Connelly v. Dudley et al

Filing 9

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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 JAMES CONNELLY, Booking #16182065, Case No.: 3:17-cv-01557-BTM-MDD ORDER: Plaintiff, 11 1) GRANTING PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS [ECF No. 2] 12 13 vs. 14 15 16 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. 17 18 19 3) DENYING MOTION FOR ACCESS TO COUNTY JAIL LAW LIBRARY [ECF No. 8] 20 21 AND 22 23 4) GRANTING MOTION TO AMEND COMPLAINT [ECF No. 6] 24 25 26 JAMES CONNELLY (“Plaintiff”), a pretrial detainee at the Central Jail in San 27 Diego, California (“SDCJ”) and proceeding pro se, has filed a civil rights Complaint 28 pursuant to 42 U.S.C. § 1983 (ECF No. 1). 1 3:17-cv-01557-BTM-MDD 1 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 2 he filed his Complaint; instead, he submitted a Prison Certificate completed by a SDCJ 3 Administrative Sergeant attesting to his trust account activity, which the Court will 4 construe as a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 5 § 1915(a) (ECF No. 2). Plaintiff has also filed several supplemental documents on San 6 Diego Sheriff’s Department Inmate Stationary, one of which requests leave to amend 7 (ECF No. 6), and one which seeks court-ordered access to the SDCJ library (ECF No. 8). 8 I. 9 Leave to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 10 United States, except an application for writ of habeas corpus, must pay a filing fee of 11 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 12 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 13 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 14 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 15 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 16 Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 17 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 18 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 19 Cir. 2002). 20 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 21 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 22 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 23 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 24 25 26 27 28 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-01557-BTM-MDD 1 trust account statement, the Court assesses an initial payment of 20% of (a) the average 2 monthly deposits in the account for the past six months, or (b) the average monthly 3 balance in the account for the past six months, whichever is greater, unless the prisoner 4 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 5 custody of the prisoner then collects subsequent payments, assessed at 20% of the 6 preceding month’s income, in any month in which his account exceeds $10, and forwards 7 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 8 Bruce, 136 S. Ct. at 629. 9 As noted above, while Plaintiff has not filed a formal Motion to Proceed IFP, he 10 did submit a Prison Certificate issued by an official at the SDCJ attesting as to his 11 account balances as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See 12 ECF No. 2 at 1; Andrews, 398 F.3d at 1119. This Certificate shows Plaintiff had no 13 average monthly deposit, carried an average monthly balance of only $.04 in his account 14 during the 6-month period preceding the filing of this action, and had only $.25 in 15 available funds to his credit at the time of filing. 16 Based on this accounting, the Court finds Plaintiff is “unable to pay” any initial 17 partial filing fee pursuant to 28 U.S.C. § 1915(a)(a) and (b)(1) at this time. See 28 U.S.C. 18 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 19 civil action or appealing a civil action or criminal judgment for the reason that the 20 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 21 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 22 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 23 “failure to pay ... due to the lack of funds available to him when payment is ordered.”). 24 Accordingly, the Court grants Plaintiff leave to proceed IFP (ECF No. 2), declines 25 to exact any initial filing fee because his SDCJ certificate shows he “has no means to pay 26 it,” Bruce, 136 S. Ct. at 629, and directs the Watch Commander of the SDCJ, or his 27 designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C. 28 § 1914 and to forward them to the Clerk of the Court pursuant to the installment payment 3 3:17-cv-01557-BTM-MDD 1 provisions set forth in 28 U.S.C. § 1915(b)(1). See id. 2 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 3 A. 4 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- Standard of Review 5 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 6 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 7 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 8 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 9 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 10 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 11 the targets of frivolous or malicious suits need not bear the expense of responding.’” 12 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 13 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (screening pursuant to § 1915A “incorporates the familiar standard applied in 19 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 20 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted 21 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 22 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed 23 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 24 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 25 678. “Determining whether a complaint states a plausible claim for relief [is] ... a context- 26 specific task that requires the reviewing court to draw on its judicial experience and 27 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 28 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 4 3:17-cv-01557-BTM-MDD 1 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Plaintiff’s Allegations 2 B. 3 Plaintiff claims San Diego Police Officer Dudley “ma[d]e him confess in violation 4 of the 5th Amendment” after his arrest and during an interrogation on December 27, 5 2016, and December 28, 2016. See ECF No. 1 at 1-3. 6 Plaintiff further claims the SDCJ thereafter violated his Eighth Amendment rights 7 by failing to provide adequate medical care for his infected foot, diabetes, heart, blood 8 pressure, schizophrenia and sleep apnea. Id. at 4. 9 In addition, Plaintiff contends San Diego County Public Defenders McCoy and 10 Velekar have violated his rights to a speedy trial and due process by “behav[ing] as 11 couriers for District Attorney’s plea bargains,” and “devis[ing] psychological evaluations 12 to contain him in custody,” “break him,” and to “obstruct justice.” Id. at 5. 13 Finally, Plaintiff claims San Diego Superior Court Judge Polly Shamoon has 14 similarly violated his rights to a speedy trial, due process, and to “fire” his “incompetent 15 and obstinate attorney,” as well as his rights under the Americans with Disabilities Act, 16 by “allowing [his] public defenders to shop for five psychiatrists,” and “extend[ing] 17 incompetency evaluations.” Id. at 6. 18 He seeks injunctive relief preventing Defendants from “stealing legal mail,” a 19 “dismissal in toto” of criminal proceedings which appear to have been ongoing at the 20 time he filed this case, and $40 million in general and punitive damages. Id. at 1, 8. 21 C. 22 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 23 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 24 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 25 substantive rights, but merely provides a method for vindicating federal rights elsewhere 26 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 27 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 28 deprivation of a right secured by the Constitution and laws of the United States, and (2) 5 3:17-cv-01557-BTM-MDD 1 that the deprivation was committed by a person acting under color of state law.” Tsao v. 2 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 3 D. 4 First, to the extent Plaintiff seeks to sue the San Diego County Jail, he fails to state San Diego County Jail 5 a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1). 6 A municipality’s jail is not a “person” subject to suit under § 1983. “Persons” are 7 state and local officials sued in their individual capacities, private individuals and entities 8 who act under color of state law, and local governmental entities themselves. Vance v. 9 Cnty. of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996). The San Diego County 10 Jail is a pre-trial detention facility managed by the County of San Diego and, therefore, is 11 not considered a “person” within the meaning of section 1983. See e.g., United States v. 12 Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) (“[M]unicipal police departments and 13 bureaus are generally not considered ‘persons’ within the meaning of section 1983.”); 14 Rodriguez v. Cnty. of Contra Costa, 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) 15 (citing Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995)) (“Although municipalities, such 16 as cities and counties, are amenable to suit under Monell [v. Dep’t of Social Servs, 436 17 U.S. 658 (1978)], sub-departments or bureaus of municipalities, such as the police 18 departments, are not generally considered “persons” within the meaning of § 1983.”); 19 Nelson v. Cty. of Sacramento, 926 F. Supp. 2d 1159, 1170 (E.D. Cal. 2013) (dismissing 20 Sacramento Sheriff’s Department from section 1983 action “with prejudice” because it 21 “is a subdivision of a local government entity,” i.e., Sacramento County); Marsden v. 22 Fed. BOP, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (county jail not an entity amenable to 23 suit under 42 U.S.C. § 1983); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. 24 Ill. 1993) (Cook County Jail not a “person” under § 1983); McCoy v. Chesapeake Corr’l 25 Ctr., 788 F. Supp. 890, 893-94 (E.D. Va. 1992) (local jail not a “person” under § 1983). 26 E. 27 Second, to the extent Plaintiff seeks to sue San Diego County Public Defenders 28 Public Defenders McCoy and Velekar, he also fails to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). “[A] 6 3:17-cv-01557-BTM-MDD 1 public defender does not act under color of state law when performing a lawyer’s 2 traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. 3 Dodson, 454 U.S. 312, 325 (1981); Garnier v. Clarke, 332 Fed. App’x 416 (9th Cir. 4 2009) (affirming district court’s sua sponte dismissal of prisoner’s § 1983 claims against 5 appointed counsel). 6 F. 7 Third, Plaintiff’s Complaint must be dismissed insofar as he seeks monetary Judge Polly Shamoon 8 damages from San Diego Superior Court Judge Polly Shamoon, who is alleged to be 9 presiding over his criminal case, and who is absolutely immune. See 28 U.S.C. 10 § 1915(e)(2)(B)(iii); Chavez v. Robinson, 817 F.3d 1162, 1167-68 (9th Cir. 2016) (noting 11 § 1915(e)(2)(B)(iii) requires the court to dismiss an action “at any time” if it “seeks 12 monetary relief from a defendant who is immune from such relief.”). 13 Judges are absolutely immune from damage liability for acts which are judicial in 14 nature. Forrester v. White, 484 U.S. 219, 227-229 (1988); see also Stump v. Sparkman, 15 435 U.S. 349, 355-57 (1978); Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Judicial 16 immunity applies to actions brought under 42 U.S.C. § 1983 for acts committed within 17 the scope of judicial duties, “even when such acts are in excess of their jurisdiction, and 18 are alleged to have been done maliciously or corruptly.” Stump, 435 U.S. at 356. “[A] 19 judge will not be deprived of immunity because the action [s]he took was in error, was 20 done maliciously, or was in excess of [her] authority; rather, [s]he will be subject to 21 liability only when [s]he has acted in the clear absence of all jurisdiction.” Id. at 356-37; 22 see also Forrester, 484 U.S. at 227 (a judicial act “does not become less judicial by virtue 23 of an allegation of malice or corruption of motive”); Mireless v. Waco, 502 U.S. 9, 12 24 (1991). 25 Here, Plaintiff claims Judge Shamoon violated his rights to due process and a 26 speedy trial from December 2016 “to present” by denying him the “right to fire [his] 27 incompetent and obstinate attorney,” by approving his appointed counsel’s requests for 28 “incompetency evaluations,” and by refusing to dismiss the criminal charges filed against 7 3:17-cv-01557-BTM-MDD 1 him. See ECF No. 1 at 1, 6. Because all of these decisions were made in her capacity as a 2 judge presiding over Plaintiff’s case, Judge Shamoon must be dismissed as absolutely 3 immune. See 28 U.S.C. §§1915(e)(2)(B)(iii), 1915A(b)(2). Criminal Proceedings – Preiser and Younger 4 G. 5 Finally, to the extent Plaintiff seeks money damages based on alleged violations of 6 his constitutional rights by Defendant Dudley, the San Diego Police Officer who is 7 alleged to have interrogated him following his arrest, his appointed counsel, and the 8 judge presiding over his trial proceedings, and to the extent he seeks either this Court’s 9 intervention in or dismissal of those proceedings, see ECF No. 1 at 8, relief is not 10 11 available under 42 U.S.C. § 1983. Federal courts may not interfere with ongoing state criminal proceedings absent 12 extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 45-46 (1971); see 13 Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) 14 (Younger “espouse[d] a strong federal policy against federal-court interference with 15 pending state judicial proceedings.”). Abstention under Younger is required when “(1) a 16 state-initiated proceeding is ongoing; (2) the proceeding implicates important state 17 interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues 18 in the state proceeding; and (4) the federal court action would enjoin the proceeding or 19 have the practical effect of doing so, i.e., would interfere with the state proceeding in a 20 way that Younger disapproves.” San Jose Silicon Valley Chamber of Commerce Political 21 Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). 22 Plaintiff alleges his criminal proceedings were “ongoing” at the time he filed his 23 Complaint. See ECF No. 1 at 1. There is no question his criminal proceedings involve 24 important state interests. In addition, Plaintiff’s claims—alleged violations of Miranda v. 25 Arizona, 384 U.S. 436 (1966), his right to a speedy trial, and his Sixth Amendment right 26 to effective assistance of counsel, see ECF No. 1 at 3, 5-6, are the type of claims the state 27 courts afford an adequate opportunity to raise on direct appeal. San Jose Silicon Valley, 28 546 F.3d at 1092. Thus, because his criminal proceedings were alleged to be ongoing at 8 3:17-cv-01557-BTM-MDD 1 the time he filed suit, Plaintiff may not proceed in a § 1983 action. See Huffman v. 2 Pursue, Ltd., 420 U.S. 592, 608 (1975) (holding that Younger applies to state appellate 3 proceedings as well as ongoing proceedings in state trial court); see also Drury v. Cox, 4 457 F.2d 764, 764-65 (9th Cir. 1972) (“[O]nly in the most unusual circumstances is a 5 defendant entitled to have federal interposition by way of injunction ... until after the jury 6 comes in, judgment has been appealed from and the case concluded in the state courts.”). 7 In addition to monetary relief, Plaintiff also requests a “dismissal in toto” of his 8 criminal case. See ECF No. 1 at 8. However, “[s]uits challenging the validity of [a] 9 prisoner’s continued incarceration lie within ‘the heart of habeas corpus.’” Ramirez v. 10 Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser v. Rodriguez, 411 U.S. 475, 11 489-99 (1973) (holding that a writ of habeas corpus is “explicitly and historically 12 designed” to provide a state prisoner with the “exclusive” means to “attack the validity of 13 his confinement” in federal court)). “‘[A] § 1983 action is a proper remedy for a state 14 prisoner who is making a constitutional challenge to the conditions of his prison life, but 15 not to the fact or length of his custody.’” Id.; see also Nettles v. Grounds, 830 F.3d 922, 16 928 (9th Cir. 2016) (en banc) (“[C]laims ... which would ... result[ ] in immediate release 17 if successful, f[a]ll within the core of habeas corpus and therefore [must] be brought, if at 18 all, in habeas.”) (citing Preiser, 411 U.S. at 487), cert. denied, 137 S. Ct. 635 (No. 16- 19 6556) (Jan. 9, 2017); see also Pattillo v. Lombardo, No. 2:17-CV-01849-JAD-VCF, 2017 20 WL 3622778, at *4 (D. Nev. Aug. 23, 2017) (“When a prisoner challenges the legality or 21 duration of his custody, raises a constitutional challenge which could entitle him to an 22 earlier release (such as ineffective assistance of counsel), or seeks damages for purported 23 deficiencies in his state court criminal case, which effected a conviction or lengthier 24 sentence, his sole federal remedy is the writ of habeas corpus.”). 25 H. 26 Plaintiff has also filed a Motion seeking leave to amend his Complaint (ECF No. Motions for Leave to Amend & Library Access 27 6), together with a “Motion to Use San Diego Jail Library” in order to “pursue his 28 defense and for perusing … his U.S. and Californian Constitutional rights.” See ECF No. 9 3:17-cv-01557-BTM-MDD 1 8 at 2. 2 A pro se litigant must be given leave to amend his pleading to state a claim unless 3 it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d 4 at 1130 (noting leave to amend should be granted when a complaint is dismissed under 5 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”). 6 Therefore, while the Court has found Plaintiff’s Complaint fails to state a claim upon 7 which relief can be granted, and that it seeks monetary damages against a defendant who 8 is absolutely immune, it will provide him a chance to fix his pleading deficiencies, if he 9 can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 10 963 F.2d 1258, 1261 (9th Cir. 1992)). 11 However, to the extent Plaintiff also seeks injunctive relief in the form of a Court 12 order requiring SDCJ officials to permit his use of the “facility[y]’s equipment, copiers, 13 computers, books, supplies, and research facilities during all hours,” so that he may 14 “pursue his defense” and “peruse” his rights, see ECF No. 8 at 2, his Motion is denied. 15 While he has a constitutional right to petition for redress and to access to the Court, that 16 right is necessarily limited by the circumstances of his detention. See Bounds v. Smith, 17 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis v. Casey, 518 U.S. 18 343 (1996). In Lewis, the Supreme Court established that a prisoner’s right of access to 19 the courts does not include “an abstract, freestanding right to a law library or legal 20 assistance.” Lewis, 518 U.S. at 351. More importantly, this Court currently has no 21 personal jurisdiction over SDCJ officials and therefore cannot issue orders concerning 22 them. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); 23 Young v. Garay, No. 15-CV-03267-KAW(PR), 2016 WL 3208677, at *4 (N.D. Cal. June 24 9, 2016) (denying motion for library access because library officials prisoner sought to 25 enjoin were not parties to the action). 26 /// 27 /// 28 /// 10 3:17-cv-01557-BTM-MDD 1 III. Conclusion and Orders 2 Good cause appearing, the Court: 3 1. 4 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 5 2. DIRECTS the Watch Commander of the SDCJ, or his designee, to collect 6 from Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 7 payments from his account in an amount equal to twenty percent (20%) of the preceding 8 month’s income and forwarding those payments to the Clerk of the Court each time the 9 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 10 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 11 ASSIGNED TO THIS ACTION. 12 13 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. 14 4. DENIES Plaintiff’s Motion for Access to County Jail Library (ECF No. 8). 15 5. DISMISSES Plaintiff’s Complaint for failing to state a claim and for 16 seeking damages from a defendant who is absolutely immune pursuant to 28 U.S.C. 17 § 1915(e)(2)(B) and § 1915A(b), and 18 6. GRANTS Plaintiff’s Motion to Amend (ECF No. 6). Within forty-five (45) 19 days leave from the date of this Order, Plaintiff may file an Amended Complaint which 20 cures all the deficiencies of pleading noted. Plaintiff’s Amended Complaint must be 21 complete by itself without reference to his original pleading. Defendants not named and 22 any claim not re-alleged in his Amended Complaint will be considered waived. See S.D. 23 Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 24 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 25 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 27 waived if not repled.”). 28 /// 11 3:17-cv-01557-BTM-MDD 1 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 2 will enter a final Order dismissing this civil action based on Plaintiff’s failure to state a 3 claim upon which relief can be granted, and for seeking monetary damages against a 4 defendant who is absolutely immune pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 5 1915A(b), as well as for his failure to prosecute in compliance with a court order 6 requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a 7 plaintiff does not take advantage of the opportunity to fix his complaint, a district court 8 may convert the dismissal of the complaint into dismissal of the entire action.”). 9 IT IS SO ORDERED. 10 11 12 13 Dated: November 6, 2017 _____________________________________ Hon. Barry Ted Moskowitz, Chief Judge United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 3:17-cv-01557-BTM-MDD

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