inmates in a class action.”)McShane v. 9 United States, 366 F.2d 286 (9th Cir. 1966) (privilege to appear without counsel is personal 10 to the litigant). Consequently, Plaintiff’s request for broad, generalized injunctive relief 11 across all prison law libraries must be denied. See Spence v. Beard, No. 2:16-cv-1828- 12 KJN-P, 2017 WL 896293, at *3 (E.D. Cal. Mar. 6, 2017) (dismissing pro se prisoner’s 13 attempt to bring class action challenging content of CDCR’s law library). 14 II. Mootness 15 Before considering the merits to a request injunctive relief, the Court must find a 16 nexus between the injury claimed in the underlying motion and the conduct alleged in 17 underlying complaint. Pac. Radiation Oncology, 810 F.3d at 636. In considering this 18 issue, the mootness of Plaintiff’s request for relief becomes apparent, as CDCR transferred 19 Plaintiff from Centinela to Solano during the pendency of this litigation.4 20 At the time Plaintiff filed his First Amended Complaint, Plaintiff was housed at 21 Centinela. FAC at 1. Claim Five—the only surviving cause of action pertaining to the 22 adequacy of the prison’s law library—is predicated upon the collective conduct of 23 Centinela staff members and alleged violations of Plaintiff’s constitutional rights that 24 occurred while Plaintiff was housed at Centinela. Id. at 32–39. This includes an allegation 25 26 27 4 Plaintiff filed an ex parte letter advising the Court of his February 13, 2019 transfer to Solano. See ECF No. 88. On February 28, 2019, Plaintiff filed a Notice of Change of Address containing his Solano 28 1 that Centinela’s Senior Librarian deprived Plaintiff of the right to conduct meaningful and 2 timely research, id. at 33 ¶ 4, as well as generalized allegations of harm relating to the 3 conduct of former CDCR Secretary, Defendant Beard, who allegedly approved the 4 amendment of regulations pertaining to CDCR’s law library resources. Id. at 7, 32–33. As 5 to the First Amended Complaint’s requested relief, Plaintiff seeks an injunction requiring 6 Defendant Beard to renew orders of law library resources, restore Westlaw access, and 7 “[e]nsure that there are enough books[,] . . . computers[,] or a combination of both in ALL 8 law libraries within CDCR.” Id. at 46. The instant Motion seeks the same relief. See Mot. 9 at 4. While the requisite nexus between the relief requested in the First Amended 10 Complaint and the underlying Motion is established, the Court must consider the mootness 11 of Plaintiff’s request for relief given Plaintiff’s transfer to Solano during the pendency of 12 the litigation. 13 As set forth in Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 1995), “[a]n inmate’s release 14 from prison while his claims are pending generally will moot any claims for injunctive 15 relief relating to the prison’s policies unless the suit has been certified as a class action.” 16 Id. at 1368. In Dilley, the district court granted injunctive relief requiring Calipatria to 17 improve a prisoner’s access to its law library. Id. at 1367. On appeal, the Ninth Circuit 18 found the prisoner’s case moot because the prisoner had been transferred from Calipatria 19 to another California state prison. Id. at 1368. Although the prisoner argued the issue as 20 “capable of repetition, yet evading review,” the Ninth Circuit disagreed. Id. The Court 21 cited numerous cases involving access to law library claims to determine these claims 22 generally do not evade review. Id. at 1369. The Court also found the prisoner’s claim that 23 he may be transferred back to Calipatria sometime in the future as too speculative to avoid 24 application of the mootness doctrine. Id. 25 Here, the entirety of Claim Five is predicated upon alleged violations of Plaintiff’s 26 constitutional rights that occurred while Plaintiff was housed at Centinela. FAC at 32–39. 27 Yet Plaintiff is presently housed at Solano, and he was housed there at the time of filing 28 the instant Motion. Mot. at 1; see also ECF Nos. 88, 90. Given that the instant litigation 1 has not been certified as a class action, Plaintiff’s claim for injunctive relief as it pertains 2 to Centinela is now moot. Dilley, 64 F.3d at 1368. 3 III. Likelihood of Success on the Merits 4 Even if Plaintiff’s Motion could withstand the overbreadth and mootness issues 5 outlined above, see supra Sections I, II, Plaintiff has failed to carry his burden in 6 demonstrating a likelihood of success on the merits. The threshold Winter factor for 7 demonstrating entitlement to injunctive relief—likelihood of success on the merits—is the 8 most important factor. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citation 9 omitted). To the extent a plaintiff fails to show a likelihood of success on the merits, the 10 Court need not consider the remaining three factors. Id. (citation omitted). 11 Here, Plaintiff’s Motion vaguely contends CDCR must be stopped from destroying 12 law books that were once protected by an injunction in Gilmore. Mot. at 4; see also 13 Gilmore, 319 F. Supp. 105. But, this claim by itself lacks merit. Gilmore involved a 14 challenge to regulations “restricting access to law books, legal materials, and lay assistance 15 in preparing filings.” Gilmore v. People, 220 F.3d 987, 992 (9th Cir. 2000). In 1972, the 16 district court approved proposed regulations requiring CDC to offer a comprehensive list 17 of materials. Id. at 994. The district court retained jurisdiction over the 1972 injunction 18 until it granted defendant’s motion to terminate the injunction and the court’s jurisdiction 19 on April 20, 2010. Corral v. Yates, No. 1:10-cv-01341-SKO-HC, 2011 WL 3925131, at 20 *4 (E.D. Cal. Sept. 7, 2011) (citing Gilmore v. Lynch, No. 3:66-cv-45878-SI (N.D. Cal. 21 Apr. 20, 2010), ECF No. 321). Thus, Gilmore is no longer pending. Id. 22 Insofar as Plaintiff’s Motion alleges deficiencies in CDCR’s law library resources 23 alone violate his right of access to the courts, he is mistaken. The fundamental right of 24 access to the courts requires prisons to “assist inmates in the preparation and filing of 25 meaningful legal papers by providing prisoners with adequate law libraries or adequate 26 assistance from persons trained in the law,” Bounds v. Smith, 430 U.S. 817, 828 (1977), 27 abrogated in part on other grounds by Lewis v. Casey, 518 U.S. 343 (1996); however, this 28 fundamental right does not grant inmates the right to a law library or legal assistance, which 1 are merely a means of ensuring access to the courts. Lewis, 518 U.S. at 351. While this 2 right of access to the courts requires inmates be given the opportunity to attack their 3 sentences and conditions of confinement, it does not guarantee inmates the ability to 4 “transform themselves into litigating engines capable of filing everything from shareholder 5 derivative actions to slip-and-fall claims.” Id. at 355. Indeed, the right does not guarantee 6 a prisoner the ability to effectively litigate once in court. Id. at 354. 7 A prisoner claiming denial of his right of access to the courts must establish he 8 suffered an actual injury, which is “actual prejudice with respect to contemplated or 9 existing litigation, such as the inability to meet a filing deadline or present a claim.” Lewis, 10 518 U.S. at 348 (citation and internal quotations marks omitted). Actual injury is a standing 11 requirement that cannot be waived; speculative injury does not vest standing. Id. at 349; 12 351–52. Actual injury cannot be established merely by claiming the prison’s law library 13 “is subpar in some theoretical sense[;]” rather, the inmate must demonstrate the alleged 14 shortcomings in the library “hindered his efforts to pursue a legal claim.” Id. at 351; see 15 also Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (explaining that “[f]ailure to 16 show a non-frivolous legal claim has been frustrated is fatal” to a claim for denial of access 17 to legal materials) (citing Lewis, 518 U.S. at 353 n.4). For example, a prisoner may 18 demonstrate actual injury if he is “so stymied by inadequacies of the law library that he [is] 19 unable even to file a complaint.” Lewis, 518 U.S. at 351. 20 Here, Plaintiff’s own Motion reveals that he has access to legal research resources. 21 See Mot. at 1–4; Mot. Ex. 3 at 19–22. Further, the docket reveals Plaintiff has been able 22 to file several pleadings and motions without impediment. See ECF Nos. 8, 18, 20, 38, 39, 23 55, 58, 63, 64, 71, 74. While Plaintiff may prefer certain legal resources, Plaintiff’s Motion 24 has not alleged that this caused an inability to attack his sentence or conditions of 25 confinement. See Lewis, 518 U.S. at 356. Absent any showing of actual injury within 26 Plaintiff’s moving papers, Plaintiff has failed to demonstrate a likelihood of success on the 27 merits on his access-to-court cause of action. Lewis, 518 U.S. at 348–52. As such, it is 28 unnecessary to consider the three remaining Winter factors for preliminary injunctive 1 relief, Garcia, 786 F.3d at 740, and Plaintiff’s request for preliminary injunctive relief is 2 || denied. 3 CONCLUSION 4 Based on the foregoing, the Court DENIES WITHOUT PREJUDICE □□□□□□□□□□□ 5 || Motion for Preliminary Injunctive Relief and GRANTS Plaintiff forty-five (45) days from 6 ||the date on which this Order is electronically docketed to file a Second Amended 7 ||Complaint to cure the deficiencies regarding Plaintiff's claims against Defendant Kernan 8 noted in the Court’s July 11, 2018 Order. ECF Nos. 61, 69. Plaintiff is cautioned that, 9 should he choose to file a Second Amended Complaint, it must be complete by itself and 10 ||comply with Federal Rule of Civil Procedure 8(a) and that any claim not re-alleged will be 11 ||}considered waived—regardless whether that claim is against any or all Defendants. See 12 || Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (noting that claims 13 ||dismissed with leave to amend which are not realleged in an amended pleading may be 14 ||“considered waived if not repled”’). If Plaintiff chooses not to file a Second Amended 15 |}Complaint within forty-five (45) days, the case will proceed on Plaintiff's remaining 16 || claims, i.e., Claims 2 through 5 against all Defendants except Defendant Kernan. 17 IT ISSO ORDERED. 18 19 ||Dated: March 16, 2020 . tt 20 pee Janis L. Sammartino United States District Judge 22 23 24 25 26 27 28 12