Young v. Voong et al
Filing
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ORDER Directing Clerk to Assign District Judge; FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Failure to Stay a Cognizable Claim for Relief re 10 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stan ley A. Boone on 1/4/2018. This case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Stanley A. Boone. . The new case number is 1:17-cv-01671-AWI-SAB (PC). Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ZURI S. YOUNG,
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Plaintiff,
v.
M. VOONG, et al.,
Defendants.
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Case No. 1:17-cv-01671-SAB (PC)
ORDER DIRECTING OFFICE OF THE CLERK
TO RANDOMLY ASSIGN A DISTRICT JUDGE
TO THIS ACTION
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
[ECF No. 10]
Plaintiff Zuri S. Young is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s first amended complaint, filed on January 2, 2018, in
response to the Court’s December 15, 2017 screening order.
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I.
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SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally
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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
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2002).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally
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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121
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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,
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which requires sufficient factual detail to allow the Court to reasonably infer that each named
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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,
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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not
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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying
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the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
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II.
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COMPLAINT ALLEGATIONS
On September 6, 2016, while Plaintiff was housed at California State Prison, Corcoran, he was
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called to receiving and release to pack and register his personal property. Plaintiff’s thirteen inch
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television was working fine. An inmate worker was assisting officer Gutierrez inventory the property.
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Gutierrez dropped Plaintiff’s television and caused the digital component to come loose. The
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television could be fixed, but Gutierrez confiscated the television and refused to let the inmate worker
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repair it.
Plaintiff refused to sign the CDCR 1083 property inventory sheet because it did not contain the
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truth and he was aware that officers were confiscating and breaking inmate property for inappropriate
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reasons in an attempt to provoke the inmates to react with violence.
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On October 2, 2016, Plaintiff filed a timely inmate appeal while he was housed at Mule Creek
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State Prison. On October 18, 2016, D. Goree Jr. screened and rejected/cancelled Plaintiff’s appeal as
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untimely claiming it was filed more than thirty days. Plaintiff contends his appeal was improperly
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rejected as untimely.
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Plaintiff contends he re-submitted the appeal at least four times in early 2017. On September
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7, 2017, M. Voong responded to the appeal indicating that Plaintiff was misusing and abusing the
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appeals process.
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Plaintiff seeks compensatory and punitive damages, as well as costs of the action and
reimbursement for his television.
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II.
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DISCUSSION
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A.
Confiscation/Destruction of Personal Property
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The Due Process Clause of the Fourteenth Amendment of the United States Constitution
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protects Plaintiff from being deprived of property without due process of law, Wolff v. McDonnell,
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418 U.S. 539, 5563 (1974), and Plaintiff has a protected interest in his personal property, Hansen v.
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May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized, intentional deprivations of property are
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actionable under the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984);
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Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). However, the Due Process Clause is not violated
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by the random, unauthorized deprivation of property so long as the state provides an adequate post-
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deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni, 31 F.3d 813,
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816-17 (9th Cir. 1994). Plaintiff has an adequate post-deprivation remedy under California law and
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therefore, he may not pursue a due process claim arising out of the unlawful confiscation of his
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personal property. Barnett, 31 F.3d at 816-17 (citing Cal. Gov’t Code §§ 810-895).
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In this instance, Plaintiff has alleged an unauthorized deprivation of his personal and legal
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property, and Plaintiff has an adequate post-deprivation remedy under California law and therefore, he
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may not pursue a due process claim arising out of the unlawful confiscation of his personal property.
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Barnett, 31 F.3d at 816-17 (citing Cal. Gov’t Code §§ 810-895). Accordingly, Plaintiff fails to state a
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cognizable constitutional claim based on the confiscation and damage to his television.
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B.
Conspiracy
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To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an
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agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation of
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those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312
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F.3d 423, 441 (9th Cir. 2001).
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Plaintiff fails to set forth any factual allegations that Defendants were acting in concert to
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deprive him of his personal property or retaliate against him. Plaintiff’s conspiracy theory is nothing
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more than his legal conclusion based on pure speculation. Accordingly, a bare allegation that
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Defendants conspired to violate Plaintiff’s constitutional rights does not suffice to give rise to a
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conspiracy claim under section 1983.
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C.
Retaliation
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“Prisoners have a First Amendment right to file grievances against prison officials and to be
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free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing
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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the
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right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d
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1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation
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entails five basic elements: (1) An assertion that a state actor took some adverse action against an
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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a
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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
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Plaintiff fails to state a cognizable claim for retaliation. Plaintiff’s personal property was
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allegedly confiscated and damaged prior to his filing an inmate appeal and therefore the allegations are
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simply insufficient to demonstrate his property was confiscated as a form of retaliation. To the extent
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Plaintiff contends that he was retaliated against by Defendant Gutierrez because of a prior action filed
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against his brother in 1997. There are simply no allegations that the actions taken by Gutierrez in
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2016 were because of a prior lawsuit filed in 1997-almost 20 years prior to the actions alleged herein,
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and such claim is simply not plausible. In any event, the alleged improper confiscation of Plaintiff’s
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property occurred prior to any statement by Plaintiff that he was going to file an inmate grievance.
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Accordingly, Plaintiff fails to state a cognizable retaliation claim.
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D.
Inmate Appeal Process
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“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of
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life, liberty, or property; and those who seek to invoke its procedural protection must establish that one
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of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff does not a
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have protected liberty interest in the processing his appeals, and therefore, he cannot pursue a claim
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for denial of due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza,
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334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).
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Plaintiff seeks to impose liability against D. Goree and M. Voong based on the handling and
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denial of inmate appeals. However, as stated above, there is no independent constitutional claim based
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on the alleged improper handling of inmate appeals. Accordingly, Plaintiff fails to state a cognizable
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claim against Defendants D. Goree and M. Voong.
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III.
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RECOMMENDATION
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Plaintiff’s first amended complaint fails to state a cognizable claim for relief. Plaintiff was
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previously notified of the applicable legal standards and the deficiencies in his pleading, and despite
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guidance from the Court, Plaintiff’s first amended complaint is largely identical to the original
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complaint. Based upon the allegations in Plaintiff’s original and first amended complaint, the Court is
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persuaded that Plaintiff is unable to allege any additional facts that would support a claim for a due
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process violation or access to the court, and further amendment would be futile. See Hartmann v.
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CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when
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amendment would be futile.”) Based on the nature of the deficiencies at issue, the Court finds that
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further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th. Cir. 2000); Noll v.
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Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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The instant action be dismissed for failure to state a cognizable claim for relief; and
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The Office of the Clerk is directed to randomly assign this action to a District Judge.
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This Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)
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days after being served with this Findings and Recommendation, the parties may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendation.” The parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-
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IT IS SO ORDERED.
Dated:
January 4, 2018
UNITED STATES MAGISTRATE JUDGE
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IV.
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RECOMMENDATION
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Plaintiff was previously notified of the applicable legal standards and the deficiencies in his
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pleading, and despite guidance from the Court, Plaintiff’s first amended complaint is largely identical
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to the original complaint.
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complaint, the Court is persuaded that Plaintiff is unable to allege any additional facts that would
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support a claim for cruel and unusual punishment in violation of the Eighth Amendment, and further
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amendment would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district
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court may not deny leave to amend when amendment would be futile.”) Based on the nature of the
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deficiencies at issue, the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203
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F.3d 1122, 1130 (9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).
Based upon the allegations in Plaintiff’s original and first amended
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