Marano v. Neotti et al
Filing
11
ORDER granting 9 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Plaintiff 39;s Complaint is dismissed for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Court grants plaintiff forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures all the deficiencies of pleading noted. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 12/8/16. (All non-registered users served via U.S. Mail Service)(kas)
1
2
FILED
3
4
DEC 2 1 2016
5
CLERK US DISTRICT COUln
SOUTHERN DISTRICT OF C;,Llf
6
BY
.
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
FRANK MARANO,
CDCR #AE-1543,
ORDER:
Plaintiff,
13
14
Case No.: 16cv0189-LAB (JLB)
vs.
1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECFNo.9]
15
16
17
GEORGE NEOTTI, et aI.,
AND
Defendants.
2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. §§ 1915(e)(2)(B)(ii)
AND 1915A(b)(I)
18
19
20
21
22
Frank Marano ("Plaintiff'), a state prisoner currently incarcerated at the Richard J.
23
Donovan Correctional Facility ("RJD") in San Diego, California, and proceeding pro se,
24
has filed a civil rights action pursuant to 42 U.S.C. § 1983. (ECF No.1.) Plaintiff claims
25
the California Department of Corrections and Rehabilitation ("CDCR") and several RJD
26
officials subjected him to "unsafe prison condition[s]" by failing to properly supervise
27
inmate plumbers' access to "industrial sized tools." See Compl. ~~ 6-8,23,33-37,47,57.
28
As a result, Plaintiff alleges that on December 10,2009, his throat was "slashed" with a
1
16cv0189-LAB (JLB)
1 box cutter by a fellow inmate while he was working to repair a drinking fountain in RJD's
2
Facility 3 culinary area. Id. at ~~ 3,9. Plaintiff further alleges that the Defendants failed
3
to provide him "competent medical care during a ... life-threatening emergency," by
4
transporting him to Alvarado Hospital instead of a trauma center equipped to address his
5
injury. Id. at ~~ 17-18,24. Plaintiff seeks injunctive relief as well as general, "specific,"
6
and "exemplar[y]" damages. Id. at 32-33.
7
Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) when he filed
8
his Complaint, and did not file a Motion to Proceed In Forma Pauperis ("IFP") pursuant to
9
28 U.S.C. § 1915(a). As a result the Court dismissed this action without prejudice to
10
Plaintiff to either pay the filing fee or submit an IFP motion. (ECF No.2.) After Plaintiff
11
requested and received two extensions of time, he filed the instant IFP motion. (ECF No.
12
9.)
13
I.
Motion to Proceed IFP
14
All parties instituting any civil action, suit or proceeding in a district court of the
15
United States, except an application for writ of habeas corpus, must pay a filing fee of
16
$400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiffs failure to
17
prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
18
§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However,
19
prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in
20
"increments" or "installments," Bruce v. Samuels, 577 U.S. _, 136 S. Ct. 627, 629 (2016);
21
Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their
22
action is ultimately dismissed. See 28 U.S.C. § 1915(b)(I) & (2); Taylorv. Delatoore, 281
23
F.3d 844, 847 (9th Cir. 2002).
24
III
25
26
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of
$50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
Schedule, § 14 (eff. June I, 2016). The additional $50 administrative fee does not apply to persons
1
27
28
granted leave to proceed IFP. Id.
2
16cv0189-LAB (JLB)
1
Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a
2
"certified copy of the trust fund account statement (or institutional equivalent) for _.. the
3
6-month period immediately preceding the filing of the complaint." 28 U.S.C.
4
§ 19l5(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
5
trust account statement, the Court assesses an initial payment of 20% of (a) the average
6
monthly deposits in the account for the past six months, or (b) the average monthly balance
7
in the account for the past six months, whichever is greater, unless the prisoner has no
8
assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
9
of the prisoner then collects subsequent payments, assessed at 20% of the preceding
10
month's income, in any month in which his account exceeds $10, and forwards those
11
payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,
12
136 S. Ct. at 629.
13
In support of his IFP Motion, Plaintiff has submitted copies of his Inmate Statement
14
Reports for the six-months preceding the filing of his Complaint. See ECF No.9 at 5-8;
15
28 U.S.C. § 1915(a)(2); S.D. CAL. CrvLR 3.2; Andrews, 398 F.3d at 1119.
16
statements show that Plaintiff had an average monthly balance of $128.45, and average
17
monthly deposits of$178.72 to his account over the 6-month period immediately preceding
18
the filing of his Complaint, as well as an available balance of $310.68 at the time he
19
submitted the statements. See ECF No.9 at 8. Based on this financial information, the
20
Court GRANTS Plaintiffs Motion to Proceed IFP (ECF No.9), and assesses his initial
21
partial filing fee to be $35.74 pursuant to 28 U.S.c. § 1915(b)(1).
These
22
However, the Court will direct the Secretary of the California Department of
23
Corrections and Rehabilitation ("CDCR"), or his designee, to collect this initial fee only if
24
sufficient funds are available in Plaintiffs account at the time this Order is executed. See
25
28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from
26
bringing a civil action or appealing a civil action or criminal judgment for the reason that
27
the prisoner has no assets and no means by which to pay the initial partial filing fee.");
28
Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts
3
16cv0189-LAB (JLB)
1 as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure
2
to pay ... due to the lack of funds available to him when payment is ordered."). The
3
remaining balance ofthe $350 total fee owed in this case must be collected and forwarded
4
to the Clerk ofthe Court pursuant to 28 U.S.C. § 1915(b)(1).
5 II.
Screening Pursuant to 28 U.S.c. §§ 1915(e)(2)(B) and 1915A(b)
6
A.
7
The Court must review complaints filed by all persons, like Plaintiff, who are
8
proceeding IFP and who are "incarcerated or detained in any facility [and] accused of,
9
sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or
10
conditions of parole, probation, pretrial release, or diversionary program," "as soon as
11
practicable after docketing." See 28 U.S.c. §§ 1915(e)(2) and 1915A(b). Pursuantto these
12
statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are
13
frivolous, malicious, fail to state a claim, or which seek damages from defendants who are
14
immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122,
15
1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2»; Rhodes v. Robinson, 621 F.3d 1002,
16
1004 (9th Cir. 2010) (discussing 28 U.S.c. § 19 15A(b».
Screening Standards
17
All complaints must contain "a short and plain statement of the claim showing that
18
the pleader is entitled to relief." FED.R.Crv.P.8(a)(2). Detailed factual allegations are not
19
required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere
20
conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (citing
21
Bell Atlantic Com. v. Twombly, 550 U.S. 544, 555 (2007». "Determining whether a
22
complaint states a plausible claim for relief [is] ... a context-specific task that requires the
23
reviewing court to draw on its judicial experience and common sense." Id. at 679. The
24
"mere possibility of misconduct" does not meet this standard. Id.
25
"When there are well-pleaded factual allegations, a court should assume their
26
veracity, and then determine whether they plausibly give rise to an entitlement to relief."
27
Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
28
("[W]hen determining whether a complaint states a claim, a court must accept as true all
4
16cv0189-LAB (JLB)
1 allegations of material fact and must construe those facts in the light most favorable to the
2
plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
3
§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").
4
However, while the court has an obligation "where the petitioner is pro se,
5 particularly in civil rights cases, to construe the pleadings liberally and to afford the
6
petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010),
7
quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985), it may not, in so doing,
8 "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents
9
of the University of Alaska, 673 F .2d 266, 268 (9th Cir. 1982). Finally, in deciding whether
10
Plaintiff has stated a plausible claim for relief, the Court may consider exhibits attached to
11
his Complaint. See FED. R. Crv. P. 10(c) ("A copy ofa written instrument that is an exhibit
12
to a pleading is a part of the pleading for all purposes."); Hal Roach Studios, Inc. v. Richard
13
Feiner & Co., Inc., 896 F.2d 1542, 1555 n.l9 (9th Cir. 1990) (citing Amfac Mortg. Com.
14
v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978) ("[M]aterial which is properly
15
submitted as part of the complaint may be considered" in ruling on a Rule 12(b)(6) motion
16
to dismiss.)).
17
B.
Plaintiff's Claims
18
Plaintiff may not proceed with his claims against Defendant Wagner, the inmate
19
Plaintiff alleges attacked him. Unlike the prison officials who Plaintiff alleges acted under
20
color of state law, see Compl. at 2-3; Leer v. Mumhy, 844 F.2d 628, 633 (9th Cir. 1988)
21
(finding prison officials "administer[ing] the prison" acted under color of state law for
22
purposes of 42 U.S.c. § 1983), Wagner is alleged only to have acted in his "personal
23
capacity as an inmate," Compl. at 3, and not "under color of state law" when he attacked
24
Plaintiff. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (a private individual generally
25
does not act under color of state law). Purely private conduct, no matter how wrongful, is
26
not covered under § 1983. Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir.
27
1974). The infliction of constitutional deprivations by private individuals is not actionable
28
under § 1983. See Van Ort v. Estate of Stanewich, 92 F.3d 831,835 (9th Cir. 1996).
5
16cv0189-LAB (JLB)
1
As to the remaining Defendants, however, the Court finds that while Plaintiff styles
2
his "causes of action" in terms of state torts, workplace safety laws, and as a "breach of
3
contract" governing Defendants' duty to respond to "reasonable and heightened
4
expection[s] of dangerous risk to the life of inmates and staff," see Compl. at 20, 21, 24,
5
25, 26, the "factual content" in his Complaint, when liberally construed, is sufficient to
6
"state a claim to relief [under 42 V_S.C. § 1983] that is plausible on its face." Iqbal, 556
7
U.S. at 678 (citing Twombly, 550 U.S. at 570). "[P]rison officials have a duty to protect
8
prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825,
9
833 (1994) (internal quotation marks, ellipsis, and citation omitted). If an inmate has been
10
assaulted by a fellow inmate, a prison official can be held liable under the Eighth
11
Amendment so long as Plaintiff demonstrates that the deprivation is sufficiently serious,
12
id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and that the prison official
13
was deliberately indifferent to the risk. Id. at 837. In addition, "deliberate indifference to
14
a prisoner's serious illness or injury states a cause of action under § 1983." Estelle v.
15
Gamble, 429 U.S. 97, 105 (1976).
16
C.
Statute of Limitations
17
"A claim may be dismissed [for failing to state a claim] on the ground that it is barred
18
by the applicable statute of limitations only when 'the running of the statute is apparent on
19
the face of the complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592
20
F.3d 954,969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992,
21
997 (9th Cir. 2006)). "'A complaint cannot be dismissed unless it appears beyond doubt
22
that the plaintiff can prove no set of facts that would establish the timeliness of the claim.'"
23
Id. (quoting Supermail Cargo, Inc. v. V.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); see also
24
Cervantes v. City of San Diego. 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the running
25
of the statute of limitations is apparent on the face of a complaint, dismissal for failure to
26
state a claim is proper, so long as Plaintiff is provided an opportunity to amend in order to
27
allege facts which, if proved, might support tolling); see also Tahoe-Sierra Pres. Council,
28
Inc. v. Tahoe Reg'l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) (court may raise
6
16cv0189-LAB (JLB)
1 the defense of statute of limitations sua sponte), overruled on other grounds by Gonzalez
2
v. Arizona, 677 F.3d 383, 389 (9th Cir. 2011) (en banc); Hughes v. Lott, 350 FJd 1157,
3
1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) of
4
prisoner's time-barred complaint).
5
Because section 1983 contains no specific statute oflimitation, federal courts apply
6
the forum state's statute of limitations for personal injury actions. Jones v. Blanas, 393
7
FJd 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945,954 (9th Cir. 2004);
8
Fink v. Shedier, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California's statute of
9
limitations was one year. Jones, 393 F.3d at 927. Effective January 1,2003, the limitations
10
period was extended to two years. Id. (citing CAL. CN. PROC. CODE § 335.1). The law of
11
the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 (2007) (citing
12
Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 (noting that in
13
actions where the federal court borrows the state statute oflimitation, the federal court also
14
borrows all applicable provisions for tolling the limitations period found in state law).
15
Under California law, the statute of limitations for prisoners serving less than a life
16
sentence is tolled for two years. CAL. CN. PROC. CODE § 352.l(a); Johnson v. California,
17
207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, Johnson v. California, 543
18
U.S. 499 (2005). Accordingly, the effective statute of limitations for most California
19
prisoners is three years for claims accruing before January 1,2003 (one year limitations
20
period plus two year statutory tolling), and four years for claims accruing thereafter (two
21
year limitations period plus two years statutory tolling). In addition, the limitations period
22
for prisoners is tolled while the "prisoner completes the mandatory exhaustion process."
23
Brown v. Valoff, 422 F.3d 926,943 (9th Cir. 2005).
24
Unlike the length of the limitations period, however, "the accrual date of a § 1983
25
cause of action is a question of federal law that is not resolved by reference to state law."
26
Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a § 1983
27
cause of action accrues). "Under the traditional rule of accrual ... the tort cause of action
28
accrues, and the statute of limitation begins to run, when the wrongful act or omission
7
16cv0189-LAB OLB)
1 results in damages." Wallace, 549 U.S. at 391. Put another way, "[u]nder federal law, a
2
claim accrues when the plaintiff knows or has reason to know of the injury which is the
3 basis of the action." Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 F.3d 987, 991
4
(9th Cir. 1999).
5
In this case, the "wrongful act" which is alleged to have caused Plaintiff harm
6
occurred on December 10, 2009, over six years before Plaintiff constructively filed his
7
Complaint in this action on January 10,2016. (See CompI. at 35.) Plaintiff states that he
8
completed his mandatory exhaustion of administrative remedies on February 2, 2011, when
9
he received a response to his Director's Level Review indicating that it had been rejected
10
as untimely, nearly five years before he initiated this action. (Id. at 7.) Thus, assuming
11
Plaintiff is not serving a life sentence (the record is silent on that issue), and assuming he
12
is entitled to tolling for the entire time he was exhausting administrative remedies, and
13
therefore giving him the maximum possible amount of statutory tolling, the statute of
14
limitations expired at the latest (based on the allegations in the Complaint) in February
15
2015, well before this action was commenced in January 2016. Based on the allegations
16
in the Complaint, it is outside California's statute of limitations, even including all
17
presumed periods of tolling provided by statute, or pending the exhaustion of any
18
administrative remedies. Wallace, 591 U.S. at 391; see also Maldonado, 370 F.3d at 955;
19
CAL. CODE Crv. PROC. § 335 .1 (tolling statute oflimitations "for a maximum of 2 years"
20
during a prisoner's incarceration); Jones, 393 F.3d at 927; Valoff, 422 F.3d at 943.
21
Finally, Plaintiff's claims could be considered timely if, in his Complaint, he alleges
22
facts sufficient to show the limitations period may be equitably tolled. See Cervantes, 5
23
F.3d at 1276-77. Generally, federal courts also apply the forum state's law regarding
24
equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372,374
25
(9th Cir.1988). Under California law, however, Plaintiff must meet three conditions to
26
equitably toll the statute oflimitations: (1) he must have diligently pursued his claim; (2)
27
his situation must be the product offorces beyond his control; and (3) Defendants must not
28
be prejudiced by the application of equitable tolling. See Hull v. Central Pathology Servo
8
16cv0189-LAB (JLB)
1 Med. Clinic, 28 Cal.AppAth 1328, 1335 (CaI.Ct.App. 1994); Addison v. State of
2
3
California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916.
As currently pleaded, however, the Court finds Plaintiff has failed to plead any facts
4 which, if proved, would support any plausible claim for equitable tolling. See Cervantes,
5
5 FJd at 1277; Igbal, 556 U.S. at 679. In fact, Plaintiff previously filed an identical version
6 of his Complaint in this Court on December 19,2013, which survived screening under 28
7 U.S.c. § 1915(e)(2) and § 1915A(b), but which was dismissed for failure to prosecute after
8 Plaintifffailed to effect service of process on the Defendants. See Marano v. Neotti, et aI.,
9
So.Dist.Ca.Civil Case No. 13cv3117-LAB (BLM), Order filed 8/7/15 [ECF. No.9].
10
Plaintiff filed a motion to vacate the judgment in that case on December 15, 2016, which
11
was denied on the basis that he had failed to respond to the July 17, 2016 Order to show
12
cause why that case should not be dismissed for failure to prosecute, and because he failed
13
to adequately explain why he had failed to serve the Defendants. Id., Order filed 12116/15
14
[ECF No. 12]. That Order informed Plaintiff that if he refiled his Complaint, as he has
15
done here, that he would likely need to explain why he is entitled to equitable tolling of the
16
statute oflimitations. Id. at 4. Plaintiff has made no such effort in the instant Complaint,
17
which is a duplicate of his 2013 Complaint, despite the fact that he has attached the
18
December 16, 2015 Order dismissing his prior action. (See Attach. to CompI. [ECF No. I
19
at 68-72].) Thus, although Plaintiff acknowledges a potential need to set forth facts
20
supporting equitable tolling, he has failed to do so. Accordingly, the Court finds that a
21
review of the Complaint reveals that Plaintiff's claims are barred by the statute of
22
limitations, and his entire Complaint must be dismissed for failing to state a claim upon
23
which section 1983 re1iefmay be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Barren, 152
24
FJd at 1194.
25
F.
Leave to Amend
26
Because Plaintiff is proceeding without counsel, and he has now been provided with
27
notice of his Complaint's deficiencies, the Court will grant him leave to amend. See Rosati
28
v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) ("A district court should not dismiss a
9
16cv0189-LAB (JLB)
1 pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless
2
'it is absolutely clear that the deficiencies of the complaint could not be cured by
3
amendment."') (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).
4
III.
Conclusion and Order
5
Good cause appearing, the Court:
6
1.
7
8
GRANTS Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.c. § 1915(a)
(ECF No.2).
2.
ORDERS the Secretary of the CDCR, or his designee, to collect from
9
Plaintiffs trust account the $35.74 initial filing fee assessed, ifthose funds are available at
10
the time this Order is executed, and to forward whatever balance remains of the full $350
11
owed in monthly payments in an amount equal to twenty percent (20%) of the preceding
12
month's income to the Clerk of the Court each time the amount in Plaintiffs account
13
exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).
14
CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS
15
ACTION.
16
3.
ALL PAYMENTS MUST BE
DIRECTS the Clerk of the Court to serve a copy of this Order on Scott
17
Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
18
942883, Sacramento, California, 94283-0001.
19
4.
DISMISSES Plaintiffs Complaint in its entirety for failing to state a claim
20
upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
21
§ 1915A(b)(1), and GRANTS him forty-five (45) days leave from the date ofthis Order
22
in which to file an Amended Complaint which cures all the deficiencies of pleading noted.
23
Plaintiffs Amended Complaint must be complete by itself without reference to his original
24
pleading, and must comply with S.D. CAL. CrvLR 8.2(a). Defendants not named and any
25
claim not re-alleged in his Amended Complaint will be considered waived. See S.D. CAL.
26
CrvLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546
27
(9th Cir. 1989) ("[A]n amended pleading supersedes the original."); Lacey v. Maricopa
28
Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend
10
16cv0189-LAB (JLB)
1 which are not re-alleged in an amended pleading may be "considered waived if not
2
repled.")
3
If Plaintiff fails to file an Amended Complaint within the time provided, the Court
4
will enter a final Order dismissing this civil action based both on Plaintiffs failure to state
5
a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
6
19l5A(b)(I), and his failure to prosecute in compliance with a court order requiring
7
amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) ("If a plaintiff does
8 not take advantage of the opportunity to fix his complaint, a district court may convert the
9
10
dismissal of the complaint into dismissal ofthe entire action.").
IT IS SO ORDERED.
11
12
13
14
Dated:
/7..--
/6....- {("
HON. LARRY ALAN BURNS
United States District Judge
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
16cv0189-LAB (JLB)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?