Lockhart v. Epps et al
Filing
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ORDER Granting 2 Motion for Leave to Proceed in forma pauperis; Denying 3 Motion to Appoint Counsel ; Denying 7 Motion for Injunctive Relief; and Dismissing civil Action for Failing to State a Claim. The Court: Directs the Warden of the OMDC, or his designee, to collect from Plaintiff's trust account the $350 filing fee owed. Directs the Clerk of the Court to serve a copy of this Order on Fred Figueroa. Grants Plaintiff forty-five (45) days leave from the date of this Order in which to re-open his case by filing an Amended Complaint which cures all the deficiencies of pleading described in this Order. Signed by Judge Gonzalo P. Curiel on 11/8/16. (All non-registered users served via U.S. Mail Service)(Copy mailed to Fred Figueroa. dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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BOBBY SHAWN LOCKHART,
Reg. No. 07012-298,
Case No.: 3:16-cv-01829-GPC-PCL
ORDER:
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Plaintiff,
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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]
vs.
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U.S. MARSHAL LIAISON EPPS, et al.,
2) DENYING MOTIONS TO
APPOINT COUNSEL AND FOR
INJUNCTIVE RELIEF
[ECF Nos. 3, 7]
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Defendants.
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AND
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3) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND 28 U.S.C. § 1915A(b)
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BOBBY SHAWN LOCKHART (“Plaintiff”), a federal inmate currently housed at
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the Otay Mesa Detention Center (“OMDC”) in San Diego, California, and proceeding pro
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se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).
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3:16-cv-01829-GPC-PCL
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Plaintiff claims various officials at the OMDC, which is operated by the
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Corrections Corporation of America (“CCA”), and contracts with the U.S. Marshal
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Service and U.S. Department of Homeland Security’s Department of Immigration and
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Customs Enforcement (“ICE”) to house federal pretrial and immigration detainees,
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denied him adequate dental care and his right to petition for redress during the months of
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May through July 2016. (ECF No. 1 at 2-3, 16-17.) His Complaint seeks declaratory and
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injunctive relief, as well as compensatory and punitive damages. (Id. at 17-18.)
Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF No.
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2), a Motion for Appointment of Counsel (ECF No. 3), and a separate Motion for
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Immediate Injunctive Relief (ECF No. 7).
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I.
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Motion to Proceed IFP
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, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
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1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.
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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
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2002).
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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. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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3:16-cv-01829-GPC-PCL
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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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Bruce, 136 S. Ct. at 629.
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In support of his IFP Motion, Plaintiff has submitted a copy of his OMDC Inmate
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Account Summary as well as a prison certificate certified by an authorized OMDC
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officer. See ECF No. 2 at 5-10; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews,
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398 F.3d at 1119. These statements show that while Plaintiff had an average monthly
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balance of $12 and average monthly deposits of $11 to his account over the 6-month
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period immediately preceding the filing of his Complaint, he had an available balance of
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only $1.08 at the time he filed it. See ECF No. 2 at 5, 10. Thus, the Court assesses
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Plaintiff’s initial partial filing fee to be $2.40 pursuant to 28 U.S.C. § 1915(b)(1), but
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acknowledges he may be unable to pay even that small initial fee at this time. See 28
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U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from
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bringing a civil action or appealing a civil action or criminal judgment for the reason that
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the 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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3:16-cv-01829-GPC-PCL
Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2),
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declines to exact the initial $2.40 initial filing fee because his inmate certificate indicates
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he may have “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Warden of the
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OMDC or his designee, to instead collect the entire $350 balance of the filing fees
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required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the
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installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id.
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II.
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Motion for Appointment of Counsel
Plaintiff has also filed a Motion to Appoint Counsel and supplemental documents
in support (ECF Nos. 3, 9). Plaintiff claims he is unable to afford counsel and his
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imprisonment “greatly limit[s] his ability to litigate.” (ECF No. 3 at 1.) Plaintiff contends
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he requires counsel because he has limited formal education, and because the issues
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involved in his case are complex and will “likely involve conflicting testimony” which a
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trained attorney would be better suited to handle. (Id. at 1-2.)
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First, the Court assures Plaintiff that all documents filed pro se are “liberally
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construed,” and notes that “a pro se complaint, however inartfully pleaded,” is held to
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less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
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551 U.S. 89, 94 (2007) (internal citations and quotation marks omitted). Moreover, FED.
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R. CIV. P. 8(e) requires that “[p]leadings …be construed so as to do justice.”
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Second, there is no constitutional right to counsel in a civil case. Lassiter v. Dept.
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of Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district
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courts have some limited discretion to “request” that an attorney represent an indigent
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civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004),
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this discretion is rarely exercised and only under “exceptional circumstances.” Id.; see
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also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional
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circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the
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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the
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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn
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v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
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3:16-cv-01829-GPC-PCL
Under these standards, the Court must DENY Plaintiff’s Motion to Appoint
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Counsel (ECF No. 3) without prejudice because, as discussed below, a liberal
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construction of his Complaint suggests he is more than capable of articulating the factual
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basis for the relatively straightforward inadequate medical care and access to courts
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claims he seeks to pursue. Moreover, Plaintiff has failed to show he is likely to succeed
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on the merits of his purported claims at this preliminary stage of the proceedings. Id.
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Therefore, neither the interests of justice nor any exceptional circumstances warrant
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appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987);
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Terrell, 935 F.2d at 1017.
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III.
Screening of Plaintiff’s Complaint
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A.
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Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-
Standard of Review
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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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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 “contain sufficient factual matter, accepted
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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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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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B.
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While in OMDC custody on May 24, 2016, Plaintiff lost a temporary filling while
Plaintiff’s Factual Allegations
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crunching on some hard candy. (ECF No. 1 at 7 ¶ 19.) On the same day, he was evaluated
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by two unidentified dental assistants, and a dentist (Defendant John Doe I). Plaintiff
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requested a temporary filling, but was informed he could either “deal with the pain” or
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elect to have the tooth extracted. (Id. at 7-10, ¶¶ 21, 23, 26.)
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Plaintiff objected via institutional grievance on May 27, 2016, but on June 2, 2016,
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OMDC Defendant Captain Hocks, also a dentist, denied his grievance requesting a
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temporary filling, and classified his need as “routine dental care” only available to “long-
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term detainees.” Hocks allegedly told Plaintiff, “I can’t change the policy,” so Plaintiff
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claims to have re-submitted his grievance to “await the Warden/Administrator’s
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decision.” (Id. at 10 ¶¶ 29, 30 & Ex. A at 22.)
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By June 9, 2016, Plaintiff was in a “tremendous amount of pain,” and requested a
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“sick call.” (Id. at 10-11, ¶¶ 31-32.) An unidentified dental assistant took his vitals,
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provided him a warm salt water mouth rinse and ibuprofen, and arranged for dental
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appointment on the following day. (Id. at 12 ¶¶ 34, 36.) On June 10, 2016, Defendants
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John Doe II (a dental assistant), and John Doe 1, the dentist, examined Plaintiff and
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confirmed he had developed an abscess. (Id. at 13 ¶ 37.) Plaintiff alleges the dentist then
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said, “I don’t know why you don’t just let me extract the tooth,” because in his opinion,
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“It[’]s not like you[’re] going to save the tooth anyways.” (Id.) Plaintiff declined, but was
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prescribed pain medication and a 7-day supply of antibiotics. (Id. ¶ 39.)
On June 13, 2016, Plaintiff claims John Doe III informed him that “he was with the
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Marshals and that USM Liaison Epps was already aware of the issue.” (Id. ¶ 41.)
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On July 2, 2016, Plaintiff claims he was “called to the podium” and had his
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grievance returned to him. (Id. at 14-15 ¶ 44, Ex. B at 27.) Plaintiff claims he refused to
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accept the paperwork because “there was no response, date or signature on it.” (Id. at 15
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¶¶ 44-45.) On the same day, Plaintiff claims to have “informed Assistant Warden Dennis
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Morris of this miscarriage of the grievance procedure.” (Id. at 15 ¶ 46.)
Finally, on July 7, 2016, Plaintiff claims to have “sent in a request for assistance”
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to Defendant Orrell, a law library technician, as he was “directed” to do by Defendant
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Soria, a “quality assurance” official at OMDC. (Id. at 6, 15 ¶ 48.) Plaintiff claims Orrell
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provided him “nothing more that the orientation handbook,” and “den[ied] [him] access
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to pertinent legal materials,” which he “feels” was an “attempt to hinder, deter, and
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misdirect [his] right to access the courts.” (Id. at 15-16 ¶ 48.)
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C.
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As an initial matter, the Court finds it must dismiss Plaintiff’s Complaint in its
42 U.S.C. § 1983
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entirety to the extent he has commenced suit pursuant to 42 U.S.C. § 1983 (ECF No. 1 at
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1, 4 ¶¶ 1, 6.)
“To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
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secured by the Constitution and laws of the United States, and (2) that the deprivation
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was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,
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698 F.3d 1128, 1138 (9th Cir. 2012) (emphasis added). Plaintiff is a “prisoner of the
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United States in custody of the Corrections Corporation of America” seeking injunctive
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relief and damages against a U.S. Marshal “liaison” (Defendant Epps) and CCA
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employees at OMDC based on claims that they violated his constitutional rights while in
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CCA custody. (ECF No. 1 at 4 ¶ 8.) He fails to allege any Defendant acted under color of
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state law. Therefore, he fails to state a claim under § 1983. Tsao, 698 F.3d at 1138.
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D.
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Because he is proceeding without counsel, however, the Court will liberally
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construe the constitutional claims alleged to have arisen while Plaintiff was housed at the
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OMDC under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
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403 U.S. 388 (1971). Bivens is the “federal analogue” to § 1983. Hartman v. Moore, 547
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U.S. 250, 254, 255 n.2 (2006).
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Bivens
In Bivens, the Supreme Court recognized an implied cause of action for damages
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against federal officers for alleged violation of a citizen’s rights under the Fourth
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Amendment. 403 U.S. at 397. After Bivens, the Supreme Court has found a similar cause
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of action implied against federal actors for alleged violations of the Due Process Clause
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of the Fifth Amendment and the Cruel and Unusual Punishment clause of the Eighth
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Amendment. Correctional Services Corp. v. Malesko, 534 U.S. 61, 67-68 (2001).
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However, the Court has expressly refused to extend liability for constitutional violations
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to federal agencies or private actors who contract with the federal government. Id. at 69,
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74.
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Thus, even if Plaintiff had filed his Complaint pursuant to Bivens, to the extent he
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seeks to hold any CCA employee liable for damages incurred under color of federal law,
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he still fails to state a plausible claim for relief. See Iqbal, 556 U.S. at 679. A Bivens
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action may only be brought against a federal official in his or her individual capacity. See
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Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). Bivens does not authorize a
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suit for money damages against a private entity like the CCA, or its employees at the
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OMDC. See Malesko, 534 U.S. at 66 n.2 (holding that FDIC v. Meyer, 510 U.S. 471
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(1994), “forecloses the extension of Bivens to private entities.”); Minneci v. Pollard, __
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U.S. __, 132 S. Ct. 617, 626 (2012) (foreclosing Bivens relief where federal prisoner
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sought damages from privately employed prison personnel, and despite Eighth
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Amendment inadequate medical care allegations, on grounds that the “conduct is of a
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kind that typically falls within the scope of traditional state tort law,” and therefore “the
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prisoner must seek a remedy under state tort law.”); see also Valdovinos-Blanco v. Adler,
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585 Fed. Appx. 586, 587 (9th Cir. 2014).
Accordingly, to the extent Plaintiff’s Complaint alleges constitutional violations on
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the part of Defendants Figueroa, Weaver, Morris, Hocks, John Does I and II, Sanders,2
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Soria, or Orrell, all of whom are alleged to be employed by CCA at the OMDC, (ECF
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No. 1 at 5-7 ¶¶ 10-18), his Complaint fails to state a claim upon which Bivens relief may
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be granted and must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1).
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See Lopez, 203 F.3d at 1127; Rhodes, 621 F.3d at 1004.
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E.
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Plaintiff also seeks relief against Defendant Epps, whom he alleges is a “liaison of
Vicarious Liability
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the United States Marshals” and “is legally responsible for the overall operation in
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regard[] to U.S. Marshal inmates,” including those “housed” at the CCA’s OMDC. (ECF
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No. 1 at 5 ¶ 9.) Therefore, the Court will assume that Epps acted under color of federal
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law for purposed of establishing Bivens liability; however, Plaintiff’s Complaint still fails
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to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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plausible on its face’” against Defendant Epps. Iqbal, 556 U.S. at 678 (quoting Twombly,
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550 U.S. at 570).
“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 individual
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actions, has violated the Constitution.” Id. at 676; see also Jones v. Community
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Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even
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pro se plaintiff must “allege with at least some degree of particularity overt acts which
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Plaintiff includes a “Nurse Sanders” in the caption of his Complaint, but nowhere in the
body of his pleading does he identify Sanders as a named Defendant, or one of the Doe
Defendants, nor does he make any factual allegations describing Sanders’ role in either
providing or failing to provide him dental care. (ECF No. 1 at 1.)
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defendants engaged in” in order to state a claim). Thus, Plaintiff must include in his
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pleading sufficient “factual content that allows the court to draw the reasonable inference
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that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, and
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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).
As currently pleaded, Plaintiff’s Complaint fails to include any factual content to
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suggest that Defendant Epps personally participated in, directed, or caused him to suffer
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any constitutional injury. Instead, Plaintiff merely identifies Epps as the U.S. Marshal
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“liaison” to the OMDC, and claims to have been “informed” by an unidentified Doe,
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employed by the OMDC, that Epps was “aware of the issue.” (ECF No. 1 at 5, 14 ¶¶ 9,
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41.) Plaintiff does not explain what issue Epps was purportedly aware of, however. Nor
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does he explain how Epps violated Plaintiff’s constitutional rights through his “own
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misconduct.” See Iqbal, 556 U.S. at 677.
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Therefore, Plaintiff has also failed to state a claim upon which relief can be granted
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as to Defendant Epps. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez, 203 F.3d at 1127;
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Rhodes, 621 F.3d at 1004.
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IV.
Motion for Injunctive Relief
Finally, Plaintiff has filed a “Motion to Show Cause for a[] Preliminary Injunction”
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pursuant to FED. R. CIV. P. 65(a) (ECF No. 7). Plaintiff seeks to enjoin Defendants from
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denying him “pertinent policy information,” “access to the court,” and “withholding
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dental treatment for reasons not based on medical judgment.” (Id. at 2.)
Rule 65 of the Federal Rules of Civil Procedure provides that “the court may issue
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a preliminary injunction only on notice to the adverse party.” FED. R. CIV. P. 65(a). As a
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preliminary matter, Plaintiff’s Motion for injunctive relief does not comply with Rule
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65(a)’s important procedural notice requirement because he has not shown that his
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Complaint or his Motion have been served on any named Defendant.
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Moreover, even if Plaintiff had properly served Defendants with notice of his
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Motion, it must be denied. “A preliminary injunction is an extraordinary remedy never
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awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24
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(2008) (citation omitted). “The proper legal standard for preliminary injunctive relief
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requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely
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to suffer irreparable harm in the absence of preliminary relief, that the balance of equities
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tips in his favor, and that an injunction is in the public interest.’” Stormans, Inc. v.
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Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20).
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As set forth in detail above, the Court has found that Plaintiff’s Complaint fails to
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state a claim upon which relief can be granted and has dismissed his pleading sua sponte
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in its entirety pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Therefore, Plaintiff has
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necessarily failed to show, for purposes of justifying a Motion for Preliminary Injunctive
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relief, any likelihood of success on the merits of his claims. Id.; see also Asberry v.
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Beard, Civil Case No. 3:13-cv-2573-WQH JLB, 2014 WL 3943459, at *9 (S.D. Cal.
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Aug. 12, 2014) (denying prisoner’s motion for preliminary injunction because his
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complaint was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and
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therefore he had not shown he was “likely to succeed on the merits” of any claim, that
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“the balance of equities tip[ped] in his favor,” or the issuance of an injunction would
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serve the public interest) (citing Winter, 555 U.S. at 20).
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V.
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Conclusion and Order
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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
(ECF No. 2).
2.
DIRECTS the Warden of the OMDC, or his designee, to collect from
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Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly
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payments from his account in an amount equal to twenty percent (20%) of the preceding
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month’s income and forwarding those payments to the Clerk of the Court each time the
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amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL
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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
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ASSIGNED TO THIS ACTION.
3.
DIRECTS the Clerk of the Court to serve a copy of this Order on Fred
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Figueroa, Warden, Otay Mesa Detention Center, P.O. Box 438150, San Diego, CA
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92143-8150.
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4.
DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 3).
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5.
DENIES Plaintiff’s Motion for Injunctive Relief (ECF No. 7).
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6.
DISMISSES this civil action for failing to state a claim upon which relief
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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 from the date of this Order in
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which to re-open his case by filing an Amended Complaint which cures all the
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deficiencies of pleading described in this Order. If Plaintiff elects to file an Amended
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Complaint, it must be complete by itself without reference to his original pleading. See
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S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d
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1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.
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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with
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leave to amend which are not re-alleged in an amended pleading may be “considered
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waived if not repled.”).
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If Plaintiff fails to file an Amended Complaint within the time provided, this civil
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action will remain dismissed without prejudice based on his failure to state a claim upon
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which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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IT IS SO ORDERED.
Dated: November 8, 2016
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3:16-cv-01829-GPC-PCL
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