Rapinoe v. San Diego County Sheriffs Officer et al

Filing 3

ORDER Granting 2 Motion Granting Motion to Proceed in Forma Pauperis and Dismissing Complaint with Leave to Amend Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). (Complaint and order mailed to Brian James Rapinoe). Signed by Chief District Judge Dana M. Sabraw on 7/15/2021. (All non-registered users served via U.S. Mail Service)(zda)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 BRIAN JAMES RAPINOE, BOOKING #20944775, 15 16 17 18 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) Plaintiff, 13 14 Case No.: 21cv1162-DMS (RBM) vs. SAN DIEGO COUNTY SHERIFF’S OFFICE, DOCTOR MONTGOMERY, DOCTOR RAFFI and DOCTOR ARCY, Defendants. 19 20 Plaintiff Brian James Rapinoe, incarcerated at the Vista Detention Facility in Vista, 21 California, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 22 (ECF No. 1.) Plaintiff claims he has been denied proper medical care because his knee 23 injury was not properly evaluated, his inmate grievances were not properly handled, and 24 the San Diego Sheriff’s Office has implemented a no-narcotics policy which prevents 25 doctors from providing proper medical care where narcotic pain medication is required. 26 (See id. at 2-5.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. Section 27 1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis 28 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (ECF No. 2.) 1 21cv1162-DMS (RBM) 1 I. Motion to Proceed In Forma Pauperis 2 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 $402. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the 5 entire fee only if leave to proceed in forma pauperis (“IFP”) is granted pursuant to 28 6 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 7 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a “certified copy 8 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 12 for the past six months, or (b) the average monthly balance in the account for the past six 13 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) 14 &(4). The institution collects subsequent payments, assessed at 20% of the preceding 15 month’s income, in any month in which the account exceeds $10, and forwards those 16 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 17 Plaintiff remains obligated to pay the entire fee in monthly installments regardless of 18 whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 19 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 20 Plaintiff’s prison certificate shows he had an average monthly balance of $0.83 and 21 average monthly deposits of $70.00 for the 6-months preceding the filing of this action, 22 and an available balance of $5.00. (ECF No. 2 at 4.) 23 The Court GRANTS Plaintiff’s Motion to Proceed IFP and declines to impose an 24 initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1) because his prison certificate 25 26 27 28 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). 2 21cv1162-DMS (RBM) 1 indicates he may have “no means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing that 2 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 3 action or criminal judgment for the reason that the prisoner has no assets and no means by 4 which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 5 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 6 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 7 ordered.”) Instead, the Court directs the Secretary of the CDCR, or her designee, to collect 8 the entire $350 balance of the filing fee required by 28 U.S.C. § 1914 and to forward it to 9 the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 10 § 1915(b)(1). 11 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 12 A. 13 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 14 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, 15 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 16 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 17 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 18 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 19 (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets 20 of frivolous or malicious suits need not bear the expense of responding.” Nordstrom v. 21 Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted). Standard of Review 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 25 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 26 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 27 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 28 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 3 21cv1162-DMS (RBM) 1 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 2 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 6 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 8 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 9 standard. Id. 10 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 11 acting under color of state law, violate federal constitutional or statutory rights.” 12 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 13 source of substantive rights, but merely provides a method for vindicating federal rights 14 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation 15 marks and citations omitted). “To establish § 1983 liability, a plaintiff must show both 16 (1) deprivation of a right secured by the Constitution and laws of the United States, and 17 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 18 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 19 B. 20 In his first cause of action, Plaintiff alleges that on January 1, 2017, the 21 Administrative and Medical Department of the San Diego Sheriff’s Office “implemented 22 a policy dictating a primary care physician mode of treatment in the use of narcotic pain 23 medication.” (ECF No. 1 at 3.) He contends the policy provides that every San Diego 24 Sheriff’s facility is a non-narcotic facility, and therefore every inmate, even before being 25 seen by a doctor, is already denied proper medical care to the extent narcotic medication is 26 medically necessary. (Id.) Plaintiff states that as a result he has been denied adequate 27 medical care at every San Diego Sheriff’s facility he has been housed in since 2017 which 28 “resulted in a further sustained injury during my stay in Pelican Bay State Prison.” (Id.) Plaintiff’s Allegations 4 21cv1162-DMS (RBM) 1 He contends he was transferred to the custody of the San Diego Sheriff in November 2020 2 due to the Covid-19 pandemic, and “in place of my correct pain medication I am instead 3 given high doses of Tylenol & Motrin which exacerbates a pre-existing condition of 4 Hepatitis-C.” (Id.) Plaintiff does not identify his “correct pain medication,” but describes 5 his medical condition as involving an ACL tear, an ACL separation, a lateral meniscus tear 6 and advanced osteoarthritis, which requires him to use a cane with a risk of sudden 7 extremely painful knee dislocations. (Id. at 4.) He contends that even with his well- 8 documented medical history, the San Diego Sheriff’s Office policy “caused” Defendant 9 Chief Medical Officer Dr. Montgomery to order Defendants primary care physicians Dr. 10 Raffi and Dr. Arcy to “disregard” that documentation, resulting in constant pain arising 11 from gross negligence and cruel and unusual punishment. (Id. at 2-4.) 12 The second cause of action in the Complaint alleges that Plaintiff has submitted 13 numerous inmate grievances regarding the non-narcotic policy and the lack of proper 14 medical treatment and has spoken to officers to mediate his dispute. (Id. at 5.) He claims 15 that his grievance forms have been altered to be received as requests, thereby denying him 16 his right to the inmate grievance procedures. (Id.) 17 In the third and final cause of action, Plaintiff alleges Defendant Dr. Raffi and Dr. 18 Brown, who is not a named Defendant, have never evaluated his knee in an office setting, 19 but instead came to the door of his housing unit for a visual inspection while Plaintiff was 20 surrounded by other inmates and expected to discuss his medical needs. (Id. at 6.) He also 21 states that “they have directed the nursing staff to try and catch me cheeking my 22 psychotropic medication Wellbutrin so as to discontinue it.” (Id.) 23 Plaintiff claims he was denied adequate medical care, subjected to cruel and unusual 24 punishment, denied due process, received negligent medical care, and had his right to 25 patient confidentiality breached. (Id. at 3-6.) He seeks an injunction preventing the San 26 Diego Sheriff’s Office from directing how physicians treat their incarcerated patients, for 27 surgery to repair any injuries sustained as a result of the lack of proper medical care, as 28 well as compensatory and punitive damages. (Id. at 8.) 5 21cv1162-DMS (RBM) 1 C. 2 “In order to prevail on an Eighth Amendment claim for inadequate medical care, a 3 plaintiff must show ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v. 4 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014), quoting Estelle v. Gamble, 429 U.S. 97, 5 104 (1976). “Deliberate indifference ‘may appear when prison officials deny, delay or 6 intentionally interfere with medical treatment, or it may be shown by the way in which 7 prison physicians provide medical care.’” Id., quoting Hutchinson v. United States, 838 8 F.2d 390, 394 (9th Cir. 1988). Analysis 9 “[A] prison official violates the Eighth Amendment when two requirements are met. 10 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 11 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). 12 Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently 13 culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.” 14 Id., quoting Wilson, 501 U.S. at 302-03. A prison official can be held liable only if he 15 “knows of and disregards an excessive risk to inmate health or safety; the official must 16 both be aware of facts from which the inference could be drawn that a substantial risk of 17 serious harm exists, and he must also draw the inference.” Id. at 837. 18 With respect to the first cause of action, there are no factual allegations in the 19 Complaint from which a plausible inference can be drawn that any named Defendant was 20 aware that without a narcotic drug Plaintiff faced an excessive risk to his health or safety, 21 and, knowing of that risk, deliberately disregarded it. Taken in the light most favorable to 22 Plaintiff, he alleges he is receiving improper medical care because the pain medication he 23 currently receives, Tylenol and Motrin, presents a risk to his liver because he has Hepatitis- 24 C, but he does not allege that a narcotic pain medication presents a lesser risk, or that any 25 doctor has or would prescribe a narcotic pain medication if they were permitted to do so. 26 The Complaint contains no allegation that Plaintiff has in the past or should now be 27 prescribed a narcotic drug. Rather, as currently drafted, the Complaint merely alleges that 28 the no-narcotics policy prevents treating physicians from providing proper medical care 6 21cv1162-DMS (RBM) 1 whenever a narcotic drug is medically necessary, that he is currently at risk for painful knee 2 dislocations, and “in place of my correct pain medication I am instead given high doses of 3 Tylenol & Motrin which exacerbates a pre-existing condition of Hepatitis-C.” (ECF No. 4 1 at 3.) It is unclear whether Plaintiff contends his “correct pain medication” is a narcotic 5 which he should be receiving, or whether he anticipates a future knee dislocation where he 6 may need to be prescribed a narcotic. In any case, Plaintiff does not allege his treating 7 doctors would have prescribed him narcotics but for the policy, or that they are aware he 8 has a serious medical need for narcotic medication and have been deliberately indifferent 9 to that need. See Farmer, 511 U.S. at 837 (holding that a prison official can be held liable 10 only if he or she is “aware of facts from which the inference could be drawn that a 11 substantial risk of serious harm exists, and . . . also draw the inference.”); Iqbal, 556 U.S. 12 at 678 (the “mere possibility of misconduct” or “unadorned, the defendant-unlawfully- 13 harmed me accusation[s]” fall short of stating a § 1983 claim). Although Plaintiff may 14 have intended to allege he has a serious medical need for narcotic pain medication he is 15 not receiving due to a no-narcotics policy, he has not done so in the Complaint as currently 16 drafted. While the court has an “obligation . . . where the petitioner is pro se, particularly 17 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the 18 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), citing Bretz v. 19 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc), it may not, in so doing, “supply 20 essential elements of the claim that were not initially pled.” Ivey v. Board of Regents of 21 the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 22 Even were the Court to liberally construe the Complaint as alleging Plaintiff has a 23 serious medical need for narcotic pain medication and is not receiving it due to the no- 24 narcotics policy, there remains an absence of factual allegations which plausibly allege that 25 any Defendant became aware of, or should have become aware of, Plaintiff’s serious 26 medical need for a narcotic drug but made a decision not to prescribe narcotic medication 27 based on deliberate indifference to that serious medical need rather than simply a 28 disagreement over the appropriate course of medical care. See Estelle, 429 U.S. at 105-07 7 21cv1162-DMS (RBM) 1 (inadvertent failure to provide medical care, mere negligence or medical malpractice and 2 differences of opinion over what medical treatment is proper, do not state an Eighth 3 Amendment claim); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (“[T]o prevail 4 on a claim involving choices between alternative courses of treatment, a prisoner must 5 show that the chosen course of treatment was medically unacceptable under the 6 circumstances, and was chosen in conscious disregard of an excessive risk to (the 7 prisoner’s) health.”) (internal quote marks omitted). Although Plaintiff alleges the no- 8 narcotics policy “caused” Defendant Chief Medical Officer Dr. Montgomery to order 9 Defendants primary care physicians Drs. Raffi and Arcy to “disregard” information in his 10 medical file (ECF No. 1 at 4), there are no specific allegations in the Complaint regarding 11 what information Plaintiff refers to or whether that information would have required a 12 treating physician to prescribe narcotic pain medication. This “unadorned, the defendant- 13 unlawfully-harmed me accusation” falls short of meeting the plausibility pleading 14 standard, as “mere conclusory statements, do not suffice” to state a § 1983 claim. Iqbal, 15 556 U.S. at 678. 16 In order to cure the pleading defect against Defendants Drs. Montgomery, Raffi and 17 Arcy, Plaintiff must set forth factual allegations which plausibly suggest one or more of 18 the doctor Defendants determined or should have determined that prescribing a narcotic 19 drug would be the medically necessary course of treatment needed to prevent a serious risk 20 of harm to Plaintiff due to his medical condition but demonstrated a conscious disregard 21 of an excessive risk to his health by deliberately disregarding that risk in failing to prescribe 22 appropriate medication. Farmer, 511 U.S. at 844. Plaintiff’s failure to present factual 23 allegations which, if true, plausibly show he would have been prescribed narcotic 24 medication but for the no-narcotics policy, also fails to state a claim against Defendant San 25 Diego Sheriff’s Office. See City of Canton v. Harris, 489 U.S. 378, 385 (1989) (holding 26 that in order to state a claim for municipal liability, there must be a “direct causal link” 27 between the municipal policy and the alleged constitutional violation); see also Castro v. 28 Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc) (“It is not sufficient 8 21cv1162-DMS (RBM) 1 for a plaintiff to identify a custom or policy, attributable to the municipality, that caused 2 his injury. A plaintiff must also demonstrate that the custom or policy was adhered to with 3 ‘deliberate indifference to the constitutional rights’ [of the plaintiff].”), quoting City of 4 Canton, 489 U.S. at 392. 5 The Court notes that it is not entirely clear from the face of the Complaint whether 6 Plaintiff was a pre-trial detainee at the time of the events or whether he was transferred to 7 the custody of the San Diego County Sheriff’s office to serve a term of incarceration as a 8 state prisoner. (See ECF No. 1 at 3-4.) If he was a pre-trial detainee at the time of the 9 events alleged in the Complaint, then an objective test under the Fourteenth Amendment 10 rather than a subjective Eighth Amendment analysis applies. See Bell v. Wolfish, 441 U.S. 11 520, 535 n.16 (1979) (noting that “the Due Process Clause [of the Fifth Amendment] rather 12 than the Eighth Amendment” is applicable to claims of pre-trial detainees because “Eighth 13 Amendment scrutiny is appropriate only after the State has complied with the constitutional 14 guarantees traditionally associated with criminal prosecutions.”) 15 Amendment requirement that Defendants were aware of Plaintiff’s need for a narcotic 16 drug, the objective standard requires Plaintiff to allege “more than negligence but less than 17 subjective intent - something akin to reckless disregard.” Gordon v. Cty. of Orange, 888 18 F.3d 1118, 1125 (9th Cir. 2018). Even under an objective standard, however, allegations 19 of negligence or accident are insufficient to state a claim. Kinglsey v. Hendrickson, 576 20 U.S 389, 396 (2015); Daniels v. Williams, 474 U.S. 327, 331-32 (1986) (negligence does 21 not violate due process even if it causes injury). Plaintiff’s failure to allege he had an 22 objectively serious need for a narcotic drug, and his failure to allege he was examined by 23 a Defendant who was deliberately indifferent or showed a reckless disregard to that need 24 by failing to prescribe a narcotic drug, as opposed to a disagreement over the appropriate 25 course of medical treatment, fails to state a § 1983 claim under either standard. Unlike the Eighth 26 Plaintiff alleges in his second count that his right to utilize inmate grievance 27 procedures was denied because his submissions were improperly treated as requests rather 28 than grievances. (ECF No. 1 at 5.) There is no independent constitutional right to an 9 21cv1162-DMS (RBM) 1 inmate administrative appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 2 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific 3 prison grievance procedure.”), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) 4 (“There is no legitimate claim of entitlement to a [state prison] grievance procedure.”); see 5 also Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (noting that although prisoners have 6 federal constitutional rights to petition the government for redress of grievances and of 7 access to the courts, those rights are “not compromised by the prison’s refusal to entertain 8 his grievance.”) Thus, with respect to the allegations against the Defendants based on their 9 role in the processing of Plaintiff’s CDCR-602 Inmate Appeals, the Complaint fails to state 10 a claim because there is no constitutional requirement regarding how a grievance system 11 is operated. Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640; see also Wright v. Riveland, 12 219 F.3d 905, 913 (9th Cir. 2000) (identification of a constitutionally protected interest is 13 required to state a due process claim), citing Portman v. County of Santa Clara, 995 F.2d 14 898, 904 (9th Cir. 1993). 15 Finally, Plaintiff alleges in count three that Dr. Brown and Defendant Dr. Raffi have 16 never evaluated his knee in an office setting, but instead came to the door of his housing 17 unit for a visual inspection while Plaintiff was surrounded by other inmates and expected 18 to discuss his medical needs. (ECF No. 1 at 6.) Plaintiff’s allegation that he was examined 19 under less than ideal circumstances does not state a claim for denial of medical care, as 20 there are no allegations that the failure to conduct the examination in an office rather than 21 in the holding cell amounted to deliberate indifference to a serious medical need. See 22 Estelle, 429 U.S. at 105-07 (an inadvertent failure to provide medical care, mere negligence 23 or medical malpractice and differences of opinion over what medical treatment is proper, 24 do not state an Eighth Amendment claim); Gordon, 888 F.3d at 1124 (a “mere lack of due 25 care by a state official” is insufficient to state a constitutional claim for lack of medical 26 care by a pretrial detainee). 27 Accordingly, the Court sua sponte dismisses all claims in the Complaint against all 28 Defendants based on a failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii) & 10 21cv1162-DMS (RBM) 1 § 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. To the extent 2 Plaintiff seeks to bring claims under state law, for negligence, medical malpractice, or 3 breach of medical confidentiality for example, the Court may “decline to exercise 4 supplemental jurisdiction” over any supplemental state law claim if it “has dismissed all 5 claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); Sanford v. Member 6 Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all federal- 7 law claims are eliminated before trial, the balance of factors to be considered under the 8 pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over 9 the remaining state-law claims.”) Because the Court has dismissed all of Plaintiff’s federal 10 claims, the Court declines to exercise supplemental jurisdiction over any state law claims 11 raised in the Complaint at this time. 12 D. 13 In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading 14 to attempt to sufficiently allege a § 1983 claim against the dismissed Defendants if he can 15 and if he wishes to attempt to do so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 16 2015) (“A district court should not dismiss a pro se complaint without leave to amend 17 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 18 deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar v. 19 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 20 III. Leave to Amend Conclusion and Orders 21 Good cause appearing, the Court: 22 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 23 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 24 Plaintiff’s prison trust account the $350 filing fee owed by collecting monthly payments 25 from Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding 26 month’s income and forwarding those payments to the Clerk of the Court each time the 27 amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). All 28 payments should be clearly identified by the name and number assigned to this action. 11 21cv1162-DMS (RBM) 1 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 2 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 3 942883, Sacramento, California 94283-0001. 4 5 6 4. DISMISSES all claims against all Defendants in the Complaint without prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 7 which to file a First Amended Complaint which cures the deficiencies of pleading noted in 8 this Order with respect to any or all other Defendants. Plaintiff’s First Amended Complaint 9 must be clearly entitled “First Amended Complaint,” include Civil Case No. 21cv1162- 10 DMS (RBM) in its caption and must be complete by itself without reference to his original 11 Complaint. Defendants not named and any claims not re-alleged in the First Amended 12 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 13 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 14 pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 15 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 16 amended pleading may be “considered waived if not repled.”) 17 6. DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its 18 form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use in amending 19 should he choose to do so. 20 21 IT IS SO ORDERED. Dated: July 15, 2021 22 23 24 25 26 27 28 12 21cv1162-DMS (RBM)

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