Williams v. Pollard

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JOSEPH L. WILLIAMS, Case No.: 3:19-cv-02150-LAB-WVG

CDCR #G-17552,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

M. POLLARD; J. CARIMAN;

15 [ECF No. 2];

SGT. R. MARIENTES; ONE

16 UNKNOWN SERGEANT; SGT.

2) DENYING MOTION TO

GODINEZ,

17 APPOINT COUNSEL [ECF No. 5];

Defendants.

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AND

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3) DISMISSING COMPLAINT FOR

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FAILING TO STATE A CLAIM

21 PURSUANT TO

28 U.S.C. § 1915(e)(2)(B) AND

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28 U.S.C. § 1915A(b)

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24 Joseph L. Williams (“Plaintiff”), a state inmate currently incarcerated at the

25 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and

26 proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See

27 Compl., ECF No. 1.)

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1 Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his

2 Complaint; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

3 to 28 U.S.C. § 1915(a) (ECF No. 2), along with a Motion to Appoint Counsel (ECF No.

4 5.)

5 I. Motion to Proceed IFP

6 All parties instituting any civil action, suit or proceeding in a district court of the

7 United States, except an application for writ of habeas corpus, must pay a filing fee of

8 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

10 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

11 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

12 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

13 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d

14 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.

15 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.

16 2002).

17 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

18 “certified copy of the trust fund account statement (or institutional equivalent) for ... the

19 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

20 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

21 trust account statement, the Court assesses an initial payment of 20% of (a) the average

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

23 balance in the account for the past six months, whichever is greater, unless the prisoner

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative

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fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court

27 Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does

not apply to persons granted leave to proceed IFP. Id.

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1 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

2 custody of the prisoner then collects subsequent payments, assessed at 20% of the

3 preceding month’s income, in any month in which his account exceeds $10, and forwards

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

5 In support of his IFP Motion, Plaintiff has submitted a prison certificate authorized

6 by a CDCR trust account official attesting to his account activity. See ECF No. 3 at 1-4; 28

7 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This certificate

8 shows Plaintiff had average monthly deposits of $19.42, carried an average monthly

9 balance of $20.85 over the 6-month period preceding the filing of his Complaint, and

10 retained an available balance of $8.69 at the time of filing. See ECF No. 3 at 1.

11 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP

12 (ECF No. 2) and assesses an initial partial filing fee of $4.17 pursuant to 28 U.S.C.

13 § 1915(b)(1). The Court will direct the Secretary of the CDCR, or their designee, to

14 collect this initial filing fee only if sufficient funds are available in Plaintiff’s account at

15 the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

16 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or

17 criminal judgment for the reason that the prisoner has no assets and no means by which to

18 pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850

19 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a

20 prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available

21 to him when payment is ordered.”). The remaining balance of the $350 total fee owed in

22 this case must be collected by the agency having custody of the prisoner and forwarded to

23 the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

24 II. Motion to Appoint Counsel

25 Plaintiff claims that he is “unable to afford counsel” and his “imprisonment will

26 greatly limit his ability to litigate.” (Pl.’s Mot., ECF No. 5 at 1.)

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1 All documents filed pro se are liberally construed, and “a pro se complaint,

2 however inartfully pleaded, must be held to less stringent standards than formal pleadings

3 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.

4 Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no

5 constitutional right to counsel in a civil case; and none of Plaintiff’s pleadings to date

6 demand that the Court exercise its limited discretion to request than an attorney represent

7 him pro bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v.

8 Dept. of Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390

9 F.3d 1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support such a

10 discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991);

11 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist

12 where there is cumulative showing of both a likelihood of success on the merits and a

13 demonstrated inability of the pro se litigant to articulate his claims in light of their legal

14 complexity. Id.

15 As currently pleaded, Plaintiff’s Complaint demonstrates that while he may not be

16 formally trained in law, he nevertheless is fully capable of legibly articulating the facts

17 and circumstances relevant to his claims, which are typical and not legally “complex.”

18 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet

19 to show he is likely to succeed on the merits of the claims he alleges in this matter. Id.

20 Therefore, the Court DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No.

21 5).

22 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A

23 A. Standard of Review

24 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

25 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

26 statutes, the Court must review and sua sponte dismiss an IFP complaint, and any

27 complaint filed by a prisoner seeking redress from a governmental entity, or officer or

28 employee of a governmental entity, which is frivolous, malicious, fails to state a claim, or

1 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122,

2 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.

3 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The

4 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need

5 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

6 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

7 2012)).

8 All complaints must contain “a short and plain statement of the claim showing that

9 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are

10 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

11 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

12 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

13 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

14 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

15 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

16 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

17 “The standard for determining whether a plaintiff has failed to state a claim upon

18 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

19 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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

21 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

22 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

23 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

24 as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678

25 (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

26 “When there are well-pleaded factual allegations, a court should assume their

27 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

28 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

1 (“[W]hen determining whether a complaint states a claim, a court must accept as true all

2 allegations of material fact and must construe those facts in the light most favorable to

3 the plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro

4 se, particularly in civil rights cases, to construe the pleadings liberally and to afford the

5 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

6 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

7 “supply essential elements of claims that were not initially pled.” Ivey v. Board of

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

9 Finally, the “[c]ourt[] must consider the complaint in its entirety,” including

10 “documents incorporated into the complaint by reference” to be part of the pleading when

11 determining whether the plaintiff has stated a claim upon which relief may be granted.

12 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed. R. Civ. P.

13 10(c) (“A copy of a written instrument that is an exhibit to a pleading for all purposes.”);

14 Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

15 B. Plaintiff’s Allegations

16 In June of 2019, there was a “major lockdown” at RJD and the staff “performed a

17 major search of all cells.” (Compl. at 3.) Plaintiff claims that “prior to leaving [his] cell”

18 in order that the search could be conducted, his “television was working just fine.” (Id.)

19 However, once the searches were completed and Plaintiff returned to his cell, he “noticed

20 [his] television was just dangling in the back window and was on the top bunk.” (Id.) He

21 later determined that the “cable connector” in the back of his television was “bent at an

22 angle” causing his television to not work properly. (Id.)

23 Plaintiff submitted a grievance about the damage to his television during the cell

24 searches. (See id.) However, Plaintiff alleges Defendant Marientes submitted “falsified

25 legal documents and Sgt. Godinez forced [him] to sign off on the 602 because he tried to

26 say [Plaintiff’s] tv worked fine.” (Id.)

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1 C. 42 U.S.C. § 1983

2 “Section 1983 creates a private right of action against individuals who, acting

3 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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

5 substantive rights, but merely provides a method for vindicating federal rights elsewhere

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

7 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

8 deprivation of a right secured by the Constitution and laws of the United States, and (2)

9 that the deprivation was committed by a person acting under color of state law.” Tsao v.

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

11 D. Property claims

12 Plaintiff alleges that the damage to his personal property has resulted in the

13 violation of his due process. (See Compl. at 3-4.) Ordinarily, due process of law requires

14 notice and an opportunity for some kind of hearing prior to the deprivation of a

15 significant property interest. Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d

16 1398, 1405 (9th Cir. 1989). However, neither the negligent nor intentional deprivation of

17 property states a due process claim under section 1983 if the deprivation was random and

18 unauthorized. Parratt v. Taylor, 451 U.S. 527, 535-44 (1981) (state employee

19 negligently lost prisoner’s hobby kit), overruled in part on other grounds, Daniels v.

20 Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984)

21 (intentional destruction of inmate’s property). The availability of an adequate state post-

22 deprivation remedy, e.g. a state tort action, precludes relief because it provides sufficient

23 procedural due process. See Zinermon v. Burch, 494 U.S. 113, 128 (1990) (where state

24 cannot foresee, and therefore provide meaningful hearing prior to the deprivation, a

25 statutory provision for post-deprivation hearing or a state common law tort remedy for

26 erroneous deprivation satisfies due process); King v. Massarweh, 782 F.2d 825, 826 (9th

27 Cir. 1986) (same). The Ninth Circuit has long recognized that California law provides

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1 such an adequate post-deprivation remedy. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th

2 Cir. 1994) (citing CAL. GOV’T CODE §§ 810-895).

3 Deprivations of property resulting from negligence, or “mere lack of due care” do

4 not deny due process at all, and must be redressed through a state court damages action.

5 See Daniels, 474 U.S. at 328 (“[T]he Due Process Clause is simply not implicated by a

6 negligent act of an official causing unintended loss of or injury to life, liberty, or

7 property.”); id. at 330 (“‘To hold that this kind of loss is a deprivation of property within

8 the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to

9 distort the meaning and intent of the Constitution.’” (quoting Parratt, 451 U.S. at 545

10 (Stewart, J., concurring)). In fact, the Supreme Court has explicitly warned against

11 turning the Fourteenth Amendment and § 1983 into a “font of tort law to be

12 superimposed upon whatever systems may already be administered by the States.” See

13 Paul v. Davis, 424 U.S. 693, 701 (1976).

14 Thus, because Plaintiff claims Defendants damaged his personal property, any

15 remedy he may have lies in state court and his federal claim must be dismissed for failing

16 to state a claim upon which § 1983 relief may be granted.

17 E. Grievance claims

18 Plaintiff also alleges that his due process rights were violated because Defendants

19 purportedly submitted false documentation in response to his administrative grievance.

20 (See Compl. at 3-4.) However, Plaintiff has no independent constitutional right to an

21 effective grievance or appeal procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th

22 Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also, e.g., George v.

23 Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (holding that only persons who cause or

24 participate in civil rights violations can be held responsible and that “[r]uling against a

25 prisoner on an administrative complaint does not cause or contribute to the violation”).

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1 F. Retaliation claims

2 Plaintiff alleges he is unable to file administrative grievances “without

3 repercussion by staff.” (Compl. at 4.) Allegations of retaliation against a prisoner’s First

4 Amendment rights to speech or to petition the government may support a 1983 claim.

5 Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v.

6 Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.

7 1995).

8 A retaliation claim has five elements. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th

9 Cir. 2009). First, Plaintiff must allege that the retaliated-against conduct is protected.

10 Watison, 668 F.3d at 1114.2 Second, Plaintiff must allege Defendants took adverse action

11 against him.3 Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). Third, Plaintiff

12 must allege a causal connection between the adverse action and the protected conduct.4

13 Watison, 668 F.3d at 1114. Fourth, Plaintiff must allege the “official’s acts would chill or

14 silence a person of ordinary firmness from future First Amendment activities.” Rhodes,

15 408 F.3d at 568 (internal quotation marks and emphasis omitted).5 Fifth, Plaintiff must

16 allege “that the prison authorities’ retaliatory action did not advance legitimate goals of

17 the correctional institution....” Rizzo, 778 F.2d at 532; Watison, 668 F.3d at 1114-15.

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2 The filing of an inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th

22 Cir. 2005).

23 3 The adverse action need not be an independent constitutional violation. Pratt, 65 F.3d at 806. “[T]he

mere threat of harm can be an adverse action....” Brodheim, 584 F.3d at 1270.

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25 4 Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a

chronology of events from which retaliation can be inferred is sufficient to survive dismissal. Watison,

26 668 F.3d at 1114 (citing Pratt, 65 F.3d at 808 (“[T]iming can properly be considered as circumstantial

evidence of retaliatory intent.”)).

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5 “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some

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1 While Plaintiff seeks an injunction “preventing defendant(s) from retaliating

2 against me,” he has not alleged that any “adverse action” was actually taken against him

3 for filing his administrative grievances. In addition, Plaintiff fails to claim that he

4 “suffered some other harm,” Brodheim, 584 F.3d at 1269, that was “more than minimal.”

5 Rhodes, 408 F.3d at 568 n.11. Finally, Plaintiff fails to allege Defendants’ “failed to

6 advance a legitimate goal of the correctional institution.” Rizzo, 778 F.2d at 532;

7 Watison, 668 F.3d at 1114-15.

8 Because he is proceeding pro se, however, the Court having now provided him

9 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity

10 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.

11 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

12 III. Conclusion and Orders

13 For the reasons explained, the Court:

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

15 2. ORDERS the Secretary of the CDCR, or his designee, to collect from

16 Plaintiff’s trust account the $4.17 initial filing fee assessed, if those funds are available at

17 the time this Order is executed, and forward whatever balance remains of the full $350

18 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding

19 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account

20 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY

21 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz,

23 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

24 4. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 5).

25 5. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

26 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and

27 GRANTS him 45 days leave from the date of this Order in which to file an Amended

28 Complaint which cures the deficiencies of pleading noted. Plaintiff’s Amended Complaint

1 ||must be complete by itself without reference to his original pleading. Defendants not

2 ||named and any claim not re-alleged in his Amended Complaint will be considered waived.

3 || See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

4 || 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

5 || Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave

6 ||to amend which are not re-alleged in an amended pleading may be “considered waived if

7 ||not repled.’).

8 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter

9 ||a final Order dismissing this civil action based both on Plaintiffs failure to state a claim

10 |}upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) and

11 1915A(b)C1), and his failure to prosecute in compliance with a court order requiring

12 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

13 || not take advantage of the opportunity to fix his complaint, a district court may convert the

14 || dismissal of the complaint into dismissal of the entire action.”).

15 IT IS SO ORDERED.

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17 ||Dated: December 19, 2019 lam Af. ( Suny

18 Hon. Larry Alan Burns, Chief Judge

19 United States District Court

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