James v. Gore et al

Filing 5

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. (Order electronically transmitted to Secretary of CDCR). The Court GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint which cures all the deficiencies of pleading described in this Order. Signed by Judge Anthony J. Battaglia on 7/12/2017. (All non-registered users served via U.S. Mail Service) Civil Rights Complaint form sent to Plaintiff via U.S. Mail.(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:17-cv-0859-AJB-MDD KYLE JAMES, CDCR #BB-1457 , ORDER: 13 14 Plaintiff, (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 2]; AND vs. 15 16 18 SHERIFF BILL GORE; LT. CHRISTINE HARVEL; SGT. BLACKWELL; UNKNOWN DEPUTIES; JOHN/JANE DOE, 19 Defendants. 17 (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 20 21 22 23 24 25 Kyle James (“Plaintiff”), a prisoner incarcerated at California State Prison - Los 26 Angeles County, located in Lancaster, California, and proceeding pro se, has filed a civil 27 complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 at 1. Plaintiff claims his 28 1 3:17-cv-0859-AJB-MDD 1 constitutional rights were violated when he was previously housed in the San Diego 2 County Jail from 2014 to 2015. (Id.) 3 Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the 4 time of filing; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) 5 pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). 6 I. 7 Plaintiff’s IFP Motion All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 12 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 13 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 14 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 15 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 16 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 17 2002). 18 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 19 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 20 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 21 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 22 trust account statement, the Court assesses an initial payment of 20% of (a) the average 23 monthly deposits in the account for the past six months, or (b) the average monthly 24 balance in the account for the past six months, whichever is greater, unless the prisoner 25                                                 26 27 28 1 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. 2 3:17-cv-0859-AJB-MDD 1 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 2 custody of the prisoner then collects subsequent payments, assessed at 20% of the 3 preceding month’s income, in any month in which his account exceeds $10, and forwards 4 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 5 Bruce, 136 S. Ct. at 629. 6 In support of his IFP motion, Plaintiff has submitted a certified copy of his prison 7 trust account statements, as well as a prison certificate, verified by an accounting officer, 8 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See Doc. No. 2 at 4-8; 9 Andrews, 398 F.3d at 1119. These statements shows that while Plaintiff had an average 10 monthly deposit of $31.09 and an average monthly balance of 24.93 in his trust account 11 during the 6-month period preceding the filing of his Complaint, he only had an 12 available balance of zero at the time of filing. Therefore, the Court assesses Plaintiff’s 13 initial partial filing fee to be $6.22 pursuant to 28 U.S.C. § 1915(b)(1). However, the 14 Court also notes Plaintiff may be unable to pay that initial fee at this time. See 28 U.S.C. 15 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 16 civil action or appealing a civil action or criminal judgment for the reason that the 17 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 18 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 19 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 20 “failure to pay . . . due to the lack of funds available to him when payment is ordered.”). 21 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP, declines to 22 “exact” the initial $6.22 initial filing fee because his prison certificate shows he “has no 23 means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 24 Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead 25 collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and 26 forward them to the Clerk of the Court pursuant to the installment payment provisions set 27 forth in 28 U.S.C. § 1915(b)(1). See id. 28 /// 3 3:17-cv-0859-AJB-MDD 1 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) 2 A. 3 If a prisoner’s complaint “seeks redress from a governmental entity or officer or 4 employee of a governmental entity,” the Court “shall review” the pleading “as soon as 5 practicable after docketing,” and “dismiss the complaint, or any portion of the complaint, 6 if [it] . . . is frivolous, malicious, or fails to state a claim upon which relief may be 7 granted.” 28 U.S.C. § 1915A(a), (b)(1); Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th 8 Cir. 2014). As noted below, Plaintiff alleges violations of his “federal constitutional 9 rights,” see Doc. No. 1 at 1, 5, but he seeks redress from private citizens, an attorney, his 10 former home owners’ association, and a property management company, none of whom 11 are alleged to be governmental actors. Id. at 2. Therefore, § 1915A(a)’s screening 12 provisions do not apply. See Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016) 13 (“Section 1915A mandates early review … for all complaints ‘in which a prisoner seeks 14 relief from a governmental entity…”) (quoting § 1915A(a)); see also Thompson v. Hicks, 15 213 Fed. Appx. 939, 2007 WL 106785 at *3 (11th Cir. 2007) (noting that because a 16 private defendant was not a “governmental entity” as described in § 1915A, prisoner’s 17 complaint as to that defendant was not subject to dismissal under § 1915A). 18 Standard of Review Because Plaintiff is proceeding IFP, however, his Complaint is still subject to a 19 sua sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a 20 claim upon which relief may be granted, or seek[s] monetary relief from a defendant 21 immune from such relief,” regardless of whether he seeks redress from a “governmental 22 entity.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 23 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if 24 the court determines that—(A) the allegation of poverty is untrue; or (B) the action or 25 appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be 26 granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 27 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis 28 complaint that fails to state a claim.”). 4 3:17-cv-0859-AJB-MDD 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012). 5 To survive a motion to dismiss, the complaint must contain “a short and plain 6 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 7 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 10 U.S. 544, 555 (2007)). “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 12 judicial experience and common sense.” Id. The “mere possibility of misconduct” falls 13 short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 14 F.3d 962, 969 (9th Cir. 2009). 15 “When there are well-pleaded factual allegations, a court should assume their 16 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 17 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 18 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 19 allegations of material fact and must construe those facts in the light most favorable to 20 the plaintiff.”). 21 However, while the court “ha[s] an obligation where the petitioner is pro se, 22 particularly in civil rights cases, to construe the pleadings liberally and to afford the 23 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 24 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 25 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 26 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 27 /// 28 /// 5 3:17-cv-0859-AJB-MDD 1 B. 2 Plaintiff was previously housed in the San Diego Central Jail (“SDCJ”) on July 23, Plaintiff’s Allegations 3 2014. (Compl. at 3.) On this day, Plaintiff claims that he was returning from a court 4 appearance when he was handcuffed by unnamed San Diego County Sheriff Deputies. 5 (Id.) Plaintiff was accused of “stealing a masterlock.” (Id.) Plaintiff claims that as a 6 form of punishment, these unnamed Deputies tightened his handcuffs and refused to 7 loosen them when he informed them he was in pain. (Id.) 8 9 Plaintiff filed a complaint with Defendant Harvel, a lieutenant who handles “internal affairs.” (Id. at 4.) Plaintiff claims she responded by saying that “once the cuffs 10 were found to be tight, they were loosened.” (Id.) However, Plaintiff alleges that this 11 statement was “factually untrue” and further claims that Harvel “deliberately destroyed” 12 video evidence of this incident. (Id.) Plaintiff claims that his hands are “permanently 13 numb from that injury.” (Id.) 14 Plaintiff also alleges Defendant Blackwell, a sergeant, “ignored my pleas for help 15 for over an hour, forcing me to bang my forehead into a “plexi glass” window until it 16 bled.” (Id. at 7.) As a result, Plaintiff claims his “desperate actions worked to get 17 Blackwell to get the Lieutenant and take off the cuffs so medical staff RN could examine 18 the cuts (injury) to my wrists.” (Id.) 19 C. 20 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 42 U.S.C. § 1983 21 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 22 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must 23 allege two essential elements: (1) that a right secured by the Constitution or laws of the 24 United States was violated, and (2) that the alleged violation was committed by a person 25 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 26 789 F.3d 1030, 1035-36 (9th Cir. 2015). 27 /// 28 6 3:17-cv-0859-AJB-MDD 1 D. 2 Plaintiff has previously raised some of the same claims in separate actions filed 3 with this Court. A court “‘may take notice of proceedings in other courts, both within 4 and without the federal judicial system, if those proceedings have a direct relation to 5 matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting 6 Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Duplicative claims 7 Here, the Court takes judicial notice of the action Plaintiff has filed in James v. 8 Lee, et al. S.D. Cal. Civil Case No. 3:16-cv-01592-AJB-JLB (“James I”). In the first 9 complaint filed by Plaintiff in this matter, he alleges the same set of facts as it relates to 10 the July 23, 2014 incident. Specifically, he alleges that when he arrived at SDCJ, after 11 having appeared in court, when he was handcuffed and searched “due to a master lock 12 disappearing.” (Id., Doc. No. 1, at 9.) Plaintiff was placed in a holding cell by “John 13 Doe Deputies” and they “misapplied” the handcuffs which “cut deeply” into Plaintiff’s 14 wrists and “cut off circulation” to his hands. (Id.) Plaintiff claims that “Christine Harvel 15 took no action against staff and Harvel lied in her response claiming deputies loosened 16 cuffs.” (Id.) Plaintiff’s complaint was dismissed by the Court for failing to state a claim 17 upon which relief court be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 18 1915A(b)(1). (Id., Doc. No. 3, at 9.) 19 When Plaintiff filed his amended pleading, he no longer named Defendant Harvel, 20 but he did allege that he suffered “multiple injuries” while housed at SDCJ from 2014 to 21 2016. (Id., Doc. No. 6, at 1-3.) Specifically, Plaintiff alleges that his injuries were 22 “inflicted by means of intentional misapplication (misuse) of ‘hand-cuffs.’” (Id. at 3.) 23 The remainder of Plaintiff’s amended pleading raised claims of inadequate medical care 24 for the alleged injuries to his hand. Plaintiff’s amended pleading was also dismissed by 25 the Court for failing to state a claim upon which relief court be granted pursuant to 28 26 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). (Id., Doc. No. 8, at 8.) 27 Plaintiff then chose to amend his pleading again. (Id., Doc. No. 9.) In this 28 pleading, Plaintiff again named, among others, Defendant Harvel. (Id., at 1, 2.) In this 7 3:17-cv-0859-AJB-MDD 1 pleading, Plaintiff alleges that he suffered from nerve damage in his hands “caused by the 2 Sheriff employees, Lt. Kania, Sgt. Blackwell, Lance Tade and many other deputies who 3 abused me.” (Id. at 4.) Plaintiff claims “I.A. Lt. Harvel failed to protect me.” (Id. at 6.) 4 Plaintiff claims that he “attempted to compel videos (video) of July 23rd” but the videos 5 were destroyed by Sheriff Deputies. (Id. at 13.) Plaintiff claims that this was due to 6 Harvel who allegedly “covered up the event.” (Id.) Plaintiff further claims that that the 7 “July 23rd event” involved “Sgt. Blackwell.” (Id.) Again, Plaintiff’s pleading was 8 dismissed by the Court for failing to state a claim upon which relief court be granted 9 pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). (Id., Doc. No. 10, at 7-8.) 10 Plaintiff has not yet filed an amended pleading in James I following the Court’s 11 April 7, 2017 Order but he has been provided an extension of time to file an amended 12 pleading. (Id., Doc. No. 13, 20.) 13 There are claims found in the case before this Court (“James II) that Plaintiff has 14 previously raised in James I. Plaintiff has not consistently raised claims against 15 Defendants Harvel and Blackwell in the previous matter and it is not clear which case 16 Plaintiff is attempting to pursue these claims. Therefore, the Court will not dismiss the 17 claims in James II as duplicative at this stage of the proceedings. However, Plaintiff is 18 cautioned that he may not raise identical claims against the same defendants in both 19 actions and this action could be subject to dismissal as frivolous if he does raise 20 duplicative claims. A prisoner’s complaint is considered frivolous under 28 U.S.C. 21 §§ 1915(e)(2) & 1915A(b)(1) if it “merely repeats pending or previously litigated 22 claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 23 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). 24 E. 25 Plaintiff claims that Defendant Harvel denied him access to the courts by 26 “deliberately not saving the video” of the July 23, 2014 incident. (Compl. at 4.) 27 Prisoners have a constitutional right to access to the courts. Lewis v. Casey, 518 U.S. 343, 28 346 (1996). The right is limited to the filing of direct criminal appeals, habeas petitions, Access to Courts claim 8 3:17-cv-0859-AJB-MDD 1 and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise 2 from the frustration or hindrance of “a litigating opportunity yet to be gained” (forward- 3 looking access claim) or from the loss of a suit that cannot now be tried (backward- 4 looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); see also Silva v. 5 Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between two types of 6 access to court claims: those involving prisoners’ right to affirmative assistance and those 7 involving prisoners’ rights to litigate without active interference.”). 8 9 However, Plaintiff must allege “actual injury” as the threshold requirement to any access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An “actual 10 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 11 inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also 12 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the 13 “inability to file a complaint or defend against a charge”). The failure to allege an actual 14 injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to 15 show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 16 U.S. at 353 & n.4). 17 In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable” 18 underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the 19 underlying claim must be set forth in the pleading “as if it were being independently 20 pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may be 21 awarded as recompense but not otherwise available in some suit that may yet be 22 brought.” Id. at 415. 23 Plaintiff’s Complaint fails to allege the actual injury required to state an access to 24 courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Plaintiff merely 25 speculates that it is “unlikely that I can bring the claims against the Defendants in this 26 action” without the purported video. (Compl. at 4.) Thus, the Court finds that Plaintiff’s 27 Complaint fails to include any “factual matter” to show how or why any of the individual 28 Defendants in this case caused him to suffer any “actual prejudice” “such as the inability 9 3:17-cv-0859-AJB-MDD 1 to meet a filing deadline or to present a claim,” with respect to any case. Lewis, 518 U.S. 2 at 348;1 Jones, 393 F.3d at 936; Iqbal, 556 U.S. at 678. 3 Thus, because Plaintiff has failed to allege facts sufficient to show that Defendants 4 caused him to suffer any “actual injury” with respect to any non-frivolous direct criminal 5 appeal, habeas petition, or civil rights action he may have filed, see Lewis, 518 U.S. at 6 354, the Court finds Plaintiff’s access to courts claims must be dismissed for failing to 7 state a plausible claim upon which § 1983 relief can be granted. See 28 U.S.C. 8 § 1915(e)(2)(B)(ii), § 1915A(b)(1); Iqbal, 556 U.S. at 678. 9 F. 10 Respondeat Superior Plaintiff names Sheriff Bill Gore but provides no factual allegations as to this 11 Defendant. As a result, Plaintiff fails to state a claim upon which § 1983 relief can be 12 granted because he sets forth no individualized allegations of wrongdoing by Sheriff 13 Gore, and instead seeks to hold him vicariously liable for the actions of his deputies. See 14 Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits,” 15 Plaintiff “must plead that each Government-official defendant, though the official’s own 16 individual actions, has violated the Constitution.”) 17 Plaintiff’s Complaint contains no factual allegations describing what Defendant 18 Sheriff Gore knew, did, or failed to do, with regard to Plaintiff’s needs. Estate of Brooks 19 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required 20 element of a § 1983 claim.”) “The inquiry into causation must be individualized and 21 focus on the duties and responsibilities of each individual defendant whose acts or 22 omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 23 24 25 26 27 28                                                 Although Bounds suggested “that the State must enable the prisoner to discover grievances, and to litigate effectively once in court,” Lewis expressly disavowed such a farreaching right. 518 U.S. at 354 (emphasis added). Only materials that would ensure meaningful access–the ability to present a claim–are required: “To demand the conferral of sophisticated legal capabilities upon a mostly uneducated and indeed largely illiterate prison population is effectively to demand permanent provision of counsel, which we do not believe the Constitution requires.” Id. 1 10 3:17-cv-0859-AJB-MDD 1 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg 2 v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). 3 Thus, without some specific “factual content” that might allow the Court to “draw 4 the reasonable inference” that Sheriff Gore may be held personally liable for any 5 unconstitutional conduct directed at Plaintiff, the Court finds his Complaint, as currently 6 pleaded, contains allegations which Iqbal makes clear fail to “state a claim to relief that is 7 plausible on its face.” Iqbal, 556 U.S. at 568. 8 G. 9 A pro se litigant must be given leave to amend his pleading to state a claim unless Leave to Amend 10 it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d 11 at 1130 (noting leave to amend should be granted when a complaint is dismissed under 12 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”). 13 Therefore, while the Court finds Plaintiff’s Complaint fails to state a claim upon which 14 relief can be granted, it will provide him a chance to fix the pleading deficiencies 15 discussed in this Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 16 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 17 III. Conclusion and Order 18 For all the reasons discussed, the Court: 19 1. 20 (Doc. No. 2). 21 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) DIRECTS the Secretary of the CDCR, or his designee, to collect from 22 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 23 payments from his account in an amount equal to twenty percent (20%) of the preceding 24 month’s income and forwarding those payments to the Clerk of the Court each time the 25 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 26 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 27 ASSIGNED TO THIS ACTION. 28 11 3:17-cv-0859-AJB-MDD 1 2 3 4 5 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 § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A; 5. GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint 6 which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned, 7 however, that should he choose to file an Amended Complaint, it must be complete by 8 itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re- 9 alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. 10 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 11 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 12 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 13 amended pleading may be “considered waived if not repled.”). 14 15 16 6. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint. IT IS SO ORDERED. 17 18 Dated: July 12, 2017 19 20 21 22 23 24 25 26 27 28 12 3:17-cv-0859-AJB-MDD

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