Biggins v. Kernan
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 05/16/18 RECOMMENDING that plaintiffs complaint bedismissed, without leave to amend, for failure to allege standing and failure to state a claim. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY BIGGINS,
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Plaintiff,
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vs.
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No. 2:17-cv-0526-TLN-CMK-P
SCOT KERNAN,
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FINDINGS AND RECOMMENDATION
Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or
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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement
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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means
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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,
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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege
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with at least some degree of particularity overt acts by specific defendants which support the
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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
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impossible for the court to conduct the screening required by law when the allegations are vague
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and conclusory.
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I. PLAINTIFF’S ALLEGATIONS
Plaintiff’s allegations are somewhat unclear. He states he was informed about a
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data breach, wherein his confidential information may have been compromised. Attached to the
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complaint, and referred to by plaintiff, is a letter from California Correctional Health Care
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Service (CCHCS) notifying plaintiff of the “potential breach.” The letter states that an
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unencrypted laptop was stolen from a CCHCS workforce member’s personal vehicle, but that it
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is unknown if “any sensitive information was contained in the laptop” and that the laptop was
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password protected. Plaintiff states his claims are negligence, and indicates possible claims of
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violation of the First, Eighth and Fourteenth Amendments.
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II. DISCUSSION
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There are several defects in plaintiff’s complaint. First, plaintiff has failed to
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name a proper defendant. Section 1983 imposes liability upon any person who, acting under
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color of state law, deprives another of a federally protected right. 42 U.S.C. § 1983 (1982). “To
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make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants
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acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or
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federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986).
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In his complaint, the only defendant plaintiff has named is the Secretary of the
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California Department of Corrections and Rehabilitation (CDCR), Scott Kernan. Plaintiff
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alleges defendant Kernan is liable and responsible for all CDCR employees. To state a claim
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under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions
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of the named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436
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U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the
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deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act,
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participates in another’s affirmative acts, or omits to perform an act which he is legally required
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to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740,
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743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official
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personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d
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266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual
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defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d
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628, 634 (9th Cir. 1988).
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Here, plaintiff fails to allege any actual facts alleging defendant Kernan was
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personally involved in any way in the possible data breach. Rather, it appears plaintiff is
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attempting to hold defendant Kernan liable for the actions of others based on his supervisorial
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position. However, supervisory personnel are generally not liable under § 1983 for the actions of
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their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no
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respondeat superior liability under § 1983). A supervisor is only liable for the constitutional
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violations of subordinates if the supervisor participated in or directed the violations. See id. The
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Supreme Court has rejected the notion that a supervisory defendant can be liable based on
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knowledge and acquiescence in a subordinate’s unconstitutional conduct because government
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officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct
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and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory
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personnel who implement a policy so deficient that the policy itself is a repudiation of
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constitutional rights and the moving force behind a constitutional violation may, however, be
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liable even where such personnel do not overtly participate in the offensive act. See Redman v.
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Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).
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When a defendant holds a supervisory position, the causal link between such
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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel
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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the
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official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. Plaintiff
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fails to allege any connection between defendant Kernan and the alleged possible data breach.
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The only other defendants named in the complaint are DOE defendants. Doe
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defendants are not favored in the Ninth Circuit as a general policy. See Gillespie v. Civiletti, 629
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F.2d 637, 642 (9th Cir.1980). However, in situations where the identity a defendant is not
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known prior to the filing of a complaint, “the plaintiff should be given an opportunity through
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discovery to identify the unknown defendants, unless it is clear that discovery would not uncover
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the identities, or that the complaint would be dismissed on other grounds.” Id. (citing Gordon v.
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Leeke, 574 F.2d 1147, 1152 (4th Cir.1978); see also Wakefield v. Thompson, 177 F.3d 1160,
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1163 (9th Cir. 1999).
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The DOE defendants plaintiff has included in his complaint are identified as
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CCHCS employees who caused the breach of plaintiff’s personal information. Again, plaintiff
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fails to allege facts specific to these defendants, except conclusory allegations that they “caused
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the breach.” While this defect may be subject to cure, other defects in the complaint are not as
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set forth below. Therefore, whether or not plaintiff could amend his complaint to set forth
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sufficient factual allegations as to these defendants, and whether or not use of discovery would
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uncover the identities of these defendants, is immaterial.
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Next, plaintiff’s only actual claim set forth in the complaint is for negligence. As
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set forth above, § 1983 only imposes liability for deprivation of one’s rights secured by the
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Constitution or federal statutes. See Gibson, 781 F.2d at 1338. Negligence is the only
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specifically identified claim in the complaint, which is a state law claim and is insufficient basis
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for an action under 42 U.S.C.§ 1983. To the extent plaintiff attempts to state a claim for
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violation of First, Eight or Fourteenth Amendment rights, he fails to allege any facts for any such
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violation. It would appear that plaintiff may be attempting to state a claim under Due Process
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Clause. However, the complaint fails to do so. The Due Process Clause protects prisoners from
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being deprived of property without due process of law. See Wolff v. McDonnell, 418 U.S. 539,
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556 (1974). Negligence is insufficient to support a claim of denial of due process. See Davidson
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v. Cannon, 747 U.S. 344, 347 (1986) (“[T]he Due Process Clause of the Fourteenth Amendment
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is not implicated by the lack of due care of an official causing unintended injury to life, liberty or
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property. In other words, where a government official is merely negligent in causing the injury,
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no procedure for compensation is constitutionally required.”). Any other potential claim is
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unclear.
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Finally, plaintiff is required to establish standing for any claim he attempts to
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assert. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). If a plaintiff has no
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standing, the court has no subject matter jurisdiction. See Nat’l Wildlife Fed’n v. Adams, 629
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F.2d 587, 593 n. 11 (9th Cir. 1980) (“[B]efore reaching a decision on the merits, we [are required
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to] address the standing issue to determine if we have jurisdiction.”). There are three
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requirements that must be met for a plaintiff to have standing: (1) the plaintiff must have suffered
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an “injury in fact”—an invasion of a legally protected interest which is both concrete and
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particularized and actual or imminent; (2) there must be a causal connection between the injury
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and the conduct complained of; and (3) it must be likely that the injury will be redressed by a
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favorable decision. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)
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(citation omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In this case,
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although plaintiff may have constitutional right to privacy of his medical information, whether or
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not his right to privacy was breached is unknown. See Norman-Bloodsaw v. Lawrence Berkeley
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Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) (“The constitutionally protected privacy interest in
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avoiding disclosure of personal matters clearly encompasses medical information and its
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confidentiality.”) (citing Doe v. Attorney Gen. of the United States, 941 F.2d 780, 795 (9th Cir.
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1991)).
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The possible disclosure of plaintiff’s personal information, and therefore any
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injury, is entirely speculative. It is clear from the complaint and attachments thereto that it is
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unknown if his information was on the laptop. While potential future harm can in some instances
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confer standing, plaintiff must face “a credible threat of harm” that is “both real and immediate,
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not conjectural or hypothetical.” Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir.
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2010) (citations and internal quotation marks omitted) (holding that threat of potential identity
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theft created by theft of a laptop known to contain plaintiffs’ unencrypted names, addresses, and
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social security numbers was sufficient to confer standing, but that “more conjectural or
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hypothetical” allegations would make threat “far less credible”). The speculative injury plaintiff
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alleges, where it is unknown whether plaintiff’s information was on the potentially compromised
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laptop, is simply insufficient to provide plaintiff standing. Plaintiff cannot state a claim for relief
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based upon the speculative breach of his sensitive information, and his claim for violation of his
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constitutional right to informational privacy must be dismissed without prejudice for lack of
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standing. See Fleck & Assoc., Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006)
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(dismissal for lack of standing is without prejudice).
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If the court finds that a complaint should be dismissed for failure to state a claim,
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the court has discretion to dismiss with or without leave to amend. See Lopez v. Smith, 203 F.3d
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1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible
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that the defects in the complaint could be corrected, especially if a plaintiff is pro se. See id. at
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1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant
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must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it
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is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”)
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(citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful
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consideration, it is clear that a complaint cannot be cured by amendment, the Court may dismiss
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without leave to amend. See Cato, 70 F.3d at 1005-06. As set forth above, given plaintiff’s lack
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of standing, any amendment to his complaint would be futile, and no leave to amend should be
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granted.
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III. CONCLUSION
Plaintiff’s complaint fails to show he has standing to bring this action as his injury
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is too speculative to support a claim. In addition, the complaint fails to state a claim. Such
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defects are not subject to cure, and no leave to amend should be granted.
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Based on the foregoing, the undersigned recommends that plaintiff’s complaint be
dismissed, without leave to amend, for failure to allege standing and failure to state a claim.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: May 16, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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