Valdez v. Zhang

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RICARDO VALDEZ, Case No.: 3:20-CV-0736 JLS (WVG)

CDCR #E-98488,

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ORDER: (1) GRANTING MOTION

Plaintiff,

13 TO PROCEED IN FORMA

vs. PAUPERIS; AND (2) DISMISSING

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COMPLAINT FOR FAILING TO

DR. ZHANG; SCHOBELOCK;

15 STATE A CLAIM PURSUANT TO 28

WARDEN; OFFICER DOE#1.

U.S.C. § 1915(e)(2) & 28 U.S.C.

16 S. ROBERTS; CDCR; DOE #2,

§ 1915A(b)

17 Defendants.

18 (ECF No. 2)

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20 Plaintiff Ricardo Valdez, currently incarcerated at the Richard J. Donovan

21 Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, has

22 filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1).

23 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he

24 filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”)

25 pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

26 I. Motion to Proceed IFP

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

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

1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

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

4 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in

5 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016);

6 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their

7 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281

8 F.3d 844, 847 (9th Cir. 2002).

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

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

11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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

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

15 in the account for the past six months, whichever is greater, unless the prisoner has no

16 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

17 of the prisoner then collects subsequent payments, assessed at 20% of the preceding

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

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

20 136 S. Ct. at 629.

21 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate

22 Statement Report as well as a Prison Certificate completed by an RJD accounting officer.

23 See ECF Nos. 2, 4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at

24 1119. These statements show that Plaintiff has carried an average monthly balance of

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See

27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.

June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed

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1 $137.75, and had $147.12 in average monthly deposits to his account over the 6-month

2 period immediately preceding the filing of his Complaint and he had an available balance

3 of $182.25 on the books at the time of filing. (See ECF No. 4 at 1-2.) Based on this

4 accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

5 assesses his initial partial filing fee to be $29.42 pursuant to 28 U.S.C. § 1915(b)(1).

6 The Court will direct the Secretary of the CDCR, or his designee, to collect the initial

7 $29.42 fee assessed only if sufficient funds are available in Plaintiff’s account at the time

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

9 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal

10 judgment for the reason that the prisoner has no assets and no means by which to pay the

11 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that

12 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP

13 case based solely on a “failure to pay . . . due to the lack of funds available to him when

14 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must

15 be collected by the agency having custody of the prisoner and forwarded to the Clerk of

16 the Court pursuant to 28 U.S.C. § 1915(b)(2).

17 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

18 A. Legal Standard

19 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a

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

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

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

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

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

25 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

26 the targets of frivolous or malicious suits need not bear the expense of responding.’”

27 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).

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

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

3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

5 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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

7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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

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

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

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

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

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

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

17 B. Plaintiff’s Factual Allegations

18 On January 22, 2019, a Cardiothoracic surgeon “recommended” that Plaintiff be

19 prescribed pain medications known as “Tramadol” and “Lyrica.” (Compl. at 3.) However,

20 Plaintiff alleges Dr. Zhang “took [him] off the medication.” (Id.) Plaintiff claims this

21 decision was made because a previous lab test he had taken revealed that he tested

22 “negative” for Tramadol. (Id.) On April 5, 2019, Dr. Zhang wrote a “progress” note that

23 stated, “addiction outweighs benefits of medication.” (Id.)

24 Plaintiff informed Dr. Zhang that he had “nerve damage on chest wall due to

25 operation,” as well as “neuropathic pain on legs and low back.” (Id.) Plaintiff also

26 informed Dr. Zhang that “according to neurologist” only “Lyrica and Gabapentin can be

27 effective for nerve damage pain.” (Id.) Plaintiff alleges that he told Dr. Zhang that

28 “without this medication” the level of pain would put his “life at risk.” (Id.)

1 As a result of the discontinuation of the pain medication, Plaintiff claims he suffers

2 from inability to sleep or eat due to “stomach pain,” loss of balance, and anxiety that “leads

3 to suicidal thoughts.” (Id. at 3-4.) After Dr. Zhang took Plaintiff off his medication,

4 Plaintiff saw Dr. Zhang “many more times” and told him that it was “improper to have

5 taken [Plaintiff] off of the only effective medication [for his] pain.” (Id. at 4.)

6 Despite Plaintiff’s request that he be “put on any type of strong pain medication,”

7 Dr. Zhang “gave [him] a cursory treatment of Tylenol.” (Id.) However, Plaintiff informed

8 Dr. Zhang that he had “been on the highest [dose] of Tylenol before and it was ineffective

9 to [his] type of pain.” (Id.)

10 Plaintiff claims that he was offered “Cymbalta and Amitriptyline” on June 27, 2019

11 but argues that he “previously took [these medications] and [they] were ineffective.” (Id.

12 at 5.) Therefore, Plaintiff refused to take these medications. (See id.)

13 On June 24, 2019, Plaintiff was “interview[ed] by Schobelock” regarding his

14 administrative grievance. (Id. at 6.) Plaintiff alleges he told Schobelock “everything [he]

15 stated here regarding Dr. Zhang.” (Id.) Plaintiff claims that Schobelock “should have been

16 able to recognize” the “unreasonable actions of Dr. Zhang when he took [Plaintiff] off an

17 effective medication.” (Id.)

18 In January of 2020, Plaintiff “wrote a letter to the Warden” letting him know that the

19 “pavement” in RJD was poorly constructed and “lift[ing] up to a degree that [Plaintiff had]

20 seen other inmates fall[ing] out of their walker or wheelchairs.” (Id. at 7.) Plaintiff “asked

21 for the pavement to be fixed.” (Id.) On March 21, 2020, Plaintiff “fell on one of those

22 cracks on pavement” and “lost consciousness.” (Id.) An officer “approach[ed]” Plaintiff

23 and while Plaintiff “asked for medical assistance, he didn’t call them.” (Id.) Plaintiff had

24 to “get up and walk home with severe pain.” (Id.)

25 Plaintiff seeks injunctive relief, $1,000,000 in punitive damages, and $5,000,000 for

26 “pain and suffering, emotional and mental distress.” (Id. at 13.)

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1 C. 42 U.S.C. § 1983

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

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

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

5 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

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

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

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

9 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,

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

11 D. Eighth Amendment Medical Care Claims

12 There is no question that prison officials act “under color of state law” when housing

13 and providing medical care to prisoners. See West v. Atkins, 487 U.S. 42, 49-50 (1988)

14 (“[G]enerally, a public employee acts under color of state law while acting in his official

15 capacity or while exercising his responsibilities pursuant to state law.”). Therefore, in

16 order to determine whether Plaintiff has pleaded a plausible claim for relief against any

17 named Defendant based on their alleged denials of his request for a specific medication,

18 the Court must review Plaintiff’s Complaint and decide whether it contains sufficient

19 “factual content that allows [it] to draw the reasonable inference” that “each Government-

20 official defendant, through the official’s own individual actions, has violated the

21 Constitution,” and thus, may be held “liable for the misconduct alleged.” Iqbal, 556 U.S.

22 at 676, 678.

23 Only “deliberate indifference to serious medical needs of prisoners constitutes the

24 unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.”

25 Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks

26 omitted). “A determination of ‘deliberate indifference’ involves an examination of two

27 elements: (1) the seriousness of the prisoner’s medical need and (2) the nature of the

28 defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

1 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.

2 1997) (en banc) (quoting Estelle, 429 U.S. at 104).

3 “Because society does not expect that prisoners will have unqualified access to

4 health care, deliberate indifference to medical needs amounts to an Eighth Amendment

5 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992)

6 (citing Estelle, 429 U.S. at 103–04). “A ‘serious’ medical need exists if the failure to treat

7 a prisoner’s condition could result in further significant injury or the ‘unnecessary and

8 wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at

9 104); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Mendiola-Martinez v. Arpaio,

10 836 F.3d 1239, 1248 (9th Cir. 2016). “The existence of an injury that a reasonable doctor

11 or patient would find important and worthy of comment or treatment; the presence of a

12 medical condition that significantly affects an individual’s daily activities; or the existence

13 of chronic and substantial pain are examples of indications that a prisoner has a ‘serious’

14 need for medical treatment.” McGuckin, 974 F.2d at 1059 (citing Wood v. Housewright,

15 900 F.2d 1332, 1337–41 (9th Cir. 1990)).

16 At the screening stage of these proceedings, the Court will assume that Plaintiff’s

17 claim of nerve pain is sufficient to show he suffers an objectively serious medical need.

18 See Compl. at 3; McGuckin, 974 F.2d at 1059.

19 However, even assuming Plaintiff’s health conditions are sufficiently serious, his

20 pleading fails to include any further “factual content” to show that any Defendant acted

21 with “deliberate indifference” to those needs. McGuckin, 974 F.2d at 1060; Jett, 439 F.3d

22 at 1096; Iqbal, 556 U.S. at 678. “Deliberate indifference is a high legal standard.” Hamby

23 v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citing Toguchi v. Chung, 391 F.3d

24 1051, 1060 (9th Cir. 2004)).

25 As to Dr. Zhang, Plaintiff contends that he took him off of pain medication,

26 Tramadol and Lyrica, which Plaintiff claims is the only medication “effective for nerve

27 damage pain.” (Compl. at 3.) Instead, Dr. Zhang prescribed Plaintiff “Cymbalta and

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1 Amitriptyline” which he claims are “ineffective” and thus, Plaintiff refused these

2 medications. (Id. at 5.)

3 Plaintiff then filed a number of grievances and seeks to hold liable the Defendants

4 who responded to these grievances. In these grievances, Defendants Roberts, Gates,2 and

5 Schobelock agreed with the course of treatment that Plaintiff was receiving and declined

6 to direct that Plaintiff be prescribed the medication of his choice. Id. at 6, 8–9.

7 While Plaintiff concludes Defendants acted with “deliberate indifference’ by failing

8 to prescribe the medication he believed was appropriate, his Complaint lacks the “further

9 factual enhancement” which demonstrates any Defendant’s “purposeful act or failure to

10 respond to [his] pain or possible medical need,” and any “harm caused by [this]

11 indifference.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557); Wilhelm v.

12 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 439 F.3d at 1096). This is

13 because to be deliberately indifferent, Defendants’ acts or omissions must involve more

14 than an ordinary lack of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012)

15 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. “A difference of

16 opinion between a physician and the prisoner—or between medical professionals—

17 concerning what medical care is appropriate does not amount to deliberate indifference.”

18 Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm,

19 680 F.3d at 1122–23. Instead, Plaintiff must plead facts sufficient to “show that the course

20 of treatment the doctor[] chose was medically unacceptable under the circumstances and

21 that the defendant[] chose this course in conscious disregard of an excessive risk to [his]

22 health.” Snow, 681 F.3d at 988 (citation and internal quotations omitted). Plaintiff has not

23 alleged any facts to support a showing that the medical care he received was medically

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27 2 Plaintiff refers to Gates as a Defendant in the body of his Complaint, see Compl. at 8 but does not list

him as a Defendant in the caption of the Complaint. Because Plaintiff specifically refers to Gates in the

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1 unacceptable under the circumstances. Instead, Plaintiff’s allegations show no more than

2 a difference of opinion as to the proper course of treatment between him and his doctors.

3 Thus, the Court finds that Plaintiff’s Complaint contains no facts sufficient to show

4 that any of his doctors or other medical officials acted with deliberate indifference to his

5 plight by “knowing of and disregarding an[y] excessive risk to his health and safety.”

6 Farmer v. Brennan, 511 U.S. 825, 837 (1994). Accordingly, Plaintiff’s Eighth Amendment

7 inadequate medical care claims are dismissed for failing to state a claim upon which relief

8 may be granted.

9 E. Individual Causation

10 Plaintiff claims that the pavement at RJD was “poorly constructed” and he “wrote a

11 letter to the Warden” notifying him that the pavement was a hazard causing inmates to “fall

12 out of their walker or wheelchairs.” (Compl. at 7.) Plaintiff “asked for the pavement to be

13 fixed.” (Id.) However, Plaintiff fails to state a plausible Eighth Amendment claim for

14 relief because he fails to include “further factual enhancement” which describes how or if

15 the unnamed Warden was ever aware of his letter or of the alleged issues with the

16 pavement. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).

17 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v.

18 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is

19 inapplicable to . . . § 1983 suits, [Plaintiff] must plead that each government-official

20 defendant, through the official’s own individual actions, has violated the Constitution.”

21 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los

22 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least

23 me degree of particularity overt acts which defendants engaged in” in order to state a

24 claim). “A plaintiff must allege facts, not simply conclusions, t[o] show that [each

25 defendant] was personally involved in the deprivation of his civil rights.” Barren v.

26 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks

27 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required

28 element of a § 1983 claim.”).

1 As currently pleaded, Plaintiff’s Complaint offers no factual detail from which the

2 Court might reasonably infer a plausible Eighth Amendment claim on the part of the

3 Warden. Federal Rule of Civil Procedure 8 “demands more than an unadorned, the-

4 defendant-unlawfully-harmed-me accusation,” and in order “[t]o survive a motion to

5 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

6 claim for relief that is plausible on its face.’” Iqbal, 662 U.S. at 678 (quoting Twombly,

7 550 U.S. at 555, 570). And allegations that a prison official “should have been aware of

8 [a] risk, but was not,” simply do not amount to an Eighth Amendment violation, “no matter

9 how severe the risk.’” Toguchi, 391 F.3d at 1051, 1060.

10 Moreover, supervisory officials may only be held liable under § 1983 if Plaintiff

11 alleges their “personal involvement in the constitutional deprivation, or . . . a sufficient

12 causal connection between the supervisor’s wrongful conduct and the constitutional

13 violation.” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018); Starr v. Baca, 652

14 F.3d 1202, 1207 (9th Cir. 2011). Plaintiff makes no such allegations in his Complaint.

15 Therefore, the Court DISMISSES the Warden sua sponte based on Plaintiff’s failure to

16 state a plausible Eighth Amendment claim against him.

17 F. CDCR

18 To the extent that Plaintiff seeks to name the California Department of Corrections

19 and Rehabilitation (“CDCR”) as a party, he fails to state a claim upon which § 1983 relief

20 can be granted. The CDCR is not a “person” subject to suit under § 1983. Hale v. State of

21 Arizona, 993 F.2d 1387, 1398–99 (9th Cir. 1993) (holding that a state department of

22 corrections is an arm of the state, and thus, not a “person” within the meaning of § 1983).

23 Therefore, Defendant CDCR is DISMISSED from this action without leave to amend.

24 Accordingly, the Court finds Plaintiff’s Complaint, considered together with the

25 exhibits he has attached, fails to state a plausible Eighth Amendment claim against any

26 named Defendant, and that therefore, it is subject to sua sponte dismissal in its entirety

27 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-

28 27; Rhodes, 621 F.3d at 1004.

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

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

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

4 963 F.2d 1258, 1261 (9th Cir. 1992)).

5 III. Conclusion and Order

6 For the reasons explained, the Court:

7 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

8 (ECF No. 2).

9 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from

10 Plaintiff’s trust account the $29.42 initial filing fee assessed, if those funds are available

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

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

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

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

15 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

16 ACTION.

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

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

19 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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

21 GRANTS him forty-five (45) days leave from the date of this Order in which to file an

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

23 Amended Complaint must be complete by itself without reference to his original pleading.

24 Defendants not named and any claim not re-alleged in his Amended Complaint will be

25 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

26 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

27 original.”); Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims

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1 dismissed with leave to amend which are not re-alleged in an amended pleading may be

2 “considered waived if not repled.”).

3 If Plaintiff fails to file an Amended Complaint within the time provided, the Court

4 || will enter a final Order dismissing this civil action based both on Plaintiffs failure to state

5 |{a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

6 || 1915A(b), and his failure to prosecute in compliance with a court order requiring

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

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

9 || dismissal of the complaint into dismissal of the entire action.’’).

10 IT IS SO ORDERED.

11 ||Dated: May 27, 2020 tt

12 pee Janis L. Sammartino

13 United States District Judge

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