Thomas-Weisner v. Gipson et al, No. 3:2019cv01999 - Document 14 (S.D. Cal. 2020)
Court Description: ORDER granting 10 Defendants' Motion to Dismiss Plaintiff's Complaint. Plaintiff forty-five (45) days leave to file a First Amended Complaint. Signed by Judge John A. Houston on 10/26/2020. (All non-registered users served via U.S. Mail Service)(jpp)
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Thomas-Weisner v. Gipson et al Doc. 14 Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.111 Page 1 of 11 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JONQUIL THOMAS-WEISNER CDCR #AR-5757, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Plaintiff, 13 14 Case No.: 3:19-cv-01999-JAH-BGS vs. 15 16 17 18 [ECF No. 10] CONNIE GIPSON; PATRICK COVELLO; LANCE ESHELMAN; M. VOONG, Defendants. 19 20 21 22 Jonquil Thomas-Weisner (“Plaintiff”), currently incarcerated at Centinela State 23 Prison (“CEN”) located in Imperial, California, is proceeding pro se and in forma pauperis 24 (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 25 1.) Plaintiff alleges Defendants violated his First Amendment rights and rights under the 26 Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by revoking his right 27 to receive a religious diet when he was previously housed at the Richard J. Donovan 28 Correctional Facility (“RJD”). (Id. at 4-5.) 1 3:19-cv-01999-JAH-BGS Dockets.Justia.com Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.112 Page 2 of 11 1 I. Procedural History 2 Plaintiff initially filed this action pursuant to 42 U.S.C. § 1983 on October 17, 2019. 3 (See ECF No. 1.) Plaintiff also filed a Motion to Proceed IFP (See ECF No. 2.) On January 4 8, 2020, the Court granted Plaintiff’s Motion to Proceed IFP and dismissed Defendants 5 Gipson and Voong for failing to state a claim upon which relief could be granted pursuant 6 to 28 U.S.C. §§ 1915 (e)(2(b)(ii), 1915A(b)(1). (See ECF No. 5 at 9.) 7 However, the Court found that the allegations in Plaintiff’s Complaint as to his First 8 Amendment free exercise and RLUIPA claims were “sufficient to survive the ‘low 9 threshold’ set for sua sponte screening pursuant to 28 U.S.C. § 1915 (e)(2(b)(ii) and 10 § 1915A(b)(1). (Id. at 8-9.) Thus, the Court directed the United States Marshal Service to 11 effect service of the remaining claims in Plaintiff’s Complaint on Defendants Covello and 12 Eshelman. (See id.) 13 On May 11, 2020, Defendants Covello and Eshelman filed a “Motion to Dismiss to 14 Complaint” pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 10.) Plaintiff filed an Opposition 15 to Defendant’s Motion, to which Defendant filed a Reply. (See ECF Nos. 12, 13.) 16 The Court has considered Plaintiff’s pleadings, as well as Defendants’ Motion as 17 submitted, and has determined no oral argument is necessary pursuant to S.D. Cal. CivLR 18 7.1. For the reasons explained, the Court GRANTS Defendants’ Motion to Dismiss 19 Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 10). 20 II. Motion to Dismiss 21 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 22 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 23 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 24 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City 25 of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. Mar. 20, 2018). 26 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s 27 substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide 28 a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th 2 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.113 Page 3 of 11 1 Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a 2 written instrument that is an exhibit to a pleading is a part of the pleading for all 3 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 4 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 5 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be 6 considered” in ruling on a Rule 12(b)(6) motion to dismiss.) However, exhibits that 7 contradict the claims in a complaint may fatally undermine the complaint’s allegations. See 8 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can “plead 9 himself out of a claim by including . . . details contrary to his claims.”) (citing Steckman v. 10 Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (courts “are not required to 11 accept as true conclusory allegations which are contradicted by documents referred to in 12 the complaint.”))); see also Nat’l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. 13 of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (courts “may consider facts contained 14 in documents attached to the complaint” to determining whether the complaint states a 15 claim for relief). 16 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 17 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 18 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); 19 Villa v. Maricopa Cnty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially 20 plausible “when the plaintiff pleads factual content that allows the court to draw the 21 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 22 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 23 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, 24 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 25 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare 26 recitals of the elements of a cause of action, supported by mere conclusory statements, do 27 not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual 28 allegations,’” Rule 8 nevertheless “demands more than an unadorned, the defendant3 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.114 Page 4 of 11 1 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 2 555). 3 Therefore, “[f]actual allegations must be enough to raise a right to relief above the 4 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are 5 merely consistent with a defendant’s liability, it stops short of the line between possibility 6 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes 7 omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). 8 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 9 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive 10 of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 11 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). 12 III. Discussion 13 A. 14 Defendants seek dismissal of Plaintiff’s Complaint on the grounds: (1) Plaintiff 15 failed to state a claim; (2) they are entitled to qualified immunity; and (3) his request for 16 injunctive relief is moot in light of his transfer to another prison. (See ECF No. 10 (“Mem. 17 of P&As in Supp. of Mot. to Dismiss” [hereinafter Defs.’ P&As] at 5-8.) Defendant’s Arguments 18 B. 19 On June 20, 2018, Plaintiff was “transferred from [California Substance Abuse and Plaintiff’s Factual Allegations 20 Treatment Facility (“CSATF”)] where [he] was approved for 21 Alternative (RMA/Halal) diet” on May 14, 2014 to the Richard J. Donovan Correctional 22 Facility (“RJD”). (Compl. at 3.) When Plaintiff arrived at RJD he “completed and mailed 23 an inmate/parolee request for interview” to Chaplain Hadjadja “informing him of [his] 24 dietary requirements,” along with his “religious diet request,” and “religious diet card.” 25 (Id.) Plaintiff was later informed by the “Native American Spiritual Leader [NASL]” that 26 he was “being removed from the RMA program due to a canteen purchase in violation of 27 the contract” which was his “first violation.” (Id.) 28 /// the Religious Meat 4 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.115 Page 5 of 11 1 Plaintiff’s application for a religious diet was returned with “denied written across 2 it with no further explanation.” (Id. at 4.) Plaintiff “began the grievance process.” (Id.) 3 Plaintiff received a “Second Level Response” to his grievance on October 17, 2018. (Id.) 4 In this response, it was noted that Plaintiff “arrived to RJD on April of 2018” and 5 “requested to be placed on the [religious] diet.” (Id.) This was treated as a “new request.” 6 (Id.) A review of Plaintiff’s “canteen purchases was conducted, which revealed [Plaintiff] 7 was purchasing items not consistent with the diet requested.” (Id.) Plaintiff alleges 8 Defendants “did not follow guidelines” when denying Plaintiff’s request. (Id.) 9 On August 3, 2018, Plaintiff arrived at CEN and “attempted to apply for [his] RMA 10 diet to no avail.” (Id. at 5.) Plaintiff again initiated the grievance process. (See id.) 11 Defendant Voong “denied both sets of appeals” at the “Third Level of Review.” (Id.) 12 Plaintiff seeks injunctive relief along with compensatory and punitive damages. (See id. 13 at 7.) 14 C. 15 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential 16 elements: (1) that a right secured by the Constitution or laws of the United States was 17 violated, and (2) that the alleged violation was committed by a person acting under the 18 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 19 1035-36 (9th Cir. 2015). 42 U.S.C. § 1983 20 D. 21 Defendants argue that Plaintiff has failed to state a First Amendment free exercise 22 claim against them. (See Defs.’ P&As at 5-6.) “The right to the free exercise of religion 23 is a precious American invention, distinguishing our Constitution from all prior national 24 constitutions.” Ward v. Walsh, 1 F.3d 873, 876 (9th Cir. 1993). “The right to exercise 25 religious practices and beliefs does not terminate at the prison door. The free exercise 26 right, however, is necessarily limited by the fact of incarceration, and may be curtailed in 27 order to achieve legitimate correctional goals or to maintain security.” McElyea v. Babbitt, 28 833 F.2d 196, 197 (9th Cir. 1987). The protections of the Free Exercise Clause are Individual Causation 5 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.116 Page 6 of 11 1 triggered when prison officials burden the practice of an inmate’s religion by preventing 2 him from engaging in conduct which he sincerely believes is consistent with his faith. 3 Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 4 737 (9th Cir. 1997), overruled in part by Shakur, 514 F.3d at 884-85. 5 Defendants argue that Plaintiff’s Complaint contains no factual allegations that 6 would be sufficient for “establishing liability” against them as he is apparently seeking to 7 hold them liable in their supervisory capacity. 8 Defendants argue that neither of them “had knowledge” of the allegation by Plaintiff that 9 he was not receiving his RMA meals. (Defs.’ P&As at 4.) In addition, Defendants argue 10 that “Plaintiff does not state who removed him from the RMA diet program, or determined 11 he was non-compliant.” (Id. at 4-5.) (Defs.’ P&As at 6.) Specifically, 12 In his Opposition, Plaintiff acknowledges that he first notified “Rabbi Hadjadj, a 13 Jewish Chaplain and NASL at RJD that he was not receiving RMA meals.” (Pl.’s Opp’n 14 at 4.) However, Plaintiff argues that Defendants were “members” of the Religious Review 15 Committee (“RCC”) and as members of this committee, they “hold knowledge of all 16 inmates [who may or may not] be in compliance with religious dietary requirements.” (Id.) 17 Moreover, Plaintiff claims Defendants “also possess the authority to approve/remove 18 inmates from any diet program.” (Id.) 19 As Defendants rightly point out, they cannot be held liable simply by virtue of their 20 supervisory roles. This is because there is no respondeat superior liability under Section 21 1983. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the 22 unconstitutional conduct of their subordinates under a theory of respondeat superior.” 23 (emphasis in original)). As a result, in order to state a claim against either Defendant, 24 Plaintiff must allege their “‘personal involvement in the constitutional deprivation’” or “‘a 25 sufficient causal connection between the supervisor’s wrongful conduct and the 26 constitutional violation.’” See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) 27 (quoting Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc), 28 abrogated on other grounds by Farmer, 511 U.S. at 837). 6 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.117 Page 7 of 11 1 Plaintiff’s claim in his Opposition that Defendants were members of a committee 2 that purportedly would have known that he was denied the right to participate in the RMA 3 is not an allegation that is found in his Complaint. This alleged membership in this 4 committee is the sole argument that Plaintiff makes in his Opposition to show that these 5 Defendants were personally involved in the denial of his religious meals. The only specific 6 allegation pertaining to these Defendants in the Complaint itself is Plaintiff’s allegation 7 that Defendants “both ignored rules set forth by both the CCR Title 15, section 3054.5 and 8 Departmental Operations Manual (DOM) section 54080.14 in dealing with Plaintiff’s first 9 diet program violation.” (Compl. at 3.) 10 Section 3054.5 of Title 15 of the California Code of Regulations requires, in part, 11 that when there is an “alleged compliance violation” of the RMA, the report “shall be sent 12 to the designated representative of the RCC, who shall consult with the inmate.” CAL. 13 CODE REGS., tit. 15 § 3054.5. This section also states that the “RCC shall make the final 14 determination of continuing eligibility.” Id. Here, in his Opposition, but again not in his 15 Complaint, Plaintiff claims that Defendants, as members of the RCC, were required to 16 make the eligibility determination and thus, by default they should have known that 17 Plaintiff was allegedly wrongly denied participation in the RMA. (See Pl.’s Opp’n at 4.) 18 “The inquiry into causation must be individualized and focus on the duties and 19 responsibilities of each individual defendant whose acts or omissions are alleged to have 20 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) 21 (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).) A person deprives another “of a 22 constitutional right, within the meaning of section 1983, if he does an affirmative act, 23 participates in another’s affirmative acts, or omits to perform an act which he is legally 24 required to do that causes the deprivation of which [the plaintiff] complains].” Johnson v. 25 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 26 Here, the Complaint contains no allegations that Defendants were members of the 27 RCC, nor are there any allegations that Defendants played any direct role in the decision 28 to deny or remove Plaintiff from the RMA. “Plaintiff must plead that each Government7 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.118 Page 8 of 11 1 official defendant, through [his] own individual actions, has violated the Constitution” in 2 order to plead a plausible claim for relief. Iqbal, 556 U.S. at 676. 3 For the reasons set forth above, the Court GRANTS Defendants’ Motion to Dismiss 4 Plaintiff’s First Amendment claims for failing to state a claim upon which relief may be 5 granted. 6 E. 7 Plaintiff argues that the Defendants “lack of following the guidelines of the CCR, 8 Title 15” is the basis “for liability in a § 1983 lawsuit.” (Pl.’s Opp’n at 5.) However, 9 Defendants argue that the purported failure to comply with § 3054.5 is not a constitutional 10 violation. (See Defs.’ P&As at 6.) The Court agrees. Violations of state regulations do 11 not necessarily amount to a Fourteenth Amendment procedural due process violation in a 12 § 1983 action. See Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009); Sweaney v. 13 Ada Cnty., 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. 14 Dist., 90 F.3d 367, 370 (9th Cir. 1996) (internal quotations omitted) (“To the extent that 15 the violation of a state law amounts to the deprivation of a state-created interest that reaches 16 beyond that guaranteed by the federal Constitution, [§] 1983 offers no redress.”)). Fourteenth Amendment claims 17 “The Fourteenth Amendment’s Due Process Clause protects persons against 18 deprivations of life, liberty or property; and those who seek to invoke its procedural 19 protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 20 U.S. 209, 221 (2005). But it does not “protect every change in conditions of confinement 21 having a substantial impact on the inmate in relation to the ordinary incidents of prison 22 life.” Sandin v. Conner, 515 U.S. 472, 478 (1995). Instead, process is due only before 23 changes that inflict an “atypical and significant hardship on the inmate in relation to the 24 ordinary incidents of prison life.” Id. at 484. Plaintiff does not allege that any changes to 25 his diet were a “dramatic departure from the basic conditions” of his confinement that 26 would give rise to a liberty interest. Id. at 485. 27 /// 28 /// 8 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.119 Page 9 of 11 1 Accordingly, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s 2 Fourteenth Amendment due process claims for failing to state a claim upon which relief 3 may be granted. 4 F. 5 RLUIPA claims 1. Injunctive relief 6 Defendants argue that Plaintiff’s claim for injunctive relief under RLUIPA are moot 7 in light of the fact that he was “transferred to another prison that is not the subject of the 8 underlying claim.” (Defs.’ Mot. at 7.) The claims giving rise to Plaintiff’s action are 9 alleged to have occurred when he was previously housed at RJD but at the time he filed his 10 action he was housed in Centinela State Prison (“CEN”) where he still remains. (See 11 Compl. at 1.) Plaintiff argues that his “claim for injunctive relief cannot be moot when he 12 has also asked for money damages.” (Pl.’s Opp’n at 6.) However, the Court agrees that 13 Plaintiff’s claims for injunctive relief arising at RJD are moot. See Dilley v. Gunn, 664 14 F.3d 1365, 1368 (9th Cir. 1995) (An inmate’s transfer to a different prison while conditions 15 of confinement claims are pending moot any claims for injunctive relief.”) 16 17 Therefore, Defendants’ Motion to Dismiss Plaintiff’s claims for injunctive relief is GRANTED. 18 2. Monetary claims 19 Defendants also seek to dismiss Plaintiff’s RLUIPA claims against them in their 20 individual capacity. (Defs.’ Mot. at 8.) Specifically, Defendants argue that “RLUIPA does 21 not authorize suit against state actors acting in their individual capacity.” (Id., citing Wood 22 v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014)). 23 In 2011, the Supreme Court held that States do not “consent to waive their sovereign 24 immunity to private suits for money damages under RLUIPA because no statute expressly 25 and unequivocally includes such a waiver.” See Sossamon v. Texas, 563 U.S. 277, 293 26 (2011). Therefore, monetary damages under RLUIPA are not available to state officials 27 sued in their official capacity. See Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1112 (9th 28 Cir 2010). 9 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.120 Page 10 of 11 1 RLUIPA was enacted pursuant to Congress’s “Spending Clause and Commerce 2 Clause authority.” Sossamon, 563 U.S. at 281. In Wood, the Ninth Circuit reasoned that 3 because RLUIPA was enacted pursuant to the Spending Clause, the language of RLUIPA 4 does not suggest Congress intended to hold government employees liable in their 5 individual capacity. See Wood 753 F.3d at 904 (RLUIPA “does not authorize suits against 6 a person in anything other than an official or governmental capacity, for it is only in that 7 capacity that funds are received.”) The Ninth Circuit, in agreeing with “unanimous 8 conclusion of all of the other circuits,” found that a prison official cannot be held liable for 9 monetary damages in their individual capacities for alleged RLUIPA violations. See Wood, 10 753 F.3d at 901. 11 Accordingly, the Court finds that Plaintiff’s claims for monetary damages and 12 injunctive relief against Defendants in both their individual and official capacities for 13 RLUIPA violations cannot proceed. Thus, Plaintiff’s RLUIPA claims are dismissed 14 without leave to amend as futile. 15 G. 16 Defendants also move to dismiss on the ground that they are entitled to qualified 17 immunity. Because the Court has found that Plaintiff has failed to state a claim against 18 them, it need not reach any issues regarding qualified immunity. See Saucier v. Katz, 533 19 U.S. 194, 201 (2001) (“If no constitutional right would have been violated were the 20 allegations established, there is no necessity for further inquiries concerning qualified 21 immunity.”); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[The better 22 approach to resolving cases in which the defense of qualified immunity is raised is to 23 determine first whether the plaintiff has alleged the deprivation of a constitutional right at 24 all.”). Qualified Immunity 25 H. 26 As mentioned, in light of Plaintiff’s pro se status, the Court grants Plaintiff leave to 27 amend to cure the deficiencies in his claims against Defendants, if he can, with the 28 exception of his RLUIPA claim. See AmerisourceBergen Corp. v. Dialysist W., Inc., 465 Leave to Amend 10 3:19-cv-01999-JAH-BGS Case 3:19-cv-01999-JAH-BGS Document 14 Filed 10/26/20 PageID.121 Page 11 of 11 1 F.3d 946, 951 (9th Cir. 2006) (“Rule 15(a) is very liberal and leave to amend shall be freely 2 given when justice so requires.” (quotation omitted)). 3 Plaintiff’s First Amended Complaint must be complete in itself, without reference 4 to Plaintiff’s original pleading, and any claims Plaintiff fails to reallege against any of the 5 Defendants will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Lacey, 693 F.3d at 6 928 (noting that claims dismissed with leave to amend that are not re-alleged in an amended 7 pleading may be “considered waived if not repled”); Hal Roach, 896 F.2d at 1546 (“[A]n 8 amended pleading supersedes the original.”). 9 IV. Conclusion and Orders 10 Accordingly, the Court: 11 (1) GRANTS Defendants’ Motion to Dismiss Plaintiff’s Complaint for failing to 12 state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6) (ECF 13 No. 10); 14 (2) DISMISSES Plaintiff’s RLUIPA claims without leave to amend; 15 (3) GRANTS Plaintiff forty-five (45) days leave to file a First Amended 16 Complaint. If Plaintiff fails to file a First Amended Complaint within the time provided, 17 the Court will enter a final order dismissing this action in its entirety based both on 18 Plaintiff’s failure to state a claim upon which relief can be granted pursuant to Federal Rule 19 of Civil Procedure 12(b)(6) and his failure to prosecute in compliance with a court order 20 requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a 21 plaintiff does not take advantage of the opportunity to fix his complaint, a district court 22 may convert the dismissal of the complaint into dismissal of the entire action.”); and 23 24 25 26 IT IS SO ORDERED. Dated: October 26, 2020 Hon. John A. Houston United States District Judge 27 28 11 3:19-cv-01999-JAH-BGS
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