(PC) Uhuru v. Rao

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 KOHEN DIALLO UHURU, No. 2:20-cv-1613 DB P

12 Plaintiff,

13 v. ORDER

14 DR. YASHODARA RAO, et al.,

15 Defendants.

16

17 Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42

18 U.S.C. § 1983. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to

19 proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this

20 court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

21 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

22 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

3 § 1915(b)(2).

4 I. Screening Requirement

5 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion

6 thereof, that may have been paid, the court shall dismiss the case at any time if the court

7 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

8 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

9 II. Pleading Standard

10 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

11 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

12 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

13 substantive rights, but merely provides a method for vindicating federal rights conferred

14 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

15 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

16 right secured by the Constitution or laws of the United States was violated and (2) that the alleged

17 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

18 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

19 A complaint must contain “a short and plain statement of the claim showing that the

20 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

21 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

22 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

23 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

24 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

25 plausibility demands more than the mere possibility that a defendant committed misconduct and,

26 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

27 ////

28 ////

1 III. Plaintiff’s Allegations

2 At all times relevant to this action, plaintiff was a state inmate housed at California Health

3 Care Facility (“CHCF”) in Stockton, California. Plaintiff names Dr. Yashodara Rao, CHCF Chief

4 of Mental Health; Correctional Officer (“CO”) J. Duran; Brian Van Brakle, social worker; and

5 Robert Burton, CHCF Warden. He asserts an array of claims and seeks damages, declaratory

6 relief, and injunctive relief.

7 As best as the Court can determine, plaintiff alleges as follows:

8 Since 2005, plaintiff has been approved for single-cell housing by psychiatrists and

9 psychologists at various institutions. On March 2, 2020, plaintiff was placed in a single cell for

10 “religious/medical and mental health reasons.” On May 27, 2020, plaintiff submitted a request to

11 CHCF institutional staff for a permanent single-cell housing assignment. Plaintiff claims that he

12 has since been denied single-cell housing “due to retaliation and discrimination against the

13 practice of [his] Nubian Hebrew Israelite religion with solitary in-cell worship of continuous

14 ablutions, purifications, sanctification pursuant to my Nazarite vows…” Plaintiff suggests that

15 other inmates who are named in his complaint have been approved for single “one-cell” bunks,

16 but he does not specify whether these other single-cell assignments are religious-based.

17 Plaintiff contends that CO Duran acted with animus towards him following plaintiff’s

18 request for a permanent single-cell housing assignment. As proof, he cites to two vague incidents.

19 In the first incident on May 28, 2020, CO Duran allegedly “implemented prejudicial punishment”

20 on plaintiff (he provides no further details), but then afterwards apologized by saying “it was his

21 misunderstanding.” In the second incident on July 9, 2020, CO Duran, citing a new policy,

22 refused to sign plaintiff’s CDCR 22 Form.

23 Plaintiff next suggests that, following his request for permanent single-cell housing, all of

24 the defendants conspired to place him in solitary confinement, where he stayed between May and

25 August 2020. During that period, plaintiff was denied fresh air and sunlight, which has

26 diminished his levels of serotonin and caused him extreme pain in his body and joints due to a

27 lack of walking. He also claims that he was denied the opportunity to fast during the holy month

28 of August, during which he is required to take his 3 daily meals after sundown, and that he was

1 denied the opportunity to participate in group prayer or fellowship with lower tier Nubian Hebrew

2 Israelites. He claims that Nubian Hebrew Israelites are prevented from fasting, but Muslim

3 inmates, who similarly take their daily 3 meals after sundown during their month of fasting, are

4 able to do so.

5 On June 6, 2020, plaintiff submitted an “urgent emergency” CDC 7362 Request for

6 Mental Health Services to Dr. Rao regarding his denial of fresh air in isolation. Plaintiff also

7 claimed that he was denied complete access to the courts, access to ADA computers, legal books

8 for research, and in-presence confidential copies of legal documents. Finally, plaintiff claimed

9 that he was unable to fast, which denied him the right to practice his religion. Plaintiff attributes

10 these actions to Warden Burton’s mismanagement of CHCF. Plaintiff also accuses social worker

11 Van Brakle of making a “clinical assessment against my mental illness and mental health needs.”

12 There are no further details regarding these allegations.

13 IV. Discussion

14 A. Linkage

15 Under § 1983, the plaintiff must demonstrate that each named defendant personally

16 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77 Simmons v. Navajo

17 County, 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235

18 (9th Cir. 2009). Liability may not be imposed on supervisory personnel under the theory of

19 respondeat superior. Iqbal, 556 U.S. at 676-77. Supervisory personnel may only be held liable if

20 they “participated in or directed the violations, or knew of the violations and failed to act to

21 prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) accord Starr v. Baca, 652 F.3d

22 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012).

23 Plaintiff’s allegations against each of the defendants is far too vague and conclusory to

24 proceed. While plaintiff alleges that these defendants personally violated his constitutional rights

25 and cites to vague incidents, he fails to provide necessary factual details that would enable the

26 Court to determine any claim’s viability. Instead, he alleges that CO Duran “implemented

27 prejudicial punishment” and refused to sign a form; that Dr. Rao received a form that plaintiff

28 labeled “urgent emergency”; that Warden Burton mismanages CHCF; and that Van Brakle made

1 a “clinical assessment against [plaintiff’s] mental illness and mental health needs.” These

2 allegations, standing alone, do not demonstrate personal participation by any of the defendants.

3 Neither does the conclusory allegations that they conspired to place plaintiff in solitary

4 confinement. Therefore, any claims against these defendants must be dismissed, and the

5 complaint in its entirety is subject to dismissal for failure to state a claim.

6 Plaintiff also asserts several overbroad and inapposite claims under the Fifth, Sixth, and

7 Ninth Amendments, as well as various sections under Article I of the California Constitution,

8 which are either insufficiently alleged or lack any colorable basis and should also be dismissed.

9 In the remainder of this screening order, the Court will set forth the legal standards for the

10 claims that are directly implicated by plaintiff’s allegations. Should plaintiff decide to amend his

11 complaint, he shall pay careful attention to the requirements below.

12 B. The Free Exercise Clause of the First Amendment and The Religious Land Use

13 and Institutionalized Persons Act

14 Plaintiff claims that he has been unable to practice his religion, including but not limited

15 to the denial of the right to fast and to gather with fellow Nubian Hebrew Israelites. The Free

16 Exercise Clause of the First Amendment provides that “Congress shall make no law respecting an

17 establishment of religion, or prohibiting the free exercise thereof....” U.S. Const. amend I. The

18 United States Court of Appeals for the Ninth Circuit summarizes the application of the Free

19 Exercise Clause in a state prison context as follows:

20

The First Amendment, applicable to state action by incorporation through the

21 Fourteenth Amendment, Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8

(1947), “prohibits government from making a law ‘prohibiting the free exercise [of

22

religion].’” Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam) (alteration in

23 original). The Supreme Court has repeatedly held that prisoners retain the

protections of the First Amendment. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S.

24 342, 348 (1987); Pell v. Procunier, 417 U.S. 817, 822 (1974); Cruz, 405 U.S. at 322.

A prisoner’s right to freely exercise his religion, however, is limited by institutional

25 objectives and by the loss of freedom concomitant with incarceration. O'Lone, 482

U.S. at 348.

26

27 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

28

1 “To prevail on their Free Exercise claim, Plaintiffs must allege facts plausibly showing

2 that the government denied them ‘a reasonable opportunity of pursuing [their] faith comparable to

3 the opportunity afforded fellow prisoners who adhere to conventional religious precepts.’” Id.

4 (alteration in original) (quoting Cruz, 405 U.S. at 322). To implicate the Free Exercise Clause, a

5 prisoner must show that the belief at issue is both “sincerely held” and “rooted in religious

6 belief.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see also Shakur, 514 F.3d 884–85

7 (noting the Supreme Court's disapproval of the “centrality” test and finding that the “sincerity”

8 test in Malik determines whether the Free Exercise Clause applies). If the inmate makes his

9 initial showing of a sincerely held religious belief, he must establish that prison officials

10 substantially burdened the practice of his religion by preventing him from engaging in conduct

11 that he sincerely believes is consistent with his faith. Shakur, 514 F.3d at 884–85.

12 Government action substantially burdens the exercise of religion when the action is

13 “oppressive to a significantly great extent.” Int'l Church of Foursquare Gospel v. City of San

14 Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011) (citation and internal quotation marks omitted).

15 “That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great

16 restriction or onus upon such exercise.” Id. (quoting San Jose Christian College v. City of

17 Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). “A substantial burden exists where the

18 governmental authority puts substantial pressure on an adherent to modify his behavior and to

19 violate his beliefs.” Id. (citation and internal quotation marks omitted)

20 Additionally, The Religious Land Use and Institutionalized Persons Act of 2000

21 (“RLUIPA”) provides:

22

No government shall impose a substantial burden on the religious

23 exercise of a person residing in or confined to an institution…, even

if the burden results from a rule of general applicability, unless the

24

government demonstrates that imposition of the burden on that

25 person:

(1) is in furtherance of a compelling government interest; and

26

(2) is the least restrictive means of furthering that compelling

27 government interest.

28

1 42 U.S.C. § 2000cc-1(a). Plaintiff must allege facts demonstrating that defendant substantially

2 burdened the exercise of his religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994-95

(9th Cir. 2005). In any RLUIPA claim, one must first identify the “religious exercise” allegedly

3

impinged upon, and then must ask whether the prison regulation or action at issue “substantially

4

burdens” that religious exercise. Greene v. Solano County Jail, 513 F.3d 982, 987 (9th Cir.

5

2008).

6

“RLUIPA does not define ‘substantial burden,’ but [the Ninth Circuit] has held that ‘a

7 substantial burden on religious exercise must impose a significantly great restriction or onus upon

8 such exercise.’” Hartmann, 707 F.3d at 1124–25 (citing San Jose Christian Coll. v. City of

9 Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). “Generally, the term ‘substantial burden’ in

RLUIPA is construed in light of federal Supreme Court and appellate jurisprudence involving the

10

Free Exercise Clause of the First Amendment prior to the Court’s decision in Emp't Div. Dep't of

11

Human Res. of Oregon v. Smith, 494 U.S. 872, 878-82 (1990).” Int’l Church of Foursquare

12

Gospel, 673 F.3d at 1067 (citing Guru Nanak, 456 F.3d at 988). “In the context of a prisoner’s

13 constitutional challenge to institutional policies, this court has held that a substantial burden

14 occurs ‘where the state ... denies [an important benefit] because of conduct mandated by religious

15 belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate

his beliefs.’” Hartmann, 707 F.3d at 1124–25 (citing Warsoldier v. Woodford, 418 F.3d 989, 995

16

(9th Cir. 2005)).

17

C. The Equal Protection Clause of the Fourteenth Amendment

18

Plaintiff alleges that Muslim inmates have been treated better than Nubian Hebrew

19

Israelites. Equal protection claims arise when a charge is made that similarly situated individuals

20

are treated differently without a rational relationship to a legitimate state purpose. See San

21

Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from invidious

22

discrimination based on race. See Wolff, 418 U.S. at 556. Racial segregation is unconstitutional

23

within prisons save for the necessities of prison security and discipline. See Cruz v. Beto, 405

24

U.S. 319, 321 (1972) (per curiam). Prisoners are also protected from intentional discrimination on

25

the basis of their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Equal

26

protection claims are not necessarily limited to racial and religious discrimination. See Lee v.

27

City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001) (applying minimal scrutiny to equal

28

1 protection claim by a disabled plaintiff because the disabled do not constitute a suspect class); see

2 also Tatum v. Pliler, 2007 WL 1720165 (E.D. Cal. 2007) (applying minimal scrutiny to equal

3 protection claim based on denial of in-cell meals where no allegation of race-based discrimination

4 was made); Hightower v. Schwarzenegger, 2007 WL 732555 (E.D. Cal. Mar. 19, 2008).

5 In order to state a § 1983 claim based on a violation of the Equal Protection Clause of the

6 Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional

7 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that

8 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v.

9 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class

10 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v.

11 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940

12 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985).

13 D. Eighth Amendment

14 a. Medical Indifference

15 Plaintiff suggests that Dr. Rao and social worker Van Brakle violated his rights under the

16 Eighth Amendment through their provision of medical care. Where a prisoner’s Eighth

17 Amendment claims arise in the context of medical care, the prisoner must allege and prove “acts

18 or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”

19 Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth Amendment medical claim has two

20 elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s

21 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on

22 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

23 A serious medical need exists if the failure to treat the condition could result in further

24 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,

25 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of

26 facts from which the inference could be drawn that a substantial risk of serious harm exists, and

27 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant

28 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk

1 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted

2 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842.

3 In applying this standard, the Ninth Circuit has held that before it can be said that a

4 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be

5 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause

6 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle,

7 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating

8 a medical condition does not state a valid claim of medical mistreatment under the Eighth

9 Amendment. Medical malpractice does not become a constitutional violation merely because the

10 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d

11 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate

12 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

13 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support

14 a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

15 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

16 at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a

17 plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th

18 Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

19 1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this

20 regard, “[a] prisoner need not show his harm was substantial; however, such would provide

21 additional support for the inmate’s claim that the defendant was deliberately indifferent to his

22 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at

23 1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that

24 inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.

25 1989) (per curiam). A failure to competently treat a serious medical condition, even if some

26 treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

27 b. Conditions of Confinement

28

1 Lastly, plaintiff alleges that, for a four-month period, he was housed in solitary

2 confinement where he was denied access to sunlight. He also suggests that he was denied

3 opportunities to exercise outside of his cell.

4 Inmates challenging the conditions of their confinement may do so under the Eighth

5 Amendment’s Cruel and Unusual Punishment Clause. See Bell v. Wolfish, 441 U.S. 520, 535

6 (1979). The Eighth Amendment dictates that the conditions complained of may not amount to

7 “cruel and unusual punishment.”

8 There can be no dispute that exercise is a human need protected by the Eighth

9 Amendment. Wilson v. Seiter, 501 U.S. 294, 304 (1991) (holding that prison officials may violate

10 a prisoner’s eighth amendment right when they deprive him of “a single identifiable human need

11 such as food, warmth, or exercise”). Whether exercise must take place outdoors for all inmates

12 regardless of their housing assignment is a question that the Ninth Circuit has not yet reached. See

13 Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (“[W]e do not consider it necessary to

14 decide whether deprivation of outdoor exercise is a per se violation of the eighth amendment.”).

15 Nonetheless, Spain v. Procunier did affirm the district court’s order that the “denial of

16 fresh air and regular outdoor exercise and recreation constitutes cruel and unusual punishment”

17 when it is directed at inmates who are held in essentially solitary confinement in particularly

18 egregious conditions. 600 F.2d at 199. Since then, several cases have relied on Spain v. Procunier

19 for the proposition that the long-term denial of outdoor exercise of inmates confined to

20 continuous and long-term segregation is unconstitutional. See, e.g., LeMaire v. Maass, 12 F.3d

21 1444, 1457 (9th Cir. 1993) (“[T]his circuit has determined the long-term denial of outside

22 exercise is unconstitutional.”) (emphasis in original); Touissant v. Yockey, 722 F.2d 1490, 1493

23 (9th Cir. 1984) (holding that the district court did not err in concluding that the denial of outdoor

24 exercise to inmates assigned to administrative segregation for over one year raised “substantial

25 constitutional question”); Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994) (“After Spain and

26 Toussaint, defendants cannot legitimately claim that their duty to provide regularly outdoor

27 exercise to [inmate held under “harsh conditions” in the Special Holding Unit] was not clearly

28 established.”); Keenan v. Hall, 83 F.3d 1083, 1089-90 (9th Cir. 1996) (“Deprivation of outdoor

1 exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term

2 segregation.”) Thus, while the Ninth Circuit has not yet reached the issue of whether outdoor

3 exercise is an Eighth Amendment requirement for all inmates regardless of their housing

4 assignment, it has clearly held that outdoor exercise is a requirement for inmates confined to

5 continuous and long-term segregation.

6 An inmate’s right to outdoor exercise is not absolute. Prison officials may restrict outdoor

7 exercise on the basis of weather, unusual circumstances, or disciplinary needs. See Spain v.

8 Procunier, 600 F.2d at 199. Limitations on access to outdoor exercise has been upheld when there

9 was a grave security risk caused by the inmate’s own behavior, LeMaire, supra, 12 F.3d at 1458

10 (no constitutional violation stemming from the complete denial of out-of-cell and outdoor

11 exercise for a five-year period that was specific to the inmate (as opposed to a broader policy) and

12 that was based on a grave security risk caused by the inmate’s behavior), and institutional security

13 following a genuine emergency, Hayward v. Procunier, 629 F.2d 599, 601 (9th Cir. 1980)

14 (violent and deadly conditions at the prison justified an emergency lockdown that deprived

15 inmates of yard exercise for at least one month).

16 V. Conclusion

17 Plaintiff’s complaint fails to state a claim on which relief may be granted. The Court will

18 grant plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-

19 49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead file a notice of voluntary

20 dismissal, and the action then will be terminated by operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i).

21 Alternatively, plaintiff may forego amendment and notify the Court that he wishes to stand on his

22 complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may

23 elect to forego amendment). If the last option is chosen, the undersigned will issue findings and

24 recommendations to dismiss the complaint without leave to amend, plaintiff will have an

25 opportunity to object, and the matter will be decided by a District Judge.

26 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation

27 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual

28 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at

1 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his

2 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d

3 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts

4 on curing the deficiencies set forth above.

5 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be

6 complete in itself without reference to any prior pleading. As a general rule, an amended complaint

7 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an

8 amended complaint is filed, the original complaint no longer serves a function in the case. Id.

9 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

10 of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in

11 bold font, “First Amended Complaint,” reference the appropriate case number, and be an original

12 signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a).

13 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief

14 above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

15 Accordingly, it is HEREBY ORDERED that:

16 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

17 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

18 Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

19 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the Director

20 of the California Department of Corrections and Rehabilitation filed concurrently herewith.

21 3. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form;

22 4. Within thirty days from the date of service of this order, plaintiff must file either a

23 first amended complaint curing the deficiencies identified by the Court in this order, a notice of

24 voluntary dismissal, or a notice of election to stand on the complaint; and

25 ////

26 ////

27 ////

28 ////

1 5. If plaintiff fails to file a first amended complaint or notice of voluntary dismissal,

2 | the Court will recommend the action be dismissed, with prejudice, for failure to obey a court order

3 | and failure to state a claim.

4 | Dated: January 8, 2021

5

6

4 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

8 | /DLB7;

9 DB/Inbox/Substantive/uhu1613.scrn

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13