Connelly v. Dudley et al
Filing
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ORDER: 1) Granting Plaintiff Leave to Proceed in Forma Paupers (ECF No. 2 ); 2) Dismissing Complaint for Failing to State a Claim and for Seeking Damages from Immune Defendant Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b); 3) Denying Motion for Access to County Jail Law Library (ECF No. 8 ) and (4) Granting Motion to Amend Complaint (ECF No. 6 ). Signed by Judge Barry Ted Moskowitz on 11/6/2017. (All non-registered users served via U.S. Mail Service)(mxn)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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JAMES CONNELLY,
Booking #16182065,
Case No.: 3:17-cv-01557-BTM-MDD
ORDER:
Plaintiff,
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1) GRANTING PLAINTIFF LEAVE
TO PROCEED IN FORMA
PAUPERIS [ECF No. 2]
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vs.
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2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM AND
FOR SEEKING DAMAGES FROM
IMMUNE DEFENDANT PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B)
AND § 1915A(b)
DUDLEY, San Diego Police Dept., et al.,
Defendants.
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3) DENYING MOTION FOR
ACCESS TO COUNTY JAIL
LAW LIBRARY [ECF No. 8]
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AND
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4) GRANTING MOTION TO
AMEND COMPLAINT
[ECF No. 6]
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JAMES CONNELLY (“Plaintiff”), a pretrial detainee at the Central Jail in San
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Diego, California (“SDCJ”) and proceeding pro se, has filed a civil rights Complaint
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pursuant to 42 U.S.C. § 1983 (ECF No. 1).
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3:17-cv-01557-BTM-MDD
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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when
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he filed his Complaint; instead, he submitted a Prison Certificate completed by a SDCJ
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Administrative Sergeant attesting to his trust account activity, which the Court will
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construe as a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
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§ 1915(a) (ECF No. 2). Plaintiff has also filed several supplemental documents on San
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Diego Sheriff’s Department Inmate Stationary, one of which requests leave to amend
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(ECF No. 6), and one which seeks court-ordered access to the SDCJ library (ECF No. 8).
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I.
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Leave to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of
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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
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Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775
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F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately
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dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th
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Cir. 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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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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3:17-cv-01557-BTM-MDD
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trust account statement, the Court assesses an initial payment of 20% of (a) the average
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monthly deposits in the account for the past six months, or (b) the average monthly
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balance in the account for the past six months, whichever is greater, unless the prisoner
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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having
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custody of the prisoner then collects subsequent payments, assessed at 20% of the
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preceding month’s income, in any month in which his account exceeds $10, and forwards
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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);
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Bruce, 136 S. Ct. at 629.
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As noted above, while Plaintiff has not filed a formal Motion to Proceed IFP, he
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did submit a Prison Certificate issued by an official at the SDCJ attesting as to his
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account balances as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See
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ECF No. 2 at 1; Andrews, 398 F.3d at 1119. This Certificate shows Plaintiff had no
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average monthly deposit, carried an average monthly balance of only $.04 in his account
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during the 6-month period preceding the filing of this action, and had only $.25 in
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available funds to his credit at the time of filing.
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Based on this accounting, the Court finds Plaintiff is “unable to pay” any initial
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partial filing fee pursuant to 28 U.S.C. § 1915(a)(a) and (b)(1) 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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Accordingly, the Court grants Plaintiff leave to proceed IFP (ECF No. 2), declines
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to exact any initial filing fee because his SDCJ certificate shows he “has no means to pay
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it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander of the SDCJ, or his
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designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C.
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§ 1914 and to forward them to the Clerk of the Court pursuant to the installment payment
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3:17-cv-01557-BTM-MDD
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provisions set forth in 28 U.S.C. § 1915(b)(1). See id.
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II.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
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A.
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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
Standard of Review
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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
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the targets of frivolous or malicious suits need not bear the expense of responding.’”
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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
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“The standard for determining whether a plaintiff has failed to state a claim upon
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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
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Cir. 2012) (screening pursuant to § 1915A “incorporates the familiar standard applied in
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the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”).
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Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted
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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed
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factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause
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of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at
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678. “Determining whether a complaint states a plausible claim for relief [is] ... a context-
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specific task that requires the reviewing court to draw on its judicial experience and
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common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-
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unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.;
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see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
Plaintiff’s Allegations
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B.
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Plaintiff claims San Diego Police Officer Dudley “ma[d]e him confess in violation
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of the 5th Amendment” after his arrest and during an interrogation on December 27,
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2016, and December 28, 2016. See ECF No. 1 at 1-3.
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Plaintiff further claims the SDCJ thereafter violated his Eighth Amendment rights
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by failing to provide adequate medical care for his infected foot, diabetes, heart, blood
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pressure, schizophrenia and sleep apnea. Id. at 4.
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In addition, Plaintiff contends San Diego County Public Defenders McCoy and
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Velekar have violated his rights to a speedy trial and due process by “behav[ing] as
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couriers for District Attorney’s plea bargains,” and “devis[ing] psychological evaluations
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to contain him in custody,” “break him,” and to “obstruct justice.” Id. at 5.
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Finally, Plaintiff claims San Diego Superior Court Judge Polly Shamoon has
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similarly violated his rights to a speedy trial, due process, and to “fire” his “incompetent
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and obstinate attorney,” as well as his rights under the Americans with Disabilities Act,
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by “allowing [his] public defenders to shop for five psychiatrists,” and “extend[ing]
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incompetency evaluations.” Id. at 6.
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He seeks injunctive relief preventing Defendants from “stealing legal mail,” a
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“dismissal in toto” of criminal proceedings which appear to have been ongoing at the
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time he filed this case, and $40 million in general and punitive damages. Id. at 1, 8.
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C.
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“Section 1983 creates a private right of action against individuals who, acting
42 U.S.C. § 1983
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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.
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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
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substantive rights, but merely provides a method for vindicating federal rights elsewhere
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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)
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deprivation of a right secured by the Constitution and laws of the United States, and (2)
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that the deprivation was committed by a person acting under color of state law.” Tsao v.
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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
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D.
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First, to the extent Plaintiff seeks to sue the San Diego County Jail, he fails to state
San Diego County Jail
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a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1).
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A municipality’s jail is not a “person” subject to suit under § 1983. “Persons” are
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state and local officials sued in their individual capacities, private individuals and entities
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who act under color of state law, and local governmental entities themselves. Vance v.
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Cnty. of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996). The San Diego County
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Jail is a pre-trial detention facility managed by the County of San Diego and, therefore, is
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not considered a “person” within the meaning of section 1983. See e.g., United States v.
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Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) (“[M]unicipal police departments and
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bureaus are generally not considered ‘persons’ within the meaning of section 1983.”);
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Rodriguez v. Cnty. of Contra Costa, 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013)
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(citing Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995)) (“Although municipalities, such
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as cities and counties, are amenable to suit under Monell [v. Dep’t of Social Servs, 436
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U.S. 658 (1978)], sub-departments or bureaus of municipalities, such as the police
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departments, are not generally considered “persons” within the meaning of § 1983.”);
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Nelson v. Cty. of Sacramento, 926 F. Supp. 2d 1159, 1170 (E.D. Cal. 2013) (dismissing
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Sacramento Sheriff’s Department from section 1983 action “with prejudice” because it
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“is a subdivision of a local government entity,” i.e., Sacramento County); Marsden v.
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Fed. BOP, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (county jail not an entity amenable to
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suit under 42 U.S.C. § 1983); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D.
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Ill. 1993) (Cook County Jail not a “person” under § 1983); McCoy v. Chesapeake Corr’l
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Ctr., 788 F. Supp. 890, 893-94 (E.D. Va. 1992) (local jail not a “person” under § 1983).
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E.
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Second, to the extent Plaintiff seeks to sue San Diego County Public Defenders
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Public Defenders
McCoy and Velekar, he also fails to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). “[A]
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3:17-cv-01557-BTM-MDD
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public defender does not act under color of state law when performing a lawyer’s
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traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v.
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Dodson, 454 U.S. 312, 325 (1981); Garnier v. Clarke, 332 Fed. App’x 416 (9th Cir.
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2009) (affirming district court’s sua sponte dismissal of prisoner’s § 1983 claims against
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appointed counsel).
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F.
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Third, Plaintiff’s Complaint must be dismissed insofar as he seeks monetary
Judge Polly Shamoon
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damages from San Diego Superior Court Judge Polly Shamoon, who is alleged to be
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presiding over his criminal case, and who is absolutely immune. See 28 U.S.C.
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§ 1915(e)(2)(B)(iii); Chavez v. Robinson, 817 F.3d 1162, 1167-68 (9th Cir. 2016) (noting
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§ 1915(e)(2)(B)(iii) requires the court to dismiss an action “at any time” if it “seeks
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monetary relief from a defendant who is immune from such relief.”).
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Judges are absolutely immune from damage liability for acts which are judicial in
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nature. Forrester v. White, 484 U.S. 219, 227-229 (1988); see also Stump v. Sparkman,
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435 U.S. 349, 355-57 (1978); Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Judicial
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immunity applies to actions brought under 42 U.S.C. § 1983 for acts committed within
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the scope of judicial duties, “even when such acts are in excess of their jurisdiction, and
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are alleged to have been done maliciously or corruptly.” Stump, 435 U.S. at 356. “[A]
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judge will not be deprived of immunity because the action [s]he took was in error, was
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done maliciously, or was in excess of [her] authority; rather, [s]he will be subject to
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liability only when [s]he has acted in the clear absence of all jurisdiction.” Id. at 356-37;
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see also Forrester, 484 U.S. at 227 (a judicial act “does not become less judicial by virtue
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of an allegation of malice or corruption of motive”); Mireless v. Waco, 502 U.S. 9, 12
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(1991).
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Here, Plaintiff claims Judge Shamoon violated his rights to due process and a
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speedy trial from December 2016 “to present” by denying him the “right to fire [his]
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incompetent and obstinate attorney,” by approving his appointed counsel’s requests for
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“incompetency evaluations,” and by refusing to dismiss the criminal charges filed against
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3:17-cv-01557-BTM-MDD
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him. See ECF No. 1 at 1, 6. Because all of these decisions were made in her capacity as a
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judge presiding over Plaintiff’s case, Judge Shamoon must be dismissed as absolutely
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immune. See 28 U.S.C. §§1915(e)(2)(B)(iii), 1915A(b)(2).
Criminal Proceedings – Preiser and Younger
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G.
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Finally, to the extent Plaintiff seeks money damages based on alleged violations of
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his constitutional rights by Defendant Dudley, the San Diego Police Officer who is
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alleged to have interrogated him following his arrest, his appointed counsel, and the
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judge presiding over his trial proceedings, and to the extent he seeks either this Court’s
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intervention in or dismissal of those proceedings, see ECF No. 1 at 8, relief is not
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available under 42 U.S.C. § 1983.
Federal courts may not interfere with ongoing state criminal proceedings absent
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extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 45-46 (1971); see
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Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982)
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(Younger “espouse[d] a strong federal policy against federal-court interference with
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pending state judicial proceedings.”). Abstention under Younger is required when “(1) a
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state-initiated proceeding is ongoing; (2) the proceeding implicates important state
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interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues
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in the state proceeding; and (4) the federal court action would enjoin the proceeding or
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have the practical effect of doing so, i.e., would interfere with the state proceeding in a
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way that Younger disapproves.” San Jose Silicon Valley Chamber of Commerce Political
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Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
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Plaintiff alleges his criminal proceedings were “ongoing” at the time he filed his
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Complaint. See ECF No. 1 at 1. There is no question his criminal proceedings involve
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important state interests. In addition, Plaintiff’s claims—alleged violations of Miranda v.
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Arizona, 384 U.S. 436 (1966), his right to a speedy trial, and his Sixth Amendment right
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to effective assistance of counsel, see ECF No. 1 at 3, 5-6, are the type of claims the state
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courts afford an adequate opportunity to raise on direct appeal. San Jose Silicon Valley,
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546 F.3d at 1092. Thus, because his criminal proceedings were alleged to be ongoing at
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the time he filed suit, Plaintiff may not proceed in a § 1983 action. See Huffman v.
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Pursue, Ltd., 420 U.S. 592, 608 (1975) (holding that Younger applies to state appellate
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proceedings as well as ongoing proceedings in state trial court); see also Drury v. Cox,
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457 F.2d 764, 764-65 (9th Cir. 1972) (“[O]nly in the most unusual circumstances is a
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defendant entitled to have federal interposition by way of injunction ... until after the jury
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comes in, judgment has been appealed from and the case concluded in the state courts.”).
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In addition to monetary relief, Plaintiff also requests a “dismissal in toto” of his
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criminal case. See ECF No. 1 at 8. However, “[s]uits challenging the validity of [a]
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prisoner’s continued incarceration lie within ‘the heart of habeas corpus.’” Ramirez v.
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Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser v. Rodriguez, 411 U.S. 475,
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489-99 (1973) (holding that a writ of habeas corpus is “explicitly and historically
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designed” to provide a state prisoner with the “exclusive” means to “attack the validity of
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his confinement” in federal court)). “‘[A] § 1983 action is a proper remedy for a state
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prisoner who is making a constitutional challenge to the conditions of his prison life, but
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not to the fact or length of his custody.’” Id.; see also Nettles v. Grounds, 830 F.3d 922,
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928 (9th Cir. 2016) (en banc) (“[C]laims ... which would ... result[ ] in immediate release
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if successful, f[a]ll within the core of habeas corpus and therefore [must] be brought, if at
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all, in habeas.”) (citing Preiser, 411 U.S. at 487), cert. denied, 137 S. Ct. 635 (No. 16-
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6556) (Jan. 9, 2017); see also Pattillo v. Lombardo, No. 2:17-CV-01849-JAD-VCF, 2017
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WL 3622778, at *4 (D. Nev. Aug. 23, 2017) (“When a prisoner challenges the legality or
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duration of his custody, raises a constitutional challenge which could entitle him to an
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earlier release (such as ineffective assistance of counsel), or seeks damages for purported
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deficiencies in his state court criminal case, which effected a conviction or lengthier
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sentence, his sole federal remedy is the writ of habeas corpus.”).
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H.
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Plaintiff has also filed a Motion seeking leave to amend his Complaint (ECF No.
Motions for Leave to Amend & Library Access
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6), together with a “Motion to Use San Diego Jail Library” in order to “pursue his
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defense and for perusing … his U.S. and Californian Constitutional rights.” See ECF No.
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8 at 2.
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A pro se litigant must be given leave to amend his pleading to state a claim unless
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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 has found Plaintiff’s Complaint fails to state a claim upon
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which relief can be granted, and that it seeks monetary damages against a defendant who
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is absolutely immune, it will provide him a chance to fix his pleading deficiencies, if he
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can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet,
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963 F.2d 1258, 1261 (9th Cir. 1992)).
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However, to the extent Plaintiff also seeks injunctive relief in the form of a Court
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order requiring SDCJ officials to permit his use of the “facility[y]’s equipment, copiers,
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computers, books, supplies, and research facilities during all hours,” so that he may
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“pursue his defense” and “peruse” his rights, see ECF No. 8 at 2, his Motion is denied.
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While he has a constitutional right to petition for redress and to access to the Court, that
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right is necessarily limited by the circumstances of his detention. See Bounds v. Smith,
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430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis v. Casey, 518 U.S.
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343 (1996). In Lewis, the Supreme Court established that a prisoner’s right of access to
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the courts does not include “an abstract, freestanding right to a law library or legal
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assistance.” Lewis, 518 U.S. at 351. More importantly, this Court currently has no
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personal jurisdiction over SDCJ officials and therefore cannot issue orders concerning
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them. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969);
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Young v. Garay, No. 15-CV-03267-KAW(PR), 2016 WL 3208677, at *4 (N.D. Cal. June
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9, 2016) (denying motion for library access because library officials prisoner sought to
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enjoin were not parties to the action).
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///
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///
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///
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III.
Conclusion and Orders
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Good cause appearing, the Court:
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1.
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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
(ECF No. 2).
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2.
DIRECTS the Watch Commander of the SDCJ, or his designee, to collect
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from 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 the Watch
Commander, San Diego Central Jail, 1173 Front Street, San Diego, California, 92101.
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4.
DENIES Plaintiff’s Motion for Access to County Jail Library (ECF No. 8).
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5.
DISMISSES Plaintiff’s Complaint for failing to state a claim and for
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seeking damages from a defendant who is absolutely immune pursuant to 28 U.S.C.
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§ 1915(e)(2)(B) and § 1915A(b), and
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6.
GRANTS Plaintiff’s Motion to Amend (ECF No. 6). Within forty-five (45)
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days leave from the date of this Order, Plaintiff may file an Amended Complaint which
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cures all the deficiencies of pleading noted. Plaintiff’s Amended Complaint must be
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complete by itself without reference to his original pleading. Defendants not named and
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any claim not re-alleged in his Amended Complaint will be considered waived. See S.D.
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Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,
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1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.
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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with
26
leave to amend which are not re-alleged in an amended pleading may be “considered
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waived if not repled.”).
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///
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If Plaintiff fails to file an Amended Complaint within the time provided, the Court
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will enter a final Order dismissing this civil action based on Plaintiff’s failure to state a
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claim upon which relief can be granted, and for seeking monetary damages against a
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defendant who is absolutely immune pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
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1915A(b), as well as for his failure to prosecute in compliance with a court order
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requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a
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plaintiff does not take advantage of the opportunity to fix his complaint, a district court
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may convert the dismissal of the complaint into dismissal of the entire action.”).
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IT IS SO ORDERED.
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Dated: November 6, 2017
_____________________________________
Hon. Barry Ted Moskowitz, Chief Judge
United States District Court
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3:17-cv-01557-BTM-MDD
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