Fetter v. Bonner, et al.,

Filing 37

ORDER signed by Judge Garland E. Burrell, Jr. on 2/18/2014 ORDERING that the 28 Motion to Dismiss is GRANTED. Plaintiff is GRANTED ten (10) days from the date on which this order is filed to file an amended complaint addressing the deficiencies in any dismissed claim. Plaintiff is notified that a dismissal order with prejudice could be entered under Rule 41(b) if Plaintiff fails to amend a dismissed claim in the referenced second amended complaint. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE FETTER,

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Plaintiff,
v.

Defendants.

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ORDER GRANTING MOTION TO DISMISS

PLACER COUNTY SHERIFF, EDWARD
N. BONNER, individually and
in his official capacity,
COUNTY OF PLACER, CALIFORNIA
FORENSICS MEDICAL GROUP
(CFMG), PLACER COUNTY SHERIFF
DEPARTMENT, and DOES 1
THROUGH 20,

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21

No. 2:12-cv-02235-GEB-EFB

Defendants

Placer

County

Sheriff

Edward

N.

Bonner,

County of Placer (“Placer County”), and Placer County Sheriff
Department

(“PCSD”)

(collectively,

“Defendants”)

move

under

Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for dismissal
of certain of Plaintiff’s claims alleged in the First Amended
Complaint (“FAC”). Defendants’ motion challenges claims alleged
under 42 U.S.C. §§ 1983, 1985(3), Title II of the Americans with
Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act

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(“RA”), and California law. Plaintiff did not file an opposition

2

or a statement of non-opposition to the motion as required by

3

Local Rule 230. E.D. Cal. R. 230(c).1

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I. FACTUAL ALLEGATIONS

5

The motion concerns the following factual allegations

6

in the FAC. “[P]laintiff . . . was cited for Driving while Under

7

the Influence and was jailed for that offense.” (FAC ¶ 12.) Prior

8

to being jailed, “Plaintiff had fallen off a roof and injured

9

both of his legs and ankles” and “was under the care of a doctor

10

for the injuries that he had received.” (Id. ¶¶ 11–12.) “During

11

[P]laintiff’s . . . period of incarceration he was not allowed to

12

see a doctor or be transported to a hospital although . . .

13

Defendants

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Plaintiff made numerous requests that he be allowed to see a

15

doctor.” (Id. ¶ 14.) “While incarcerated Plaintiff[’s] leg began

16

to turn black as he was suffering from compartment syndrome.”

17

(Id. ¶ 15.) “Plaintiff informed . . . Defendant[s] about his leg

18

but they still refused to allow him to see a doctor or transport

19

him to the hospital.” (Id. ¶ 16.)

20

knew

about

“Plaintiff

. Plaintiff’s

ultimately

2011[.]

released

from

.

his

severe . . . that it would have to be amputated.” (Id. ¶ 17.)

24

After

25

“Plaintiff’s right leg was . . . amputated.” (Id. ¶¶ 18–19.)

that

to

.

23

confirming

went

.

doctor and was informed that the condition of his leg was so

opinion

immediately

and

22

second

[He]

injuries

incarceration

a

mid

was

.

21

seeking

in

.

see

diagnosis,

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27
28

1

Defendants seek in the alternative a more definite statement of certain
claims; however, the ruling on Defendants’ dismissal motion renders moot this
alternative motion and therefore the alternative motion is denied.

2

a

1

II.

LEGAL STANDARD

2

Decision on a Rule 12(b)(6) dismissal motion requires

3

determination of “whether the complaint's factual allegations,

4

together with all reasonable inferences, state a plausible claim

5

for relief.” United States ex rel. Cafasso v. Gen. Dynamics C4

6

Sys., Inc., 637 F.3d 1047, 1054 (9th Cir.2011) (citing Ashcroft

7

v. Iqbal, 556 U.S. 662, 678–79 (2009)). “A claim has facial

8

plausibility

9

allows

the

when
court

the
to

plaintiff
draw

the

pleads

factual

reasonable

content

inference

that

that
the

10

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

11

at

12

(2007)).

678

(citing

Bell

Atlantic

v.

Twombly,

550

U.S.

544,

556

13

When determining the sufficiency of a claim under Rule

14

12(b)(6), “[w]e accept factual allegations in the complaint as

15

true and construe the pleadings in the light most favorable to

16

the non-moving party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th

17

Cir.2011) (internal quotation marks omitted). However, this tenet

18

does not apply to “legal conclusions . . . cast in the form of

19

factual

20

“Therefore,

21

inferences are insufficient to defeat a motion to dismiss.” Id.

22

(internal quotation marks omitted); see also Iqbal, 556 U.S. at

23

678 (quoting Twombly, 550 U.S. at 555) (“A pleading that offers

24

‘labels

25

elements of a cause of action will not do.’ ”)

26

///

27

///

28

///

allegations.”

and

conclusory

Id.

(internal

allegations

conclusions’

or

‘a

3

quotation
of

law

formulaic

marks
and

omitted).

unwarranted

recitation

of

the

1

III. DISCUSSION

2

a. Monell Claim

3

Defendants seek dismissal of Plaintiff’s Monell claim,

4

arguing “[t]here is no factual basis alleged in the complaint”

5

from which a reasonable inference can be drawn that Placer County

6

or the PCSD2 instituted the alleged policies. (Defs.’ Mot. to

7

Dismiss and Mot. For a More Definite Statement (“Defs.’ Mot”)

8

12:11–12, ECF No. 28-1.) Defendants also argue that “[t]he plight

9

of one inmate does not give rise to a reasonable inference that

10

there is a systemic problem” and that “[i]solated failures of a

11

few

12

sufficient to support a Monell case.” (Id. 12:17-19, 12:21–23.)

employees

with

regard

to

one

inmate

are

generally

not

13

Allegations stating a Monell claim “must [plausibly]

14

establish that ‘the local government had a deliberate policy,

15

custom,

16

constitutional violation [a Plaintiff] suffered.’”

17

Hernandez

18

2012)(quoting Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir.

19

2007)).

20
21

Cnty.

that

of

was

Tulare,

FAC

the

666

contains

moving

F.3d

the

force

631,

behind

the

AE ex rel.

636

(9th

following

Cir.

Monell

allegations:
23. Based upon the principles set forth in
Monell . . . , COUNTY is liable for all
injuries sustained by Plaintiff as set forth
herein.
COUNTY
bears
liability
because
[i]ts[] policies, practices and/or customs
caused Plaintiff[’]s injuries. In particular,
Defendant Sheriff Bonner has condoned an
ongoing pattern of denial of Inmate requests
for medical assistance committed by deputies

23
24
25
26

28

v.

practice

Plaintiff’s

22

27

or

2

Defendants’ motion is construed as a seeking dismissal of Plaintiff’s Monell
claims against the County and the PCSD since Defendants argue that Placer
County and the PCSD are the same entity.

4

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3
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assigned to the jails. COUNTY and its
officials,
including
Sheriff
Bonner,
maintained or permitted one or more of the
following official policies, customs, or
practices:
A. Failure to provide adequate training
and supervision to Sheriffs[’] deputies with
respect to constitutional limits on [d]enial
of
medical
treatment,
detention,
and
provision of medical care;
B. Failure to adequately discipline or
retrain officers involved in misconduct;
C. Selection, retention, and assignation
of officers with demonstrable propensities
for excessive force, violence, dishonesty,
and other misconduct;
D. Condonation and encouragement of
officers in the belief that they can violate
the rights of persons such as Plaintiff with
impunity, and that such conduct will not
adversely affect their opportunities for
promotion and other employment benefits;
E.
Failure
to
provide
proper
adequate
medical
care
to
inmates
detainees;

and
and

F.
Condoning,
tolerating,
ratifying
and/or encouraging it[sic] officers to treat
the inmates less than humane[ly], by refusing
them proper medical attention and allowing
them to justify their conduct by stating that
the Judge has to approve their getting the
requested medical treatment.
G. Retaining, assigning and selecting
officers and deputies with known propensities
for, dishonest and other misconduct and
failing to take adequate steps to discipline
such persons.
H. Permitting deputies and other law
enforcement
personnel
to
make
medical
decision regarding an inmate’s health and
welfare without having adequate training in
the care and treatment o[f] inmates needing
medical treatment.
I. Failure to practice and enforce
proper
reporting,
investigation
and
recordation
of
inmates[sic]
request
for
5

1

medical assistance;

2

J. Ratification by the highest levels of
authority of the specific unconstitutional
acts alleged in this complaint.

3
4

23. I[t] was and still is the policy and
practice of the Defendants to not transport .
. . inmates to an outside medical facility
without an order from the Court.

5
6

24. It was and still is the policy of
Defendants to only permit inmates to
medical person[e]l that w[ere] employed
the Placer County Jail while they were
[c]ustody of the Defendant.

7
8
9
10

(FAC ¶¶ 23–24.)

11

These

the
see
by
in

conclusory

allegations

lack

“plausible

facts

12

supporting . . . a policy or custom,” AE ex rel. Hernandez, 666

13

F.3d

14

[Plaintiff’s alleged] constitutional deprivation was the result

15

of a custom or practice of the [County and the PCSD].” Dougherty

16

v.

17

Therefore, this portion of the dismissal motion is granted.

18

at

City

b.

637,

of

and

“lack[]

Covina,

654

.

.

F.3d

.

892,

facts

900-01

demonstrating

(9th

Cir.

that

2011).

Plaintiff’s § 1983 Claims Against Sheriff Bonnner

19

i. Official Capacity Suit Against Sheriff Bonner

20

Sheriff Bonner seeks dismissal of Plaintiff’s § 1983

21

official

capacity

claims

against

him,

arguing

that

“it

is

22

redundant to plead a claim against both the County of Placer and

23

Sheriff Bonner in his official capacity[, g]iven that the County

24

of Placer is a named defendant in the lawsuit . . . .” (Defs.’

25

Mot. 9:1–3.)

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“When both a municipal officer and a local government

27

entity are named, and the officer is named only in an official

28

capacity, [and the allegations are insufficient to justify an
6

1

official capacity suit,] the court may dismiss the officer as a

2

redundant defendant.” Ctr. for Bio-Ethical Reform, Inc. v. L.A.

3

Cnty.

4

Therefore, this portion of the dismissal motion is granted.

Sheriff

Dep’t,

533

F.3d

780,

799

(9th

Cir.

2008).

5

ii Individual Capacity Suit Against Sheriff Bonner

6

Sheriff Bonner seeks dismissal of Plaintiff’s § 1983

7

individual

capacity

8

failed

9

disregarded

to

claim

state

that

against

him,

arguing:

“‘[P]laintiff

[Sheriff

Bonner]

actually

serious

medical

need

Plaintiff’s

knew

and

pursuant

to

10

[Ashcroft v.] Iqbal.’” (Defs.’ Mot. 10:14–16 (quoting Gibson v.

11

Heartly, 2012 U.S. Dist. LEXIS 178943 (E.D. Cal. Dec. 17, 2012).)

12

“[T]o establish individual liability under 42 U.S.C. §

13

1983,

‘a

plaintiff

14

defendant, through the official’s own individual actions, has

15

violated the Constitution.’” Hydrick v. Hunter, 669 F.3d 937, 942

16

(9th Cir. 2012) (quoting Iqbal, 129 S.Ct. at 1948.) “[T]here must

17

be a showing of personal participation in the alleged rights

18

deprivation:

19

section 1983.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

20

2002).

there

must

is

plead

no

that

respondeat

each

Government-official

superior

liability

21

Plaintiff alleges:

22

under

23. . . . Defendant Sheriff Bonner has
condoned an ongoing pattern of denial of
Inmate
requests
for
medical
assistance
committed by deputies assigned to the jails.
COUNTY and its officials, including Sheriff
Bonner, maintained or permitted one or more
of the following official policies, customs,
or practices . . . .

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24
25
26
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(FAC ¶ 23.) These “conclusory allegations and generalities [do
not

contain]

any

allegation

of
7

the

specific

wrong-doing

by

1

[Sheriff

2

portion of the dismissal motion is granted.

Bonner].”

Hydrick,

3

Defendants

F.3d

at

942.

Therefore,

this

c. Conspiracy Claims

4

669

claims,

also

seek

arguing:

dismissal

“[P]laintiff’s

of

Plaintiff’s

5

conspiracy

allegations

of

6

conspiracy between [D]efendants to violate [P]laintiff’s rights

7

are mere conclusions with no factual allegations to support them”

8

and “will not support a claim for relief.” (Defs.’ Mot. 11:13–14,

9

11:20–21.)

10

Plaintiff alleges the following concerning conspiracy:

11

30. Defendant and each of them, acted
individually and in conspiracy with each
other to deprive Plaintiff of his federal
constitutional
and/or
statutory
rights
and[/]or privilege[s] by failing and refusing
to provide Plaintiff with access to medical
care and the accommodations guaranteed him by
Federal and State law.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

. . . .
32. Defendants, and each of them, acted
individually and in conspiracy with each
other to deprive Plaintiff under color of
state law of his rights, as guaranteed [to]
him by the United States Constitution and
federal law, by committing the acts as more
fully set out above.
. . . .
35. Defendants, and each of them, acted in
concert with each other pursuant to official
policies,
plans
and
training
of
their
respective agencies, which is the County of
Placer. . . .
36.
By
reason
of
the
acts
of
these
defendants,
acting
individually
and
in
conspiracy with each other, Plaintiff has
suffered . . . damages[.]
(FAC ¶¶ 30, 32, 35-36.)
8

1

These “conclusory allegations . . . [of] conspir[acy]

2

do not support a claim for [a] violation of . . . constitutional

3

rights” since they are devoid of sufficient facts to allege a

4

viable

5

1121,

6

dismissal motion is granted.3

7

conspiracy
1126

(9th

claim.
Cir.

Woodrum

1989).

v.

Woodward

Therefore,

this

Cnty.,

866

portion

of

F.2d
the

d. Plaintiff’s ADA and RA Claims

8

Defendants seek dismissal of Plaintiff’s claims alleged

9

under the ADA and RA, contending Plaintiff “fail[ed] to allege”

10

an

essential

element

of

each

claim;

specifically,

Defendants

11

argue Plaintiff failed to allege “that [he] was denied access to

12

[a] program because [of] his disability.” (Defs.’ Mot. 13:4–5.)

13

To state a Title II ADA claim, a plaintiff must allege:

14

19

(1) he is an individual with a disability;
(2) he is otherwise qualified to participate
in or receive the benefit of some public
entity’s services, programs, or activities;
(3) he was either excluded from participation
in or denied the benefits of the public
entity’s services, programs, or activities,
or was otherwise discriminated against by the
public entity; and (4) such exclusion, denial
of benefits, or discrimination was by reason
of [his] disability.

20

Simmons v. Navajo Cnty., 609 F.3d 1011, 1021 (9th Cir. 2010)

21

(emphasis added) (quoting McGary v. City of Portland, 386 F.3d

22

1259, 1265 (9th Cir. 2004) (alteration in original)).

15
16
17
18

23

“Similarly, to state a[n] [RA] claim[,] a plaintiff

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25
26
27
28

3

Defendants also seek dismissal of “[P]laintiff’s . . . [conspiracy] claim .
. . alleged . . . in. . . [Count III of the FAC]”; however, Count III does not
contain conspiracy allegations. (Defs.’ Mot 11:22-25; see FAC ¶¶ 39-42.)
Therefore, this portion of the motion need not be reached. See Williams v. Bd.
of Parole Hearings, EDCV 08-00402-CBMMLG, 2008 WL 4809213, at *1 n.1 (C.D.
Cal. Nov. 3, 2008) (“Defendant misconstrues Plaintiffs' complaint to include
an Eighth Amendment claim . . . and as such, the Court declines to address any
of Defendant's arguments related to this claim.”)

9

1

must allege ‘(1) he is an individual with a disability; (2) he is

2

otherwise qualified to receive the benefit [of a program]; (3) he

3

was denied the benefits of the program solely by reason of his

4

disability;

5

assistance.’” O’Guinn v. Lovelock Correctional Ctr., 502 F.3d

6

1056, 1060 (9th Cir. 2007) (emphasis added) (quoting Duvall v.

7

Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001)).

8
9

and

(4)

the

program

receives

federal

financial

Both the ADA and RA “prohibit[] discrimination because
of

disability,

not

[because

of]

inadequate

treatment

for

10

disability.” Simmons, 609 F.3d at 1022; see O'Guinn v. Nevada

11

Dep't

12

(“[Plaintiff] challenges the adequacy of his . . . health care, a

13

challenge that cannot be properly brought under the ADA and RA.”)

14

Plaintiff alleges that he “has been denied and excluded

15

from the benefits of Defendants[’] Program, which would provide

16

Plaintiff with access to medical care.” (FAC ¶ 49.) Plaintiff

17

further alleges that he “has been denied and excluded from . . .

18

Defendants’ Program, which would have provided Plaintiff, with

19

counseling,

20

However, these allegations are insufficient to state viable ADA

21

and RA claims. Simmons, 609 F.3d at 1022.

of

Corr.,

468

therapy

and

F.

App'x

perhaps

651,

a

653

(9th

prosthesis.”

Cir.

(Id.

22

Plaintiff also alleges:

23

26

50. . . . Defendant violated the ADA by
discriminating against Plaintiff . . . [b]y
reason of Plaintiff[’]s disabilities; . . .
[and by] [d]enying Plaintiff the equal/same
opportunity to receive the benefit(s) of ADA
accommodations that are available to other
qualified individuals.

27

. . .

28

56. . . . Defendants violated the [RA] by
10

24
25

2012)

¶

55.)

1

discriminating against Plaintiff . . . [b]y
reason of Plaintiffs disabilities, age and
need for medical services; [and by] . . .
[d]enying
Plaintiff
the
equal/same
opportunity to receive the benefit(s) of
Defendants’
programs/activities
that
are
available to other qualified individuals with
disabilities.

2
3
4
5
6
7
8
9
10
11
12

(FAC ¶¶ 50, 56.)
These conclusory allegations are insufficient to allege
plausible ADA and RA claims. See James v. Hubbard, 2:08-CV-01857RRC, 2010 WL 4901827, at *4 (E.D. Cal. Nov. 23, 2010) (“The
complaint’s

15
16
17
18
19
20
21
22
23
24
25
26
27

allegation

that

Plaintiff

was

denied

‘meaningful access to services . . . and discriminated against’
is

insufficient,

absent

factual

support,

portion

of

to

state

a

valid

claim.”)

13
14

conclusory

Therefore,

this

the

dismissal

motion

is

granted.
e. California Disabled Persons Act Claim
Defendants seek dismissal of Plaintiff’s claim alleged
under the California Disabled Persons Act (“CDPA”), arguing this
law “does not address denial of access to services . . . ;
instead, it requires the elimination of physical impediments to
participation

in

community

life.”

(Defs.’

Mot.

15:20–21.)

Defendants further contend “Plaintiff has not pled a denial of
access to any programs based upon physical barriers of any sort
in his complaint.” (Id. 16:5–7.)
The CDPA states in pertinent part: “[i]ndividuals with
disabilities or medical conditions have the same right as the
general public to the full and free use of the streets, highways,
sidewalks, walkways, public buildings, medical facilities, . . .

28
11

1

public facilities, and other public places.” Cal. Civ. Code § 54.

2

The Act further states: “Individuals with disabilities shall be

3

entitled

to

4

general

public,

5

medical facilities, . . . public accommodation, . . . and other

6

places to which the general public is invited . . . .” Cal. Civ.

7

Code § 54.1.

full

and

equal

access,

to

accommodations,

as

other

members

advantages,

of

the

facilities,

8

“The DPA is ‘intended to secure to disabled persons the

9

same right as the general public to the full and free use of

10

facilities open to the public.’ Its focus is upon physical access

11

to public places . . .” Turner v. Ass'n of Am. Med. Colleges, 167

12

Cal. App. 4th 1401, 1412 (2008) (quoting Urhausen v. Longs Drug

13

Stores California, Inc., 155 Cal. App. 4th 254, 261 (2007)).

14

Plaintiff alleges the following in his CDPA claim:

15

The failure of Defendants [sic] Placer County
Sheriff Department to provide Plaintiff with
the access to the appropriate medical care
and attention violates those provisions of
California law including, without limitation,
the following:

16
17
18

(a) The requirement of California Civil Code
Section 54 – 55.3 that the Defendants provide
reasonable accommodations to the plaintiff
because of his disability[.]

19
20
21

(FAC

¶

44.)

These

22

allege that Plaintiff was denied “physical access to [a] public

23

place[],” as required to state a CDPA claim. Turner, 167 Cal.

24

App. 4th at 1412; see Lopez v. Cnty. of Tulare, CV-F-11-1547-LJO-

25

BAM, 2012 WL 33244, at * 10 (E.D. Cal. Jan. 6, 2012) (finding

26

allegations that county jail failed to house prisoner in cell

27

with suicide precaution insufficient to state a claim under the

28

CDPA).

Therefore,

allegations

this

portion
12

are

of

insufficient

the

to

dismissal

plausibly

motion

is

1

granted.

2

f. Negligence and Negligent Infliction of Emotional Distress

3

Claims

4

i. Placer County and the PCSD

5

Placer

County

and

negligence

PCSD4

the

infliction

of

7

emotional

8

California Government Code they cannot be held liable for these

9

claims.

Section

815

negligent

of

Plaintiff’s

claim,

and

dismissal

6

distress

claim

seek

arguing

provides

in

under

section

pertinent

815

part:

of

“Except

the

as

10

otherwise provided by statute . . . A public entity is not liable

11

for

12

omission of the public entity or a public employee or any other

13

person.”

14

“California public entities are not subject to common law tort

15

liability; all liability must be pursuant to statute.” AE ex rel.

16

Hernandez, 666 F.3d at 638.

17

alleged

18

infliction

19

Defendants'

20

Vallejo, CIV. S-13-1439 LKK, 2013 WL 6070494, at *6 (E.D. Cal.

21

Nov. 13, 2013).

an

injury,

Cal.

a

whether

Gov't

statutory
of

such

injury

Code

dismissal

815(a).

Since

basis

emotional

§

for

motion

Defendant

Under

granted.

an

this

.

negligence
claim[s],”

of

.

.

[and
this

Howard

act

or

statute,

has

not

negligent
portion

v.

City

of
of

ii. Sheriff Bonner

23

is

out

“Plaintiff

the

distress]

22

arises

24

Plaintiff’s

25

distress

26

[section

27

Sherriff

4

28

negligence

claims,

and

Bonner

arguing

negligent

that

“[he]

seeks

dismissal

infliction

of

cannot

liable

be

of

emotional
under

820.8 of the Government Code] for the acts of his

Defendants’ argument is construed as an argument seeking dismissal of
Plaintiff’s claims against both Placer County and the PCSD since Defendants
argue that Placer County and the PCSD are the same entity.

13

1

employees . . . .” since “[t]here are no allegations in the

2

complaint suggesting that [he] was directly involved in [the]

3

allegedly negligent denial of plaintiff’s requests for medical

4

care.” (Id. 16:19-20, 16:21-23; see also Defs.’ Mot. 17:8-9.)

5

Section

820.8

of

the

Government

Code

prescribes:

6

“Except as otherwise provided by statute, a public employee is

7

not liable for an injury caused by the act or omission of another

8

person. Nothing in this section exonerates a public employee from

9

liability for injury proximately caused by his own negligent or

10

wrongful act or omission.” Cal. Gov't Code § 820.8.

11

Plaintiff’s conclusory allegations concerning Sheriff

12

Bonner’s

practices

13

drawing a reasonable inference that Sheriff Bonner proximately

14

caused

15

(“[C]onclusory allegations of law and unwarranted inferences are

16

insufficient to defeat a motion to dismiss.”). Therefore, this

17

portion of Defendant’s dismissal motion is granted. See Herrera

18

v. City of Sacramento, 2:13-CV-00456 JAM-AC, 2013 WL 3992497, at

19

*3 (E.D. Cal. Aug. 2, 2013)(dismissing claims against supervisor

20

where

21

participated in the conduct giving rise to the allegations in the

22

complaint.”)

Plaintiff’s

Plaintiff

policies

alleged

“fail[ed]

23
24

and

to

are

insufficient

injury.

allege

Fayer,

649

[supervisor]

to

support

at

1064

personally

IV. CONCLUSION
For

the

stated

reasons,

the

dismissal

motion

is

25

granted. Plaintiff is granted ten (10) days from the date on

26

which this order is filed to file an amended complaint addressing

27

the deficiencies in any dismissed claim. Plaintiff is notified

28

that a dismissal order with prejudice could be entered under Rule
14

1

41(b)

2

referenced second amended complaint.

3

Dated:

if

Plaintiff

fails

to

amend

February 18, 2014

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15

a

dismissed

claim

in

the