Cecil v. Paramo et al, No. 3:2015cv02137 - Document 15 (S.D. Cal. 2015)
Court Description: ORDER Granting 2 Motion for Leave to Proceed In Forma Pauperis; and Dismissing Civil Action for Failing to State a Claim: The Court directs the Secretary of the CDCR, or his designee, to collect from Plaintiff's prison trust account the & #036;350 filing fee owed in this case by collecting monthly payments in an amount equal to twenty percent (20%) of the preceding month's income and forwarding them to the Clerk of the Court each time the amount in his account exceeds � 36;10. The Clerk of the Court to serve a copy of this Order on Jeffrey A. Beard. The Court dismisses this civil action without prejudice for failing to state a claim. The Court grants Plaintiff leave to re-open this case by filing an Amended Comp laint which addresses the deficiencies of pleading identified in this Order within forty-five (45) days. The Clerk of Court is to provide Plaintiff with a blank copy of the Court's form "Complaint under the Civil Rights Act, 42 U.S.C. § 1983.". Signed by Judge Gonzalo P. Curiel on 12/16/15. (All non-registered users served via U.S. Mail Service)Order mailed to J. Beard; Blank Civil Rights Complaint mailed to Plaintiff. (dlg)
Download PDF
<![CDATA[
Cecil v. Paramo et al Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 GARY ALLEN CECIL, CDCR #AF-5647, Civil No. Plaintiff, 13 16 vs. AND DANIEL PARAMO, Warden, et al., 17 18 Defendants. 19 20 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF Doc. No. 2] 14 15 15-cv-2137 GPC (NLS) (2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND § 1915A(b)(1) Gary Allen Cecil (“Plaintiff”), a prisoner currently incarcerated at Richard J. 21 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro 22 se, has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. See 23 ECF Doc. No. 1. 24 Plaintiff claims RJD’s Warden, an Associate Warden, and two correctional 25 counselors have denied him access to court and violated his due process rights by 26 failing to properly process inmate grievances in accordance with the California Code 27 of Regulations. See Compl. at 6-8. Plaintiff seeks injunctive relief as well as nominal 28 and punitive damages. Id. at 13. C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -1- 15-cv-2137 GPC (NLS) Dockets.Justia.com 1 Plaintiff has not prepaid the civil filing fee; instead he has filed a Motion to 2 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF Doc. 3 No. 2. 4 I. Motion to Proceed IFP 5 All parties instituting any civil action, suit or proceeding in a district court of 6 the United States, except an application for writ of habeas corpus, must pay a filing 7 fee of $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s 8 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 9 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 10 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 11 granted leave to proceed IFP remains obligated to pay the entire fee in “increments,” 12 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether 13 his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 14 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 16 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of 17 [his] trust fund account statement (or institutional equivalent) for . . . the six-month 18 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 19 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust 20 account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the 23 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 24 institution having custody of the prisoner then collects subsequent payments, assessed 25 at 20% of the preceding month’s income, in any month in which his account exceeds 26 27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of 28 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -2- 15-cv-2137 GPC (NLS) 1 $10, and forwards those payments to the Court until the entire filing fee is paid. See 2 28 U.S.C. § 1915(b)(2). 3 In support of his IFP Motion, Plaintiff submitted a certified copy of his trust 4 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See 5 ECF Doc. No. 2 at 4, 6-7. Andrews, 398 F.3d at 1119. The Court has reviewed 6 Plaintiff’s trust account statement, as well as the attached prison certificate authorized 7 by a RJD accounting official, and they indicate Plaintiff has had no monthly deposits, 8 has carried no monthly balance, and had no available funds to his credit at the time of 9 filing. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 10 prohibited from bringing a civil action or appealing a civil action or criminal 11 judgment for the reason that the prisoner has no assets and no means by which to pay 12 the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 13 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 14 based solely on a “failure to pay . . . due to the lack of funds available to him when 15 payment is ordered.”). 16 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. 17 No. 2), and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, 18 the entire $350 balance of the filing fees due for this case must be collected by the 19 California Department of Corrections and Rehabilitation (“CDCR”) and forwarded to 20 the Clerk of the Court pursuant to the installment payment provisions set forth in 28 21 U.S.C. § 1915(b)(1). 22 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 23 A. 24 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, Standard of Review 25 the PLRA also obligates the Court to review complaints filed by all persons 26 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any 27 facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 28 criminal law or the terms or conditions of parole, probation, pretrial release, or C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -3- 15-cv-2137 GPC (NLS) 1 diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. 2 § 1915(e)(2) and § 1915A(b). Under these screening statutes, the Court must sua 3 sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, 4 fail to state a claim, or which seek damages from defendants who are immune. See 28 5 U.S.C. § 1915(e)(2)(B) and § 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th 6 Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 7 Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 8 All complaints must contain “a short and plain statement of the claim showing 9 that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual 10 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 11 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 12 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 13 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . a 14 context-specific task that requires the reviewing court to draw on its judicial 15 experience and common sense.” Id. The “mere possibility of misconduct” falls short 16 of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 17 F.3d 962, 969 (9th Cir. 2009). 18 “When there are well-pleaded factual allegations, a court should assume their 19 veracity, and then determine whether they plausibly give rise to an entitlement to 20 relief.” Iqbal, 556 U.S. at 679; Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 21 (“[W]hen determining whether a complaint states a claim, a court must accept as true 22 all allegations of material fact and must construe those facts in the light most 23 favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 24 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil 25 Procedure 12(b)(6)”). 26 However, while the court “ha[s] an obligation where the petitioner is pro se, 27 particularly in civil rights cases, to construe the pleadings liberally and to afford the 28 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -4- 15-cv-2137 GPC (NLS) 1 Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may 2 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of 3 Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 4 B. 5 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 6 under color of state law, violate federal constitutional or statutory rights.” Devereaux 7 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a 8 plaintiff must show both (1) deprivation of a right secured by the Constitution and 9 laws of the United States, and (2) that the deprivation was committed by a person 10 acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 11 (9th Cir. 2012). 12 C. 13 First, Plaintiff contends Defendants have denied him access to the court by Access to Courts 14 “deliberately interfering with . . . Court Orders and filings of inmate appeals.” See 15 Compl. at 3, 9-10. 16 Prisoners have a constitutional right to access to the courts. Lewis v. Casey, 518 17 U.S. 343, 346 (1996). The right is limited to the filing of direct criminal appeals, 18 habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the 19 courts may arise from the frustration or hindrance of “a litigating opportunity yet to 20 be gained” (forward-looking access claim) or from the loss of a suit that cannot now 21 be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 22 (2002); see also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011). 23 (differentiating “between two types of access to court claims: those involving 24 prisoners’ right to affirmative assistance and those involving prisoners’ rights to 25 litigate without active interference.”). 26 However, Plaintiff must allege “actual injury” as the threshold requirement to 27 any access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An 28 “actual injury” is “actual prejudice with respect to contemplated or existing litigation, C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -5- 15-cv-2137 GPC (NLS) 1 such as the inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. 2 at 348; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual 3 injury as the “inability to file a complaint or defend against a charge”). The failure to 4 allege an actual injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 5 2008) (“Failure to show that a ‘non-frivolous legal claim had been frustrated’ is 6 fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4). 7 In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable” 8 underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the 9 underlying claim must be set forth in the pleading “as if it were being independently 10 pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may 11 be awarded as recompense but not otherwise available in some suit that may yet be 12 brought.” Id. at 415. 13 Plaintiff’s Complaint fails to allege the actual injury required to state an access 14 to courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. While 15 Plaintiff does claim to have been “impeded” by Defendants after U.S. Magistrate 16 Judge Kendall J. Newman ordered him to submit a supplemental opposition to a 17 motion for summary judgment which included a copy of a “CDC128-C3 Medical 18 Classification Chrono” related to his medical care claims in a civil rights action he 19 filed in the Eastern District of California, Cecil v. Beard, 2:13-cv-1923 TLN-KJN, see 20 Compl. at 7, he has failed to include any further “factual matter” to show how or why 21 any of the individual Defendants in this case caused him to suffer any “actual 22 prejudice” “such as the inability to meet a filing deadline or to present a claim,” with 23 respect to that case. Lewis, 518 U.S. at 348;2 Jones, 393 F.3d at 936; Iqbal, 556 U.S. 24 at 678. 25 2 Although State must enable the prisoner to discover 26 grievances, and toBounds suggested “that thecourt,” Lewis expressly disavowed such a litigate effectively once in right. 518 U.S. at 354 (emphasis added). Only materials that 27 far-reachingaccess–the ability to present a claim–are required: “To demandwould ensure meaningful the conferral of sophisticated legal capabilities upon a mostly uneducated and indeed largely illiterate 28 prison population is effectively to demand permanent provision of counsel, which we do not believe the Constitution requires.” Id. C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -6- 15-cv-2137 GPC (NLS) In fact, the Court takes judicial notice of the docket proceedings in Cecil v. 1 2 Beard, 2:13-cv-01923-TLN-KJN,3 which show that while Plaintiff contends 3 Defendants “instructed” inmate appeals officials “not to supply [him]” with a copy of 4 his CDC128-C3 Medical Classification Chrono “even with the Court’s Order,” see 5 Compl. at 7, Magistrate Judge Newman later “relieved Plaintiff of his obligation to 6 provide the document,” and instead ordered the Attorney General to retrieve the 7 document from Plaintiff’s medical records, and to lodge a copy of it with the Court. 8 See Cecil v. Beard, E.D. Cal. Civil Case No. 2:13-cv-01923-TLN-KJN (Aug. 28, 9 2015 Order), ECF Doc. No. 130 at 2. Indeed, Plaintiff admits the same, has attached a 10 copy of Judge Newman’s Order as an exhibit to his Complaint, and a further review 11 of the docket shows that the Attorney General complied with Judge Newman’s Order. 12 See Compl. at 8, 31-33 Ex. G; Cecil v. Beard, E.D. Cal. Civil Case No. 2:13-cv13 01923-TLN-KJN (Sept. 3, 2015 Notice of Compliance [ECF Doc. No. 131]); (Sept. 4, 14 2015 Amended Notice of Compliance [ECF Doc. No. 132]). 15 Thus, because Plaintiff has failed to allege facts sufficient to show, and nothing 16 in the docket proceedings in Cecil v. Beard, E.D. Cal. Civil Case No. 2:13-cv-0192317 TLN-KJN indicate, that Plaintiff suffered any “actual injury”with respect to that case, 18 or any other non-frivolous direct criminal appeal, habeas petition, or civil rights 19 action he may have filed, see Lewis, 518 U.S. at 354, the Court finds Plaintiff’s access 20 to courts claims must be dismissed for failing to state a plausible claim upon which 21 § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1); Iqbal, 22 556 U.S. at 678. 23 / / / 24 / / / 25 / / / 26 27 3 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (a court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, 28 if those proceedings have a direct relation to matters at issue.’”) (quoting Bennett v. Medtronic, Inc.,285 F.3d 801, 803 n.2 (9th Cir. 2002)). C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -7- 15-cv-2137 GPC (NLS) 1 D. 2 Plaintiff also claims Defendants have violated his right to procedural due Grievance Procedures 3 process by failing to “follow their own California Code of Regulations” with regard 4 to the proper processing of his CDCR inmate appeals. See Compl. at 8-11. 5 First, to the extent Plaintiff intends to base a claim on Defendants’ failure to 6 follow state law or prison regulations governing inmate appeals as set forth in CAL. 7 CODE REGS., tit. 15 § 3084, et seq., such violations cannot be remedied under § 1983 8 unless they also violate a federal constitutional or statutory right. See Davis v. 9 Scherer, 468 U.S. 183, 192 (1984). There is no independent cause of action under 10 § 1983 for a violation of Title 15 regulations. See, e.g., Chappell v. Newbarth, 2009 11 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of 12 action under Title 15 of the California Code of Regulations); Parra v. Hernandez, 13 2009 WL 3818376, at 2, 8 (S.D. Cal. Nov. 13, 2009) (same). “To the extent that the 14 violation of a state law amounts to the deprivation of a state-created interest that 15 reaches beyond that guaranteed by the federal Constitution, [s]ection 1983 offers no 16 redress.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). 17 Second, while the Fourteenth Amendment provides that “[n]o state shall . . . 18 deprive any person of life, liberty, or property, without due process of law,” U.S. 19 CONST. amend. XIV, § 1, “[t]he requirements of procedural due process apply only to 20 the deprivation of interests encompassed by the Fourteenth Amendment’s protection 21 of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State 22 statutes and prison regulations may grant prisoners liberty or property interests 23 sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 24 (1976). However, to state a procedural due process claim, Plaintiff must allege: “(1) a 25 liberty or property interest protected by the Constitution; (2) a deprivation of the 26 interest by the government; [and] (3) lack of process.” Wright v. Riveland, 219 F.3d 27 905, 913 (9th Cir. 2000). 28 / / / C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -8- 15-cv-2137 GPC (NLS) 1 The Ninth Circuit has held that prisoners have no protected property interest in 2 an inmate grievance procedure arising directly from the Due Process Clause. See 3 Ramirez v. Galaza, 334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate 4 constitutional entitlement to a specific prison grievance procedure”) (citing Mann v. 5 Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the due process clause of the 6 Fourteenth Amendment creates “no legitimate claim of entitlement to a [prison] 7 grievance procedure”)). Even the non-existence of, or the failure of prison officials to 8 properly implement, an administrative appeals process within the prison system does 9 not raise constitutional concerns. Mann, 855 F.2d at 640. See also Buckley v. Barlow, 10 997 F.2d 494, 495 (8th Cir. 1993); Flick v. Alba, 932 F.2d 728 (8th Cir. 1991). 11 In addition, Plaintiff has failed to plead facts sufficient to show that any 12 Defendant prison official deprived him of a protected liberty interest by allegedly 13 failing to respond to any particular prison grievance in a satisfactory manner. While a 14 liberty interest can arise from state law or prison regulations, Meachum, 427 U.S. at 15 223-27, due process protections are implicated only if Plaintiff alleges facts to show 16 that Defendants: (1) restrained his freedom in a manner not expected from his 17 sentence, and (2) “impose[d] atypical and significant hardship on [him] in relation to 18 the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). 19 Here, Plaintiff pleads no facts to suggest how Defendants’ allegedly inadequate 20 review or failure to consider inmate grievances restrained his freedom in any way, or 21 subjected him to any “atypical” and “significant hardship.” Id. at 483-84. 22 Thus, the Court finds that Plaintiff’s due process allegations also fail to support 23 a plausible claim upon which relief may be granted and therefore, must be dismissed 24 pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). See Lopez, 203 F.3d at 1126-27; 25 Rhodes, 621 F.3d at 1004. 26 E. 27 Because Plaintiff is proceeding without counsel, and he has now been provided Leave to Amend 28 with notice of his Complaint’s deficiencies, the Court will grant him leave to amend. C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -9- 15-cv-2137 GPC (NLS) 1 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should 2 not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 3 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 4 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 5 (9th Cir. 2012)). 6 III. Conclusion and Order 7 For the reasons set forth above, the Court: 8 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 2). 9 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 10 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting 11 monthly payments in an amount equal to twenty percent (20%) of the preceding 12 month’s income and forwarding them to the Clerk of the Court each time the amount 13 in his account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL 14 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 15 ASSIGNED TO THIS ACTION. 16 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeffrey 17 A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. 18 Box 942883, Sacramento, California, 94283-0001. 19 4. DISMISSES this civil action without prejudice for failing to state a 20 claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 21 § 1915A(b)(1). 22 5. GRANTS Plaintiff leave to re-open this case by filing an Amended 23 Complaint which addresses the deficiencies of pleading identified in this Order 24 within forty-five (45) days. Plaintiff is cautioned his Amended Complaint must be 25 complete in itself without reference to his original Complaint. Defendants not named 26 and any claims not re-alleged in the Amended Complaint will be considered waived. 27 See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 28 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -10- 15-cv-2137 GPC (NLS) 1 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 2 claims dismissed with leave to amend which are not re-alleged in an amended 3 pleading may be “considered waived if not repled.”); and 4 6. DIRECTS the Clerk of Court to provide Plaintiff with a blank copy of 5 the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983,” for 6 Plaintiff’s use in amending. If Plaintiff chooses to amend, he must caption his 7 pleading as his Amended Complaint, and include Civil Case No. 15cv2137 GPC 8 (NLS) on its title page. 9 IT IS SO ORDERED. 10 11 DATED: December 16, 2015 12 HON. GONZALO P. CURIEL United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C:\Users\lc2curiel\AppData\Local\Temp\notes66F5D4\15cv2137-grt-ifp&dsm.wpd -11- 15-cv-2137 GPC (NLS)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
