Johnson v. Lee et al

Filing 3

ORDER: (1) Granting 2 Motion for Leave to Proceed in forma pauperis and 2) Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. 1915(e) (2) and 1915A(b). The Secretary CDCR, or his designee, is ordered to collect from prison tru st 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 C ourt each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR) (Copy of order served on Scott Kernan). Signed by Judge Cathy Ann Bencivengo on 6/15/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 TONEY ALFONSO JOHNSON, CDCR #G-53444, ORDER: Plaintiff, 12 13 Case No.: 3:17-cv-00095-CAB-BLM vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 14 15 16 DOCTOR LEE; S. RASCON, Registered Dental Assistant, AND Defendants. 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 17 18 19 20 21 TONEY ALFONSO JOHNSON (“Plaintiff”), proceeding pro se, is currently 22 incarcerated at California State Prison–Los Angeles (CSP-LAC) in Lancaster, California, 23 and has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). 24 Plaintiff claims a dentist and dental assistant acting “under contrac[t] with the 25 California Department of Corrections and Rehabilitation” (CDCR) violated his 26 constitutional rights on December 29, 2015, while he was incarcerated at Centinela State 27 Prison, by extracting one of his molars using an unsterilized surgical instrument. (ECF 28 No. 1 at 2-4.) He seeks $3 million in compensatory damages. (Id. at 7.) 1 3:17-cv-00095-CAB-BLM 1 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 2 time of filing, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 4 I. 5 IFP Motion All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 11 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 12 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 13 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 14 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 15 2002). 16 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 24 25 1 26 27 28 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. 2 3:17-cv-00095-CAB-BLM 1 custody of the prisoner then collects subsequent payments, assessed at 20% of the 2 preceding month’s income, in any month in which his account exceeds $10, and forwards 3 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 4 Bruce, 136 S. Ct. at 629. 5 In support of his IFP Motion, Plaintiff has submitted certified copies of his CDCR 6 Inmate Statement Report showing his trust account activity at the time of filing. See ECF 7 No. 2 at 4-5; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. 8 These statements show Plaintiff owes more than $10,000 in restitution fines, has had no 9 monthly deposits to his account, carried no balance over the six month period preceding 10 the filing of his Complaint, and had an available balance of zero at CSP-LAC as of 11 March 27, 2017 (ECF No. 2 at 2, 5). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 12 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 13 or criminal judgment for the reason that the prisoner has no assets and no means by 14 which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 15 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 16 a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 17 available to him when payment is ordered.”). Therefore, the Court grants Plaintiff’s Motion to Proceed IFP, declines to exact any 18 19 initial filing fee because his trust account statement shows he “has no means to pay it,” 20 Bruce, 136 S. Ct. at 629, and directs the Secretary of the CDCR to collect the entire $350 21 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of 22 the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 23 § 1915(b)(1). See id. 24 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 25 A. 26 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the Standard of Review 27 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 28 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 3 3:17-cv-00095-CAB-BLM 1 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 2 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 3 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 4 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 5 which are frivolous, malicious, fail to state a claim, or which seek damages from 6 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 7 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 8 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 9 All complaints must contain “a short and plain statement of the claim showing that 10 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 11 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 12 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 13 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 14 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 15 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 16 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 17 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 18 “When there are well-pleaded factual allegations, a court should assume their 19 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 20 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 21 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 22 allegations of material fact and must construe those facts in the light most favorable to 23 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 24 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 25 However, while the court “ha[s] an obligation where the petitioner is pro se, 26 particularly in civil rights cases, to construe the pleadings liberally and to afford the 27 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 28 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 4 3:17-cv-00095-CAB-BLM 1 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 2 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Plaintiff’s Allegations 3 B. 4 Plaintiff claims that on December 29, 2015, Dr. Lee “performed a dental extraction 5 … on one of Plaintiff’s upper molar[s] on the right side.” (ECF No. 1 at 3.) During the 6 procedure, Dr. Lee “dropped one of the surgical instruments on the floor,” picked it up, 7 and “continued to use it” “without any type of sterilization.” (Id. at 4.) Plaintiff contends 8 Lee’s assistant, Defendant Rascon, simply “watched,” “laughed,” and later told another 9 assistant that Plaintiff was a “child abuser.” (Id. at 4.)2 Plaintiff contends these actions 10 made him “susceptible” to infection, and “infringe[d] upon [his] human dignity” in 11 violation of both the Eighth and Fourteenth Amendments.3 (Id. at 4.) 12 /// 13 /// 14 15 Plaintiff claims he “has never been accused, arrested, charged, tried, or convicted of abusing children in any way.” (ECF No. 1 at 4.) 2 16 17 Plaintiff invokes his right to “due process” with respect to Defendants’ actions, see ECF No. 1 at 3, 4, but he alleges no facts to suggest either Dr. Lee or S. Rascon denied him any “life, liberty or property interest” with respect to his dental surgery without appropriate procedural protections. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.”). Nor has he alleged facts sufficient to support a violation of substantive due process. Only state action that “do[es] more than offend some fastidious squeamishness or private sentimentalism,” and instead “shocks the conscience” to the point that it “is bound to offend even hardened sensibilities,” can be said to violate the substantive protections of the Fourteenth Amendment. See Rochin v. California, 342 U.S. 165, 172 (1952). Plaintiff’s allegations here fall far short from that high pleading standard. Finally, “[i]f a constitutional claim is covered by a specific constitutional provision,” County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998), as a prisoner’s Eighth Amendment medical care claims are, see Estelle v. Gamble, 429 U.S. 97, 104 (1976), those “claim[s] must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” Lewis, 523 U.S. at 843. 3 18 19 20 21 22 23 24 25 26 27 28 5 3:17-cv-00095-CAB-BLM 1 C. 2 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 3 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 4 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 5 substantive rights, but merely provides a method for vindicating federal rights elsewhere 6 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 7 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 8 deprivation of a right secured by the Constitution and laws of the United States, and (2) 9 that the deprivation was committed by a person acting under color of state law.” Tsao v. 10 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 11 D. 12 There is no question that prison officials act “under color of state law” when 13 housing and providing medical care to prisoners. See West v. Atkins, 487 U.S. 42, 49-50 14 (1988) (“[G]enerally, a public employee acts under color of state law while acting in his 15 official capacity or while exercising his responsibilities pursuant to state law.”). West also 16 holds that a “private physician or hospital,” like Dr. Lee and his dental assistant are 17 alleged to be in this case, “act under color of law for purposes of § 1983,” when they, as 18 Plaintiff alleges, perform under “contrac[] with CDCR.” See ECF No. 1 at 2; Lopez v. 19 Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (finding state 20 action where hospital “contract[ed] with the state ... to provide medical services to 21 indigent citizens”); George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 934 22 (N.D. Cal. 2010) (“A private . . . hospital that contracts with a public prison system to 23 provide treatment for inmates performs a public function and acts under color of law for 24 purposes of § 1983.”). Eighth Amendment Medical Care Claims 25 Therefore, in order to determine whether Plaintiff has pleaded a plausible claim for 26 relief based on alleged denials of medical care, the Court must review his Complaint and 27 decide whether it contains sufficient “factual content that allows [it] to draw the 28 reasonable inference” that “each Government-official defendant, through the official’s 6 3:17-cv-00095-CAB-BLM 1 own individual actions, has violated the Constitution,” and thus, may be held “liable for 2 the misconduct alleged.” Iqbal, 556 U.S. 676, 678. 3 Only “deliberate indifference to serious medical needs of prisoners constitutes the 4 unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.” 5 Estelle, 429 U.S. at 103, 104 (citation and internal quotation marks omitted). “A 6 determination of ‘deliberate indifference’ involves an examination of two elements: (1) 7 the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s 8 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), 9 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 10 11 (en banc) (quoting Estelle, 429 U.S. at 104). “Because society does not expect that prisoners will have unqualified access to 12 health care, deliberate indifference to medical needs amounts to an Eighth Amendment 13 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 14 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 15 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 16 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 17 104). “The existence of an injury that a reasonable doctor or patient would find important 18 and worthy of comment or treatment; the presence of a medical condition that 19 significantly affects an individual’s daily activities; or the existence of chronic and 20 substantial pain are examples of indications that a prisoner has a ‘serious’ need for 21 medical treatment.” Id., citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 22 1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). 23 At the screening stage of these proceedings, the Court will assume that Plaintiff’s 24 allegation of having suffered a dental injury grave enough to require surgical extraction is 25 sufficient to show he suffered an objectively serious medical need. See ECF No. 1 at 3; 26 McGuckin, 914 F.2d at 1059; cf. Thompson v. Shutt, No. 1:09-CV-01585 LJO, 2011 WL 27 674049, at *3 (E.D. Cal. Feb. 16, 2011) (finding a broken finger requiring “urgent 28 surgery” constituted a serious medical need). 7 3:17-cv-00095-CAB-BLM 1 However, even assuming Plaintiff’s dental needs were sufficiently serious, his 2 Complaint fails to include any further “factual content” to show that either Dr. Lee or S. 3 Rascon acted with “deliberate indifference” to those needs. McGuckin, 914 F.2d at 1060; 4 see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678. 5 Specifically, Plaintiff claims only that Dr. Lee used an unsterilized medical 6 instrument during his December 29, 2015 oral surgery, this made him “susceptible to 7 catching an infection,” ECF No. 1 at 3, Defendant Rascon “laughed” about it, and that he 8 experienced both “extreme” and then “moderate” pain for three days following the 9 surgery. (Id.) Plaintiff does not further claim to have contracted any infection as a result, 10 however; nor does he allege to have suffered pain not typically associated with a dental 11 extraction. See e.g., Xavier v. Roche, No. 2:09-CV-0783-KJM-CKD-P, 2016 WL 12 3670026, at *5 (E.D. Cal. July 11, 2016), report and recommendation adopted, No. 2: 13 09-C-0783-KJM-CKD-P, 2016 WL 5234946 (E.D. Cal. Sept. 22, 2016) (finding no 14 deliberate indifference to post-surgical pain and noting that “the worst of plaintiff’s pain 15 could be expected soon after surgery, when the anesthetic wore off.”). 16 To state an Eighth Amendment claim, Plaintiff must include “further factual 17 enhancement,” Iqbal, 556 U.S. at 678, which demonstrates both Lee and Rascon’s 18 “purposeful act or failure to respond to [his] pain or possible medical need,” and the 19 “harm caused by [this] indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 20 2012) (citing Jett, 439 F.3d at 1096). This is because to be deliberately indifferent, both 21 Lee and Rascon’s acts or omissions must entail more than he has alleged here—an 22 isolated act of alleged negligence and/or lack of due care. Snow v. McDaniel, 681 F.3d 23 978, 985 (9th Cir. 2012) (citation and quotation marks omitted); Wilhelm, 680 F.3d at 24 1122. See Toguchi, 391 F.3d at 1057 (“Mere negligence in diagnosing or treating a 25 medical condition, without more, does not violate a prisoner’s Eighth Amendment 26 rights.”). Simply put, an “inadvertent [or negligent] failure to provide adequate medical 27 care” does not state a claim under § 1983. Jett, 439 F.3d at 1096 (citing Estelle, 429 U.S. 28 at 105). 8 3:17-cv-00095-CAB-BLM 1 Moreover, to the extent Plaintiff objects to the surgical methods employed or 2 decisions made by Dr. Lee during the course of the extraction, “[a] difference of opinion 3 between a physician and the prisoner–or between medical professionals–concerning what 4 medical care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d 5 at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 6 1122-23. Instead, Plaintiff must plead facts sufficient to “show that the course of 7 treatment the doctors chose was medically unacceptable under the circumstances and that 8 the defendants chose this course in conscious disregard of an excessive risk to [his] 9 health.” Snow, 681 F.3d at 988 (citation and internal quotations omitted). 10 Finally, to the extent Plaintiff posits Lee and Rascon’s actions made him 11 “susceptible” to an infection he does not further allege ever actually occurred, (ECF No. 12 1 at 3), these allegations do not plausibly suggest a purposeful or conscious disregard of a 13 known harm or any excessive risk of serious injury. Wilhelm, 680 F.3d at 1122; Snow, 14 681 F.3d at 988; Martin v. Traquina, No. CIV S 05-0557 ALA P, 2007 WL 2254437, at 15 *7 (E.D. Cal. Aug. 3, 2007) (finding no deliberate indifference even where facts, even if 16 known, “could have” or “should have” alerted prison doctor that inmate “faced a 17 significant risk of infection.”). A plaintiff must allege fact to establish a causal link 18 between the Defendants’ conduct and an alleged injury. Without causation, there is no 19 deprivation of a plaintiff’s constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 20 (1976). 21 Accordingly, the Court finds that Plaintiff’s Complaint fails to state an Eighth 22 Amendment inadequate medical care claim against either Dr. Lee or S. Rascon, and that 23 therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. 24 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d 25 at 1004. Because he is proceeding pro se, however, the Court having now provided him 26 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity 27 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 28 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 9 3:17-cv-00095-CAB-BLM 1 III. Conclusion and Order 2 For the reasons explained, the Court: 3 1. 4 5 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2); 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 6 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 7 monthly payments from his account in an amount equal to twenty percent (20%) of the 8 preceding month’s income and forwarding those payments to the Clerk of the Court each 9 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 10 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 11 ASSIGNED TO THIS ACTION; 12 13 14 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 15 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 16 GRANTS him forty-five (45) days leave from the date of this Order in which to file an 17 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 18 Amended Complaint must be complete by itself without reference to his original 19 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 20 will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard 21 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 22 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 23 (noting that claims dismissed with leave to amend which are not re-alleged in an 24 amended pleading may be “considered waived if not repled.”). 25 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 26 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 27 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 28 and 1915A(b), and his failure to prosecute in compliance with a court order requiring 10 3:17-cv-00095-CAB-BLM 1 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 2 not take advantage of the opportunity to fix his complaint, a district court may convert the 3 dismissal of the complaint into dismissal of the entire action.”). 4 5 IT IS SO ORDERED. Dated: June 15, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 3:17-cv-00095-CAB-BLM

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