Arnoldo Barraza v. W. L. Montgomery et al

Filing 7

ORDER: 1) Granting 2 Motion 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 Court directs the Secretary of the CDCR, or his designee, to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to twenty percent (20%) of the preceding month's income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). The Court grants the Plaintiff forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures all the deficiencies of the pleadings noted. Signed by Judge Michael M. Anello on 7/27/2017. (A copy of this order was mailed to Scott Kernan, Secretary, CDCR. A civil rights complaint form was mailed to the Plaintiff)(All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 Case No.: 3:17-cv-1048-MMA-RBB ARNOLDO BARRAZA, CDCR #AM-5372, ORDER: Plaintiff, vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 2] W.L. MONTGOMERY; ENDERS; ELIZONDO; RAMOS; V.J. GARCIA; CAPTAIN LEE AND 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) Defendants. 18 19 20 21 Arnoldo Barraza (“Plaintiff”), proceeding pro se, is currently incarcerated at 22 Calipatria State Prison located in Calipatria, California, and initially filed a civil rights 23 Complaint pursuant to 42 U.S.C. § 1983 in the Central District of California (Doc. No. 24 1). United States District Judge David O. Carter determined that venue for this action did 25 not lie in the Central District and transferred the matter to the Southern District on May 26 22, 2017 (Doc. No. 4). Plaintiff did not prepay the civil filing fee required by 28 U.S.C. 27 § 1914(a) at the time of filing, but instead has filed a Motion to Proceed In Forma 28 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). 1 3:17-cv-1048-MMA-RBB 1 I. 2 IFP Motion All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 8 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 9 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 10 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 24 25                                                 26 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. 27 28 1 2 3:17-cv-1048-MMA-RBB 1 In support of his IFP Motion, Plaintiff has submitted a CDCR Inmate Statement 2 Report. See Doc. No. 2 at 4; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 3 F.3d at 1119. This statements show that Plaintiff had an average monthly balance of 4 $31.24, and average monthly deposits of $25.00 to his account over the 6-month period 5 immediately preceding the filing of his Complaint, as well as an available balance of 6 $25.31 at the time of filing. See Doc. No. 3 at 7. Based on this financial information, the 7 Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2), and assesses his initial 8 partial filing fee to be $6.25 pursuant to 28 U.S.C. § 1915(b)(1). 9 However, the Court will direct the Secretary of the California Department of 10 Corrections and Rehabilitation (“CDCR”), or his designee, to collect this initial fee only 11 if sufficient funds are available in Plaintiff’s account at the time this Order is executed. 12 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 13 from bringing a civil action or appealing a civil action or criminal judgment for the 14 reason that the prisoner has no assets and no means by which to pay the initial partial 15 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 16 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 17 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 18 ordered.”). The remaining balance of the $350 total fee owed in this case must be 19 collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1). 20 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 21 A. 22 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the Standard of Review 23 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 24 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 25 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 26 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 27 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 28 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 3 3:17-cv-1048-MMA-RBB 1 which are frivolous, malicious, fail to state a claim, or which seek damages from 2 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 3 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 4 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 5 All complaints must contain “a short and plain statement of the claim showing that 6 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 8 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 10 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 11 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 12 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 13 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 14 “When there are well-pleaded factual allegations, a court should assume their 15 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 16 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 17 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 18 allegations of material fact and must construe those facts in the light most favorable to 19 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 20 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 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 /// 4 3:17-cv-1048-MMA-RBB 1 B. 2 Plaintiff claims that on June 6, 2016, he was “involved in an incident” during 3 which his “left ear was bitten off while Plaintiff was fighting.” (Compl. at 3.) Defendant 4 began to “pepper spray” Plaintiff in his face “causing pain to Plaintiff’s fresh injury.” 5 (Id.) Defendants “did not properly decontaminate Plaintiff” and he was “denied proper 6 medical care.” (Id.) In addition, Plaintiff alleges that Defendants did not “properly 7 handle the preservation of Plaintiff’s ear.” (Id.) Medical personnel were unable to 8 reattach Plaintiff’s “left piece of ear” and Plaintiff will have to “walk around with a piece 9 of his ear missing for the rest of his life.” (Id. at 3-4.) Plaintiff’s Allegations 10 C. 11 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 12 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 13 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 14 substantive rights, but merely provides a method for vindicating federal rights elsewhere 15 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 16 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 17 deprivation of a right secured by the Constitution and laws of the United States, and (2) 18 that the deprivation was committed by a person acting under color of state law.” Tsao v. 19 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 20 D. 21 First, the Court finds Plaintiff’s Complaint requires sua sponte dismissal pursuant Personal Causation 22 to 28 U.S.C. § 1915(e)(2)(B)(1) and § 1915A(b)(1) to the extent it seeks relief under 23 § 1983 against Warden Montgomery. “To state a claim under 42 U.S.C. § 1983, the 24 plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of 25 the United States was violated; and (2) that the alleged violation was committed by a 26 person acting under color of state law.” Campbell v. Washington Dep’t of Soc. Servs., 27 671 F.3d 837, 842 n.5 (9th Cir. 2011), citing Ketchum v. Alameda Cnty., 811 F.2d 1243, 28 1245 (9th Cir. 1987). The Complaint contains no factual allegations describing what 5 3:17-cv-1048-MMA-RBB 1 Defendant Montgomery did, or failed to do. To the extent Plaintiff seeks to hold him 2 liable for the actions of his subordinates, there is no respondeat superior liability under 42 3 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Rather, 4 “deliberate indifference is a stringent standard of fault, requiring proof that a municipal 5 actor disregarded a known or obvious consequence of his action.” Connick v. Thompson, 6 563 U.S. 51, 62 (2011) (“A less stringent standard of fault for a failure-to-train claim 7 ‘would result in de facto respondeat superior liability on municipalities . . . .’”), quoting 8 City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). 9 “The inquiry into causation must be individualized and focus on the duties and 10 responsibilities of each individual defendant whose acts or omissions are alleged to have 11 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), 12 citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457, 13 460 (9th Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 14 1999) (“Causation is, of course, a required element of a § 1983 claim.”) A person 15 deprives another “of a constitutional right, within the meaning of section 1983, if he does 16 an affirmative act, participates in another’s affirmative acts, or omits to perform an act 17 which he is legally required to do that causes the deprivation of which [the plaintiff 18 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not 19 stated a claim against Defendant Montgomery because he has failed to allege facts 20 regarding what actions were taken or not taken by the Defendant which caused the 21 alleged constitutional violations. See Canton, 489 U.S. at 385 (“Respondeat superior and 22 vicarious liability will not attach under § 1983.”), citing Monell, 436 U.S. at 694-95. 23 E. 24 Only “deliberate indifference to serious medical needs of prisoners constitutes the Eighth Amendment Medical Care Claims 25 unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.” 26 Estelle, 429 U.S. at 103, 104 (citation and internal quotation marks omitted). “A 27 determination of ‘deliberate indifference’ involves an examination of two elements: (1) 28 the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s 6 3:17-cv-1048-MMA-RBB 1 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), 2 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 3 (en banc) (quoting Estelle, 429 U.S. at 104). 4 “Because society does not expect that prisoners will have unqualified access to 5 health care, deliberate indifference to medical needs amounts to an Eighth Amendment 6 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 7 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 8 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 9 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 10 104). “The existence of an injury that a reasonable doctor or patient would find important 11 and worthy of comment or treatment; the presence of a medical condition that 12 significantly affects an individual’s daily activities; or the existence of chronic and 13 substantial pain are examples of indications that a prisoner has a ‘serious’ need for 14 medical treatment.” Id., citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 15 1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). 16 At the screening stage of these proceedings, the Court will assume that Plaintiff’s 17 allegation of having lost a portion of his ear is sufficient to show he suffered an 18 objectively serious medical need. However, even assuming Plaintiff’s medical needs 19 were sufficiently serious, his Complaint fails to include any further “factual content” to 20 show that any of the named Defendants acted with “deliberate indifference” to those 21 needs. McGuckin, 914 F.2d at 1060; see also Jett v. Penner, 439 F.3d 1091, 1096 (9th 22 Cir. 2006); Iqbal, 556 U.S. at 678. 23 Plaintiff does not allege that he was denied treatment, aside from the alleged 24 inability to reattach the portion of the ear that had been bitten off. Plaintiff submits an 25 exhibit that purports to be a “Medical Report of Injury or Unusual Occurrence” which 26 identifies Plaintiff and is dated June 6, 2016. See Compl., Ex., Doc. No. 1-1 at 27. In this 27 report, which appears to be the date of the incident, it is noted that injuries were found on 28 Plaintiff including “active bleeding, cut/laceration, O.C. spray area, reddened area, skin 7 3:17-cv-1048-MMA-RBB 1 flap, and swollen area.” (Id.) This report further notes that Plaintiff was sent to “TTA for 2 injury on [left] ear.” (Id.) Plaintiff does not provide any factual allegations that he was 3 denied treatment for his injury entirely only that he believes prison officials should have 4 reattached his ear. 5 To state an Eighth Amendment claim, Plaintiff must include “further factual 6 enhancement,” Iqbal, 556 U.S. at 678, which demonstrates that Defendants’ “purposeful 7 act or failure to respond to [his] pain or possible medical need,” and the “harm caused by 8 [this] indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 9 439 F.3d at 1096). This is because to be deliberately indifferent, Defendants’ acts or 10 omissions must entail more than he has alleged here—an isolated act of alleged 11 negligence and/or lack of due care in preserving the portion of the ear that had been bitten 12 off. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks 13 omitted); Wilhelm, 680 F.3d at 1122. See Toguchi, 391 F.3d at 1057 (“Mere negligence in 14 diagnosing or treating a medical condition, without more, does not violate a prisoner’s 15 Eighth Amendment rights.”). Simply put, an “inadvertent [or negligent] failure to provide 16 adequate medical care” does not state a claim under § 1983. Jett, 439 F.3d at 1096 (citing 17 Estelle, 429 U.S. at 105). 18 Moreover, to the extent Plaintiff objects to the decision to not surgically reattach 19 the portion of his ear he lost, “[a] difference of opinion between a physician and the 20 prisoner–or between medical professionals–concerning what medical care is appropriate 21 does not amount to deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. 22 Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23. Instead, Plaintiff 23 must plead facts sufficient to “show that the course of treatment the doctors chose was 24 medically unacceptable under the circumstances and that the defendants chose this course 25 in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 26 (citation and internal quotations omitted). 27 /// 28 /// 8 3:17-cv-1048-MMA-RBB 1 Accordingly, the Court finds that Plaintiff’s Complaint fails to state an Eighth 2 Amendment inadequate medical care claim any of the named Defendants, and that 3 therefore, it is subject to sua sponte dismissal 4 F. 5 Plaintiff alleges that he was fighting with another inmate which caused Defendant 6 Enders to “use O.C. pepper spray on Plaintiff spraying him in the face area.” (Compl. at 7 3.) Plaintiff further claims that this caused “extreme pain to Plaintiff’s fresh injury.” 8 (Id.) 9 Eighth Amendment Excessive Force claims The Eighth Amendment prohibits the infliction of “cruel and unusual 10 punishments.” U.S. Const. Amend. VIII. The “unnecessary and wanton infliction of 11 pain” constitutes cruel and unusual punishment prohibited by the United States 12 Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986). Neither accident nor 13 negligence constitutes cruel and unusual punishment, as “[i]t is obduracy and 14 wantonness, not inadvertence or error in good faith, that characterize the conduct 15 prohibited by the Cruel and Unusual Punishments Clause.” Id. 16 When prison guards stand accused of using excessive force in violation of the 17 Eighth Amendment, “the core judicial inquiry is ... whether force was applied in a good- 18 faith effort to maintain or restore discipline, or maliciously and sadistically to cause 19 harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). The Court considers the following 20 factors: (1) the need for application of force; (2) the relationship between the need and 21 the amount of force used; (3) the extent of the injury inflicted; (4) the threat “reasonably 22 perceived by the responsible officials”; and (5) “any efforts made to temper the severity 23 of a forceful response.” Id. (citing Whitley, 476 U.S. at 321). “From such considerations 24 inferences may be drawn as to whether the use of force could plausibly have been 25 thought necessary, or instead evinced such wantonness with respect to the unjustified 26 infliction of harm as is tantamount to a knowing willingness that it occur.” Whitley, 475 27 U.S. at 321. 28 /// 9 3:17-cv-1048-MMA-RBB 1 However, not “every malevolent touch by a prison guard gives rise to a federal 2 cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of ‘cruel 3 and unusual’ punishments necessarily excludes from constitutional recognition de 4 minimis uses of physical force, provided that the use of force is not of a sort repugnant to 5 the conscience of mankind.” Ibid. (some internal quotation marks omitted). 6 Plaintiff’s facts show that he was engaged in a physical altercation with another 7 inmate from which he alleges he suffered a serious injury. See Compl. at 4. And thus, 8 Plaintiff’s allegations demonstrate that Defendants used pepper spray to “maintain or 9 restore discipline.” Hudson, 503 U.S. at 7. Plaintiff’s Complaint is devoid of any facts to 10 show that Defendants used pepper spray in a “malicious or sadistic” manner. Id. 11 Thus, the Court finds that Plaintiff’s Complaint fails to state an Eighth Amendment 12 excessive force claim any of the named Defendants, and that therefore, it is subject to sua 13 sponte dismissal. 14 III. Conclusion and Order 15 For the reasons explained, the Court: 16 1. 17 (Doc. No. 2); 18 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 19 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 20 monthly payments from his account in an amount equal to twenty percent (20%) of the 21 preceding month’s income and forwarding those payments to the Clerk of the Court each 22 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 23 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 24 ASSIGNED TO THIS ACTION; 25 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott 26 Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 27 /// 28 /// 10 3:17-cv-1048-MMA-RBB 1 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 2 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 3 GRANTS him forty-five (45) days leave from the date of this Order in which to file an 4 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 5 Amended Complaint must be complete by itself without reference to his original 6 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 7 will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard 8 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 9 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 10 (noting that claims dismissed with leave to amend which are not re-alleged in an 11 amended pleading may be “considered waived if not repled.”). 12 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 13 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 14 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 15 and 1915A(b), and his failure to prosecute in compliance with a court order requiring 16 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 17 not take advantage of the opportunity to fix his complaint, a district court may convert the 18 dismissal of the complaint into dismissal of the entire action.”). 19 20 21 22 23 5. The Clerk of Court is directed to mail Plaintiff a civil rights complaint form for his use in amending. IT IS SO ORDERED. DATE: July 27, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 24 25 26 27 28 11 3:17-cv-1048-MMA-RBB

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