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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:17-cv-0859-AJB-MDD

KYLE JAMES,
CDCR #BB-1457
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ORDER:

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Plaintiff,

(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a)
[Doc. No. 2]; AND

vs.

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SHERIFF BILL GORE; LT. CHRISTINE
HARVEL; SGT. BLACKWELL;
UNKNOWN DEPUTIES; JOHN/JANE
DOE,

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Defendants.

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(2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)

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Kyle James (“Plaintiff”), a prisoner incarcerated at California State Prison - Los

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Angeles County, located in Lancaster, California, and proceeding pro se, has filed a civil

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complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1 at 1. Plaintiff claims his

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constitutional rights were violated when he was previously housed in the San Diego

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County Jail from 2014 to 2015. (Id.)

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Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the

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time of filing; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).

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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, __ 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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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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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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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 certified copy of his prison

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trust account statements, as well as a prison certificate, verified by an accounting officer,

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pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See Doc. No. 2 at 4-8;

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Andrews, 398 F.3d at 1119. These statements shows that while Plaintiff had an average

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monthly deposit of $31.09 and an average monthly balance of 24.93 in his trust account

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during the 6-month period preceding the filing of his Complaint, he only had an

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available balance of zero at the time of filing. Therefore, the Court assesses Plaintiff’s

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initial partial filing fee to be $6.22 pursuant to 28 U.S.C. § 1915(b)(1). However, the

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Court also notes Plaintiff may be unable to pay that initial fee at this time. 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’s Motion to Proceed IFP, declines to

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“exact” the initial $6.22 initial filing fee because his prison certificate shows he “has no

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means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California

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Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead

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collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and

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forward them to the Clerk of the Court pursuant to the installment payment provisions set

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forth in 28 U.S.C. § 1915(b)(1). See id.

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3:17-cv-0859-AJB-MDD

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II.

Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)

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A.

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If a prisoner’s complaint “seeks redress from a governmental entity or officer or

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employee of a governmental entity,” the Court “shall review” the pleading “as soon as

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practicable after docketing,” and “dismiss the complaint, or any portion of the complaint,

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if [it] . . . is frivolous, malicious, or fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915A(a), (b)(1); Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th

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Cir. 2014). As noted below, Plaintiff alleges violations of his “federal constitutional

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rights,” see Doc. No. 1 at 1, 5, but he seeks redress from private citizens, an attorney, his

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former home owners’ association, and a property management company, none of whom

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are alleged to be governmental actors. Id. at 2. Therefore, § 1915A(a)’s screening

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provisions do not apply. See Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016)

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(“Section 1915A mandates early review … for all complaints ‘in which a prisoner seeks

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relief from a governmental entity…”) (quoting § 1915A(a)); see also Thompson v. Hicks,

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213 Fed. Appx. 939, 2007 WL 106785 at *3 (11th Cir. 2007) (noting that because a

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private defendant was not a “governmental entity” as described in § 1915A, prisoner’s

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complaint as to that defendant was not subject to dismissal under § 1915A).

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Standard of Review

Because Plaintiff is proceeding IFP, however, his Complaint is still subject to a

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sua sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a

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claim upon which relief may be granted, or seek[s] monetary relief from a defendant

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immune from such relief,” regardless of whether he seeks redress from a “governmental

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entity.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763

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(2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if

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the court determines that—(A) the allegation of poverty is untrue; or (B) the action or

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appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be

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granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection

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1915(e) not only permits, but requires a district court to dismiss an in forma pauperis

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complaint that fails to state a claim.”).
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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).

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To survive a motion to dismiss, the complaint must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P.

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8(a)(2). 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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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). “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” falls

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short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.”).

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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“supply essential elements of claims that were not initially pled.” Ivey v. Board of

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Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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3:17-cv-0859-AJB-MDD

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B.

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Plaintiff was previously housed in the San Diego Central Jail (“SDCJ”) on July 23,

Plaintiff’s Allegations

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2014. (Compl. at 3.) On this day, Plaintiff claims that he was returning from a court

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appearance when he was handcuffed by unnamed San Diego County Sheriff Deputies.

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(Id.) Plaintiff was accused of “stealing a masterlock.” (Id.) Plaintiff claims that as a

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form of punishment, these unnamed Deputies tightened his handcuffs and refused to

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loosen them when he informed them he was in pain. (Id.)

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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

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were found to be tight, they were loosened.” (Id.) However, Plaintiff alleges that this

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statement was “factually untrue” and further claims that Harvel “deliberately destroyed”

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video evidence of this incident. (Id.) Plaintiff claims that his hands are “permanently

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numb from that injury.” (Id.)

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Plaintiff also alleges Defendant Blackwell, a sergeant, “ignored my pleas for help

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for over an hour, forcing me to bang my forehead into a “plexi glass” window until it

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bled.” (Id. at 7.) As a result, Plaintiff claims his “desperate actions worked to get

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Blackwell to get the Lieutenant and take off the cuffs so medical staff RN could examine

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the cuts (injury) to my wrists.” (Id.)

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C.

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Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

42 U.S.C. § 1983

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statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

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1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 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 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye,

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789 F.3d 1030, 1035-36 (9th Cir. 2015).

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D.

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Plaintiff has previously raised some of the same claims in separate actions filed

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with this Court. A court “‘may take notice of proceedings in other courts, both within

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and without the federal judicial system, if those proceedings have a direct relation to

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matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting

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Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

Duplicative claims

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Here, the Court takes judicial notice of the action Plaintiff has filed in James v.

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Lee, et al. S.D. Cal. Civil Case No. 3:16-cv-01592-AJB-JLB (“James I”). In the first

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complaint filed by Plaintiff in this matter, he alleges the same set of facts as it relates to

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the July 23, 2014 incident. Specifically, he alleges that when he arrived at SDCJ, after

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having appeared in court, when he was handcuffed and searched “due to a master lock

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disappearing.” (Id., Doc. No. 1, at 9.) Plaintiff was placed in a holding cell by “John

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Doe Deputies” and they “misapplied” the handcuffs which “cut deeply” into Plaintiff’s

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wrists and “cut off circulation” to his hands. (Id.) Plaintiff claims that “Christine Harvel

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took no action against staff and Harvel lied in her response claiming deputies loosened

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cuffs.” (Id.) Plaintiff’s complaint was dismissed by the Court for failing to state a claim

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upon which relief court be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

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1915A(b)(1). (Id., Doc. No. 3, at 9.)

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When Plaintiff filed his amended pleading, he no longer named Defendant Harvel,

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but he did allege that he suffered “multiple injuries” while housed at SDCJ from 2014 to

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2016. (Id., Doc. No. 6, at 1-3.) Specifically, Plaintiff alleges that his injuries were

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“inflicted by means of intentional misapplication (misuse) of ‘hand-cuffs.’” (Id. at 3.)

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The remainder of Plaintiff’s amended pleading raised claims of inadequate medical care

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for the alleged injuries to his hand. Plaintiff’s amended pleading was also dismissed by

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the Court for failing to state a claim upon which relief court be granted pursuant to 28

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U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). (Id., Doc. No. 8, at 8.)

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Plaintiff then chose to amend his pleading again. (Id., Doc. No. 9.) In this

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pleading, Plaintiff again named, among others, Defendant Harvel. (Id., at 1, 2.) In this
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pleading, Plaintiff alleges that he suffered from nerve damage in his hands “caused by the

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Sheriff employees, Lt. Kania, Sgt. Blackwell, Lance Tade and many other deputies who

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abused me.” (Id. at 4.) Plaintiff claims “I.A. Lt. Harvel failed to protect me.” (Id. at 6.)

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Plaintiff claims that he “attempted to compel videos (video) of July 23rd” but the videos

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were destroyed by Sheriff Deputies. (Id. at 13.) Plaintiff claims that this was due to

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Harvel who allegedly “covered up the event.” (Id.) Plaintiff further claims that that the

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“July 23rd event” involved “Sgt. Blackwell.” (Id.) Again, Plaintiff’s pleading was

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dismissed by the Court for failing to state a claim upon which relief court be granted

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pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). (Id., Doc. No. 10, at 7-8.)

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Plaintiff has not yet filed an amended pleading in James I following the Court’s

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April 7, 2017 Order but he has been provided an extension of time to file an amended

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pleading. (Id., Doc. No. 13, 20.)

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There are claims found in the case before this Court (“James II) that Plaintiff has

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previously raised in James I. Plaintiff has not consistently raised claims against

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Defendants Harvel and Blackwell in the previous matter and it is not clear which case

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Plaintiff is attempting to pursue these claims. Therefore, the Court will not dismiss the

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claims in James II as duplicative at this stage of the proceedings. However, Plaintiff is

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cautioned that he may not raise identical claims against the same defendants in both

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actions and this action could be subject to dismissal as frivolous if he does raise

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duplicative claims. A prisoner’s complaint is considered frivolous under 28 U.S.C.

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§§ 1915(e)(2) & 1915A(b)(1) if it “merely repeats pending or previously litigated

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claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former

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28 U.S.C. § 1915(d)) (citations and internal quotations omitted).

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E.

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Plaintiff claims that Defendant Harvel denied him access to the courts by

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“deliberately not saving the video” of the July 23, 2014 incident. (Compl. at 4.)

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Prisoners have a constitutional right to access to the courts. Lewis v. Casey, 518 U.S. 343,

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346 (1996). The right is limited to the filing of direct criminal appeals, habeas petitions,

Access to Courts claim

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and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise

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from the frustration or hindrance of “a litigating opportunity yet to be gained” (forward-

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looking access claim) or from the loss of a suit that cannot now be tried (backward-

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looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); see also Silva v.

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Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between two types of

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access to court claims: those involving prisoners’ right to affirmative assistance and those

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involving prisoners’ rights to litigate without active interference.”).

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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

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injury” is “actual prejudice with respect to contemplated or existing litigation, such as the

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inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also

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Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the

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“inability to file a complaint or defend against a charge”). The failure to allege an actual

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injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to

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show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518

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U.S. at 353 & n.4).

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In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable”

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underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the

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underlying claim must be set forth in the pleading “as if it were being independently

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pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may be

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awarded as recompense but not otherwise available in some suit that may yet be

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brought.” Id. at 415.

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Plaintiff’s Complaint fails to allege the actual injury required to state an access to

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courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Plaintiff merely

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speculates that it is “unlikely that I can bring the claims against the Defendants in this

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action” without the purported video. (Compl. at 4.) Thus, the Court finds that Plaintiff’s

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Complaint fails to include any “factual matter” to show how or why any of the individual

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Defendants in this case caused him to suffer any “actual prejudice” “such as the inability
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to meet a filing deadline or to present a claim,” with respect to any case. Lewis, 518 U.S.

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at 348;1 Jones, 393 F.3d at 936; Iqbal, 556 U.S. at 678.

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Thus, because Plaintiff has failed to allege facts sufficient to show that Defendants

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caused him to suffer any “actual injury” with respect to any non-frivolous direct criminal

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appeal, habeas petition, or civil rights action he may have filed, see Lewis, 518 U.S. at

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354, the Court finds Plaintiff’s access to courts claims must be dismissed for failing to

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state a plausible claim upon which § 1983 relief can be granted. See 28 U.S.C.

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§ 1915(e)(2)(B)(ii), § 1915A(b)(1); Iqbal, 556 U.S. at 678.

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F.

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Respondeat Superior

Plaintiff names Sheriff Bill Gore but provides no factual allegations as to this

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Defendant. As a result, Plaintiff fails to state a claim upon which § 1983 relief can be

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granted because he sets forth no individualized allegations of wrongdoing by Sheriff

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Gore, and instead seeks to hold him vicariously liable for the actions of his deputies. See

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Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits,”

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Plaintiff “must plead that each Government-official defendant, though the official’s own

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individual actions, has violated the Constitution.”)

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Plaintiff’s Complaint contains no factual allegations describing what Defendant

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Sheriff Gore knew, did, or failed to do, with regard to Plaintiff’s needs. Estate of Brooks

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v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required

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element of a § 1983 claim.”) “The inquiry into causation must be individualized and

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focus on the duties and responsibilities of each individual defendant whose acts or

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omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844

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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.

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F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg

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v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986).

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Thus, without some specific “factual content” that might allow the Court to “draw

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the reasonable inference” that Sheriff Gore may be held personally liable for any

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unconstitutional conduct directed at Plaintiff, the Court finds his Complaint, as currently

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pleaded, contains allegations which Iqbal makes clear fail to “state a claim to relief that is

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plausible on its face.” Iqbal, 556 U.S. at 568.

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G.

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A pro se litigant must be given leave to amend his pleading to state a claim unless

Leave to Amend

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it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d

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at 1130 (noting leave to amend should be granted when a complaint is dismissed under

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28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”).

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Therefore, while the Court finds Plaintiff’s Complaint fails to state a claim upon which

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relief can be granted, it will provide him a chance to fix the pleading deficiencies

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discussed in this Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

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2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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III.

Conclusion and Order

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For all the reasons discussed, the Court:

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1.

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(Doc. No. 2).

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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

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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 the 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.

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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

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which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned,

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however, that should he choose to file an Amended Complaint, it must be complete by

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itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re-

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alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v.

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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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6.

The Clerk of Court is directed to mail Plaintiff a court approved form civil

rights complaint.
IT IS SO ORDERED.

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Dated: July 12, 2017

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3:17-cv-0859-AJB-MDD