Sammy Lee Morris v. CDCR et al

Filing 11

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Complaint (Prisoner Civil Rights),, 1 . (see Order for detais) (Attachments: # 1 CIVIL RIGHTS COMPLAINT FORM, # 2 NOTICE OF DISMISSAL) (dts)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 Plaintiff, 11 v. 12 13 Case No. CV 16-5547-SVW (KK) SAMMY LEE MORRIS, ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND CDCR, et al., Defendants. 14 15 16 17 I. 18 INTRODUCTION Plaintiff Sammy Lee Morris (“Plaintiff”), proceeding pro se and in forma 19 20 pauperis, has filed a Complaint (“Complaint”) pursuant to Title 42 of the United 21 States Code, section 1983 (“Section 1983”) alleging defendants CDCR, R. Yavari, 22 J. Kidd, E. Clark, V. Ortiz, and J. Curiel (“Defendants”) violated his First, Eighth, 23 and Fourteenth Amendment rights. As discussed below, the Court dismisses the 24 Complaint with leave to amend. 25 /// 26 /// 27 /// 28 /// 1 II. 2 ALLEGATIONS IN THE COMPLAINT 3 On July 20, 2016, Plaintiff constructively filed1 a complaint (“Complaint”) 4 pursuant to Section 1983. Dkt. 1, Compl.2 Plaintiff sues Defendants R. Yavari, J. 5 Kidd, E. Clark, V. Ortiz, and J. Curiel in both their individual and official 6 capacities. Id. at 3-4. Plaintiff appears to be complaining about rule violations he and other inmates 7 8 received for indecent exposure. He argues it is “so easy” for inmates to be given 9 rule violations for indecent exposure without due process in violation of their 10 Fourteenth Amendment rights. Compl. at 6-7. Plaintiff alleges his First 11 Amendment rights are violated when he is forced to wear a yellow jumpsuit as a 12 result of the rule violations which identifies him with a “badge of shame.” Id. at 13 10. Inmates who receive indecent exposure violations are then discriminated 14 against and treated differently in violation of their Fourteenth Amendment equal 15 protection rights. Id. at 6-7. Plaintiff states he “feel[s] uncomfortable because staff 16 are constantly staring at [his] lap and between [his] legs, always looking down at 17 [him] staring, like the[y’re] just waiting for [him] to do something inappropriate.” 18 Id. at 7. Plaintiff appears to argue his Eighth Amendment rights are violated by this 19 “retaliatory sexual harassment” and Defendants’ deliberate indifference to the 20 humiliation caused Defendants’ malicious issuance of indecent exposure rule 21 violations. Id. at 6-7. Plaintiff seeks compensatory and punitive damages in the sum of $100,000 22 23 against each Defendant in their individual capacity. Id. at 14. 24 25 26 27 28 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). 2 The Court refers to the pages of the Complaint as if the Complaint were consecutively paginated. 1 2 1 III. 2 STANDARD OF REVIEW 3 As Plaintiff is proceeding in forma pauperis, the Court must screen the 4 Complaint and is required to dismiss the case at any time if it concludes the action 5 is frivolous or malicious, fails to state a claim on which relief may be granted, or 6 seeks monetary relief against a defendant who is immune from such relief. 28 7 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b); see Barren v. Harrington, 152 F.3d 8 1193, 1194 (9th Cir. 1998). 9 In determining whether a complaint fails to state a claim for screening 10 purposes, the Court applies the same pleading standard from Rule 8 of the Federal 11 Rules of Civil Procedure (“Rule 8”) as it would when evaluating a motion to 12 dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter, 13 668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 8(a), a complaint must contain a 14 “short and plain statement of the claim showing that the pleader is entitled to 15 relief.” Fed. R. Civ. P. 8(a)(2). 16 A complaint may be dismissed for failure to state a claim “where there is no 17 cognizable legal theory or an absence of sufficient facts alleged to support a 18 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007) 19 (citation omitted). In considering whether a complaint states a claim, a court must 20 accept as true all of the material factual allegations in it. Hamilton v. Brown, 630 21 F.3d 889, 892-93 (9th Cir. 2011). However, the court need not accept as true 22 “allegations that are merely conclusory, unwarranted deductions of fact, or 23 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th 24 Cir. 2008) (citation omitted). Although a complaint need not include detailed 25 factual allegations, it “must contain sufficient factual matter, accepted as true, to 26 ‘state a claim to relief that is plausible on its face.’” Cook v. Brewer, 637 F.3d 27 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 28 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it “allows the 3 1 court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Cook, 637 F.3d at 1004 (citation omitted). “A document filed pro se is to be liberally construed, and a pro se complaint, 3 4 however inartfully pleaded, must be held to less stringent standards than formal 5 pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 6 2008) (citation omitted). “[W]e have an obligation where the p[laintiff] is pro se, 7 particularly in civil rights cases, to construe the pleadings liberally and to afford the 8 p[laintiff] the benefit of any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 9 2012) (citation omitted). If the court finds the complaint should be dismissed for failure to state a 10 11 claim, the court has discretion to dismiss with or without leave to amend. Lopez v. 12 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted 13 if it appears possible the defects in the complaint could be corrected, especially if 14 the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 15 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint 16 cannot be cured by amendment, the court may dismiss without leave to amend. 17 Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th 18 Cir. 2009). 19 IV. 20 DISCUSSION 21 A. THE COMPLAINT DOES NOT UNAMBIGUOSLY IDENTIFY 22 DEFENDANTS 23 Rule 10(a) of the Federal Rules of Civil Procedure requires that each 24 defendant be named in the caption of the complaint. A complaint is subject to 25 dismissal if “one cannot determine from the complaint who is being sued, [and] for 26 what relief . . . .” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) 27 Here, while CDCR appears in the caption of the Complaint, it is not listed in 28 the section of the Complaint identifying the parties. See Compl. at 3-4. The Court 4 1 is therefore unable to determine whether Plaintiff intended to name CDCR as a 2 defendant. If Plaintiff decides to include CDCR in an amended complaint, he must 3 4 clarify exactly who the defendants are – at a minimum, the caption and body of the 5 complaint must agree. 6 B. THE COMPLAINT FAILS TO COMPLY WITH THE PLEADING 7 REQUIREMENTS OF RULE 8 OF THE FEDERAL RULES OF 8 CIVIL PROCEDURE 9 Rule 8(a) requires that a complaint contain “a short and plain statement of 10 the claim showing that the pleader is entitled to relief.” Further, Rule 8(d)(1) 11 provides “[e]ach allegation must be simple, concise, and direct.” As the Supreme 12 Court has held, Rule 8(a) “requires a ‘showing,’ rather than a blanket assertion, of 13 entitlement to relief.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3, 127 14 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Complaints that are “argumentative, prolix, 15 replete with redundancy, and largely irrelevant” and that “consist[] largely of 16 immaterial background information” are subject to dismissal under Rule 8. See 17 McHenry, 84 F.3d at 1177. 18 In the instant case, it is difficult for the Court to determine the exact nature 19 of Plaintiff’s claims. Plaintiff does not specify a date on which the constitutional 20 harm was allegedly committed; nor does he specify what actions were allegedly 21 committed by which actors in order to produce the alleged constitutional harm. 22 Plaintiff’s Complaint is replete with repetitive and irrelevant facts and arguments, 23 much of which are incomprehensible. For example, Plaintiff states: “Inmates 24 should not be deprived of any rights or priveleges common to other human beings. 25 The entire spectrum, remind us that we are a futuristic people.” Compl. at 7-8. 26 He then spends several pages discussing the difference between just and unjust 27 laws, arguing “[t]his is certainly a legitimate concern, since we so diligently urge 28 people to obey the Supreme Court Decision of 1954 outlawing segregation in the 5 1 public school.” Id. at 7-9. In another example, Plaintiff notes his “other major 2 disappointment with CDCR: I have been so greatly disappointed with leadership 3 (warden of course).” Id. at 10. As a result of the Complaint’s lack of clarity and specificity, the Court 4 5 cannot decipher the nature of Plaintiff’s claims. Hence, the Complaint does not 6 give Defendants adequate notice of the legal claims being asserted against them. 7 See McHenry, 84 F.3d at 1176. Unclear pleadings, such as the Complaint, that 8 “leav[e] it to the Court to figure out what the full array of [Plaintiff’s] claims is and 9 upon what federal law, and upon what facts, each claim is based” remain subject to 10 dismissal. Little v. Baca, No. CV 13–0373 PA (RZ), 2013 WL 436018, at *3 (C.D. 11 Cal. Feb. 1, 2013). Accordingly, the Complaint must be dismissed. See also 12 Clayburn v. Schirmer, No. CIV S-06-2182 ALA P, 2008 WL 564958, at *3-4 (E.D. 13 Cal. Feb. 28, 2008) (Alarcón, Circuit J., sitting by designation) (dismissing “long, 14 rambling pleading” under Rule 8 and noting that “[t]he court (and any defendant) 15 should be able to read and understand Plaintiff’s pleading within minutes”). 16 In amending the Complaint, Plaintiff must state each of his claims separately 17 and for each claim should identify “clearly and precisely” and briefly the legal basis 18 and the facts underlying it. See Bautista v. L.A. Cnty., 216 F.3d 837, 841 (9th Cir. 19 2000) (“Experience teaches that, unless cases are pleaded clearly and precisely, 20 issues are not joined, discovery is not controlled, the trial court’s docket becomes 21 unmanageable, the litigants suffer and society loses confidence in the court's ability 22 to administer justice.”). Additionally, while Plaintiff names individual defendants 23 R. Yavari, J. Kidd, E. Clark, V. Ortiz, and J. Curiel, Plaintiff fails to allege any 24 specific action taken by any of these individual defendants. In amending the 25 Complaint, Plaintiff must identify when the alleged harm was committed, who 26 caused the alleged harm, and what actions were committed by each alleged 27 wrongdoer. 28 /// 6 1 C. PLAINTIFF FAILS TO STATE AN OFFICIAL CAPACITY CLAIM 2 AGAINST ANY DEFENDANT 3 (1) 4 An “official-capacity suit is, in all respects other than name, to be treated as 5 a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 6 87 L. Ed. 2d 114 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 7 873, 83 L. Ed. 2d 878 (1985); Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th 8 Cir. 1991). Such a suit “is not a suit against the official personally, for the real party 9 in interest is the entity.” Graham, 473 U.S. at 166. Because no respondeat APPLICABLE LAW 10 superior liability exists under Section 1983, a municipality is liable only for injuries 11 that arise from an official policy or longstanding custom. Monell v. Dep’t of Soc. 12 Servs. of City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 13 (1978); see also City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. 14 Ed. 2d 412 (1989). A plaintiff must show “that a [municipal] employee committed 15 the alleged constitutional violation pursuant to a formal governmental policy or a 16 longstanding practice or custom which constitutes the standard operating 17 procedure of the local governmental entity.” Gillette v. Delmore, 979 F.2d 1342, 18 1346 (9th Cir. 1992) (citations and internal quotation marks omitted). In addition, 19 he must show the policy was “(1) the cause in fact and (2) the proximate cause of 20 the constitutional deprivation.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) 21 citing Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981)). 22 (2) ANALYSIS 23 Here, Plaintiff’s claims against Defendants in their official capacity fail. 24 Plaintiff fails to identify a policy that was “(1) the cause in fact and (2) the 25 proximate cause of the constitutional deprivation.” See Trevino, 99 F.3d at 918. 26 Plaintiff simply alleges he has been wrongfully accused of indecent exposure rules 27 violations and claims there is an “epidemic” at Lancaster Prison of inmates being 28 charged with indecent exposure rule violations. Compl. at 6. This subjective 7 1 conclusion fails to set forth a policy, practice, or custom. In addition, Plaintiff 2 seeks damages from Defendants only in their individual capacity. Id. at 14. 3 Therefore, Plaintiff’s official capacity claims must be dismissed. 4 D. PLAINTIFF FAILS TO STATE A FIRST AMENDMENT 5 RETALIATION CLAIM 6 (1) 7 Allegations of retaliation against a plaintiff inmate’s First Amendment rights APPLICABLE LAW 8 to speech or to petition the government may support a Section 1983 claim. See 9 Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Within the prison context, a 10 viable claim of First Amendment retaliation entails five elements: (1) the plaintiff 11 engaged in protected conduct; (2) an assertion that a state actor took some adverse 12 action against the plaintiff; (3) the adverse action was “because of” the plaintiff’s 13 protected conduct; (4) the adverse action “would chill or silence a person of 14 ordinary firmness from future First Amendment activities;” and (5) the action did 15 not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 16 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First Amendment in 17 the prison context has included filing of a prison grievance, Bruce v. Ylst, 351 F.3d 18 1283, 1288 (9th Cir. 2003), giving legal assistance to other inmates, Rizzo v. 19 Dawson, 778 F.2d 527, 531 (9th Cir. 1985), and access to the courts, Lewis v. 20 Casey, 518 U.S. 343, 346, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). 21 (2) 22 Here, Plaintiff’s First Amendment retaliation claim fails. As a preliminary 23 matter, Plaintiff fails to identify any protected conduct. Moreover, Plaintiff cites 24 no authority, and the Court is unaware of any authority, protecting the right not to 25 wear particular clothing in prison. 26 ANALYSIS In addition, Plaintiff fails to allege Defendants took adverse action. To the 27 extent Plaintiff alleges the requirement of wearing the yellow jumpsuit constitutes 28 adverse action, he fails to allege such requirement “would chill or silence a person 8 1 of ordinary firmness from future First Amendment activities.” See Rhodes v. 2 Robinson, 408 F.3d at 568. Therefore, Plaintiff’s First Amendment retaliation 3 claim must be dismissed. 4 E. PLAINTIFF FAILS TO STATE AN EIGHTH AMENDMENT 5 SEXUAL HARASSMENT CLAIM 6 (1) 7 Prison officials violate the Eighth Amendment’s prohibition against cruel APPLICABLE LAW 8 and unusual punishment when they deny humane conditions of confinement with 9 deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 10 L. Ed. 2d 811 (1994). To state a claim for such an Eighth Amendment violation, an 11 inmate must show objective and subjective components. Clement v. Gomez, 298 12 F.3d 898, 904 (9th Cir. 2002). The objective component requires an “objectively 13 insufficiently humane condition violative of the Eighth Amendment” which poses 14 a substantial risk of serious harm. Osolinski v. Kane, 92 F.3d 934, 938 (9th Cir. 15 1996). The subjective component requires prison officials acted with the culpable 16 mental state, which is “deliberate indifference” to the substantial risk of serious 17 harm. Farmer, 511 U.S. at 837-38; Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S. Ct. 18 285, 50 L. Ed. 2d 251 (1976). “[A] prison official cannot be found liable under the 19 Eighth Amendment for denying an inmate humane conditions of confinement 20 unless the official knows of and disregards an excessive risk to inmate health or 21 safety; the official must both be aware of facts from which the inference could be 22 drawn that a substantial risk of serious harm exists, and he must also draw the 23 inference.” Farmer, 511 U.S. at 837. 24 Prisoners have an Eighth Amendment right to be free from sexual abuse. 25 Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 2000). However, the Eighth 26 Amendment “do[es] not necessarily extend to mere verbal sexual harassment.” 27 Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004); Minifield v. Butikofer, 298 28 F. Supp. 2d 900, 903-04 (N.D. Cal. 2004) (“Allegations of verbal harassment and 9 1 abuse fail to state a claim cognizable under 42 U.S.C. § 1983.”). In addition, mere 2 threats are not cognizable claims under Section 1983. Minifield, 298 F. Supp. 2d at 3 903. 4 (2) ANALYSIS 5 Here, Plaintiff’s Eighth Amendment cruel and unusual punishment claim 6 fails. Plaintiff alleges he “feel[s] uncomfortable because staff are constantly staring 7 at [his] lap and between [his] legs, always looking down at [him] staring, like 8 the[y’re] just waiting for [him] to do something inappropriate.” Compl. at 7. 9 Plaintiff appears to argue his Eighth Amendment rights are violated by this 10 “retaliatory sexual harassment” and Defendants’ deliberate indifference to the 11 humiliation caused Defendants’ malicious issuance of indecent exposure rule 12 violations. Id. at 6-7. However, Plaintiff fails to show his discomfort or humiliation created an 13 14 “objectively insufficiently humane condition violative of the Eighth Amendment” 15 which poses a substantial risk of serious harm. See Osolinski, 92 F.3d 938; see also 16 Walker v. Villalobos, No. CV 12-2383-VAP (PJW), 2014 WL 658365, at *8 (C.D. 17 Cal. Feb. 14, 2014) (finding plaintiff’s allegations regarding defendant’s “verbal 18 threats and sexual harassment fail to state a claim under the Eighth Amendment”). 19 Further, Plaintiff offers no facts showing Defendants acted while knowing of and 20 disregarding an excessive risk to inmate health or safety. See Farmer, 511 U.S. at 21 837-38. Therefore, Plaintiff’s Eighth Amendment must be dismissed. 22 F. PLAINTIFF FAILS TO STATE A FOURTEENTH AMENDMENT 23 DUE PROCESS CLAIM 24 (1) 25 The Due Process Clause of the Fourteenth Amendment protects individuals APPLICABLE LAW 26 against deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. 27 “A liberty interest may arise from the Constitution itself, by reason of guarantees 28 implicit in the word ‘liberty,’ or it may arise from an expectation or interest created 10 1 by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2 162 L. Ed. 2d 174 (2005) (citations omitted). Due process analysis “proceeds in 3 two steps: We first ask whether there exists a liberty or property interest of which a 4 person has been deprived, and if so we ask whether the procedures followed by the 5 State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219, 131 6 S. Ct. 859, 178 L. Ed. 2d 732 (2011). 7 Courts have held prisoners have “no constitutionally guaranteed immunity 8 from being falsely or wrongly accused of conduct which may result in the 9 deprivation of a protected liberty interest,” but they do have “the right not to be 10 deprived of a protected liberty interest without due process of law.” Freeman v. 11 Rideout, 808 F.2d 949, 951 (2d Cir. 1986); see also Sprouse v. Babcock, 870 F.2d 12 450, 452 (8th Cir. 1989) (finding inmate’s claims based upon falsity of charges 13 brought by a prison counselor did not state a constitutional claim). In order to 14 establish the deprivation of a protected liberty interest, a prisoner must allege an 15 “atypical, significant deprivation in which a State might conceivably create a liberty 16 interest.” Sandin v. Conner, 515 U.S. 472, 486, 115 S. Ct. 2293, 132 L. Ed. 2d 418 17 (1995) (holding “segregated confinement did not present the type of atypical, 18 significant deprivation in which a State might conceivably create a liberty 19 interest”). In order to establish the denial of procedural protections afforded by 20 due process, a prisoner must allege denial of the requirements set forth in Wolff v. 21 McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), which include 22 written notice, the right to call witnesses, the right to present documentary 23 evidence, and the right to have a written statement by the factfinder as to the 24 evidence relied upon and the reasons for the disciplinary action taken. See Serrano 25 v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003). 26 (2) 27 Here, Plaintiff’s Fourteenth Amendment due process claim fails. Plaintiff 28 ANALYSIS appears to allege he has been wrongly accused of rule violations and argues it is “so 11 1 easy” for inmates to be given rule violations for indecent exposure without due 2 process in violation of their Fourteenth Amendment rights. Compl. at 6-7. 3 However, Plaintiff has no due process right to be free from false accusations. See 4 Freeman, 808 F.2d at 951; see also Sprouse, 870 F.2d at 452. In addition, the 5 CDCR action that Plaintiff challenges (e.g. Plaintiff’s window being covered with a 6 yellow placard and being required to wear an “indecent exposure control 7 jumpsuit”) fails to constitute an “atypical, significant deprivation in which a State 8 might conceivably create a liberty interest.” Sandin, 515 U.S. 486. Finally, 9 Plaintiff has not alleged he was denied the procedural protections set forth in Wolff. 10 Therefore, Plaintiff’s Fourteenth Amendment due process claim must be 11 dismissed. 12 G. PLAINTIFF FAILS TO STATE A FOURTEENTH AMENDMENT 13 EQUAL PROTECTION CLAIM 14 (1) 15 “The Equal Protection Clause of the Fourteenth Amendment commands APPLICABLE LAW 16 that no State shall ‘deny to any person within its jurisdiction the equal protection of 17 the laws,’ which is essentially a direction that all persons similarly situated should 18 be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 19 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 20 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)). In order to state a Section 1983 21 equal protection claim, a plaintiff must allege he was treated differently from others 22 who were similarly situated without a rational basis or discriminated against based 23 on his membership in a protected class. See Serrano, 345 F.3d at 1082 24 (requirements for Section 1983 equal protection claim based on membership in 25 protected class); Gallo v. Burson, 568 F. App’x 516, 517 (9th Cir. 2014) (affirming 26 district court dismissal of inmate’s equal protection claim). 27 /// 28 /// 12 1 (2) ANALYSIS 2 Here, Plaintiff’s equal protection claim fails. Plaintiff fails to allege facts 3 showing Defendants treated him differently from others similarly situated without 4 a rational basis or discriminated against him based on his membership in a 5 protected class. In fact, Plaintiff has not even identified any similarly situated 6 inmates who were treated differently from him. See Compl. Therefore, Plaintiff’s 7 Equal Protection claim must be dismissed. 8 V. 9 LEAVE TO FILE A FIRST AMENDED COMPLAINT 10 For the foregoing reasons, the Complaint is subject to dismissal. As the 11 Court is unable to determine whether amendment would be futile, leave to amend 12 is granted. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 13 curiam). Accordingly, IT IS ORDERED THAT within twenty-one (21) days of 14 the service date of this Order, Plaintiff choose one of the following two options: 15 1. Plaintiff may file a First Amended Complaint to attempt to 16 cure the deficiency discussed above. The Clerk of Court is directed to mail 17 Plaintiff a blank Central District civil rights complaint form to use for filing 18 the First Amended Complaint. 19 If Plaintiff chooses to file a First Amended Complaint, Plaintiff must clearly 20 designate on the face of the document that it is the “Second Amended 21 Complaint,” it must bear the docket number assigned to this case, and it must be 22 retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff 23 shall not include new defendants or new allegations that are not reasonably related 24 to the claims asserted in the Complaint. In addition, the First Amended Complaint 25 must be complete without reference to the Complaint, or any other pleading, 26 attachment, or document. 27 28 An amended complaint supersedes the preceding complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will 13 1 treat all preceding complaints as nonexistent. Id. Because the Court grants 2 Plaintiff leave to amend as to all his claims raised here, any claim raised in a 3 preceding complaint is waived if it is not raised again in the First Amended 4 Complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). 5 2. Alternatively, Plaintiff may voluntarily dismiss the action without 6 prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court 7 is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court 8 encourages Plaintiff to use. 9 The Court advises Plaintiff that it generally will not be well-disposed toward 10 another dismissal with leave to amend if Plaintiff files a First Amended Complaint 11 that continues to allege insufficient facts to state a claim. “[A] district court’s 12 discretion over amendments is especially broad ‘where the court has already given 13 a plaintiff one or more opportunities to amend his complaint.’” Ismail v. County 14 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (citations omitted); see 15 also Ferdik, 963 F.2d at 1261. 16 Plaintiff is explicitly cautioned that failure to timely file a First 17 Amended Complaint will result in this action being dismissed withprejudice 18 for failure to state a claim, prosecute, and/or obey Court orders pursuant to 19 Federal Rule of Civil Procedure 41(b). 20 21 22 23 Dated: October 11, 2016 HONORABLE KENLY KIYA KATO United States Magistrate Judge 24 25 26 27 28 14

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