Johnson v. Corrections Corporation of America et al
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis, and sua sponte dismissing complaint without prejudice for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff is GRANTED forty five (45) days leave from the date this Order is filed in which to reopen the case by filing a Amended Complaint. Should Plaintiff fail to file a Amended Complaint within the time provided, this civil action shall remain closed and case shall remain dismissed without prejudice based on Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B). Signed by Judge Larry Alan Burns on 6/23/14. (All non-registered users served via U.S. Mail Service)(kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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BERTRAM COLIN JOHNSON,
Register #A038713419,
Plaintiff,
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Civil No.
14cv0041 LAB (WVG)
ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED
IN FORMA PAUPERIS
(ECF Doc. No. 2)
vs.
CORRECTIONS CORPORATION OF
AMERICA; FREDRICK LAWRENCE;
JOHN WEAVER; BEVERLY SORIA; K.
PERRY; MARIA ORRELL; KEVIN FAY,
Defendants.
AND
(2) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B)
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Bertram Colin Johnson (“Plaintiff”), an immigration detainee at the Etowah
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County Jail in Gadsden, Alabama, has filed a civil rights complaint pursuant to 42 U.S.C.
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§ 1983 (ECF Doc. No. 1), together with a Motion to Proceed In Forma Pauperis (“IFP”)
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pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2).
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Plaintiff alleges to have been “warehoused” at the Otay Detention Facility in San
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Diego, California, from October 2012 through August 2013, where he claims the
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Corrections Corporation of America (“CCA”), and CCA officials Lawrence, Weaver,
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Soria, Perry, Orrell, and Fay impeded his access to the court, denied him free exercise
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of his religion, and deprived him of “medically approved pain relief accoutrements.”
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See Compl. at 1-7. He seeks general and punitive damages. Id. at 7.
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I.
Motion to Proceed IFP
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All parties instituting any civil action, suit or proceeding in a district court of the
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United States, except an application for writ of habeas corpus must pay a filing fee of
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$400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28
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U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
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However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the
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full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison
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Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As
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defined by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility
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who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations
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of criminal law or the terms and conditions of parole, probation, pretrial release, or
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diversionary program.” 28 U.S.C. § 1915(h). “[A]n alien detained by the INS pending
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deportation is not a ‘prisoner’ within the meaning of the PLRA,” because deportation
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proceedings are civil, rather than criminal in nature, and an alien detained pending
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deportation has not necessarily been “accused of, convicted of, sentenced or adjudicated
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delinquent for, a violation of criminal law.” Agyeman, 296 F.3d at 886. Thus, because
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Plaintiff claims he was “release[d] from Los Angeles Superior Court into immigration
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custody,” he is not a “prisoner” as defined by 28 U.S.C. § 1915(h), and the filing fee
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provisions of 28 U.S.C. § 1915(b) do not apply to him. See Compl. at 3.
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Accordingly, the Court has reviewed Plaintiff’s affidavit of assets and finds it is
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sufficient to show that he is unable to pay the $400 filing fee or post securities required
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///
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All parties filing civil actions on or after May 1, 2013, must pay the $350 civil
filing fee, as well as an additional administrative fee of $50. See 28 U.S.C. § 1914(a)
(Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1,
28 2013). However, the additional $50 administrative fee is waived if the plaintiff is
granted leave to proceed IFP. Id.
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to maintain a civil action. Therefore, Plaintiff’s Motion to Proceed IFP pursuant to 28
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U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED .
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II.
SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
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A.
Standard of Review
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Any complaint filed by any person proceeding IFP is subject to sua sponte
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dismissal by the Court to the extent it contains claims which are frivolous, malicious, or
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fail to state a claim upon which relief may be granted, or if it “seeks monetary relief from
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a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii);
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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the
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provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith,
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203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but
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requires a district court to dismiss an in forma pauperis complaint that fails to state a
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claim.”).
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All complaints must contain “a short and plain statement of the claim showing that
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the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
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requires the reviewing court to draw on its judicial experience and common sense.” Id.
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The “mere possibility of misconduct” falls short of meeting this plausibility standard.
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Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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“When there are well-pleaded factual allegations, a court should assume their
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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
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(“[W]hen determining whether a complaint states a claim, a court must accept as true all
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allegations of material fact and must construe those facts in the light most favorable to
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///
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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
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However, while the court “ha[s] an obligation where the petitioner is pro se,
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particularly in civil rights cases, to construe the pleadings liberally and to afford the
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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in
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so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board
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of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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B.
Plaintiff’s Allegations
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Plaintiff’s Complaint contains three purported causes of action. First, he claims
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CCA Warden Lawrence, Associate Warden Weaver, Housing Unit Manager Perry, and
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law library staff members Orrell and Fay deprived him of “meaningful access to the
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courts” by providing him “inadequa[te] . . . legal resources,” unspecified documents,
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“government forms,” “legal outlines,” and denying him access to the internet. See
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Compl. at 2-5, 6-7. Second, Plaintiff claims Defendant Weaver “violated [his] First
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Amendment rights” by “refus[ing] to authorize [Plaintiff’s] participation in the religious
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fasting of Ramadan.” Id. at 1, 4. Finally, Plaintiff alleges Defendant Perry “failed to
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comply with [his] . . . medical[ly] recommended approved pain relief accoutrements.”
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Id. at 5, 7.
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Plaintiff seeks damages, and invokes federal jurisdiction over his case pursuant
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to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a)(3). See Compl. at 1. However, because his
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claims arose at the Otay Detention Facility, which operates under contract with the
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Department of Homeland Security’s Immigrations and Customs Enforcement division
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(“ICE”), and is managed by CCA, a private corporation, to house ICE and U.S. Marshal
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Service detainees, the Court liberally construes Plaintiff’s claims to arise under Bivens
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v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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Bivens established that “compensable injury to a constitutionally protected interest
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[by federal officials alleged to have acted under color of federal law] could be vindicated
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by a suit for damages invoking the general federal question jurisdiction of the federal
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courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978);
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Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000)
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(under Bivens, “federal courts have the inherent authority to award damages against
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federal officials to compensate plaintiffs for violations of their constitutional rights.”).
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To state a claim under Bivens, Plaintiff must allege that a person acting under
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color of federal law deprived him of his constitutional rights. See Serra v. Lappin, 600
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F.3d 1191, 1200 (9th Cir. 2010). Thus, the Ninth Circuit considers “[a]ctions under
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§ 1983 and those under Bivens [as] identical save for the replacement of a state actor
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under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409
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(9th Cir. 1991); Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006) (a suit brought
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pursuant to Bivens is the “federal analogue” to § 1983).
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C.
CCA
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As a preliminary matter, the Court notes Plaintiff has included the “Corrections
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Corporation of America” as a Defendant in the caption of his Complaint (ECF Doc. No.
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1 at 1), but has included no separate allegations of wrongdoing on the part of CCA itself
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within its body. See FED.R.CIV.P. 10(a) (requiring caption of complaint to “name all the
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parties”); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (noting that
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a defendant is not presumed a party to the action if he is not served or named in the
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caption, unless he is specifically and sufficiently identified later in the body of the
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complaint).
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While it is unclear whether Plaintiff intends to bring suit against the CCA, it is
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clear that a Bivens action may only be brought against the responsible official alleged to
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have acted under color of federal law in his or her individual capacity. Daly-Murphy v.
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Winston, 837 F.2d 348, 355 (9th Cir.1988). Bivens does not authorize a suit against the
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government or its agencies for monetary relief. FDIC v. Meyer, 510 U.S. 471, 486
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(1994). Nor does it authorize a suit for money damages against a private entity like the
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CCA. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 n.2 (2001) (holding
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that Meyer “forecloses the extension of Bivens to private entities.”). Accordingly, to the
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extent Plaintiff intends to bring a claim against the CCA, it must be dismissed pursuant
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to 28 U.S.C. § 1915(e)(2). Lopez, 203 F.3d at 1127.
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D.
Respondeat Superior
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Second, the Court finds that to the extent Plaintiff seeks to hold Warden Lawrence
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and Assistant Warden Weaver liable, in part, based on their “supervision” over “daily
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operations” at CCA, and their alleged “failure[s] to rectify” or to provide Plaintiff with
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an “adequate” or satisfactory “resolution” to his law library access complaints via CCA’s
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internal grievance process, see Compl. at 2-3, 4, his Complaint fails to “contain sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
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“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
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must plead that each government-official defendant, through the official’s own
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individual actions, has violated the Constitution.” Id. at 676; see also Jones v.
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Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir.
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1984) (even pro se plaintiff must “allege with at least me degree of particularity overt
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acts which defendants engaged in” in order to state a claim). Thus, Plaintiff must include
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in his pleading sufficient “factual content that allows the court to draw the reasonable
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inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678,
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and describe personal acts by each individual defendant which show a direct causal
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connection to a violation of specific constitutional rights. Taylor v. List, 880 F.2d 1040,
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1045 (9th Cir. 1989).
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As currently pleaded, Plaintiff’s Complaint fails to include any factual content to
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suggest that either Lawrence or Weaver personally participated in any unconstitutional
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violation, other than to merely “fail” to correct what Plaintiff believes were violations
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by their subordinates via CCA’s internal grievance procedure. Therefore, he has failed
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to state a claim upon which relief can be granted as to either of these Defendants. See
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28 U.S.C. § 1915(e)(2).
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E.
Grievance Processing
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Plaintiff’s only allegation against CCA’s Quality Assurance Administrator,
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Beverly Soria, is that she “imped[ed]” Plaintiff’s right to access to the court by “fail[ing]
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to process [his] legitimate grievances.” See Compl. at 5. To the extent Plaintiff suggests
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this failure deprived him of “due process,” he also fails to state a plausible claim for
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relief. See Iqbal, 556 U.S. at 678.
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“The Fourteenth Amendment’s Due Process Clause protects persons against
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deprivations of life, liberty, or property; and those who seek to invoke its procedural
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protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545
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U.S. 209, 221 (2005). Plaintiff enjoys no protected liberty interest in the processing his
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administrative grievances, however; therefore, he cannot pursue a claim for denial of due
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process with respect to the handling or resolution of his appeals. Ramirez v. Galaza, 334
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F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).
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Instead, to state a claim against Defendant Soria, Plaintiff must allege facts
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sufficient to show some other personal involvement in the underlying violation of his
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rights, namely, his right to access to the court. Iqbal, 556 U.S. at 676-77; Taylor, 880
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F.2d at 1045. Liability may not be based merely on Plaintiff’s dissatisfaction with the
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manner in which Soria processed–or allegedly failed to process–his administrative
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grievances related to the sufficiency of CCA’s law library or his access to specific legal
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research materials. Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640.
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F.
First Amendment Claims
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Plaintiff claims Assistant Warden Weaver violated his First Amendment rights by
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“refus[ing] to authorize [his] participation in the religious fasting of Ramadan.” See
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Compl. at 4. Plaintiff provides no further detail.
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The protections of the First Amendment’s Free Exercise Clause are triggered when
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prison officials substantially burden the practice of an inmate’s religion by preventing
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him from engaging in conduct which he sincerely believes is consistent with his faith.
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Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (citing Malik v. Brown, 16 F.3d
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330, 333 (9th Cir. 1994)). Free exercise however, is necessarily limited by the fact of
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incarceration, and “may be curtailed in order to achieve legitimate correctional goals or
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to maintain prison security.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987)
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(citing O’Lone v. Shabazz, 482 U.S. 342, 347-48 (1987)); see also Bell v. Wolfish, 441
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U.S. 520, 527 (1979) (“A detainee simply does not possess the full range of freedoms of
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an unincarcerated individual.”).
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As currently pleaded, Plaintiff’s Complaint contains no facts which show how or
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what Defendant Weaver did to burden or limit the exercise of any sincerely held
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religious belief. See Shakur, 514 F.3d at 884-85. Plaintiff mentions “Ramadan” and
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“fasting,” but his Complaint contains no additional factual content to plausibly suggest
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how or to what extent restrictions placed on him by Defendant Weaver “put substantial
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pressure on [him] to modify his behavior and to violate his beliefs,” Thomas v. Review
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Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981), or forced him to “choose
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between following the precepts of h[is] religion and forfeiting [governmental] benefits,
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on the one hand, and abandoning one of the precepts of h[is] religion . . . on the other.”
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Sherbert v. Verner, 374 U.S. 398, 404 (1963). Finally, Plaintiff’s Complaint does not
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contain any allegations to show that Weaver acted without justification or unreasonably.
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See Shakur, 514 F.3d at 884-85 (citing Turner v. Safely, 482 U.S. 78, 89 (1987)).
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Thus, without some specific “factual content” that might allow the Court to
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“draw the reasonable inference” that Weaver may be held liable, Plaintiff’s First
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Amendment free exercise claims must be dismissed for failing to “state a claim to relief
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that is plausible on its face.” Iqbal, 556 U.S. at 568.
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G.
Medical Care Claims
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To the extent Plaintiff claims Defendant Perry denied him unidentified “medically
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approved pain relief accoutrements,” and “fail[ed] to adhere to [a] medical
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recommendation,” which caused Plaintiff to suffer “cruel and unusual punishment,” see
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Compl. at 5, 7, his Complaint also fails to state a claim upon which Bivens relief can be
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granted. Iqbal, 556 U.S. at 568.
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In Minneci v. Pollard, 132 S.Ct. 617 (2012), the Supreme Court held a Bivens
action may not be maintained:
where a federal prisoner seeks damages from privately employed personnel
working at a privately operated federal prison, where the conduct allegedly
amounts to a violation of the Eighth Amendment, and where that conduct
is a kind that typically falls within the scope of traditional state tort law
(such as the conduct involving improper medical care at issue here), the
prisoner must seek a remedy under state tort law.
Id. at 626.
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Thus, because Plaintiff’s inadequate medical care claims arose in a privately
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operated immigration detention facility in California, where the state’s tort laws
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“provide[] for ordinary negligence actions, for actions based upon ‘want of ordinary care
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or skill,’ for actions for ‘negligent failure to diagnose or treat,’ and for actions based
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upon the failure of one with a custodial duty to care for another to protect that other from
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“‘unreasonable risk of physical harm,’” id. at 624 (citations omitted), no cause of action
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under Bivens exists and he “must seek a remedy under state tort law” instead. Id. at 626;
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see also Mirmehdi v. United States, 689 F.3d 975, 983 (9th Cir. 2012) (holding that
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Bivens does not provide a remedy for aliens not lawfully in United States to sue federal
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agents for monetary damages for wrongful detention pending deportation).
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H.
Access to Courts Claims
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The true gravamen of Plaintiff’s Complaint seeks to challenge CCA’s “deficient
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law library” and Defendant Orrell and Fay’s “failure to provide requested legal
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materials” which Plaintiff claims to have “needed to support a writ of coram nobis &
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response to opposition of Ninth Circuit Court of Appeals,” and/or a “writ of mandate.”
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See Compl. at 5-7.
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Prisoners “have a constitutional right to petition the government for redress of
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their grievances, which includes a reasonable right of access to the courts.” O’Keefe v.
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Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276,
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1279 (9th Cir. 1995). In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held
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that “the fundamental constitutional right of access to the courts requires prison
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authorities to assist inmates in the preparation and filing of meaningful legal papers by
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providing prisoners with adequate law libraries or adequate assistance from persons who
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are trained in the law.” Id. at 828. To establish a violation of the right to access to the
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courts, however, a prisoner must allege facts sufficient to show that: (1) a non-frivolous
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legal attack on his conviction, sentence, or conditions of confinement has been frustrated
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or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S.
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343, 353-55 (1996). An “actual injury” is defined as “actual prejudice with respect to
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contemplated or existing litigation, such as the inability to meet a filing deadline or to
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present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir.
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1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d
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1083, 1093 (9th Cir. 1996).
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Here, Plaintiff fails to allege that either Defendant Orrell’s or Fay’s “failure[s] to
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provide [him] with requested legal materials,” Compl. at 6, precluded his pursuit of a
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non-frivolous direct or collateral attack upon either his criminal conviction or sentence
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or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to access
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to the courts protects only an inmate’s need and ability to “attack [his] sentence[],
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directly or collaterally, and . . . to challenge the conditions of [his] confinement.”). In
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addition, Plaintiff must also, but has failed to, describe the non-frivolous nature of the
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“underlying cause of action, whether anticipated or lost.” Christopher v. Harbury, 536
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U.S. 403, 415 (2002).
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In short, because Plaintiff has failed to allege that “a complaint he prepared was
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dismissed,” or that he was “so stymied” by Orrell and Fay’s actions that “he was unable
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to even file a complaint,” direct appeal, or petition for writ of habeas corpus that was not
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“frivolous,” his access to courts claims fail. Lewis, 518 U.S. at 351; Christopher, 536
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U.S. at 416 (“like any other element of an access claim[,] . . . the predicate claim [must]
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be described well enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’
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nature of the underlying claim is more than hope.”).
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Finally, Plaintiff’s complaints related to the general deficiencies of CCA’s law
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library fare no better. Law libraries and legal assistance programs are only the means of
3
ensuring access to the courts. Lewis, 518 U.S. at 351. Because inmates do not have “an
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abstract, freestanding right to a law library or legal assistance, an inmate cannot establish
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relevant actual injury by establishing that his prison’s law library or legal assistance
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program is subpar in some theoretical sense.” Id.; Blaisdell v. Frappiea, 729 F.3d 1237,
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1244 (9th Cir. 2013).
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III.
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CONCLUSION AND ORDER
Good cause appearing, therefor, IT IS HEREBY ORDERED that:
1.
Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF
Doc. No. 2) is GRANTED.
2.
Plaintiff’s Complaint (ECF Doc. No. 1) is DISMISSED without prejudice
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for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). However, Plaintiff is
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GRANTED forty five (45) days leave from the date this Order is filed in which to re-
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open the case by filing a Amended Complaint. Plaintiff’s Amended Complaint address
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the deficiencies of pleading noted in this Order and must also be complete in itself
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without reference to his original Complaint. See S.D. CAL. CIVLR 15.1; Hal Roach
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Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); King
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v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted) (“All causes of action
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alleged in an original complaint which are not alleged in an amended complaint are
21
waived.”).
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Should Plaintiff fail to file a Amended Complaint within the time provided, this
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civil action shall remain closed and case shall remain dismissed without prejudice based
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on Plaintiff’s failure to state a claim upon which relief can be granted pursuant to 28
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U.S.C. § 1915(e)(2)(B).
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DATED: June 23, 2014
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HONORABLE LARRY ALAN BURNS
United States District Judge
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