Torbert v. Romo

• Court: District Court, S.D. California
• Decided: September 26, 2022
• Docket: 3:22-cv-00925
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAVON LAMAR TORBERT, Case No.: 3:22-cv-0925-CAB-BLM CDCR #BS-0606, 12 ORDER (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS; AND (2) 14 SCREENING COMPLAINT CORPORAL ROMO, San Diego County 15 PURSUANT TO 28 U.S.C. § 1915(e)(2) Sheriff Badge No. 3261; DOES 1-25, AND28 U.S.C. § 1915A(b)(1) 16 Nurse and Medical Personnel;

DOES 1-25, Deputy Sheriffs, 17 [ECF No. 2] Defendants. 18 19 20 While he was incarcerated at North Kern State Prison (“NKSP”), Javon Lamar 21 Torbert (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C. § 1983.1 See ECF 22 No. 1 (“Compl.”). Plaintiff claims San Diego County Sheriff Department Corporal Romo, 23 and dozens of other unidentified George Bailey Detention Facility (“GBDF”) deputies and 24 medical officials identified only as Does, violated his constitutional rights on April 20, 25 2022, while he was in pretrial custody. Id. at 1‒3. 26

27 1 On July 11, 2022, Plaintiff filed a Notice of Change of Address noting his transfer to California Substance 28 1 Plaintiff did not pay the $402 civil and administrative filing fee required by 28 2 U.S.C. § 1914(a) to commence a civil action at the time he filed his Complaint. Instead, 3 he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 4 See ECF No. 2. 5 I. Motion to Proceed In Forma Pauperis 6 All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $402.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 10 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 11 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s 12 (“PLRA”) amendments to § 1915 require that all prisoners who proceed IFP to pay the 13 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016); 14 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their 15 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 16 F.3d 844, 847 (9th Cir. 2002). 17 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 18 of fees to file an affidavit that includes a statement of all assets possessed and demonstrates 19 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In 20 support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of 21 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 22 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 23 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 24 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 25

26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to proceed 28 1 for the past six months, or (b) the average monthly balance in the account for the past six 2 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 3 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 4 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 5 which his account exceeds $10, and forwards those payments to the Court until the entire 6 filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84. 7 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 8 Trust Account Statement Report as well as a Prison Certificate completed by an accounting 9 officer at NKSP. See ECF No. 2 at 4, 6; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 10 Andrews, 398 F.3d at 1119. Plaintiff’s Trust Account Statement Report shows he 11 maintained an average monthly balance of $6.83, and had average monthly deposits of 12 $5.67 credited to his account at NKSP over the 6-month period immediately preceding the 13 filing of his Complaint. His available balance at the time of filing was $10.99. See ECF 14 No. 2 at 4, 6. 15 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP and 16 assesses an initial partial filing fee of $1.36 pursuant to 28 U.S.C. § 1915(b)(1) [ECF No. 17 2]. However, this initial fee need be collected only if sufficient funds are available in 18 Plaintiff’s account at CSATF the time this Order is executed. See 28 U.S.C. § 1915(b)(4) 19 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or 20 appealing a civil action or criminal judgment for the reason that the prisoner has no assets 21 and no means by which to pay the initial partial filing fee.”); Bruce, 577 U.S. at 86; Taylor, 22 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 23 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of 24 funds available to him when payment is ordered.”). The remaining balance of the $350 25 total fee owed in this case must be collected by the agency having custody of Plaintiff and 26 forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2). 27 / / / 28 / / / 1 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 2 A. Standard of Review 3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a 4 preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 6 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 7 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 8 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en 9 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 10 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 11 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 12 903, 920 n.1 (9th Cir. 2014) (citation omitted). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 16 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 17 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 18 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6)”). 20 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain 21 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 22 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); 23 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare 24 recitals of the elements of a cause of action, supported by mere conclusory statements, do 25 not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the 26 petitioner is pro se, particularly in a civil rights case, to construe the pleadings liberally and 27 to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 28 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may 1 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents 2 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 B. Plaintiff’s Factual Allegations 4 On April 20, 2022, while housed at GBDF’s Facility-2B with 39 other pretrial 5 detainees,3 Plaintiff alleges San Diego Sheriff’s Department Corporal Romo entered the 6 quad with “2 additional inmates in tow,” and in an “aggressive/threatening manner,” 7 directed the detainees already housed there to “find beds” for the new people. See Compl. 8 at 3. Plaintiff claims he assisted, but only one available bunk was found. When Plaintiff 9 suggested Romo “try the next quad for bed space,” Romo angrily instructed Plaintiff to 10 remove his belongings and sleep on the floor. Plaintiff replied that he “ha[d] seizures 11 also,”4 to which Romo replied: “Fuck you. I’ll kick your ass.” Id. Plaintiff responded: 12 “I’m not worried about that.” Id. 13 In response, Plaintiff alleges Romo rapidly “launch[ed] a vicious attack,” and struck 14 him in the head and face with tight closed fists. Id. After he fell to the ground, Romo 15 “continued the assault by mounting [Plaintiff], … placing him in handcuffs,” and by 16 “repetitiously punching [him].” Id. Another inmate tried to pull Romo off Plaintiff, and 17 other inmates started to “yell for him to quit,” but “it wasn’t until the Corporal heard 18 responding staff coming that he stopped and lifted … Plaintiff up.” Id. at 8. Plaintiff claims 19 20 21 3 Because Plaintiff identifies himself as a pretrial detainee at the time of the incident, the Court presumes, 22 for purposes of initial screening only, that Plaintiff’s “excessive force; 4th Amendment” claims against Corporal Romo arise under the Fourteenth Amendment. See Compl. at 3; Kingsley v. Hendrickson, 576 23 U.S. 389, 397‒98 (2015) (“[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.”) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). Under 24 Kingsley, a pretrial detainee, unlike a convicted prisoner, need not prove that the defendant subjectively 25 knew that the force applied was excessive; that state-of-mind inquiry is “solely ... objective.” Id. at 397; Austin v. Baker, 616 F. App’x 365, 366 (9th Cir. 2015). 26 4 Later in his Complaint, Plaintiff claims he had a “lower/tier lower bunk chrono” at the time because he 27 had fallen from an upper bunk on March 17, 2022 due to “seizures and other disorders,” and had been “rushed to UCSD’s emergency department.” Id. at 10. 28 1 his nose and face were bleeding profusely. Id. Romo and Deputy Vo then escorted him 2 out of the 2B module, while Romo “continued to verbally threaten [him] until Deputy Vo 3 told the Corporal to ‘fall back!’” Id. 4 After Romo returned to the 2B module, Vo escorted Plaintiff to “medical” where he 5 claims numerous unidentified deputies “crowded around” and “intimidate[ed] [him] with 6 aggressive looks.” Id. at 8. After an unidentified nurse attempted to stop the bleeding from 7 his face and nose, another unidentified deputy took pictures of this injuries and escorted 8 him to the “6A AdSeg rec yard,” where he declined an unidentified sergeant’s request for 9 a statement “out of fear” and was placed in an empty cell until Deputy Vo later delivered 10 his belongings. Id. 11 Plaintiff claims he “pressed the intercom continuously throughout the ni[ght]” in an 12 attempt to get medical supplies “to no avail,” but admits he was examined by an 13 unidentified nurse practitioner two days later. Id. at 9. The nurse examined his “full 14 injuries,” ordered “pain meds,” ice for swelling, and X-rays. Id. 15 On April 23, 2022, Plaintiff alleges he woke with chest and “cardiac pain.” Id. He 16 claims he was “rushed” to the medical unit where he was diagnosed with an allergic 17 reaction to ibuprofen, which he claims the nurse practitioner had negligently “overlooked.” 18 Id. On April 25, 2022, Plaintiff was sent for X-rays of his hip, foot, and hand, but not his 19 face or head, so he filed a grievance. Id. On April 25, 2022, Plaintiff appeared before an 20 unidentified lieutenant about his “false imprisonment” as a result of a “bogus write-up” 21 regarding the April 20, 2022 incident. Id. The lieutenant provided Plaintiff with a 22 grievance and instructions on how to appeal. Id. On the next day, another nurse told 23 Plaintiff X-rays “would be ordered for a full facial,” but on April 27, 2022, Plaintiff was 24 transferred to CDCR custody, “while still in excruciating pain,” and without a “proper 25 diagnosis or medical care for his injuries from the Corporal.” Id. After his transfer, “CDCR 26 27 28 1 ordered full X-rays … of all injuries,” and on May 27, 2022, Plaintiff’s “fractures/cracks” 2 were confirmed, and he was “scheduled for ortho-specialist” and other “specialist 3 appointments.” Id. at 10. 4 Plaintiff attaches several San Diego County Sheriff’s Department Inmate 5 Grievance/Appeal of Discipline forms, a CDCR 602 Health Care Grievance, a Sheriff’s 6 Department Incident Report dated April 21, 2022, and the declarations of several GBDF 7 detainees who attest to have witnessed the beating in support of his Complaint. Id. at 11‒ 8 28. He seeks injunctive relief preventing the destruction of “any evidence from the events 9 of April 20, 2022,” as well as more than $1 million in general and punitive damages. See 10 id. at 3, 4, 7. 11 C. 42 U.S.C. § 1983 12 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 13 privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt 14 v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, Plaintiff must allege: (1) 15 that a right secured by the Constitution or laws of the United States was violated, and (2) 16 that the alleged violation was committed by a person acting under color of state law. West 17 v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th 18 Cir. 2006). Because Plaintiff alleges he was a pretrial detainee at GBDF at the time he was 19 injured by a San Diego County Sheriff Department Corporal assigned to his housing unit, 20 his allegations are sufficient to satisfy section 1983’s “under color of state law” 21 requirement. See Shah v. Cnty. of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986) (pretrial 22 detainee in county jail “need not show that the deputies acted specifically within the scope 23 of their authority to prove that they acted under color of law.”). 24 D. Doe Defendants 25 However, as an initial matter, Plaintiff fails to state a plausible claim for relief 26 against any of the unidentified San Diego Sheriff’s Department officials he describes as 27 “Does 1-25, Nurse/Medical Personnel” or Does 1-25, Deputy Sheriffs.” See Compl. at 2. 28 / / / 1 The Federal Rules of Civil Procedure do not authorize or prohibit the use of fictitious 2 parties, but Rule 10 does require a plaintiff to include the names of all parties in his 3 complaint. See Fed. R. Civ. P. 10(a).6 Therefore, in a section 1983 suit, the “plaintiff may 4 refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, 5 but he must [also] allege specific facts showing how each particular doe defendant violated 6 his rights.” Cuda v. Employees/Contractors/Agents at or OCCC, 2019 WL 2062945, at 7 *3–4 (D. Haw. May 9, 2019). 8 In this case, Plaintiff has not alleged a plausible claim for relief against anyone other 9 than Corporal Romo. Instead, he claims only that a group of unidentified “nurse/medical 10 personnel” at GBDF failed to exercise reasonable standards of care after he alleges 11 Corporal Romo attacked him, and another group of unidentified “deputy sheriffs” 12 “negligently failed to protect [him].” See Compl. at 2. He makes no specific allegations 13 against any individual unidentified medical Doe or deputy, fails to link any particular 14 constitutional violation to any specific, individual state actor besides Romo, and fails to 15 even minimally explain how any of the unidentified Does personally caused a violation of 16 his constitutional rights. See Iqbal, 556 U.S. at 677. “A plaintiff must allege facts, not 17 simply conclusions, t[o] show that [each defendant] was personally involved in the 18 deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); 19 see also Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 20 1999) (“Causation is, of course, a required element of a § 1983 claim.”). As it stands, 21 Plaintiff’s Complaint fails to plead [the] factual content that [would] allow[] the court to 22 23 24 6 Doe pleading is especially disfavored in an IFP case because in the event the Plaintiff’s Complaint 25 alleges a plausible claim for relief, it is effectively impossible for the United States Marshal or deputy marshal to fulfill his or her duty to serve an unnamed defendant. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. 26 § 1915(d); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to identify the 27 defendant.”); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764, at *6 (D. Haw. July 25, 2018) (noting that “[a]s a practical matter, the United States Marshal cannot serve a summons 28 1 draw the reasonable inference that [any unidentified Doe] defendant is liable for the 2 misconduct alleged.” Iqbal, 556 U.S. at 678. 3 Put another way, Plaintiff must, at minimum, allege some factual content to describe 4 how each individual person he seeks to sue violated the Constitution. Id. at 676‒77; Ewing 5 v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 6 934 (9th Cir. 2002). He does so with respect to his excessive force claims against Corporal 7 Romo; but he may not attribute additional liability to the amorphous groups of unidentified 8 “medical personnel” or “deputy sheriffs” as he has. See Compl. at 2; see also Leer v. 9 Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (plaintiffs must “set forth specific facts” as to 10 each individual defendant’s wrongdoing to hold each liable under § 1983); accord Taylor 11 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 12 Therefore, to the extent Plaintiff seeks to hold both the medical Does and the deputy 13 Does liable merely because they were employed at GBDF at the time he was injured, and 14 either failed to exercise reasonable care or protect him from harm, see Compl. at 2, his 15 claims are DISMISSED sua sponte for failing to state a claim pursuant to 28 U.S.C. 16 § 1915(e)(2)(B) and § 1915A(b)(1). See Wilhelm, 680 F.3d at 1121; Williams, 875 F.3d at 17 502. 18 E. Corporal Romo 19 As currently pleaded and as noted above, however, Plaintiff’s excessive force 20 allegations against Corporal Romo, arising on April 20, 2022, are sufficient to survive the 21 “low threshold” set for proceeding past the sua sponte screening required by 28 U.S.C. 22 §§ 1915(e)(2) and 1915A(b). See Iqbal, 556 U.S. at 678; Bell v. Wolfish, 441 U.S. 520, 23 535 (1979) (Due Process Clause of the Fourteenth Amendment prevents punishment of a 24 pretrial detainee prior to an adjudication of guilt); Kingsley v. Hendrickson, 576 U.S. 389 25 (2015) (“[T]he Due Process Clause protects a pretrial detainee from the use of excessive 26 force that amounts to punishment.”) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 27 (1989)). “[A] pretrial detainee must show … that the force purposely or knowingly used 28 against him was objectively unreasonable.” Id. at 396‒97. “A court (judge or jury) cannot 1 apply this standard mechanically.” Id. at 397. Rather, “details … matter[,]” and the inquiry 2 “requires careful attention to the facts and circumstances of each particular case.” 3 Lombardo v. City of St. Louis, Missouri, __ U.S. __, 141 S. Ct. 2239, 2241 (2021) (citation 4 omitted). Those circumstances include: “the relationship between the need for the use of 5 force and the amount of force used; the extent of the plaintiff’s injury; any effort made by 6 the officer to temper or to limit the amount of force; the severity of the security problem at 7 issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively 8 resisting.” Kingsley, 576 U.S. at 397. 9 Specifically, Plaintiff alleges Corporal Romo threatened to “kick [his] ass,” during 10 a verbal confrontation over bed space, “launch[ed] a vicious attack” on him by striking him 11 in the head and face, slammed him to the ground, mounted him, and continued to punch 12 him in the face and head even after he was cuffed. See Compl. at 3, 23‒28; see also Hyde 13 v. City of Willcox, 23 F.4th 863, 871 (9th Cir. 2022) (finding allegations that officers 14 employed a Taser and head restraint against a pretrial detainee who was already on his 15 knees, cuffed, and no longer posing a threat sufficient to state an excessive force claim 16 under Kingsley). These excessive force allegations are “sufficient to warrant ... an answer.” 17 Wilhelm, 680 F.3d at 1123. 18 F. Leave to Amend 19 Finally, while the Court has found Plaintiff’s Complaint fails to allege any plausible 20 claim for relief against any of the unidentified Does, it will also grant him leave to amend, 21 if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 22 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 23 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 24 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 25 Cir. 2012)). 26 / / / 27 / / / 28 / / / 1 III. Conclusion and Orders 2 For the reasons explained, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 2). 5 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from 6 Plaintiff’s trust account the $1.36 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 11 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 12 ACTION. 13 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 14 on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283- 15 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 16 4. DISMISSES all claims against Defendant DOES 1‒25 (Nurses and Medical 17 Personnel), and DOES 1‒25 (Deputy Sheriffs) without prejudice based on Plaintiff’s 18 failure to state a plausible claim for relief against any of them pursuant to 28 U.S.C. 19 § 1915(e)(2)(B) and § 1915A(b)(1). 20 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 21 which to either: (A) file a Notice of Intent to Proceed with his excessive force claim against 22 Corporal Romo only; or (B) file an Amended Complaint that corrects the deficiencies of 23 pleading identified in this Order. 24 If Plaintiff files a Notice of Intent to proceed against only Corporal Romo only, or 25 does not timely respond to this Order, the Court will issue an Order directing the U.S. 26 Marshal to effect service of his original Complaint on Corporal Romo pursuant to 28 27 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3) and terminate Defendant DOES 1‒25 (Nurses 28 and Medical Personnel), and DOES 1‒25 (Deputy Sheriffs) as parties to this case. 1 If Plaintiff instead chooses to amend, his new pleading must be clearly titled as his 2 “First Amended Complaint,” contain S.D. Cal. Civil Case No. 22-cv-00925-CAB-BLM in 3 caption, and be complete in itself without reference to his original Complaint. 4 ||Defendants not named and any claim not realleged in Plaintiff's Amended Complaint, 5 || including the currently sufficient excessive force claims alleged against Corporal Romo in 6 || his original Complaint, will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 7 || Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 8 ||amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 9 || (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 10 |/in an amended pleading may be “considered waived if not repled.’’). 11 IT IS SO ORDERED. 12 || Dated: September 26, 2022 € ZL 13 Hon. Cathy Ann Bencivengo 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12