Conyers v. San Diego Sheriff's Department, No. 3:2013cv02091 - Document 3 (S.D. Cal. 2014)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Watch Commander of GBDF, or his designee, is ordered to collect from prison trust account the initial filing fee assessed in this Order, and shall forward the remainder of the &# 036;350 filing fee owed in by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account e xceeds $10 in accordance with 28 USC 1915(b)(2). The Clerk of the Court is directed to serve a copy of this Order on the Watch Commander, George Bailey Detention Facility. Plaintiff's Complaint is dismissed without prejudice for failing to state a claim. Plaintiff is granted forty five (45) days leave from the date this Order is filed in which to file an Amended Complaint. Signed by Judge Larry Alan Burns on 2/19/14. (All non-registered users served via U.S. Mail Service)(cc: Watch Commander, George Bailey) (kaj)
Download PDF
<![CDATA[
Conyers v. San Diego Sheriff&#039;s Department Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ZACKERY THOMAS CONYERS, Booking #12577510; CDCR #AD-9555, Civil No. Plaintiff, 13 vs. 16 17 SAN DIEGO COUNTY SHERIFF’S DEPARTMENT, AND 18 19 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [ECF Doc. No. 2] 14 15 13cv2091 LAB (BGS) Defendant. 20 (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) & § 1915A(b) 21 Zackery Thomas Conyers (“Plaintiff”), who is currently incarcerated at George 22 Bailey Detention Facility (GBDF) in San Diego, California, and proceeding pro se, has 23 filed a civil rights complaint pursuant to 42 U.S.C. § 1983. 24 Plaintiff claims “all of the San Diego County Sheriff’s Department” has denied 25 him adequate medical treatment and meaningful access to the courts since he was first 26 booked in October 30, 2012, detained at the South Bay Detention Facility, and 27 continuing after his transfer to GBDF. See Compl. (ECF Doc. No. 1) at 1-3, 5. Plaintiff 28 seeks $4 million in general and punitive damages. Id. at 14. I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 1 13cv2091 LAB (BGS) 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) (ECF Doc. No. 2). 3 I. MOTION TO PROCEED IFP 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a 9 prisoner granted leave to proceed IFP remains obligated to pay the entire fee in 10 installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. 11 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 13 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 14 trust fund account statement (or institutional equivalent) for the prisoner for the six- 15 month period immediately preceding the filing of the complaint.” 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court must assess an initial payment of 20% of (a) the 18 average monthly deposits in the account for the past six months, or (b) the average 19 monthly balance in the account for the past six months, whichever is greater, unless the 20 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 21 institution having custody of the prisoner must collect subsequent payments, assessed 22 at 20% of the preceding month’s income, in any month in which the prisoner’s account 23 exceeds $10, and forward those payments to the Court until the entire filing fee is paid. 24 See 28 U.S.C. § 1915(b)(2). 25 /// 28 U.S.C. 26 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1, 2013). However, 28 the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 27 I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 2 13cv2091 LAB (BGS) 1 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 2 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. 3 Andrews, 398 F.3d at 1119. Plaintiff’s statement shows an average monthly balance of 4 zero, an average monthly deposit of $56.67, and an available balance of zero in his 5 account at the time it was submitted to the Court for filing. Based on this financial 6 information, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 2) 7 and assesses an initial partial filing fee of $11.33 pursuant to 28 U.S.C. § 1915(b)(1). 8 However, the Watch Commander of GBDF, or his designee, shall collect this 9 initial fee only if sufficient funds in Plaintiff’s account are available at the time this 10 Order is executed pursuant to the directions set forth below. See 28 U.S.C. § 1915(b)(4) 11 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 12 or appealing a civil action or criminal judgment for the reason that the prisoner has no 13 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 14 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal 15 of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 16 available to him when payment is ordered.”). The remaining balance of the $350 total 17 owed in this case shall be collected and forwarded to the Clerk of the Court pursuant to 18 the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 19 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 20 The PLRA also obligates the Court to review complaints filed by all persons 21 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any 22 facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 23 criminal law or the terms or conditions of parole, probation, pretrial release, or 24 diversionary program,” “as soon as practicable after docketing.” 25 §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua 26 sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail 27 to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. 28 §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 3 See 28 U.S.C. 13cv2091 LAB (BGS) 1 (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 2 (discussing 28 U.S.C. § 1915A(b)). 3 All complaints must contain “a short and plain statement of the claim showing 4 that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations 5 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 6 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 7 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 8 whether a complaint states a plausible claim for relief [is] ... a context-specific task that 9 requires the reviewing court to draw on its judicial experience and common sense.” Id. 10 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 11 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 12 “When there are well-pleaded factual allegations, a court should assume their 13 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 14 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 15 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 16 allegations of material fact and must construe those facts in the light most favorable to 17 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 18 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 19 However, while the court “ha[s] an obligation where the petitioner is pro se, 20 particularly in civil rights cases, to construe the pleadings liberally and to afford the 21 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 22 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in 23 so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board 24 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 A. 42 U.S.C. § 1983 26 “Section 1983 creates a private right of action against individuals who, acting 27 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 28 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 4 13cv2091 LAB (BGS) 1 substantive rights, but merely provides a method for vindicating federal rights elsewhere 2 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 3 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 4 deprivation of a right secured by the Constitution and laws of the United States, and (2) 5 that the deprivation was committed by a person acting under color of state law.” Tsao 6 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 7 B. Improper Defendant & Municipal Liability 8 As an initial matter, the Court finds that to the extent Plaintiff names the entire 9 “San Diego County Sheriff’s Department” as a Defendant of his Complaint, his claims 10 must be dismissed sua sponte pursuant to both 28 U.S.C. § 1915(e)(2) and § 1915A(b) 11 for failing to state a claim upon which § 1983 relief can be granted. A local law 12 enforcement department (like the San Diego County Sheriff’s Department) is not a 13 proper defendant under § 1983. See Vance v. County of Santa Clara, 928 F. Supp. 993, 14 996 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an 15 appropriate means of pleading a § 1983 action against a municipality.”) (citation 16 omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 17 1983 imposes liability on any ‘person’ who violates someone’s constitutional rights 18 ‘under color of law.’ Cook County Jail is not a ‘person.’”). 19 While the County of San Diego itself may be considered a “person” and therefore, 20 a proper defendant under § 1983, see Monell v. Department of Social Services, 436 U.S. 21 658, 691 (1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988), 22 Plaintiff has not named the County as a Defendant. Moreover, as a municipality, the 23 County may be held liable under § 1983–but only where the Plaintiff alleges facts to 24 show that a constitutional deprivation was caused by the implementation or execution 25 of “a policy statement, ordinance, regulation, or decision officially adopted and 26 promulgated” by the County, or a “final decision maker” for the County. Monell, 436 27 U.S. at 690; Board of the County Commissioners v. Brown, 520 U.S. 397, 402-04 (1997); 28 Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other words, “respondeat superior I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 5 13cv2091 LAB (BGS) 1 and vicarious liability are not cognizable theories of recovery against a municipality.” 2 Miranda v. Clark County, Nevada, 279 F.3d 1102, 1109-10 (9th Cir. 2002). “Instead, 3 a Monell claim exists only where the alleged constitutional deprivation was inflicted in 4 ‘execution of a government’s policy or custom.’” Id. (quoting Monell, 436 U.S. at 694). 5 As currently pleaded, Plaintiff’s Complaint fails to state a claim under 28 U.S.C. 6 § 1915A(b) because he has failed to allege any facts which “might plausibly suggest” 7 that the County itself violated his constitutional rights. See Hernandez v. County of 8 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading standards to Monell 9 claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42 U.S.C. § 1983 provides 10 for relief only against those who, through their personal involvement as evidenced by 11 affirmative acts, participation in another’s affirmative acts, or failure to perform legally 12 required duties, cause the deprivation of plaintiff’s constitutionally protected rights). C. 13 Medical Care Claims 14 In addition, while Plaintiff’s includes a catalogue of difficulties he has 15 encountered related to the medical attention he has either received or failed to receive 16 at the South Bay Detention Facility and GBDF, including changes to pain medication for 17 his “bad knees,” problems in gaining a “soft shoe chrono,” and delays in seeing nurses, 18 doctors and dentists, see Compl. at 3, his Complaint fails to contain “sufficient 19 allegations of underlying facts” to show that any individual person caused a violation of 20 Plaintiff’s Eighth or Fourteenth Amendment rights.2 Hernandez, 666 F.3d at 637; 21 Monell, 436 U.S. at 690; Brown, 520 U.S. at 403; Starr v. Baca, 652 F.3d 1202, 1207-08 22 (9th Cir. 2011). 23 2 24 25 26 27 28 Plaintiff cites his “right to medical care” as the basis of some of his claims, see Compl. at 3, but it is not clear whether he was a convicted prisoner or a pre-trial detainee at the time of any particular injury. See Whitley v. Albers, 475 U.S. 312, 327 (1986) (“[T]he Eighth Amendment ... is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions.”). However, pretrial detainees may raise conditions of confinement claims similar to those made by convicted persons under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Redman v. County of San Diego, 942 F.2d 1435, 1440, n.7 (9th Cir. 1991). The Ninth Circuit has held that the standard for analyzing the rights of pretrial detainees under the Due Process Clause is comparable to that under the Eighth Amendment. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 6 13cv2091 LAB (BGS) 1 Indeed, even if Plaintiff had sufficiently named individual defendants subject to 2 suit under § 1983, his allegations clearly fail to state an Eighth Amendment claim 3 because prison officials are liable only if they are deliberately indifferent to the 4 prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 5 First, Plaintiff’s Complaint of “bad knees” is simply insufficient to show a medical 6 needs which is objectively serious. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 7 Cir. 1991) (defining a “serious medical need” as one which the “failure to treat ... could 8 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”), 9 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 10 (en banc) (citing Estelle, 429 U.S. at 104). The “existence of an injury that a reasonable 11 doctor or patient would find important and worthy of comment or treatment; the presence 12 of a medical condition that significantly affects an individual’s daily activities; or the 13 existence of chronic and substantial pain are examples of indications that a prisoner has 14 a ‘serious’ need for medical treatment.” Id. at 1059-60. 15 Second, nothing in Plaintiff’s Complaint demonstrates a plausible claim of 16 deliberate indifference. “In order to show deliberate indifference, an inmate must allege 17 sufficient facts to indicate that prison officials acted with a culpable state of mind.” 18 Wilson v. Seiter, 501 U.S. 294, 302 (1991). The indifference to medical needs also must 19 be substantial; inadequate treatment due to malpractice, or even gross negligence, does 20 not amount to a constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 21 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high legal standard.”) 22 (citing Hallett v. Morgan, 296 F.3d 732, 1204 (9th Cir. 2002); Wood v. Housewright, 900 23 F.2d 1332, 1334 (9th Cir. 1990)). A difference of opinion between a prisoner and his 24 doctors as to the appropriate course or type of medical attention does not amount to 25 deliberate indifference, see Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing 26 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), and delays do not by themselves 27 show deliberate indifference, unless the delay is alleged to be harmful. See McGuckin, 28 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 7 13cv2091 LAB (BGS) 1 (9th Cir. 1985); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (“[D]elay in 2 providing a prisoner with dental treatment, standing alone, does not constitute an Eighth 3 Amendment violation.”). 4 D. Access to Courts 5 Finally, Plaintiff argues that the Sheriff’s Department “has made [his] access to 6 the courts almost impossible,” by failing to provide him with pens, as opposed to pencils. 7 See Compl. at 5. 8 Prisoners do “have a constitutional right to petition the government for redress of 9 their grievances, which includes a reasonable right of access to the courts.” O’Keefe v. 10 Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 11 1279 (9th Cir. 1995). In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held 12 that “the fundamental constitutional right of access to the courts requires prison 13 authorities to assist inmates in the preparation and filing of meaningful legal papers by 14 providing prisoners with adequate law libraries or adequate assistance from persons who 15 are trained in the law.” Id. at 828. To establish a violation of the right to access to the 16 courts, however, a prisoner must allege facts sufficient to show that: (1) a nonfrivolous 17 legal attack on his conviction, sentence, or conditions of confinement has been frustrated 18 or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 19 343, 353-55 (1996). An “actual injury” is defined as “actual prejudice with respect to 20 contemplated or existing litigation, such as the inability to meet a filing deadline or to 21 present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 22 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 23 1083, 1093 (9th Cir. 1996). 24 Here, Plaintiff fails to allege that any individual Sheriff’s Department officer’s 25 refusal to provide him with a pen precluded his pursuit of a non-frivolous direct or 26 collateral attack upon either his criminal conviction or sentence or the conditions of his 27 current confinement. See Lewis, 518 U.S. at 355 (right to access to the courts protects 28 only an inmate’s need and ability to “attack [his] sentence[], directly or collaterally, and I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 8 13cv2091 LAB (BGS) 1 ... to challenge the conditions of [his] confinement.”). In addition, Plaintiff must also, 2 but has failed to describe the non-frivolous nature of the “underlying cause of action, 3 whether anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). 4 In short, unless Plaintiff can show that “a complaint he prepared was dismissed,” 5 or that he was “so stymied” by the lack of a pen that “he was unable to even file a 6 complaint,” direct appeal, or petition for writ of habeas corpus that was not “frivolous,” 7 his access to courts claim must be dismissed. Lewis, 518 U.S. at 351; Christopher, 536 8 U.S. at 416 (“like any other element of an access claim[,] ... the predicate claim [must] 9 be described well enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ 10 nature of the underlying claim is more than hope.”). 11 For all these reasons, the Court finds that Plaintiff has failed to state a plausible 12 claim for relief against any person subject to suit pursuant to 42 U.S.C. § 1983. Iqbal, 13 556 U.S. at 678. Therefore, his Complaint is subject to sua sponte dismissal pursuant to 14 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See 28 U.S.C. § 1915(e)(2); § 1915A(b); Lopez, 15 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. Because Plaintiff is proceeding in pro 16 se, however, the Court having now provided him with “notice of the deficiencies in his 17 complaint,” will also provide him an opportunity to “effectively” amend. See Akhtar v. 18 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 19 1261 (9th Cir. 1992)). 20 III. CONCLUSION AND ORDER 21 Good cause appearing therefor, IT IS HEREBY ORDERED that: 22 1. 23 24 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF Doc. No. 2] is GRANTED. 2. The Watch Commander of GBDF, or his designee, shall collect from 25 Plaintiff’s inmate trust account the initial filing fee assessed in this Order, and shall 26 forward the remainder of the $350 filing fee owed by collecting monthly payments from 27 Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding month’s 28 income and shall forward payments to the Clerk of the Court each time the amount in the I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 9 13cv2091 LAB (BGS) 1 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 2 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 3 TO THIS ACTION. 4 3. The Clerk of the Court is directed to serve a copy of this Order on the Watch 5 Commander, George Bailey Detention Facility, 446 Alta Rd., Suite 5300, San Diego, 6 California, 92158-0002. 7 IT IS FURTHER ORDERED that: 8 4. Plaintiff’s Complaint is DISMISSED without prejudice for failing to state 9 a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is 10 GRANTED forty five (45) days leave from the date this Order is filed in which to file an 11 Amended Complaint which cures all the deficiencies of pleading identified in this Order. 12 Plaintiff’s Amended Complaint must be complete in itself without reference to his 13 original pleading. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 14 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 15 the original.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted) (“All 16 causes of action alleged in an original complaint which are not alleged in an amended 17 complaint are waived.”).3 18 19 DATED: February 19, 2014 20 21 HONORABLE LARRY ALAN BURNS United States District Judge 22 23 24 25 26 27 28 3 Plaintiff is cautioned that should his Amended Complaint still fail to state a claim upon which relief may be granted, it may be dismissed without further leave to amend and may hereafter be counted as a “strike” against him pursuant to 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” id. (internal quotations omitted), “even if the district court styles such dismissal as a denial of the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). I:\Everyone\_EFILE-PROSE\LAB\13cv2091-grt-IFP-dsm.wpd 10 13cv2091 LAB (BGS)
]]>
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.
