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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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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BRIAN JAMES RAPINOE,
BOOKING #20944775,

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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,

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Case No.: 21cv1162-DMS (RBM)

vs.
SAN DIEGO COUNTY SHERIFF’S
OFFICE, DOCTOR MONTGOMERY,
DOCTOR RAFFI and DOCTOR ARCY,
Defendants.

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Plaintiff Brian James Rapinoe, incarcerated at the Vista Detention Facility in Vista,

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California, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.

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(ECF No. 1.) Plaintiff claims he has been denied proper medical care because his knee

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injury was not properly evaluated, his inmate grievances were not properly handled, and

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the San Diego Sheriff’s Office has implemented a no-narcotics policy which prevents

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doctors from providing proper medical care where narcotic pain medication is required.

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(See id. at 2-5.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. Section

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1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis

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(“IFP”) pursuant to 28 U.S.C. Section 1915(a). (ECF No. 2.)
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21cv1162-DMS (RBM)

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I.

Motion to Proceed In Forma Pauperis

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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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$402. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the

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entire fee only if leave to proceed in forma pauperis (“IFP”) is granted pursuant to 28

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U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section

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1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a “certified copy

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of the trust fund account statement (or institutional equivalent) for . . . the 6-month period

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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

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King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the

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Court assesses an initial payment of 20% of (a) the average monthly deposits in the account

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for the past six months, or (b) the average monthly balance in the account for the past six

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months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1)

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&(4). The institution collects subsequent payments, assessed at 20% of the preceding

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month’s income, in any month in which the account exceeds $10, and forwards those

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payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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Plaintiff remains obligated to pay the entire fee in monthly installments regardless of

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whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Plaintiff’s prison certificate shows he had an average monthly balance of $0.83 and

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average monthly deposits of $70.00 for the 6-months preceding the filing of this action,

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and an available balance of $5.00. (ECF No. 2 at 4.)

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The Court GRANTS Plaintiff’s Motion to Proceed IFP and declines to impose an

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initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1) because his prison certificate

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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)).
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indicates he may have “no means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing that

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“[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil

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action or criminal judgment for the reason that the prisoner has no assets and no means by

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which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

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§ 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

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solely on a “failure to pay . . . due to the lack of funds available to him when payment is

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ordered.”) Instead, the Court directs the Secretary of the CDCR, or her designee, to collect

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the entire $350 balance of the filing fee required by 28 U.S.C. § 1914 and to forward it to

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the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

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§ 1915(b)(1).

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II.

Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 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-

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Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes,

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the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which

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is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing

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28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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(discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets

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of frivolous or malicious suits need not bear the expense of responding.” Nordstrom v.

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Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted).

Standard of Review

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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 F.3d

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1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

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2012) (noting that § 1915A screening “incorporates the familiar standard applied in the

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context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule

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12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state
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21cv1162-DMS (RBM)

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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),

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quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

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[is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.

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Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,

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acting under color of state law, violate federal constitutional or statutory rights.”

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Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a

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source of substantive rights, but merely provides a method for vindicating federal rights

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elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation

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marks and citations omitted). “To establish § 1983 liability, a plaintiff must show both

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(1) deprivation of a right secured by the Constitution and laws of the United States, and

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(2) that the deprivation was committed by a person acting under color of state law.” Tsao

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v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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B.

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In his first cause of action, Plaintiff alleges that on January 1, 2017, the

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Administrative and Medical Department of the San Diego Sheriff’s Office “implemented

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a policy dictating a primary care physician mode of treatment in the use of narcotic pain

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medication.” (ECF No. 1 at 3.) He contends the policy provides that every San Diego

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Sheriff’s facility is a non-narcotic facility, and therefore every inmate, even before being

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seen by a doctor, is already denied proper medical care to the extent narcotic medication is

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medically necessary. (Id.) Plaintiff states that as a result he has been denied adequate

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medical care at every San Diego Sheriff’s facility he has been housed in since 2017 which

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“resulted in a further sustained injury during my stay in Pelican Bay State Prison.” (Id.)

Plaintiff’s Allegations

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He contends he was transferred to the custody of the San Diego Sheriff in November 2020

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due to the Covid-19 pandemic, and “in place of my correct pain medication I am instead

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given high doses of Tylenol & Motrin which exacerbates a pre-existing condition of

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Hepatitis-C.” (Id.) Plaintiff does not identify his “correct pain medication,” but describes

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his medical condition as involving an ACL tear, an ACL separation, a lateral meniscus tear

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and advanced osteoarthritis, which requires him to use a cane with a risk of sudden

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extremely painful knee dislocations. (Id. at 4.) He contends that even with his well-

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documented medical history, the San Diego Sheriff’s Office policy “caused” Defendant

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Chief Medical Officer Dr. Montgomery to order Defendants primary care physicians Dr.

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Raffi and Dr. Arcy to “disregard” that documentation, resulting in constant pain arising

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from gross negligence and cruel and unusual punishment. (Id. at 2-4.)

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The second cause of action in the Complaint alleges that Plaintiff has submitted

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numerous inmate grievances regarding the non-narcotic policy and the lack of proper

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medical treatment and has spoken to officers to mediate his dispute. (Id. at 5.) He claims

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that his grievance forms have been altered to be received as requests, thereby denying him

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his right to the inmate grievance procedures. (Id.)

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In the third and final cause of action, Plaintiff alleges Defendant Dr. Raffi and Dr.

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Brown, who is not a named Defendant, have never evaluated his knee in an office setting,

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but instead came to the door of his housing unit for a visual inspection while Plaintiff was

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surrounded by other inmates and expected to discuss his medical needs. (Id. at 6.) He also

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states that “they have directed the nursing staff to try and catch me cheeking my

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psychotropic medication Wellbutrin so as to discontinue it.” (Id.)

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Plaintiff claims he was denied adequate medical care, subjected to cruel and unusual

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punishment, denied due process, received negligent medical care, and had his right to

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patient confidentiality breached. (Id. at 3-6.) He seeks an injunction preventing the San

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Diego Sheriff’s Office from directing how physicians treat their incarcerated patients, for

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surgery to repair any injuries sustained as a result of the lack of proper medical care, as

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well as compensatory and punitive damages. (Id. at 8.)
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C.

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“In order to prevail on an Eighth Amendment claim for inadequate medical care, a

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plaintiff must show ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v.

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Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014), quoting Estelle v. Gamble, 429 U.S. 97,

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104 (1976). “Deliberate indifference ‘may appear when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown by the way in which

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prison physicians provide medical care.’” Id., quoting Hutchinson v. United States, 838

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F.2d 390, 394 (9th Cir. 1988).

Analysis

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“[A] prison official violates the Eighth Amendment when two requirements are met.

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First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.

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Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991).

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Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently

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culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.”

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Id., quoting Wilson, 501 U.S. at 302-03. A prison official can be held liable only if he

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“knows of and disregards an excessive risk to inmate health or safety; the official must

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both be aware of facts from which the inference could be drawn that a substantial risk of

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serious harm exists, and he must also draw the inference.” Id. at 837.

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With respect to the first cause of action, there are no factual allegations in the

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Complaint from which a plausible inference can be drawn that any named Defendant was

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aware that without a narcotic drug Plaintiff faced an excessive risk to his health or safety,

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and, knowing of that risk, deliberately disregarded it. Taken in the light most favorable to

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Plaintiff, he alleges he is receiving improper medical care because the pain medication he

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currently receives, Tylenol and Motrin, presents a risk to his liver because he has Hepatitis-

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C, but he does not allege that a narcotic pain medication presents a lesser risk, or that any

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doctor has or would prescribe a narcotic pain medication if they were permitted to do so.

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The Complaint contains no allegation that Plaintiff has in the past or should now be

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prescribed a narcotic drug. Rather, as currently drafted, the Complaint merely alleges that

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the no-narcotics policy prevents treating physicians from providing proper medical care
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whenever a narcotic drug is medically necessary, that he is currently at risk for painful knee

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dislocations, and “in place of my correct pain medication I am instead given high doses of

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Tylenol & Motrin which exacerbates a pre-existing condition of Hepatitis-C.” (ECF No.

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1 at 3.) It is unclear whether Plaintiff contends his “correct pain medication” is a narcotic

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which he should be receiving, or whether he anticipates a future knee dislocation where he

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may need to be prescribed a narcotic. In any case, Plaintiff does not allege his treating

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doctors would have prescribed him narcotics but for the policy, or that they are aware he

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has a serious medical need for narcotic medication and have been deliberately indifferent

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to that need. See Farmer, 511 U.S. at 837 (holding that a prison official can be held liable

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only if he or she is “aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and . . . also draw the inference.”); Iqbal, 556 U.S.

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at 678 (the “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-

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harmed me accusation[s]” fall short of stating a § 1983 claim). Although Plaintiff may

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have intended to allege he has a serious medical need for narcotic pain medication he is

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not receiving due to a no-narcotics policy, he has not done so in the Complaint as currently

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drafted. While the court has an “obligation . . . where the petitioner is pro se, particularly

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

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benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), citing Bretz v.

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Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc), it may not, in so doing, “supply

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essential elements of the claim that were not initially pled.” Ivey v. Board of Regents of

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

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Even were the Court to liberally construe the Complaint as alleging Plaintiff has a

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serious medical need for narcotic pain medication and is not receiving it due to the no-

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narcotics policy, there remains an absence of factual allegations which plausibly allege that

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any Defendant became aware of, or should have become aware of, Plaintiff’s serious

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medical need for a narcotic drug but made a decision not to prescribe narcotic medication

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based on deliberate indifference to that serious medical need rather than simply a

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disagreement over the appropriate course of medical care. See Estelle, 429 U.S. at 105-07
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21cv1162-DMS (RBM)

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(inadvertent failure to provide medical care, mere negligence or medical malpractice and

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differences of opinion over what medical treatment is proper, do not state an Eighth

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Amendment claim); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (“[T]o prevail

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on a claim involving choices between alternative courses of treatment, a prisoner must

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show that the chosen course of treatment was medically unacceptable under the

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circumstances, and was chosen in conscious disregard of an excessive risk to (the

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prisoner’s) health.”) (internal quote marks omitted). Although Plaintiff alleges the no-

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narcotics policy “caused” Defendant Chief Medical Officer Dr. Montgomery to order

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Defendants primary care physicians Drs. Raffi and Arcy to “disregard” information in his

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medical file (ECF No. 1 at 4), there are no specific allegations in the Complaint regarding

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what information Plaintiff refers to or whether that information would have required a

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treating physician to prescribe narcotic pain medication. This “unadorned, the defendant-

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unlawfully-harmed me accusation” falls short of meeting the plausibility pleading

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standard, as “mere conclusory statements, do not suffice” to state a § 1983 claim. Iqbal,

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556 U.S. at 678.

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In order to cure the pleading defect against Defendants Drs. Montgomery, Raffi and

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Arcy, Plaintiff must set forth factual allegations which plausibly suggest one or more of

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the doctor Defendants determined or should have determined that prescribing a narcotic

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drug would be the medically necessary course of treatment needed to prevent a serious risk

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of harm to Plaintiff due to his medical condition but demonstrated a conscious disregard

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of an excessive risk to his health by deliberately disregarding that risk in failing to prescribe

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appropriate medication. Farmer, 511 U.S. at 844. Plaintiff’s failure to present factual

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allegations which, if true, plausibly show he would have been prescribed narcotic

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medication but for the no-narcotics policy, also fails to state a claim against Defendant San

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Diego Sheriff’s Office. See City of Canton v. Harris, 489 U.S. 378, 385 (1989) (holding

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that in order to state a claim for municipal liability, there must be a “direct causal link”

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between the municipal policy and the alleged constitutional violation); see also Castro v.

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Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc) (“It is not sufficient
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for a plaintiff to identify a custom or policy, attributable to the municipality, that caused

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his injury. A plaintiff must also demonstrate that the custom or policy was adhered to with

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‘deliberate indifference to the constitutional rights’ [of the plaintiff].”), quoting City of

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Canton, 489 U.S. at 392.

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The Court notes that it is not entirely clear from the face of the Complaint whether

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Plaintiff was a pre-trial detainee at the time of the events or whether he was transferred to

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the custody of the San Diego County Sheriff’s office to serve a term of incarceration as a

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state prisoner. (See ECF No. 1 at 3-4.) If he was a pre-trial detainee at the time of the

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events alleged in the Complaint, then an objective test under the Fourteenth Amendment

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rather than a subjective Eighth Amendment analysis applies. See Bell v. Wolfish, 441 U.S.

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520, 535 n.16 (1979) (noting that “the Due Process Clause [of the Fifth Amendment] rather

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than the Eighth Amendment” is applicable to claims of pre-trial detainees because “Eighth

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Amendment scrutiny is appropriate only after the State has complied with the constitutional

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guarantees traditionally associated with criminal prosecutions.”)

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Amendment requirement that Defendants were aware of Plaintiff’s need for a narcotic

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drug, the objective standard requires Plaintiff to allege “more than negligence but less than

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subjective intent - something akin to reckless disregard.” Gordon v. Cty. of Orange, 888

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F.3d 1118, 1125 (9th Cir. 2018). Even under an objective standard, however, allegations

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of negligence or accident are insufficient to state a claim. Kinglsey v. Hendrickson, 576

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U.S 389, 396 (2015); Daniels v. Williams, 474 U.S. 327, 331-32 (1986) (negligence does

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not violate due process even if it causes injury). Plaintiff’s failure to allege he had an

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objectively serious need for a narcotic drug, and his failure to allege he was examined by

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a Defendant who was deliberately indifferent or showed a reckless disregard to that need

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by failing to prescribe a narcotic drug, as opposed to a disagreement over the appropriate

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course of medical treatment, fails to state a § 1983 claim under either standard.

Unlike the Eighth

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Plaintiff alleges in his second count that his right to utilize inmate grievance

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procedures was denied because his submissions were improperly treated as requests rather

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than grievances. (ECF No. 1 at 5.) There is no independent constitutional right to an
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inmate administrative appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850,

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860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific

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prison grievance procedure.”), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)

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(“There is no legitimate claim of entitlement to a [state prison] grievance procedure.”); see

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also Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (noting that although prisoners have

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federal constitutional rights to petition the government for redress of grievances and of

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access to the courts, those rights are “not compromised by the prison’s refusal to entertain

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his grievance.”) Thus, with respect to the allegations against the Defendants based on their

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role in the processing of Plaintiff’s CDCR-602 Inmate Appeals, the Complaint fails to state

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a claim because there is no constitutional requirement regarding how a grievance system

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is operated. Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640; see also Wright v. Riveland,

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219 F.3d 905, 913 (9th Cir. 2000) (identification of a constitutionally protected interest is

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required to state a due process claim), citing Portman v. County of Santa Clara, 995 F.2d

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898, 904 (9th Cir. 1993).

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Finally, Plaintiff alleges in count three that Dr. Brown and Defendant Dr. Raffi have

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never evaluated his knee in an office setting, but instead came to the door of his housing

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unit for a visual inspection while Plaintiff was surrounded by other inmates and expected

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to discuss his medical needs. (ECF No. 1 at 6.) Plaintiff’s allegation that he was examined

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under less than ideal circumstances does not state a claim for denial of medical care, as

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there are no allegations that the failure to conduct the examination in an office rather than

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in the holding cell amounted to deliberate indifference to a serious medical need. See

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Estelle, 429 U.S. at 105-07 (an inadvertent failure to provide medical care, mere negligence

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or medical malpractice and differences of opinion over what medical treatment is proper,

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do not state an Eighth Amendment claim); Gordon, 888 F.3d at 1124 (a “mere lack of due

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care by a state official” is insufficient to state a constitutional claim for lack of medical

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care by a pretrial detainee).

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Accordingly, the Court sua sponte dismisses all claims in the Complaint against all

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Defendants based on a failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii) &
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§ 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. To the extent

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Plaintiff seeks to bring claims under state law, for negligence, medical malpractice, or

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breach of medical confidentiality for example, the Court may “decline to exercise

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supplemental jurisdiction” over any supplemental state law claim if it “has dismissed all

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claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); Sanford v. Member

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Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all federal-

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law claims are eliminated before trial, the balance of factors to be considered under the

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pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over

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the remaining state-law claims.”) Because the Court has dismissed all of Plaintiff’s federal

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claims, the Court declines to exercise supplemental jurisdiction over any state law claims

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raised in the Complaint at this time.

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D.

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In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading

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to attempt to sufficiently allege a § 1983 claim against the dismissed Defendants if he can

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and if he wishes to attempt to do so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.

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2015) (“A district court should not dismiss a pro se complaint without leave to amend

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[pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar v.

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Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

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III.

Leave to Amend

Conclusion and Orders

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Good cause appearing, the Court:

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1.

GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).

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2.

ORDERS the Secretary of the CDCR, or her designee, to collect from

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Plaintiff’s prison trust account the $350 filing fee owed by collecting monthly payments

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from Plaintiff’s 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. Section 1915(b)(2). All

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payments should be clearly identified by the name and number assigned to this action.
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3.

DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen

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Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

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942883, Sacramento, California 94283-0001.

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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).
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GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

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which to file a First Amended Complaint which cures the deficiencies of pleading noted in

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this Order with respect to any or all other Defendants. Plaintiff’s First Amended Complaint

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must be clearly entitled “First Amended Complaint,” include Civil Case No. 21cv1162-

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DMS (RBM) in its caption and must be complete by itself without reference to his original

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Complaint. Defendants not named and any claims not re-alleged in the First Amended

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Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.

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v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”)

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6.

DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its

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form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use in amending

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should he choose to do so.

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IT IS SO ORDERED.
Dated: July 15, 2021

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21cv1162-DMS (RBM)