Swan v. R. J. Donovan C.F.

• Court: District Court, S.D. California
• Decided: November 24, 2021
• Docket: 3:21-cv-01455
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARCUS ANTHONY SWAN, Case No.: 21-cv-01455-JLS-MDD CDCR #BI-4007, 12 ORDER: Plaintiff, 13 v. (1) GRANTING LEAVE TO 14 PROCEED IN FORMA PAUPERIS; R.J. DONOVAN C.F., Correctional 15 AND Institution; M. POLLARD, Institution

16 Warden; M.A. GLYNN, Institution (2) DISMISSING COMPLAINT FOR C.E.O.; DEPARTMENT OF 17 FAILING TO STATE A CLAIM REHABILITATION, Department of PURSUANT TO 28 U.S.C. 18 Corrections, § 1915(e)(2)(B) AND 19 Defendants. 28 U.S.C. § 1915A(b)

20 [ECF Nos. 2; 3] 21 22 On August 13, 2021, pro se Plaintiff Marcus Anthony Swan, while incarcerated at 23 Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, filed a civil 24 rights complaint pursuant to 42 U.S.C. § 1983. (See ECF No. 1 (“Compl.”) at 1.) Plaintiff 25 did not prepay the civil filing fee required by 28 U.S.C. § 1914(a). Instead, he filed a Prison 26 Certificate and CDCR Inmate Statement Report. (ECF Nos. 2; 3.) The Court liberally 27 construes these filings as a request for leave to proceed in forma pauperis (“IFP”) pursuant 28 to 28 U.S.C. § 1915(a). 1 LEAVE TO PROCEED IN FORMA PAUPERIS 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners, however. 8 If granted leave to proceed IFP, prisoners nevertheless remain obligated to pay the entire 9 fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams 10 v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether their actions are 11 dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 12 F.3d 844, 847 (9th Cir. 2002). 13 To qualify, § 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 14 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly balance 19 in the account for the past six months, whichever is greater, unless the prisoner has no 20 assets. See 28 U.S.C. §§ 1915(b)(1) & (4). The institution having custody of the prisoner 21 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 22 any month in which his account exceeds $10, and forwards those payments to the Court 23 until the entire filing fee is paid. See id. § 1915(b)(2); Bruce, 577 U.S. at 84. 24

25 26 1 In addition to the $350 statutory fee, civil litigants must pay a $52 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. 27 Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not apply to 28 persons granted leave to proceed IFP. Id. 1 Plaintiff has submitted Prison Certificates and certified copies of his CDCR Inmate 2 Statement Reports covering January through August 16, 2021. (See ECF Nos. 2 at 1‒3; 3 3 at 1‒3.) These documents show that Plaintiff carried an average monthly balance of $4.47, 4 had an average monthly deposit of $4.40 to his account over the 6-month period 5 immediately preceding the filing of his Complaint, and had an available balance of $7.34 6 at the time of filing. (ECF No. 3 at 1, 3.) 7 Based on this accounting, the Court GRANTS Plaintiff leave to proceed IFP and 8 assesses an initial partial filing fee of $.89 pursuant to 28 U.S.C. § 1915(b)(1). However, 9 this initial fee need be collected only if sufficient funds are available in Plaintiff’s account 10 at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 11 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 12 or criminal judgment for the reason that the prisoner has no assets and no means by which 13 to pay the initial partial filing fee”); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (finding 14 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 15 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when 16 payment is ordered”). The remaining balance of the $350 fee owed in this case must be 17 collected by the Secretary of the California Department of Corrections and Rehabilitation 18 (“CDCR”), or any subsequent agency having custody of Plaintiff, and forwarded to the 19 Clerk of the Court pursuant to the installment payment provisions set out in 28 U.S.C. 20 § 1915(b)(2). 21 SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 22 I. Legal Standards 23 A. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 24 Because Plaintiff is a prisoner, his Complaint requires pre-answer screening 25 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these statutes, the Court 26 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it that is frivolous, 27 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 28 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 1 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 2 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous 3 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 4 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 5 680, 681 (7th Cir. 2012)). 6 “The standard for determining whether a plaintiff has failed to state a claim upon 7 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 8 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 9 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 10 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 11 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12 12(b)(6)”). Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to 13 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 14 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); 15 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare 16 recitals of the elements of a cause of action, supported by mere conclusory statements, do 17 not suffice.” Iqbal, 556 U.S. at 678. 18 The court “ha[s] an obligation where the petitioner is pro se, particularly in civil 19 rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of 20 any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. 21 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). However, the court may not “supply 22 essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. 23 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 24 B. 42 U.S.C. § 1983 25 “Section 1983 creates a private right of action against individuals who, acting under 26 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 27 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “‘is not itself a source of substantive 28 rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” 1 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (quoting Baker v. McCollan, 443 U.S. 2 137, 144 n.3 (1979)). “To establish § 1983 liability, a plaintiff must show both (1) 3 deprivation of a right secured by the Constitution and laws of the United States, and (2) 4 that the deprivation was committed by a person acting under color of state law.” Tsao v. 5 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 6 II. Plaintiff’s Allegations 7 In his Complaint, Plaintiff claims that at some unspecified time, Defendant CDCR 8 “agreed to an order” that prohibits it from “housing people with disabilities who have not 9 tested positive in unit[s] with people who have confirmed, active COVID-19,” and requires 10 it to provide accessible housing “for those on medical isolation or quarantine.” (Compl. at 11 3.) Because he suffers from several underlying medical conditions,2 including diabetes, 12 hypertension, and hypercholesterolemia, Plaintiff “asked the institu[t]e to be release[d] so 13 that [he] wouldn’t get infected.” (Id. at 4.) However, RJD “disapproved [his] group 6023 14 15 16 17 2 In the portion of his form Complaint entitled “Causes of Action,” Plaintiff cites the 18 “Armstrong” case. (Compl. at 3.) Armstrong v. Wilson is a class action pending in the United States District Court for the Northern District of California that involves a “certified 19 class of all present and future California state prison inmates and parolees with disabilities 20 [who] sued California state officials in their official capacities, seeking injunctive relief for violations of the R[ehabilitation] A[ct] and the ADA in state prisons.” 124 F.3d 1019, 1021 21 (9th Cir. 1997). Although Plaintiff claims that he has several underlying medical 22 conditions, he does not allege that he is a class member in Armstrong or otherwise explain how or why Armstrong is relevant to his claims in this case. 23 3 In his Complaint, Plaintiff refers both to “group” and “medical 602” requests and/or 24 appeals. (See Compl. at 3–4.) To submit an administrative grievance regarding “an adverse policy, decision, action, condition, or omission by the Department,” California 25 prisoners must “(1) type or print legibly on an official form CDCR 602-1 (03/20).” Cal. 26 Code Regs. tit. 15, § 3482(b), (c) (2020). To grieve a healthcare issue, a prisoner submits a CDCR Form 602 HC and “explain[s] the decision, action, condition, omission, policy, or 27 regulation that has had a material adverse effect upon [his] health and welfare for which 28 [he] seek[s] administrative remedy.” 15 Cal. Code Regs. §§ 3999.226, 3999.277(a) (2019). 1 request asking for aggressive[] release of all vulnerable [and] elderly with underlying 2 medical condition[s].” (Id.) 3 On June 5, 2020, Plaintiff claims to have contracted COVID-19 from his cellmate. 4 (Id. at 3–4.) He alleges that “no medical intervention w[as] ever immediately undertaken” 5 and claims that he still has “trouble breathing”; feels weak, tired, and sore; has experienced 6 numbness and burning sensations in his feet; is “getting confused often”; and has short- 7 term memory problems. (Id. at 4.) Plaintiff further alleges that a “doctor proclaimed that 8 [he is] okay” and that he exhausted “all medical 602[s],” and that therefore, the “medical 9 staff at [RJD] were aware of what they were doing on 12/21/2020.”4 (Id.) 10 Plaintiff claims that RJD Warden M. Pollard and M.A. Glynn, the “C.E.O.” of RJD, 11 violated his Eighth Amendment rights because they “were fully aware of the … prison 12 conditions and the dangers of [COVID-19], . . . yet still [failed] to keep the population 13 safe.” (Id. at 4–5, 7.) Plaintiff seeks $1.6 billion in damages. (Id. at 7.) 14 A. Eighth Amendment & Personal Liability: Defendants Pollard & Glynn 15 As a preliminary matter, the Court finds that Plaintiff’s Complaint fails to state any 16 plausible claim for relief against either Warden Pollard or C.E.O. Glynn. As Warden and 17 C.E.O., Plaintiff alleges only that both these officials “were aware of the dangers of 18 [COVID-19]” but failed to prevent his infection. (Id. at 2.) 19 Because “vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead 20 that each Government-official defendant, through the official’s own individual actions, has 21 violated the Constitution.” Iqbal, 556 U.S. at 676; accord Palmer v. Sanderson, 9 F.3d 22 1433, 1437–38 (9th Cir. 1993) (noting there is no respondeat superior liability under 42 23 24 25 4 Plaintiff has not named any RJD medical care officials as defendants and does not 26 explain why or how the unidentified medical staff’s December 2020 knowledge of his medical condition, COVID-19 complications, or course of care after he alleges to have 27 contracted the disease from his cellmate on June 5, 2020, is related to his Eighth 28 Amendment conditions of confinement claims against Defendants Pollard or Glynn. 1 U.S.C. § 1983). Supervisory officials like Pollard and Glynn may only be held liable under 2 § 1983 if Plaintiff alleges their “personal involvement in the constitutional deprivation, or 3 . . . a sufficient causal connection between [their] wrongful conduct and the constitutional 4 violation.” Keates v. Koile, 883 F.3d 1228, 1242‒43 (9th Cir. 2018); Starr v. Baca, 652 5 F.3d 1202, 1207 (9th Cir. 2011). In other words, “a supervisor is liable for the acts of his 6 subordinates ‘if the supervisor participated in or directed the violations, or knew of the 7 violations of subordinates and failed to act to prevent them.’” Corales v. Bennett, 567 F.3d 8 554, 570 (9th Cir. 2009) (quoting Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 9 1175, 1182 (9th Cir. 2007)). Plaintiff’s Complaint, however, “pleads no factual content 10 that allows the [C]ourt to draw the reasonable inference that [either Pollard or Glynn] [are] 11 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Complaint includes no 12 specific factual allegations with respect to either Pollard or Glynn and does not describe 13 what either of them either did, or failed to do, with respect to Plaintiff’s housing, health, 14 safety, or medical treatment. 15 Further, “[t]he Eighth Amendment does not outlaw cruel and unusual ‘conditions’; 16 it outlaws cruel and unusual ‘punishments.’” Farmer v. Brennan, 511 U.S. 825, 837 17 (1994). Thus, to be held personally liable for Plaintiff’s injuries under the Eighth 18 Amendment, Plaintiff must specifically allege that Defendants Pollard and Glynn acted 19 with deliberate indifference to a serious risk to Plaintiff’s health or safety. Castro v. County 20 of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016). “A prison official acts with 21 ‘deliberate indifference . . . only if [he] knows of and disregards an excessive risk to inmate 22 health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting 23 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other 24 grounds by Castro, 833 F.3d at 1076). “Under this standard, the prison official must not 25 only ‘be aware of facts from which the inference could be drawn that a substantial risk of 26 serious harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting Farmer, 27 511 U.S. at 837). Thus, even “[p]rison official[s] who actually kn[o]w of a substantial risk 28 /// 1 to inmate health or safety may be found free from liability if they respond[] reasonably to 2 the risk, even if the harm ultimately [i]s not averted.” Farmer, 511 U.S. at 844. 3 The Court acknowledges that COVID-19 poses a substantial risk of serious harm. 4 See Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. 2020) (“[N]o one questions that 5 [COVID-19] poses a substantial risk of serious harm [to prisoners].”). However, to plead 6 a viable Eighth Amendment claim, Plaintiff must provide more than conclusory statements 7 that supervisory prison officials did not do enough to control the spread of the disease 8 within the entire prison. See Iqbal, 556 U.S. at 678. In situations where the challenged 9 “conduct is harmful enough to satisfy the objective component of an Eighth Amendment 10 claim, whether it can be characterized as ‘wanton’ depends upon the constraints facing the 11 official.” Wilson v. Seiter, 501 U.S. 294, 303 (1991). Because only the “‘unnecessary and 12 wanton infliction of pain’ implicates the Eighth Amendment,” prisoners alleging cruel and 13 unusual punishment must plead some factual content to plausibly suggest each defendant 14 acted with a “sufficiently culpable state of mind.” Id. at 297 (emphasis omitted) (citations 15 omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)); see also Blackwell v. 16 Covello, No. 2:20-CV-1755 DB P, 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021) 17 (finding that the prisoner plaintiff failed to state a claim against the warden for failure to 18 adequately control the spread of COVID-19 in the prison); Booth v. Newsom, No. 2:20-cv- 19 1562 AC P, 2020 WL 6741730, at *3 (E.D. Cal. Nov. 17, 2020) (sua sponte dismissing 20 Eighth Amendment claims against the Governor for “failing to provide adequate means for 21 prisoners to reduce their exposure to COVID-19”). Plaintiff’s Complaint is devoid of facts 22 sufficient to plausibly suggest that either Warden Pollard or C.E.O. Glynn were personally 23 aware of his underlying medical vulnerabilities or that his cellmate had tested positive for 24 COVID-19. See also Farmer, 511 U.S. at 838 (“[A]n official’s failure to alleviate a 25 significant risk that he should have perceived but did not, while no cause for 26 commendation, cannot under our cases be condemned as the infliction of punishment.”). 27 Although Federal Rule of Civil Procedure 8 “does not require ‘detailed factual 28 allegations,’” it does “demand[] more than an unadorned, the-defendant-unlawfully- 1 harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 555 (2007)). In order “[t]o survive a motion to dismiss, a complaint must 3 contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible 4 on its face.’” Id. (citing Twombly, 550 U.S. at 570). Here, as currently pleaded, nothing 5 in the Complaint plausibly suggests that Defendants Pollard or Glynn “through his own 6 individual actions, . . . violated the Constitution.” Id. at 676; see also Jones v. Cmty. Redev. 7 Agency of City of L.A., 733 F.2d 646, 649 (9th Cir. 1984) (stating that even a pro se plaintiff 8 must “allege with at least some degree of particularity overt acts which defendants engaged 9 in” in order to state a claim); Benitez v. Sierra Conservation Ctr., No. 1:21-CV-00370- 10 BAM PC, 2021 WL 4077960, at *6 (E.D. Cal. Sept. 8, 2021) (“In order to state a cognizable 11 Eighth Amendment claim against the warden and the Health Executive Officer, Plaintiff 12 must provide more than generalized allegations that the warden and the Health Executive 13 Officer have not done enough regarding control the spread [of COVID-19].”), adopted by 14 2021 WL 4593841 (E.D. Cal. Oct. 6, 2021). 15 For the foregoing reasons, Plaintiff’s Eighth Amendment claims against Defendants 16 Pollard and Glynn must be dismissed sua sponte for failing to state a claim upon which 17 § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 18 B. Eleventh Amendment Immunity: RJD & CDCR 19 To the extent Plaintiff is attempting to sue RJD and CDCR, his claims are barred by 20 the Eleventh Amendment. “The Eleventh Amendment bars suits for money damages in 21 federal court against a state, its agencies, and state officials acting in their official 22 capacities.” Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Indeed, 23 the Eleventh Amendment prohibits federal courts from hearing a § 1983 lawsuit in which 24 damages or injunctive relief is sought against a state, its agencies (such as CDCR) or 25 individual prisons (such as RJD), absent “a waiver by the state or a valid congressional 26 override.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The Eleventh 27 Amendment bars suits [that] seek either damages or injunctive relief against a state, an arm 28 of the state, its instrumentalities, or its agencies.” See Fireman’s Fund Ins. Co. v. City of 1 Lodi, 302 F.3d 928, 957 n.28 (9th Cir. 2002) (quoting Franceschi v. Schwartz, 57 F.3d 828, 2 831 (9th Cir. 1995)). “The State of California has not waived its Eleventh Amendment 3 immunity with respect to claims brought under § 1983 in federal court.” Dittman, 191 F.3d 4 at 1025–26 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also 5 Brown v. Cal. Dep’t. of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (finding CDCR and 6 California Board of Prison Terms entitled to Eleventh Amendment immunity). 7 Because both RJD and CDCR are not “persons” subject to suit under § 1983, and 8 are instead agencies of the State of California, both are immune from suit under the 9 Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 10 (1984) (holding that Eleventh Amendment immunity extends to state agencies); Hale v. 11 Arizona, 993 F.2d 1387, 1398‒99 (9th Cir. 1993) (holding that a state department of 12 corrections is an arm of the state, and thus, not a “person” within the meaning of 13 § 1983); Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001) (“[T]he State is not a 14 ‘person’ for purposes of § 1983.”); see also Dragasits v. California, No. 3:16-cv-01998- 15 BEN-JLB, 2016 WL 680947, at *3 (S.D. Cal. Nov. 15, 2016) (“The State of California’s 16 Department of Corrections and Rehabilitation and any state prison, correctional agency, 17 sub-division, or department under its jurisdiction, are not ‘persons’ subject to suit under 18 § 1983.”). 19 C. Leave to Amend 20 For the reasons discussed above, the Court finds that the Complaint fails to state any 21 § 1983 claim upon which relief can be granted and dismisses it sua sponte pursuant to 28 22 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 23 680 F.3d at 1121. However, the Court will grant Plaintiff leave to amend. See Rosati v. 24 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 25 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it 26 is absolutely clear that the deficiencies of the complaint could not be cured by 27 amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))). 28 /// 1 CONCLUSION 2 For the foregoing reasons, the Court: 3 (1) GRANTS Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. 4 § 1915(a) (ECF Nos. 2; 3); 5 (2) ORDERS the Secretary of the CDCR, or her designee, to collect from 6 Plaintiff’s trust account the $.89 initial filing fee assessed, if those funds are available at 7 the time this Order is executed, and to forward whatever balance remains of the full $350 8 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 9 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 10 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY 11 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION; 12 (3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 13 on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283- 14 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov; 15 (4) DISMISSES the Complaint sua sponte and in its entirety based on Plaintiff’s 16 failure to state a claim upon which relief may be granted and pursuant to 28 U.S.C. 17 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); and 18 (5) GRANTS Plaintiff sixty (60) days’ leave from the date on which this Order 19 is filed to file an amended complaint that cures all the deficiencies of pleading noted above. 20 The amended complaint must be clearly titled “Amended Complaint,” include Civil Case 21 No. 21-CV-1455 JLS (MDD) in its caption, and must be complete by itself without 22 reference to the original Complaint. Defendants not named and any claims not re-alleged 23 in the amended complaint will be considered waived. See CivLR 15.1; see also Hal Roach 24 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 25 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 26 (9th Cir. 2012) (noting that claims dismissed with leave to amend that are not re-alleged in 27 an amended pleading may be “considered waived if not repled”). 28 /// 1 If Plaintiff fails to file an amended complaint within 60 days, the Court will enter a 2 || final Order dismissing this civil action based both on his failure to state a claim upon which 3 || relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his failure to 4 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 5 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 6 ||to fix his complaint, a district court may convert the dismissal of the complaint into 7 || dismissal of the entire action.”). 8 IT IS SO ORDERED. 9 Dated: November 24, 2021 . tt 10 jen Janis L. Sammartino United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 oe