DuJuan Mauricio Fernandez v. Cynthia Tampkins et al, No. 5:2019cv01390 - Document 13 (C.D. Cal. 2019)
Court Description: MEMORANDUM DECISION AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Maria A. Audero. The Court DISMISSES the FAC WITH LEAVE TO AMEND. Plaintiff is ORDERED to, within thirty days after the date of this Order, either: (1) file a Second Amended Complaint ("SAC"), or (2) advise the Court that Plaintiff does not intend to file a SAC. (See document for details.) (Attachments: # 1 Attachment 1, # 2 Attachment 2) (sbou)
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DuJuan Mauricio Fernandez v. Cynthia Tampkins et al Doc. 13 1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 DUJUAN MAURICIO FERNANDEZ, Plaintiff, 13 v. 14 15 Case No. 5:19-cv-01390-VAP (MAA) MEMORANDUM DECISION AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND CYNTHIA TAMPKINS et al. 16 Defendants. 17 18 19 I. INTRODUCTION 20 On July 29, 2019, Plaintiff DuJuan Mauricio Fernandez (“Plaintiff”), an 21 inmate at California Substance Abuse and Treatment Facility and Prison, proceeding 22 pro se, filed a Complaint alleging violations of his civil rights pursuant to 42 U.S.C. 23 § 1983 (“Section 1983”). (Compl., ECF No. 1.) On November 15, 2019, the Court 24 screened and dismissed the Complaint with leave to file an amended Complaint. 25 (Order Dismiss Compl., ECF No. 8.) Plaintiff filed a First Amended Complaint on 26 December 10, 2019. (“FAC,” ECF No. 9.) 27 28 The Court has screened the FAC as prescribed by 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). For the reasons stated below, the FAC is DISMISSED Dockets.Justia.com 1 WITH LEAVE TO AMEND. Plaintiff is ORDERED to, within thirty days after 2 the date of this Order, either: (1) file a Second Amended Complaint, or (2) advise 3 the Court that Plaintiff does not intend to file a Second Amended Complaint. 4 5 II. 6 PLAINTIFF’S ALLEGATIONS AND CLAIMS The FAC is filed against: (1) Cynthia Tampkins, Warden of California 7 Rehabilitation Center (“CRC”); (2) Steve Sasaki, Principal of Vista Del Rio Adult 8 School (the “School”); (3) Tracey Roberson, Teacher of classroom 604A in the 9 School; and (4) R. Lunday, Fire Captain of the CRC Institutional Fire Department 10 (each, a “Defendant” and collectively, “Defendants”). (FAC 3–4.) 1 Each 11 Defendant is sued in his or her individual capacity. (Id.) The FAC and attached exhibits2 contain the following allegations and claims: 12 13 On March 22, 2018, Plaintiff was assigned to classroom 604-A of the School. (Id. at 14 7.) Plaintiff signed out to use the restroom. (Id.) Preceding his departure, there was 15 a large puddle of water on the floor which Plaintiff attempted to go around. (Id.) 16 Plaintiff slipped and landed on his back, striking his head and tail bone on the floor 17 and losing consciousness for several minutes. (Id.) When Plaintiff regained 18 consciousness, the Nurse, Ms. Halstead, Officer Trotter, Devilla, and Defendant Fire 19 Captain Lundy were standing over and/or around Plaintiff. (Id.) 20 The source of the large water puddle came from a leak in the ceiling, which 21 had been an ongoing safety issue. (Id.) Objective evidence demonstrated seven to 22 ten missing tiles from the ceiling over the standing puddle, which had been damaged 23 for two years. (Id.) Each Defendant had personal knowledge of the condition of the 24 property and failed to take necessary action to prevent Plaintiff’s injury. (Id. at 5.) 25 1 26 27 28 Citations to pages in docketed documents reference those generated by CM/ECF. 2 Documents attached to a complaint are part of the complaint and may be considered in determining whether the plaintiff can prove any set of facts in support of the claim. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). 2 1 Repeated requests for repairs had been made to Principal Sasaki, among others, who 2 ignored those requests. (Id. at 7.) The Warden, Fire Captain, Plant Operations, and 3 several other Administrators and Custodial Officials were aware that a significant 4 risk of injury to prisoners existed over a two-year period without taking action. (Id.) 5 Defendant Tampkins, as the Warden of CRC, was responsible for the overall 6 care, health, safety, education, and development of each prisoner confined at CRC, 7 including Plaintiff. (Id. at 5.) Defendant Tampkins personally was advised that 8 there existed a dangerous condition of state property, but failed to assure the 9 dangerous condition was corrected over a two-year period, despite numerous written 10 and verbal complaints, work orders, and notices submitted by the inmate population 11 and other staff. (Id.) 12 Defendant Lundy was the Chief of the Institutional Fire Department 13 responsible for examination of each building and conditions as they relate to 14 prisoner occupation, including, but not limited to, fire hazards, structural damage 15 posing a significant risk of harm to all patrons, room occupancy, and any objective 16 risk of harm. (Id.) Defendant Lundy failed to assure the damages to the ceiling 17 were properly conveyed to “Plant Operations” to prevent a significant risk of harm 18 to the inmate population participating in the programs, activities and services 19 provided by the CDCR. (Id. at 5–6.) 20 Defendant Sasaki, as the Principal over all teachers at the School, was 21 responsible for assuring all CRC prisoners attending the School were provided with 22 a safe environment while participating in the programs, services, and activities 23 provided by the CDCR and CRC. (Id. at 6.) Defendant Sasaki was aware of the 24 damages to the ceiling at the School, but failed to assure that all inmates were 25 provided a safe environment, as demonstrated by two years of continuous disrepair. 26 (Id.) 27 28 Defendant Roberson was the teacher of the class where Plaintiff was assigned and the ceiling was damaged. (Id.) Defendant Roberson allowed inmates access to 3 1 an area known to pose a significant risk of serious physical injury despite personal 2 knowledge of a water puddle continuing to increase, and without notifying janitorial 3 staff to place warning cones. (Id.) Defendant Roberson was aware that several 4 complaints had been filed regarding the risk of harm posed by the damaged ceiling 5 and leaking water. (Id.) 6 Based on the foregoing, Plaintiff asserts the following claims: (1) negligence; 7 (2) deliberate indifference; (3) failure to protect from substantial risk of harm; (4) the 8 integrity of the building, including pursuant to Government Code Sections 815 and 9 830; and (5) failure to properly train. (Id. at 5.) Plaintiff seeks: (a) monetary 10 damages of $400,000 but no less than $2,500 per act and/or omission; (b) punitive 11 damages; (c) injunctive relief; (d) attorney fees and costs; and (e) such other relief as 12 the Court deems just, proper and equitable. (Id. at 8.) 13 14 15 III. LEGAL STANDARD Federal courts must conduct a preliminary screening of any case in which a 16 prisoner seeks redress from a governmental entity or officer or employee of a 17 governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma 18 pauperis (28 U.S.C. § 1915(e)(2)(B)). The court must identify cognizable claims 19 and dismiss any complaint, or any portion thereof, that is: (1) frivolous or malicious, 20 (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary 21 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 22 1915(e)(2)(B). 23 When screening a complaint to determine whether it fails to state a claim upon 24 which relief can be granted, courts apply the Federal Rule of Civil Procedure 25 12(b)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 26 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A); 27 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6) 28 standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). “Dismissal under Rule 12(b)(6) is 4 1 appropriate only where the complaint lacks a cognizable legal theory or sufficient 2 facts to support a cognizable legal theory.” Hartmann v. Cal. Dep’t of Corr. & 3 Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. 4 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). 5 Rule 12(b)(6) is read in conjunction with Federal Rule of Civil Procedure 8(a) 6 (“Rule 8”), “which requires not only ‘fair notice of the nature of the claim, but also 7 grounds on which the claim rests.’” See Li v. Kerry, 710 F.3d 995, 998 (9th Cir. 8 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)). In 9 reviewing a motion to dismiss, the court will accept the plaintiff’s factual allegations 10 as true and view them in the light most favorable to the plaintiff. Park v. Thompson, 11 851 F.3d 910, 918 (9th Cir. 2017). Although “detailed factual allegations” are not 12 required, “[t]hreadbare recitals of the elements of a cause of action, supported by 13 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Conclusory allegations of law . . . are insufficient to defeat a motion to 15 dismiss.” Park, 851 F.3d at 918 (alteration in original) (quoting Lee v. City of Los 16 Angeles, 250 F.3d 668, 679 (9th Cir. 2001)). Rather, a complaint must “contain 17 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 18 on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim 19 has facial plausibility when the plaintiff pleads factual content that allows the court 20 to draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Iqbal, 556 U.S. at 663. “If there are two alternative explanations, one 22 advanced by defendant and the other advanced by plaintiff, both of which are 23 plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).” 24 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “Plaintiff’s complaint may be 25 dismissed only when defendant’s plausible alternative explanation is so convincing 26 that plaintiff’s explanation is implausible.” Id. 27 28 Where a plaintiff is pro se, particularly in civil rights cases, courts should construe pleadings liberally and afford the plaintiff any benefit of the doubt. 5 1 Wilhelm, 680 F.3d at 1121. “[B]efore dismissing a pro se complaint the district 2 court must provide the litigant with notice of the deficiencies in his complaint in 3 order to ensure that the litigant uses the opportunity to amend effectively.” Akhtar v. 4 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Ferdik v. Bonzelet, 963 F.2d 5 1258, 1261 (9th Cir. 1992)). A court should grant a pro se plaintiff leave to amend a 6 defective complaint “unless it is absolutely clear that the deficiencies of the 7 complaint could not be cured by amendment.” Akhtar, 698 F.3d at 1212 (quoting 8 Shucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1988) (per curiam)). 9 10 IV. DISCUSSION 11 A. The Complaint Does Not State a Section 1983 Claim. 12 Section 1983 provides a cause of action against “every person who, under 13 color of any statute . . . of any State . . . subjects, or causes to be subjected, any 14 citizen . . . to the deprivation of any rights, privileges, or immunities secured by the 15 Constitution and laws . . . .” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alteration in 16 original) (quoting 42 U.S.C. § 1983). The purpose of Section 1983 is “to deter state 17 actors from using the badge of their authority to deprive individuals of their 18 federally guaranteed rights and to provide relief to victims if such deterrence fails.” 19 Wyatt, 504 U.S. at 161. To state a claim under Section 1983, a plaintiff must allege: 20 (1) a right secured by the Constitution or laws of the United States was violated; and 21 (2) the alleged violation was committed by a person acting under color of state law. 22 West v. Atkins, 487 U.S. 42, 48 (1988). 23 Here, the FAC alleges that Plaintiff slipped on a large puddle of water in 24 classroom 604-A of the School, which resulted from an ongoing leak in the ceiling. 25 (FAC 5.) Plaintiff asserts claims for negligence, deliberate indifference, failure to 26 protect from substantial risk of harm, the integrity of the building under Government 27 Code Sections 815 and 830, and failure to properly train. (Id.) Based on the 28 allegations and claims asserted in the FAC, the only potential federal claim under 6 1 Section 1983 is for violation of the Eighth Amendment’s prohibition against cruel 2 and unusual punishment. Because Plaintiff has re-filed the same allegations in the 3 Complaint but with different claims asserted, for the avoidance of doubt the Court 4 specifically states that the Eighth Amendment would encompass Plaintiff’s claims 5 for deliberate indifference, failure to protect from substantial risk of harm, and 6 failure to properly train. Plaintiff’s remaining claims—negligence and the integrity 7 of the building under Government Code Sections 815 and 830—are state law claims. 8 9 “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment,” which prohibits 10 cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994) 11 (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). “[W]hile conditions of 12 confinement may be, and often are, restrictive and harsh, they ‘must not involve the 13 wanton and unnecessary infliction of pain.’” Morgan v. Morgensen, 465 F.3d 1041, 14 1045 (9th Cir. 2006) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “In 15 other words, they must not be devoid of legitimate penological purpose, or contrary 16 to ‘evolving standards of decency that mark the progress of a maturing society.’” 17 Morgan, 465 F.3d at 1045 (citation omitted) (quoting Trop v. Dulles, 356 U.S. 86, 18 101 (1958)). 19 A prison official violates the Eighth Amendment when two requirements are 20 met. First, “the deprivation alleged must be, objectively, sufficiently serious; a 21 prison official’s act or omission must result in the denial of the minimal civilized 22 measure of life’s necessities.” Farmer, 511 U.S. at 834 (internal quotations and 23 citations omitted). “Prison officials have a duty to ensure that prisoners are provided 24 adequate shelter, food, clothing, sanitation, medical care, and personal safety.” 25 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “The circumstances, nature, 26 and duration of a deprivation of these necessities must be considered in determining 27 whether a constitutional violation has occurred. ‘The more basic the need, the 28 shorter the time it can be withheld.’” Id. (quoting Hoptowit v. Ray, 682 F.2d 1237, 7 1 1246 (9th Cir. 1982)). Second, subjectively, the prison official acted with 2 “deliberate indifference” to an inmate’s health or safety—that is, “the official knows 3 of and disregards an excessive risk to inmate health or safety; the official must both 4 be aware of facts from which the inference could be drawn that a substantial risk of 5 serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. 6 Here, the FAC alleges that there were seven to ten missing tiles from the 7 ceiling of the Room for two years, which caused a large water puddle. (FAC 7.) 8 However, “slippery prison floors . . . do not state even an arguable claim for cruel 9 and unusual punishment.” LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). 10 “Many courts have concluded that poorly maintained surfaces, wet floors, and leaky 11 roofs do not generally pose a substantial risk of serious harm, and are instead claims 12 fundamentally sounding in negligence—which is insufficient to violate the Eighth 13 Amendment as a matter of law.” Miranda v. Madden, No.: 3:19-cv-01605-LAB- 14 RBM, 2019 U.S. Dist. LEXIS 192188, at *11, 2019 WL 5727444, at *5 (S.D. Cal. 15 Nov. 4, 2019) (quotations omitted); see also Collins v. Dir. of C.D.C., No. NO. 1:04- 16 CV-5304-REC-SMS-P, 2005 U.S. Dist. LEXIS 266181, at *6 (E.D. Cal. Nov. 3, 17 2005) (“The allegation that the roofed leaked is insufficient to demonstrate a 18 condition so extreme that it rose to the level of an Eighth Amendment violation.”). 19 “Courts have reached this conclusion, even where the hazard has existed, and been 20 known to prison officials, for years and where the prisoner was required to use the 21 dangerous location . . . .” Pauley v. California, No. 2:18-cv-2595 KJN P, 2018 U.S. 22 Dist. LEXIS 193388, at *11, 2018 WL 5920780, at *4 (E.D. Cal. Nov. 13, 2018) 23 (collecting cases). 24 For these reasons, the FAC does not state an Eighth Amendment claim. The 25 Court previously advised Plaintiff of these deficiencies. (See Order Dismiss Compl. 26 8–9.) If Plaintiff includes a claim regarding the treatment he receives in prison 27 and/or the conditions of confinement in any amended complaint, he must correct 28 these deficiencies or face dismissal of his Eighth Amendment claim. 8 1 2 3 B. If Plaintiff Fails to Plead a Federal Claim, the Court will Decline Supplemental Jurisdiction Over Plaintiff’s State Law Claims. “[D]istrict courts may decline to exercise supplemental jurisdiction over a 4 [state law claim] if . . . the district court has dismissed all claims over which it has 5 original jurisdiction.” 28 U.S.C. § 1367(c)(3). “A district court’s decision whether 6 to exercise [supplemental] jurisdiction after dismissing every claim over which it 7 had original jurisdiction is purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, 8 Inc., 556 U.S. 635, 639 (2009). In deciding whether to exercise supplemental 9 jurisdiction, a court considers “economy, convenience, fairness, and comity.” Acri 10 v. Varian Assocs., 114 F.3d 999, 1001 (9th Cir. 1997). 11 As Plaintiff has failed to plead a federal claim, the factors weigh against 12 exercising supplemental jurisdiction over Plaintiff’s state law claims (negligence and 13 violation of California Government Code Sections 815 and 830). As to judicial 14 economy, the Court has expended minimal effort towards this case and has not 15 engaged in substantive analysis of Plaintiff’s state law claims that would need to be 16 duplicated in state court. The convenience factor is neutral, weighing toward neither 17 side, as both cases would be filed within the Central District of California’s 18 geographic boundaries. So too is the fairness factor, as a state court would be as fair 19 as federal court. However, comity weighs strongly in favor of declining 20 supplemental jurisdiction, as it is “preferable as a matter of comity (respect for our 21 sister state institutions) for state court judges to apply state law to plaintiff’s state- 22 law claims.” Millar v. Bart Dist., 236 F. Supp. 2d 1110, 1120 (N.D. Cal. 2002). 23 Balancing these factors, the Court should not exercise supplemental jurisdiction over 24 Plaintiff’s state claims where Plaintiff has failed to plead a federal claim. See 25 Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual 26 case in which all federal-law claims are eliminated before trial, the balance of factors 27 to be considered under the pendent jurisdiction doctrine—judicial economy, 28 convenience, fairness, and comity—will point toward declining to exercise 9 1 jurisdiction over the remaining state-law claims.”) (alteration in original) (quoting 2 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). 3 For these reasons, if Plaintiff does not sufficiently plead a federal claim, the 4 Court will recommend declining supplemental jurisdiction over Plaintiff’s state 5 claims. 6 7 C. 8 Even if the FAC had sufficiently pled a federal claim, the FAC fails to plead 9 10 The FAC Fails to Plead Any State Claims. any state claims. Before commencing a lawsuit against a California state or local public entity 11 or its employee based on tort liability or for any claim for money or damages, the 12 Government Claims Act requires a plaintiff to first present a written claim to the 13 public entity. See Gong v. City of Rosemead, 226 Cal. App. 4th 363, 374 (2014); see 14 also City of Stockton v. Superior Court, 42 Cal. 4th 730, 738 (2007). Claims for 15 personal injury and property damages must be presented within six months after 16 accrual; all other claims must be presented within one year. City of Stockton, 42 Cal. 17 4th at 738. A plaintiff cannot file a lawsuit until the written claim has been acted 18 upon, or deemed rejected, by the board of the public entity. State of California v. 19 Superior Court (Bodde), 32 Cal. 4th 1234, 1239 (2004). “[S]ubmission of a claim to 20 a public entity pursuant to [the Government Claims Act] ‘is a condition precedent to 21 a tort action and the failure to present the claim bars the action.’” Id. at 1240 22 (quoting Phillips v. Desert Hosp. Dist., 49 Cal. 3d 699, 708 (1989)); see also Karim- 23 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988) (holding that 24 plaintiff’s pendent state law tort claims against both the individual and public entity 25 defendants are barred unless he presented them in compliance with Government 26 Claims Act before filing suit). “A cause of action that is subject to the statutory 27 claim procedure must allege either that the plaintiff complied with the claims 28 presentation requirement, or that a recognized exception or excuse for 10 1 noncompliance exists.” Gong, 226 Cal. App. 4th at 374; see also Bodde, 32 Cal. 4th 2 at 1243 (“[A] plaintiff must allege facts demonstrating or excusing compliance with 3 the claim presentation requirement. Otherwise, his complaint is subject to a general 4 demurrer for failure to state facts sufficient to constitute a cause of action.”). 5 The FAC does not allege that Plaintiff presented any potential state claims in 6 compliance with the Government Claims Act, or that he was excused from the claim 7 presentation requirement. Thus, the FAC does not sufficiently plead any state law 8 claims. The Court previously advised Plaintiff of this deficiency. (See Order 9 Dismiss Compl. 12–13.) If Plaintiff includes any state law claims in any amended 10 complaint, he must state facts showing that he presented or was excused from 11 presenting his claim in accordance with the Government Claims Act, or face 12 dismissal of his state law claims. 13 14 15 V. CONCLUSION For the reasons stated above, the Court DISMISSES the FAC WITH 16 LEAVE TO AMEND. Although highly doubtful that Plaintiff could amend the 17 FAC to overcome the deficiencies explained in this order, Plaintiff may have one 18 final opportunity to amend and cure the deficiencies given his pro se prisoner 19 status. Plaintiff is ORDERED to, within thirty days after the date of this Order, 20 either: (1) file a Second Amended Complaint (“SAC”), or (2) advise the Court that 21 Plaintiff does not intend to file a SAC. 22 The SAC must cure the pleading defects discussed above and shall be 23 complete in itself without reference to the FAC. See L.R. 15-2 (“Every amended 24 pleading filed as a matter of right or allowed by order of the Court shall be complete 25 including exhibits. The amended pleading shall not refer to the prior, superseding 26 pleading.”). This means that Plaintiff must allege and plead any viable claims in the 27 SAC again. Plaintiff shall not include new defendants or new allegations that are 28 not reasonably related to the claims asserted in the FAC. 11 1 In any amended complaint, Plaintiff should confine his allegations to those 2 operative facts supporting each of his claims. Plaintiff is advised that pursuant to 3 Rule 8, all that is required is a “short and plain statement of the claim showing that 4 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the 5 standard civil rights complaint form when filing any amended complaint, a 6 copy of which is attached. In any amended complaint, Plaintiff should identify the 7 nature of each separate legal claim and make clear what specific factual allegations 8 support each of his separate claims. Plaintiff strongly is encouraged to keep his 9 statements concise and to omit irrelevant details. It is not necessary for Plaintiff to 10 cite case law, include legal argument, or attach exhibits at this stage of the litigation. 11 Plaintiff also is advised to omit any claims for which he lacks a sufficient factual 12 basis. 13 The Court explicitly cautions Plaintiff that failure to timely file a SAC, or 14 timely advise the Court that Plaintiff does not intend to file a SAC, will result in 15 a recommendation that this action be dismissed for failure to prosecute and/or 16 failure to comply with court orders pursuant to Federal Rule of Civil Procedure 17 41(b). 18 Plaintiff is not required to file an amended complaint, especially since a 19 complaint dismissed for failure to state a claim without leave to amend may count as 20 a strike under 28 U.S.C. § 1915(g). Instead, Plaintiff may request voluntary 21 dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a) using the 22 attached Notice of Voluntary Dismissal form. 23 Plaintiff is advised that this Court’s determination herein that the allegations 24 in the FAC are insufficient to state a particular claim should not be seen as 25 dispositive of the claim. Accordingly, although the undersigned Magistrate Judge 26 believes Plaintiff has failed to plead sufficient factual matter in the pleading, 27 accepted as true, to state a claim for relief that is plausible on its face, Plaintiff is not 28 required to omit any claim or Defendant in order to pursue this action. However, if 12 1 Plaintiff decides to pursue a claim in an amended complaint that the undersigned 2 previously found to be insufficient, then pursuant to 28 U.S.C. § 636, the 3 undersigned ultimately may submit to the assigned District Judge a recommendation 4 that such claim may be dismissed with prejudice for failure to state a claim, subject 5 to Plaintiff’s right at that time to file objections. See Fed. R. Civ. P. 72(b); C.D. Cal. 6 L.R. 72-3. 7 IT IS SO ORDERED. 8 9 10 DATED: December 18, 2019 MARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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