Muse v. Garcia Castillo et al
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Watch Commander of the South Bay Detention Facility, 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's Complaint is dismissed for failing to state a claim upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The Court grants Plaintiff forty-five (45) d ays leave in which to file an Amended Complaint which cures all the deficiencies of pleading described in this Order. Signed by Judge John A. Houston on 7/14/16. (All non-registered users served via U.S. Mail Service)(cc: Watch Commander, South Bay Detention Facility)(kas)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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ERIC JAMES MUSE,
Booking # 15746082,
Case No.: 3:16-cv-01722-JAH-PCL
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ORDER:
Plaintiff,
vs.
1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]
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ERNIE GARCIA CASTILLO;
LATOSHA WHITE
AND
Defendants.
2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)
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Plaintiff, Eric James Muse, is a pretrial detainee at the South Bay Detention
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Facility in Chula Vista, California. He has filed a civil rights Complaint pursuant to 42
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U.S.C. § 1983 (ECF No. 1) and a Motion to Proceed In Forma Pauperis (“IFP”) pursuant
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to 28 U.S.C. § 1915(a) (ECF No. 2). Because Plaintiff’s Motion to Proceed IFP complies
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with 28 U.S.C. § 1915(a)(2), the Court grants him leave to proceed without full
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prepayment of the civil filing fees required by 28 U.S.C. § 1914(a), but dismisses his
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Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
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3:16-cv-01722-JAH-PCL
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I.
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Plaintiff’s IFP Motion
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). The action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
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Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (U.S. 2016); Williams v. Paramo,
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775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately
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dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th
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Cir. 2002).
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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the
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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
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trust account statement, the Court assesses an initial payment of 20% of (a) the average
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monthly deposits in the account for the past six months, or (b) the average monthly
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balance in the account for the past six months, whichever is greater, unless the prisoner
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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having
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custody of the prisoner then collects subsequent payments, assessed at 20% of the
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preceding month’s income, in any month in which his account exceeds $10, and forwards
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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);
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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. Dec. 1, 2014). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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Bruce, 136 S. Ct. at 629.
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In support of his IFP Motion, Plaintiff has submitted a certified prison certificate,
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verified by an accounting officer, pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL.
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CIVLR 3.2. See ECF No. 2 at 4; Andrews, 398 F.3d at 1119. This certificate shows that
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Plaintiff has insufficient funds from which to pay a partial initial filing fee. See 28 U.S.C.
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§ 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a
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civil action or appealing a civil action or criminal judgment for the reason that the
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prisoner has no assets and no means by which to pay the initial partial filing fee.”);
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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)
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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a
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“failure to pay . . . due to the lack of funds available to him when payment is ordered.”).
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Therefore, the Court grants Plaintiff leave to proceed IFP and directs the Watch
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Commander to collect the entire $350 balance of the filing fees required by 28 U.S.C.
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§ 1914 and forward them to the Clerk of the Court pursuant to the installment payment
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provisions set forth in 28 U.S.C. § 1915(b)(1). See id.
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II.
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Initial Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
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Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
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the targets of frivolous or malicious suits need not bear the expense of responding.’”
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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
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“The standard for determining whether a plaintiff has failed to state a claim upon
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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
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3:16-cv-01722-JAH-PCL
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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
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applied in the context of failure to state a claim under Federal Rule of Civil Procedure
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12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
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relief [is] . . . a context-specific task that requires the reviewing court to draw on its
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judicial experience and common sense.” Id. The “mere possibility of misconduct” or
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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
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(9th Cir. 2009).
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A.
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Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,
42 U.S.C. § 1983
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privileges, or immunities secured by the Constitution and laws” of the United States.
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Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must
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allege two essential elements: (1) that a right secured by the Constitution or laws of the
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United States was violated, and (2) that the alleged violation was committed by a person
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acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of
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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
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B.
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In his Complaint, Plaintiff claims that he was “attacked in my residence by
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[Defendant] Ernie Garcia Castillo.” (Compl. at 3.) As a result, it appears that Plaintiff
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was charged with a crime but was later found “not guilty.” (Id.) Plaintiff claims
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Defendant Castillo “violated my right to personal safety/self-defense.” (Id.) Plaintiff
Private Parties
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3:16-cv-01722-JAH-PCL
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does not set forth any allegations pertaining to Defendant Latosha White.
Private parties or entities do not generally act under color of state law; thus,
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“purely private conduct, no matter how wrongful, is not within the protective orbit of
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section 1983.” Ouzts v. Maryland Nat’l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974); see
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also Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). While a plaintiff may seek to
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hold a private actor liable under section 1983, he must allege facts that show some “state
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involvement which directly or indirectly promoted the challenged conduct.” Ouzts, 505
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F.2d at 553; West v. Atkins, 457 U.S. 42, 49, 54 (1988); Johnson v. Knowles, 113 F.3d
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1114, 1118-1120 (9th Cir. 1997). In other words, Plaintiff must allege facts to shoe that
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the private actor’s conduct is “fairly attributable” to the government. Rendell-Baker v.
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Kohn, 457 U.S. 830, 838 (1982).
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Here, Plaintiff’s Complaint fails to allege facts sufficient to show that Defendants
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acted on behalf of, or in any way which is attributable to, the State. Thus, without more,
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Plaintiff’s allegations fail to satisfy the first essential prong of a § 1983 claim and are
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dismissed from this action.
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As for Defendant White, Plaintiff’s Complaint contains no allegations as to how
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this Defendant allegedly violated his constitutional rights and contains no “further factual
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enhancement” which describes how, or to what extent, any individual became aware of,
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or were actually aware of, alleged constitutional violations. “Because vicarious liability
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is inapplicable to . . . §1983 suits, a plaintiff must plead that each government-official
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defendant, through the official’s own individual actions, has violated the Constitution.”
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Iqbal, 556 U.S. at 676; see also Jones v. Community Redevelopment Agency of City of
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Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at
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least some degree of particularity overt acts which defendants engaged in” in order to
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state a claim).
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“Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks
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v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must
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be individualized and focus on the duties and responsibilities of each individual
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defendant whose acts or omissions are alleged to have caused a constitutional
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deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode,
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423 U.S. 362, 370-71 (1976). Plaintiff does not offer any other factual allegations
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linking Defendant White to any of his claims regarding alleged constitutional violations.
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Accordingly, Plaintiff’s Complaint requires dismissal on this basis pursuant to 28
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U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d
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at 1004.
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III.
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Conclusion and Order
Good cause appearing, the Court:
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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
(ECF No. 2).
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DIRECTS the Watch Commander of the South Bay Detention Facility, or
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his designee, to collect from Plaintiff’s trust account the $350 filing fee owed in this case
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by garnishing monthly payments from his account in an amount equal to twenty percent
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(20%) of the preceding month’s income and forwarding those payments to the Clerk of
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the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C.
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§ 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME
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AND NUMBER ASSIGNED TO THIS ACTION.
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3.
DIRECTS the Clerk of the Court to serve a copy of this Order on the Watch
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Commander, South Bay Detention Facility, 500 Third Avenue, Chula Vista, California
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91910.
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4.
DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
§ 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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GRANTS Plaintiff forty-five (45) days leave in which to file an Amended
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Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is
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cautioned, however, that should he choose to file an Amended Complaint, it must be
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complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim
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not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios,
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Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
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pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
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amended pleading may be “considered waived if not repled.”).
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If Plaintiff fails to follow these instructions and/or files an Amended Complaint
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that still fails to state a claim, his case may be dismissed without further leave to amend.
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See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take
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advantage of the opportunity to fix his complaint, a district court may convert the
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dismissal of the complaint into dismissal of the entire action.”).
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IT IS SO ORDERED.
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Dated: July 14, 2016
HON. JOHN A. HOUSTON
United States District Judge
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