Michael Wilson v. J. Gastello et al

Filing 31

MEMORANDUM AND ORDER DISMISSING FAC WITH LEAVE TO AMEND by Magistrate Judge Douglas F. McCormick. 30 (twdb)

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1 2 3 4 5 Plaintiff 8/18/2017 N. Boehme 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 MICHAEL WILSON, 12 Plaintiff, 13 v. 14 15 16 17 J. GASTELLO et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 16-09449 DOC (DFM) MEMORANDUM AND ORDER DISMISSING FAC WITH LEAVE TO AMEND 18 19 I. 20 BACKGROUND 21 On November 15, 2016, Michael Wilson (“Plaintiff”), a state prisoner at 22 California Men’s Colony in San Luis Obispo County (“CMC”), filed an 23 “Affidavit/Declaration” in the United States District Court for the Northern 24 District of California. Dkt. 1 (“Affidavit”). The Northern District court 25 provided Plaintiff with two blank forms, a Complaint by a Prisoner and an In 26 Forma Pauperis Application. Dkt. 2, 3. On December 1, Plaintiff used these 27 forms to file a civil rights complaint under 42 U.S.C. § 1983 (“Complaint”) and 28 move for leave to proceed in forma pauperis. Dkt. 5, 6. About three weeks 1 later, the Northern District Court transferred the case to this Court because the 2 Complaint described events that occurred at CMC. See Dkt. 9. On January 5, 3 2017, this Court granted Plaintiff’s application to proceed in forma pauperis. 4 Dkt. 12. On March 6, Plaintiff moved to amend the Complaint, adding 5 additional allegations. Dkt. 14 (“Supplement”). The Court interpreted 6 Plaintiff’s motion as a request to supplement the Complaint. Dkt. 17. The 7 Court dismissed the Complaint with leave to amend. Dkt. 19. 8 9 On June 19, 2017, Plaintiff filed a first amended complaint (the “FAC”). Dkt. 30. As best the Court can tell, Plaintiff names as defendants: (1) Josie 10 Gastello, CMC’s Warden, in her official capacity; (2) Katherin Lino, CMC’s 11 Health Care Compliance/Appeal Coordinator, in her individual and official 12 capacity; (3) Dr. Camillo Guiang, Plaintiff’s primary care physician; (4) Dr. 13 Geoffery Chaffee, CMC’s lead optometrist, in his individual and official 14 capacity; (5) Dr. L. Sprague, CMC’s Chief Physician, in his individual and 15 official capacity; and (6) Patrick Denny, CMC’s Associate Warden, in his 16 individual and official capacity.1 Id. at 19, 22-23. 17 In accordance with 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court must 18 screen the FAC to determine whether the action is frivolous or malicious; fails 19 to state a claim on which relief might be granted; or seeks monetary relief 20 against a defendant who is immune from such relief. 21 II. 22 SUMMARY OF ALLEGATIONS 23 The FAC lists Plaintiff’s grievances about his medical ailments and life 24 at the prison, with few specific allegations explaining which prison official was 25 involved or what exactly occurred. Plaintiff’s complaints include the following: 26 27 28 1 Plaintiff references alleged wrongdoing by other individuals and groups but does not name them as defendants. 2 1 Disability Form: On August 31, 2015, Dr. Guiang checked “No 2 Disabilities” on a Disability Placement Program Verification form, despite 3 Plaintiff suffering from “multiple disabilities.” FAC at 2. Dr. Guiang instead 4 checked the “Related Forms” box to refer to Plaintiff’s lower bunk chrono, 5 special handcuffing requirements, and other physical limitations. Id. at 2-3. 6 Infection: On March 20, 2017, Plaintiff had surgery to remove a 3 mm 7 calcified stone. Id. at 3. He suffered a post-operative infection and a doctor 8 prescribed amoxicillin. Id. Even though the surgeon wanted to see Plaintiff by 9 April 27, Dr. Guiang did not schedule Plaintiff for a follow-up with the 10 surgeon. Id. at 3, 7. Dr. Guiang ordered testing and claimed Plaintiff was 11 “negative” for infections, but Plaintiff believes that a “complete test” was never 12 done and that he has been exposed to “toxic black mold.” Id. at 3, 24. 13 Hip X-Rays: On October 6, 2016, Plaintiff had x-rays performed of his 14 pelvis and hips. Id. at 3. The x-rays showed moderate degenerative changes to 15 Plaintiff’s right hip. Id. Plaintiff requested insoles and physical therapy (he 16 does not say from whom) but was “denied” them. Id. He was offered a 17 walking cane instead. Id. at 8. 18 Colonoscopy: On October 8, 2014, Plaintiff had a colonoscopy. Id. at 4. 19 He developed complications after the procedure. Id. Dr. Guiang ordered “less 20 efficacious treatment” than a high fiber diet, i.e., a fiber tablet and antacids. Id. 21 Dr. Guiang “falsified documents” to deny Plaintiff access to a gastrointestinal 22 specialist. Id. 23 Glaucoma Medication and Lenses: Dr. Chaffee, an optometrist, 24 prescribed Plaintiff glaucoma medication in October 2014. Id. at 4-5. Plaintiff 25 alleges that Dr. Chaffee discontinued Plaintiff’s brand-name glaucoma 26 medication in November 20172 in retaliation for this lawsuit. Id. at 4-5. 27 2 28 Presumably, Plaintiff means November 2016. 3 1 Plaintiff also alleges that Dr. Chaffee changed this prescription from the brand- 2 name to the generic medication, despite knowing that the generic medication 3 burned Plaintiff’s eyes; this occurred in April 2017, possibly in retaliation for a 4 grievance Plaintiff filed against Dr. Chaffee. Id. at 5, 8, 15. Dr. Sprague 5 violated Plaintiff’s due process rights by delaying responding to and eventually 6 denying Plaintiff’s “emergency appeal” with respect to this medication, which 7 Plaintiff filed on March 16, 2017. Id. at 5. At some point, Dr. Chaffee 8 prescribed Plaintiff “defective transition lenses.” Id. at 5-6. 9 Racial Discrimination: Plaintiff alleges “racial bias and discrimination” 10 against black inmates at his prison, including denial of access to substance 11 abuse and other programs. Id. at 7, 9-11, 26. Elsewhere, however, Plaintiff 12 claims that he is denied access to these programs because he is a “lifer.” Id. at 13 9, 25. Plaintiff describes a “Green Wall alt-right” of correctional officers and 14 doctors who falsify test scores in order to give white and Mexican inmates an 15 advantage. Id. at 6, 11, 26-27. 16 Dirty Urinalysis: On September 23, 2014, Plaintiff received a “dirty 17 urinalysis” due to his prescription medication and was punished unfairly. Id. at 18 25. Shortly after he filed a complaint about this, he had “confidential 19 information placed in his C-file.” Id. 20 Mail System and Access to Courts: Plaintiff alleges that the prison is an 21 “organized crime unit,” and that prison guards obstruct prisoners’ access to 22 courts and interfere with their mail. Id. at 10, 17. He notes, for example, that 23 his “confidential legal mail” from the Federal Bureau of Investigation was 24 opened in February 2017, and Plaintiff is uncertain if he received all of his 25 documents. Id. at 10. He asks the Court to send a United States Marshal to 26 pick up “thousands of pages of medical documents” that the prison will not 27 copy for him. Id. at 17. He shares a case number with another inmate, which 28 caused a mail mix-up. Id. at 13. He has also been denied access to the Bay 4 1 View Newspaper. Id. 2 Grievance System: Associate Warden Denny falsely claimed to 3 “Internal Affairs” that one of Plaintiff’s appeals was “screened out,” when in 4 fact Denny and another individual colluded to stonewall Plaintiff’s appeal. Id. 5 at 25. Plaintiff claims that his due process rights have been violated by the 6 prison taking too long to respond to his grievances. Id. at 9. Dr. Sprague 7 “coerced” Plaintiff into placing a grievance into the “medical box” so that it 8 would reach its destination, but it took 46 days instead of 5 days for the prison 9 to respond. Id. at 9. 10 Medical Information: In August 2016, Warden Gastello allowed Brad 11 T. Barcklay, Psy D., to access Plaintiff’s medical information without 12 Plaintiff’s permission. Id. at 8, 28. Dr. Barcklay relied on these records to give 13 Plaintiff a higher risk assessment. Id. at 8. As a result, Plaintiff was denied 14 parole. Id. at 8, 28. Plaintiff has also been denied access to his health records. 15 Id. at 11. 16 General Medical Care Complaints: Plaintiff suffers from “spinal cord 17 trauma” and other ailments, but “health care providers” have refused to 18 perform MRIs and CT scans. Id. at 11-12. 19 III. 20 STANDARD OF REVIEW 21 The Court’s screening of the FAC under the foregoing statutes is 22 governed by the following standards: A complaint may be dismissed for failure 23 to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) 24 insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police 25 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether the 26 complaint states a claim on which relief may be granted, its allegations of 27 material fact must be taken as true and construed in the light most favorable to 28 5 1 Plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Since 2 Plaintiff is appearing pro se, the Court must construe the allegations of the 3 complaint liberally and afford Plaintiff the benefit of any doubt. Karim-Panahi 4 v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the 5 liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” 6 Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation 7 of a civil rights complaint may not supply essential elements of the claim that 8 were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 9 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 10 (9th Cir. 1982)). A “plaintiff’s obligation to provide the ‘grounds’ of his 11 ‘entitlement to relief’ requires more than labels and conclusions, and a 12 formulaic recitation of the elements of a cause of action will not do. Factual 13 allegations must be enough to raise a right to relief above the speculative level, 14 on the assumption that all the allegations in the complaint are true (even if 15 doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 16 (citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 17 (holding that to avoid dismissal for failure to state a claim, “a complaint must 18 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that 19 is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads 20 factual content that allows the court to draw the reasonable inference that the 21 defendant is liable for the misconduct alleged.” (citation omitted)). 22 If the Court finds that a complaint should be dismissed for failure to state 23 a claim, the Court has discretion to dismiss with or without leave to amend. 24 Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). The Court 25 should grant leave to amend if it appears possible that the defects in the 26 complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; 27 see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that 28 “[a] pro se litigant must be given leave to amend his or her complaint, and 6 1 some notice of its deficiencies, unless it is absolutely clear that the deficiencies 2 of the complaint could not be cured by amendment”). However, if, after 3 careful consideration, it is clear that a complaint cannot be cured by 4 amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 5 1105-06. 6 IV. 7 DISCUSSION 8 9 10 11 12 A. Plaintiff’s Failure to State Cognizable Legal Theories and Sufficient Facts Like Plaintiff’s initial Complaint, the FAC suffers from numerous deficiencies. Conclusory Legal Theories: Plaintiff cites the Equal Protection Clause, 13 the Americans with Disabilities Act, the Tenth Amendment, the Eleventh 14 Amendment, the Double Jeopardy Clause, and the Confrontation Clause. See 15 FAC at 12-13, 24. He provides no facts supporting these legal theories, and 16 some of them bear no apparent relation to Plaintiff’s suit. For example, the 17 Eleventh Amendment bars suits for money damages in federal court against a 18 state and its agencies. See Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 19 1147 (9th Cir. 2007). 20 No Personal Involvement: Plaintiff names Lino as a defendant but does 21 not allege her personal involvement in any of the alleged wrongdoing. Plaintiff 22 also fails to allege personal involvement by any Defendant in the alleged racial 23 discrimination and falsification of test scores, the dirty urinalysis, access to 24 courts and interference with mail, the presence of “black mold” in the prison, 25 Plaintiff’s request for insoles and physical therapy, and Plaintiff’s general 26 complaints of deficient medical care. In order to state a § 1983 claim, Plaintiff 27 must allege that particular defendants personally participated in the alleged 28 rights deprivations. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 7 1 Official Capacity Claims: Plaintiff sues Warden Gastello, Dr. Chaffee, 2 Dr. Sprague, Associate Warden Denny, and possibly Dr. Guiang in their 3 official capacity. An “official-capacity suit is, in all respects other than name, 4 to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 5 166 (1985). Such a suit “is not a suit against the official personally, for the real 6 party in interest is the entity.” Id. Here, all of the Defendants are officers or 7 agents of the California Department of Corrections (“CDCR”). Therefore, all 8 of Plaintiff’s claims against Defendants in their official capacities are 9 tantamount to claims against the CDCR. 10 However, states, state agencies, and state officials sued in their official 11 capacities are not persons subject to civil rights claims for damages under 42 12 U.S.C. § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64–66 13 (1989); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that the 14 Eleventh Amendment does not bar suits against state officials sued in their 15 individual capacities nor for prospective injunctive relief against state officials 16 sued in their official capacities). The CDCR is an agency of the State of 17 California and, therefore, entitled to Eleventh Amendment immunity. See 18 Brown v. Cal. Dep’t of Corrections, 554 F.3d 747, 752 (9th Cir. 2009). 19 To overcome the Eleventh Amendment bar on federal jurisdiction over 20 suits by individuals against a State and its instrumentalities, either the State 21 must have “unequivocally expressed” its consent to waive its sovereign 22 immunity or Congress must have abrogated it. Pennhurst State School & 23 Hosp. v. Halderman, 465 U.S. 89, 99–100 (1984). California has consented to 24 be sued in its own courts pursuant to the California Tort Claims Act, but this 25 consent is not consent to suit in federal court. See BV Engineering v. Univ. of 26 Cal., Los Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988); see also Atascadero 27 State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (holding that Art. III, § 5 of 28 California Constitution is not waiver of state’s Eleventh Amendment 8 1 immunity). Furthermore, Congress has not abrogated State sovereign 2 immunity against suits under 42 U.S.C. § 1983. 3 4 5 Accordingly, the Eleventh Amendment bars Plaintiff’s claims for damages against the Defendants in their official capacity. Individual Capacity Claims: Plaintiff fails to state sufficient facts to 6 support his legal theories against the Defendants in their individual capacity.3 7 First, Plaintiff’s claims against Dr. Sprague and Associate Warden 8 Denny are almost entirely based on their supervisory status. Supervisory 9 personnel generally are not liable under 42 U.S.C. § 1983 on any theory of 10 respondeat superior or vicarious liability, in the absence of a state law 11 imposing such liability. See Redman v. Cty. of San Diego, 942 F.2d 1435, 12 1446 (9th Cir. 1991). A plaintiff must allege either (1) the supervisor’s personal 13 involvement in the constitutional deprivation, or (2) a sufficient causal 14 connection between the supervisor’s wrongful conduct and the constitutional 15 violation. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Here, Plaintiff 16 has done neither. 17 Second, Plaintiff fails to state deliberate indifference claims against Dr. 18 Chaffee or Dr. Guiang. To establish an Eighth Amendment claim that prison 19 authorities provided inadequate medical care, a prisoner must allege acts or 20 omissions sufficiently harmful to evidence deliberate indifference to serious 21 medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A plaintiff must 22 demonstrate confinement under conditions posing a risk of “objectively, 23 sufficiently serious” harm and that the officials had a “sufficiently culpable 24 state of mind” in denying the proper medical care. Clement v. Gomez, 298 25 F.3d 898, 904 (9th Cir. 2002) (quoting Wallis v. Baldwin, 70 F.3d 1074, 1076 26 27 28 3 Plaintiff does not name Warden Gastello in her individual capacity. If Plaintiff did, his claims against Warden Gastello would suffer from the same deficiencies listed in this section. 9 1 (9th Cir. 1995)). A defendant “both be aware of facts from which the inference 2 could be drawn that a substantial risk of serious harm exists, and he must also 3 draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). An 4 inadvertent failure to provide adequate medical care, mere negligence or 5 medical malpractice, a mere delay in medical care (without more), or a 6 difference of opinion over proper medical treatment, are all insufficient to 7 constitute an Eighth Amendment violation. Estelle, 429 U.S. at 105-07; 8 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Even gross negligence is 9 insufficient to establish deliberate indifference to serious medical needs. Wood 10 11 v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Some of Plaintiff’s allegations do not show a substantial risk of serious 12 harm, such as Dr. Guiang’s filling out a Disability Placement Program 13 verification form. Other allegations do not suggest a sufficiently culpable state 14 of mind: e.g., (1) Dr. Guiang’s failing to schedule Plaintiff for a follow-up 15 appointment with a surgeon after Plaintiff’s tests were negative for infection; 16 (2) Dr. Guiang’s denying Plaintiff access to a gastrointestinal specialist; and (3) 17 Dr. Chaffee prescribing defective lenses and generic glaucoma medication. 18 Plaintiff alleges no facts suggesting that these acts reflect anything more than, 19 at most, negligence or malpractice. Still other allegations amount to no more 20 than a difference of opinion in treatment, such as Dr. Chaffee’s prescribing 21 generic instead of brand-name medication or Dr. Guiang’s prescribing a fiber 22 tablet rather than a high-fiber diet. Plaintiff does not explain what documents 23 Dr. Guiang supposedly falsified. For these reasons, Plaintiff has not stated an 24 Eighth Amendment claim on which relief may be granted, even taking his 25 allegations as true. 26 Third, Plaintiff has not stated a due process violation. According to 27 Plaintiff, Dr. Sprague denied Plaintiff’s “emergency appeal” with respect to 28 Plaintiff’s glaucoma medication, and the denial took 46 rather than the 10 1 “required” 5 days. Prisoners have no stand-alone due process rights related to 2 the administrative grievance process.4 Mann v. Adams, 855 F.2d 639, 640 (9th 3 Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 4 (holding that there is no liberty interest entitling inmates to specific grievance 5 process). Plaintiff’s due process claim against Associate Warden Denny—that 6 Denny colluded with another official to “stonewall” one of Plaintiff’s 7 appeals—is completely conclusory, and the Court is unable to address it. 8 Plaintiff claims that Dr. Barckley’s access to and reliance on Plaintiff’s medical 9 records led to Plaintiff’s parole denial. Plaintiff does not allege that he had no 10 notice of or opportunity to be heard during the parole hearing. He therefore 11 has not stated a due process claim. See Greenholtz v. Inmates of Nebraska 12 Penal and Correctional Complex, 442 U.S. 1, 9, 15 (“The Due Process Clause 13 applies when government action deprives a person of liberty or property. . . . 14 There is no constitutional or inherent right of a convicted person to be 15 conditionally released before the expiration of a valid sentence. . . . The 16 Nebraska procedure affords an opportunity to be heard, and when parole is 17 denied it informs the inmate in what respects he falls short of qualifying for 18 parole; this affords the process that is due under these circumstances. The 19 Constitution does not require more.”). Furthermore, Plaintiff had no due 20 process right to see his file before the hearing. Id. at 5, 15-16 (holding that 21 22 23 24 25 26 27 28 4 If Plaintiff means to state a First Amendment claim, prisoners have a First Amendment right to petition the government through the prison grievance process. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). Interference with the grievance process may, in certain circumstances, implicate the First Amendment, if it resulted in a denial of the inmate’s access to the courts. However, Plaintiff has not explained how his right of access to the courts has been interfered with, or what actual injury he has suffered. See Lewis v. Casey, 518 U.S. 343, 351-53 (1996) (noting that to have standing to assert denial of access claim, inmate must demonstrate that official acts or omissions hindered his efforts to pursue nonfrivolous legal claim). 11 1 Constitution does not require that prisoners hear adverse testimony or cross- 2 examine witnesses against them at parole hearing). Fourth, Plaintiff has not stated a First Amendment retaliation claim. In 3 4 the prison context, a First Amendment retaliation claim requires five basic 5 elements: “(1) [a]n assertion that a state actor took some adverse action against 6 an inmate (2) because of (3) that prisoner’s protected conduct, and that such 7 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) 8 the action did not reasonably advance a legitimate correctional goal.” 9 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citation omitted). 10 Plaintiff has not alleged facts showing that each of these elements are met with 11 respect to Dr. Chaffee’s (or any other Defendant’s) conduct. It is unclear from 12 the FAC whether (1) Dr. Chaffee discontinued Plaintiff’s glaucoma medication 13 entirely or merely changed Plaintiff’s prescription to a generic version, (2) why 14 Plaintiff believes that Dr. Chaffee took this action in retaliation for protected 15 conduct, (3) when this occurred, and (4) what protected activities were 16 involved—i.e., Plaintiff’s grievances, this lawsuit, or something else entirely. In these ways, Plaintiff fails to state claims on which relief might be 17 18 granted, making dismissal appropriate. 19 B. 20 The FAC Violates Federal Rule of Civil Procedure 8 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain 21 “‘a short and plain statement of the claim showing that the pleader is entitled 22 to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and 23 the grounds upon which it rests.’” Twombly, 550 U.S. at 555. Rule 8(d)(1) 24 instructs that each allegation be “simple, concise, and direct.” A complaint 25 violates Rule 8 if a defendant would have difficulty responding to the 26 complaint. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 27 1047, 1059 (9th Cir. 2011). This Court has discretion to dismiss for failure to 28 comply with the requirements of Rule 8 even when the complaint is not 12 1 “wholly without merit.” McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 2 1996). 3 Plaintiff did not submit the FAC on the Central District’s civil rights 4 complaint form (although the FAC includes out-of-order pages from the form, 5 see FAC at 18-26), which pro se litigants are encouraged to use. Also, the FAC 6 is generally difficult to decipher and many of Plaintiff’s claims are 7 disorganized, hard to understand, and unsupported by facts. It is often unclear 8 which claims pertain to which Defendants. In any amended complaint, 9 Plaintiff must clearly set out which of his claims pertain to which Defendants 10 and should support those claims with relevant facts showing each Defendant’s 11 involvement. If he cannot do so, he should omit that claim or Defendant from 12 the amended complaint. 13 V. 14 CONCLUSION 15 Because of the pleading deficiencies identified above, the FAC is subject 16 to dismissal. Because it appears to the Court that some of the FAC’s 17 deficiencies are capable of being cured by amendment, it is dismissed with 18 leave to amend. See Lopez, 203 F.3d at 1130-31 (holding that pro se litigant 19 must be given leave to amend complaint unless it is absolutely clear that 20 deficiencies cannot be cured by amendment). If Plaintiff still desires to pursue 21 his claims against Defendants, he shall file a Second Amended Complaint 22 within thirty-five (35) days of the date of this Order remedying the deficiencies 23 discussed above. Plaintiff’s Second Amended Complaint should bear the 24 docket number assigned in this case; be labeled “Second Amended 25 Complaint”; and be complete in and of itself without reference to the original 26 Complaint or any other pleading, attachment or document. The Clerk is 27 directed to send Plaintiff a blank Central District civil rights complaint form, 28 which Plaintiff is strongly encouraged to utilize. 13 1 Plaintiff is admonished that, if he fails to timely file a Second 2 Amended Complaint, the Court will recommend that this action be 3 dismissed with prejudice for failure to diligently prosecute. 4 5 Dated: August 18, 2017 6 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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