Myers v. Clayton et al, No. 3:2022cv00673 - Document 4 (S.D. Cal. 2022)
Court Description: ORDER granting 2 Motion to Proceed in forma pauperis and dismissing Complaint for failure to state a claim pursuant to 28 USC 1915(e)(2) & 1915A(b). Plaintiff is granted forty-five (45) days leave from the date of this Order in which to file an Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by District Judge Ruth Bermudez Montenegro on 6/07/2022. (All non-registered users served via U.S. Mail Service)(jpp)
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Myers v. Clayton et al Doc. 4 Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.26 Page 1 of 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAYMOND DEAN MYERS, Plaintiff, 12 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) vs. 13 14 Case No.: 22-cv-0673-RBM-BLM DAVID CLAYTON, et al., Defendants. 15 16 17 18 Plaintiff Raymond Dean Myers, a state prisoner proceeding pro se, has filed a civil 19 rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1), accompanied by a Motion for 20 leave to proceed in forma pauperis (“IFP”) (the “IFP Motion”). (Doc. 2.) 21 I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 22 All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the 25 26 27 28 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). 1 22-cv-0673-RBM-BLM Dockets.Justia.com Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.27 Page 2 of 11 1 entire filing fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). 2 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) also 3 requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund 4 account statement (or institutional equivalent) for . . . the 6-month period immediately 5 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 6 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 7 an initial payment of 20% of (a) the average monthly deposits in the account for the past 8 six months, or (b) the average monthly balance in the account for the past six months, 9 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) & (4). 10 The institution collects subsequent payments, assessed at 20% of the preceding month’s 11 income, in any month in which the account exceeds $10, and forwards those payments to 12 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). Plaintiff remains 13 obligated to pay the entire fee in monthly installments regardless of whether their action is 14 ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) 15 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 16 In support of his IFP Motion, Plaintiff has submitted a copy of his California 17 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and 18 Prison Certificate, which indicates that during the six months prior to filing suit Plaintiff 19 had an average monthly balance of $26.07, average monthly deposits of $5.38, and had an 20 available balance of $4.84 in his account at the time he filed suit. (Doc. 3 at 1.) 21 Plaintiff’s IFP Motion is GRANTED. Because the initial partial filing fee exceeds 22 the amount in Plaintiff’s account, the Court imposes no initial partial filing fee. See 28 23 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from 24 bringing a civil action or appealing a civil action or criminal judgment for the reason that 25 the prisoner has no assets and no means by which to pay the initial partial filing fee”); 26 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 27 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 28 the lack of funds available to him when payment is ordered”). Plaintiff remains obligated 2 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.28 Page 3 of 11 1 to pay the entire $350.00 filing fee in monthly installments even if this action is ultimately 2 dismissed. Bruce, 577 U.S. at 84; 28 U.S.C. § 1915(b)(1), (2). 3 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 4 A. 5 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 6 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, 7 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 8 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 9 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 10 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 11 (discussing 28 U.S.C. § 1915A(b)). Standard of Review 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 16 2012) (noting that Section 1915A screening “incorporates the familiar standard applied in 17 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 18 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, 19 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 20 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Detailed 21 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 22 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 23 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 24 specific task that requires the reviewing court to draw on its judicial experience and 25 common sense.” Id. 26 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 27 acting under color of state law, violate federal constitutional or statutory rights.” 28 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 3 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.29 Page 4 of 11 1 source of substantive rights, but merely provides a method for vindicating federal rights 2 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation 3 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 4 of a right secured by the Constitution and laws of the United States, and (2) that the 5 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 6 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (quoting Chudacoff v. Univ. Med. Ctr. 7 of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011)). 8 B. 9 Plaintiff alleges he is a disabled inmate incarcerated at the Richard J. Donovan 10 Correctional Facility (“RJD”) in San Diego, California. (Doc. 1 at 4.) He possessed a 11 “DME vest and four wheeled walker with seat and breaks” necessary to accommodate his 12 disabilities, which include arterial blockage and spinal cord paralysis arising from bone 13 marrow transplant during cancer treatment. (Id.) When Defendant David Clayton (“Dr. 14 Clayton”) took over as the new RJD Primary Care Physician he ordered those items 15 confiscated on September 24, 2019 and October 30, 2019, pending review of Plaintiff’s 16 medical records. (Id.) On December 18, 2019, Plaintiff met with Dr. Clayton, who told 17 him the vest would be returned and he would receive a new walker because RJD no longer 18 purchased the old type of walkers. (Id.) Plaintiff informed Dr. Clayton that the new 19 walkers are junk because they have only two wheels and no seat. (Id.) Without anger or 20 animosity in his voice, Plaintiff told Dr. Clayton that because he had taken other such items 21 from inmates with disabilities, “you should watch your back in the yard, cuz, the inmates 22 want to hurt you, and you’re [sic] bedside mannerisms suck and you have no compassion.” 23 (Id. at 5.) Immediately after that meeting Dr. Clayton reported to Defendant RJD Sergeant 24 E. Brillo (“Brillo”) that Plaintiff had threatened Dr. Clayton with great bodily injury. (Id. 25 at 4, 11.) Brillo took a statement from Plaintiff about the incident which Plaintiff alleges 26 contained falsehoods. (Id. at 9.) Plaintiff’s Allegations 27 About one and one-half hours after Dr. Clayton notified staff of Plaintiff’s statement, 28 he was taken from his cell and placed in Administrative Segregation (“Ad-Seg”) where he 4 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.30 Page 5 of 11 1 remained for 37 days. (Id. at 5.) A Rules Violation Report (“RVR”) was issued charging 2 him with threatening staff. (Id. at 5-6.) Defendant RJD Lieutenant Williams (“Williams”) 3 did not allow Plaintiff to call witnesses or conduct an investigation at the first hearing on 4 the RVR but allowed him to do so at a second hearing. (Id.) At the second hearing 5 Williams found Plaintiff not guilty and dismissed the charge. (Id. at 6.) 6 Plaintiff states he was forced to strip naked in Ad-Seg and was allowed to wear only 7 boxer shorts and a tee shirt while waiting to be evaluated by a nurse. (Id.) He contends 8 Ad-Seg was infested with pigeons and the pigeon feces on the floor caused him to become 9 ill while held there incommunicado. (Id.) Defendants RJD Assistant Warden Buckel, RJD 10 Captain Rodriguez, and RJD Correctional Counselor Florez sat on a committee convened 11 eight days after Plaintiff was placed in Ad-Seg. (Id. at 12.) They did not allow Plaintiff to 12 speak, other than to plead guilty or not guilty, which caused him to serve an additional 29 13 days in Ad-Seg. (Id.) 14 Plaintiff claims he spent 37 days in Ad-Seg based on false allegations for which he 15 was exonerated and for which none of the Defendants were ever called to account, in 16 violation of his Fifth, Sixth and Fourteenth Amendment rights to due process, to be free 17 from cruel and unusual punishment, double jeopardy and an impartial jury. (Id. at 4-14.) 18 He requests monetary damages as well as an injunction preventing Defendants from 19 retaliating against him and providing him single-cell status. (Id. at 16.) 20 C. 21 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of 22 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 23 requirements of procedural due process apply only to the deprivation of interests 24 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 25 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 26 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 27 deprivation of the interest by the government; (and) (3) lack of process.’” Wright v. 28 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 Analysis 5 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.31 Page 6 of 11 1 F.2d 898, 904 (9th Cir. 1993)). 2 “[A] prisoner is entitled to certain due process protections when he is charged with 3 a disciplinary violation.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 4 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 5 to call witnesses, to present documentary evidence and to have a written statement by the 6 factfinder as to the evidence relied upon and the reasons for the disciplinary action taken.” 7 Id. at 1077-78. However, those protections adhere only when the disciplinary action 8 implicates a protected liberty interest either by exceeding the sentence in “an unexpected 9 manner” or where an inmate is subject to restrictions that impose “atypical and significant 10 hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. 11 Conner, 515 U.S. 472, 484 (1995). Where a protected liberty interest is not at stake, the 12 minimum requirements of due process require only that “the findings of the prison 13 disciplinary board (be) supported by some evidence in the record.” Superintendent v. Hill, 14 472 U.S. 445, 454-55 (1985). 15 The minimum requirements of due process were satisfied because Dr. Clayton’s 16 report of Plaintiff’s statement to him as a threat constituted “some evidence” in the record 17 despite Plaintiff’s contention it was not intended as a threat. See Hill, 472 U.S. at 457 18 (finding the “some evidence” standard of Hill is met with “meager” evidence of guilt as 19 long as “the record is not so devoid of evidence that the findings of the disciplinary board 20 were without support or otherwise arbitrary.”); Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th 21 Cir. 2003) (holding that a single piece of evidence with sufficient indicia of reliability 22 satisfies Hill’s standard); Hill, 472 U.S. at 455 (“Ascertaining whether this standard is 23 satisfied does not require examination of the entire record, independent assessment of the 24 credibility of witnesses, or weighing of the evidence.”) Plaintiff’s allegation that he was 25 falsely charged with a rule violation, by itself, also fails to state a due process claim because 26 “a prisoner does not have a constitutional right to be free from wrongfully issued 27 disciplinary reports.” Buckley v. Gomez, 36 F.Supp.2d 1216, 1222 (S.D. Cal. 1997), aff’d, 28 168 F.3d 498 (9th Cir. 1999). This is because the procedural protections available in 6 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.32 Page 7 of 11 1 disciplinary proceedings adequately protect a prisoner’s federal constitutional right to due 2 process. See, e.g., Gadsden v. Gehris, No. 20-cv-0470-WQH-DEB, 2020 WL 5748094, at 3 *8 (S.D. Cal. Sep. 25, 2020) (“The allegations of the filing of false disciplinary charges by 4 itself does not state a claim under 42 U.S.C. § 1983 because federal due process protections 5 are contained in the ensuing disciplinary proceedings themselves.”). 6 Accordingly, in order to state a due process claim Plaintiff must allege he was 7 deprived of a protected liberty interest giving rise to the Wolff procedural protections and 8 that he was deprived of those protections. Plaintiff has not alleged he was deprived of a 9 protected liberty interest simply as a result of his 37-day stay in Ad-Seg. See Sandin, 515 10 U.S. at 486 (holding that 30-day stay in administrative segregation did not impose an 11 atypical, significant hardship sufficient to implicate a protected liberty interest); Serrano, 12 345 F.3d at 1078-79 (“Typically, administrative segregation in and of itself does not 13 implicate a protected liberty interest” but one may arise where the conditions of 14 confinement work an atypical and significant hardship). District courts have found that 15 administrative segregation stays of nine months and of nearly two years failed to allege 16 atypical and significant hardships within the meaning of Sandin. See, e.g., Hernandez v. 17 Constable, 2020 WL 2145387, at *3 (E.D. Cal. Feb. 21, 2020) (collecting cases). 18 A protected liberty interest may arise where an atypical, significant hardship arose 19 from a stay in segregation if the conditions there were a dramatic departure from the 20 standard conditions of confinement. See Keenan v. Hall, 83 F.3d 1983, 1088-89 (9th Cir. 21 1996) (“The Sandin Court seems to suggest that a major difference between the conditions 22 for the general population and the segregated population triggers a right to a hearing.”) 23 (citing Sandin, 515 U.S. at 485); see also Serrano, 345 F.3d at 1078 (identifying three 24 “guideposts” for that inquiry, including how the conditions differed from ordinary 25 conditions of confinement, their duration and the degree of restraint). Plaintiff alleges Ad- 26 Seg was infested with pigeons and the floors were covered in pigeon feces which caused 27 him to become ill. However, even assuming those conditions gave rise to a protected 28 liberty interest, Plaintiff admits he received all the process he was due because he was 7 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.33 Page 8 of 11 1 found not guilty at his second hearing where the charge was dismissed. See, e.g., Shotwell 2 v. Brandt, No. C10-5253-CW (PR), 2012 WL 6569402, at *3 (N.D. Cal. Dec. 17, 2012) 3 (“Here, due process was satisfied when the results of the first disciplinary hearing were 4 vacated, the RVR was ordered reissued and reheard, Plaintiff was found not guilty at the 5 second hearing, and he was released from administrative segregation and not subjected to 6 credit loss or any other form of punishment.”) (citing Raditch v. United States, 929 F.2d 7 478, 481 (9th Cir. 1991) (holding that the remedy for an unfair hearing is another hearing)). 8 Because Plaintiff has failed to allege he suffered any adverse consequences arising from 9 his disciplinary proceedings, he has failed to plausibly allege a due process violation. 10 Plaintiff also claims he was subjected to cruel and unusual punishment as a result of 11 his stay in Ad-Seg because it was infested with pigeons and the floors were covered in 12 pigeon feces which caused him to become ill. “The circumstances, nature, and duration” 13 of the conditions in Ad-Seg must rise to the level of “extreme deprivations” as opposed to 14 “routine discomfort inherent in the prison setting” in order to violate the Eighth 15 Amendment’s prohibition on cruel and unusual punishment as applicable to the states 16 through the Fourteenth Amendment. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); 17 see also Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (“[W]hile conditions 18 of confinement may be, and often are, restrictive and harsh,” only conditions which are 19 “devoid of legitimate penological purpose . . . or contrary to evolving standards of decency 20 that mark the progress of a maturing society violate the Eighth Amendment.”) (citing 21 Hudson v. Palmer, 468 U.S. 517, 548 (1984)); see also Farmer v. Brennan, 511 U.S. 825, 22 834 (1994) (Eighth Amendment violation occurs where a prisoner is denied “the minimal 23 civilized measure of life’s necessities”); Hudson v. McMillian, 503 U.S. 1, 9 (1992) (an 24 Eighth Amendment violation requires an objectively grave deprivation of humane 25 conditions of confinement); Whitley v. Albers, 475 U.S. 312, 319 (1986) (“After 26 incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and 27 unusual punishment forbidden by the Eighth Amendment.”). 28 There are no factual allegations in the Complaint regarding the nature of Plaintiff’s 8 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.34 Page 9 of 11 1 illness acquired while in Ad-Seg, or any factual allegations of a grave deprivation of 2 humane conditions of confinement which created a serious risk to his health or safety so as 3 to plausibly allege cruel and unusual punishment. Although “subjection of a prisoner to 4 lack of sanitation that is severe or prolonged can constitute an infliction of pain within the 5 meaning of the Eighth Amendment,” the temporary imposition of such conditions does not 6 state a claim absent allegations of a risk of harm. Anderson v. County of Kern, 45 F.3d 7 1310, 1314-15 (9th Cir. 1995); Johnson, 217 F.3d at 731 (“The circumstances, nature, and 8 duration of a deprivation of these necessities must be considered in determining whether a 9 constitutional violation has occurred.”). Plaintiff’s lack of detailed factual allegations in 10 this respect, in particular the nature and severity of his illness, fails to plausibly allege he 11 was subjected to an objectively serious risk to his health or safety. 12 In addition to the requirement that Plaintiff satisfy that objective component of an 13 Eighth Amendment violation, Plaintiff must also allege facts showing that a Defendant 14 knew the conditions of confinement in Ad-Seg presented a substantial risk to his health 15 and safety and deliberately disregarded that risk. See Farmer, 511 U.S. at 837 (“[A] prison 16 official cannot be found liable under the Eighth Amendment for denying an inmate humane 17 conditions of confinement unless the official knows of and disregards an excessive risk to 18 inmate health or safety; the official must both be aware of facts from which the inference 19 could be drawn that a substantial risk of serious harm exists, and he must also draw the 20 inference.”). There are no allegations in the Complaint that any Defendant was aware the 21 conditions in Ad-Seg presented a serious danger to Plaintiff’s health or safety, nor that any 22 Defendant deliberately disregarded that risk. 23 Accordingly, Plaintiff’s Complaint is dismissed for failure to state a claim upon 24 which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1); Wilhelm, 25 680 F.3d at 1121; Watison, 668 F.3d at 1112. 26 D. 27 In light of his pro se status, the Court grants Plaintiff leave to amend his Complaint 28 in order to attempt to address the pleading deficiencies identified in this Order. See Rosati Leave to Amend 9 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.35 Page 10 of 11 1 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 2 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it 3 is absolutely clear that the deficiencies of the complaint could not be cured by 4 amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 5 IV. CONCLUSION 6 Good cause appearing, the Court: 7 1. 8 9 GRANTS Plaintiff’s IFP Motion (Doc. 2) pursuant to 28 U.S.C. Section 1915(a) (ECF No. 5). 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 10 Plaintiff’s prison trust account the $350 filing fee owed by collecting monthly payments 11 from Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding 12 month’s income and forwarding those payments to the Clerk of the Court each time the 13 amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). 14 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 15 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 16 942883, Sacramento, California 94283-0001. 17 4. DISMISSES Plaintiff’s Complaint for failure to state a claim upon which 18 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and 19 GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file 20 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 21 Amended Complaint must be complete by itself without reference to his original pleading. 22 Defendants not named and any claim not re-alleged in his Amended Complaint will be 23 considered waived. See Civ. Local R. 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 24 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 25 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 26 re-alleged in an amended pleading may be “considered waived if not repled”). 27 If Plaintiff fails to file an Amended Complaint within the time provided, the 28 Court will enter a final Order dismissing this civil action based both on Plaintiff’s 10 22-cv-0673-RBM-BLM Case 3:22-cv-00673-RBM-BLM Document 4 Filed 06/07/22 PageID.36 Page 11 of 11 1 failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 2 1915(e)(2)(B)(ii) & 1915A(b)(1), and his failure to prosecute in compliance with a 3 court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 4 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 5 district court may convert the dismissal of the complaint into dismissal of the entire 6 action.”). 7 8 9 10 IT IS SO ORDERED. Dated: June 7, 2022 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 22-cv-0673-RBM-BLM
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