Reyes v. Chief Medical Officer

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 LEO ANTHONY REYES, Case No.: 3:20-cv-01445-JLS-JLB

CDCR #F-61110,

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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

15 STATE A CLAIM PURSUANT TO

CHIEF MEDICAL OFFICER; 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)

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S. GATES, Chief Medical Officer; and

17 E. ESTOCK, Doctor for Facility “D,”

(ECF Nos. 1, 2)

18 Defendants.

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22 Plaintiff Leo Anthony Reyes, currently incarcerated at Calipatria State Prison

23 (“CAL”) and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C.

24 § 1983. See “Compl.,” ECF No. 1. Plaintiff claims Defendants denied him adequate and

25 timely medical care in violation of the Eighth Amendment. Id. at 3–4.

26 Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a); instead,

27 he filed a Motion to Proceed in Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).

28 See ECF No. 2.

1 MOTION TO PROCEED IN FORMA PAUPERIS

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

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

4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners who are granted leave to

8 proceed IFP remain obligated to pay the entire fee in “increments” or “installments,” Bruce

9 v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.

10 2015), regardless of whether their action is ultimately dismissed. See 28 U.S.C.

11 §§ 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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

14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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

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

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

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

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

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

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

23 136 S. Ct. at 629.

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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.

Oct. 1, 2019)). The additional $50 administrative fee does not apply to persons granted leave to proceed

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1 Plaintiff’s CDCR Inmate Statement Report and Prison Certificate show that he

2 carried an average monthly balance of $222.89 and had $68.33 in average monthly deposits

3 to his trust account for the six months preceding the filing of this action. See ECF No. 2 at

4 3–4. Plaintiff had an available balance of $136.66 at the time of filing. Id. at 3.

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

6 assesses his initial partial filing fee to be $44.57 pursuant to 28 U.S.C. § 1915(b)(1).

7 However, the Court will direct the Secretary of the CDCR, or her designee, to collect this

8 initial filing fee only if sufficient funds are available in Plaintiff’s account at the time this

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

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

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

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

13 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP

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

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

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

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

18 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2)(B) AND 1915A(B)

19 I. Standard of Review

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

21 preliminary review pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

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

23 thereof, if it is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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

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

26 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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

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

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)”).

8 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain

9 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

10 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);

11 Wilhelm, 680 F.3d at 1121. And, while the court “ha[s] an obligation where the petitioner

12 is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford

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

14 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply

15 essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ.

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

17 “Courts must consider the complaint in its entirety,” including “documents

18 incorporated into the complaint by reference,” to be part of the pleading when determining

19 whether the plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v.

20 Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep’t of Corrs.,

21 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) (“A copy of a

22 written instrument that is an exhibit to a pleading is a part of the pleading for all

23 purposes.”).

24 II. Plaintiff’s Allegations

25 Plaintiff includes few facts in the body of his Complaint, instead referring the Court

26 to CDCR 602 HC Health Care Grievance, Tracking #CAL HC 19000212, which is attached

27 and incorporated as an exhibit. See Compl. at 4, 8‒16. In this grievance, and in the body

28 of his pleading, Plaintiff claims he “properly filled out and submitted” a Healthcare

1 Services Request Form complaining of “excruciating pain [i]n [his] left knee” and

2 requesting that “an MRI be done” sometime in June 2019, but Defendant Dr. Erica Estock

3 denied his request, “stating that the MRI was not necessary.” Id. at 3, 8. Plaintiff claims

4 he was “repeatedly denied proper access to medical care,” and “wait[ed] weeks to months

5 to be seen by the prison physician” on CAL’s Facility D, even though the pain in his knee

6 disabled his sleep and limited his daily functions. Id. at 3, 4.

7 On November 2, 2019, Plaintiff filed Health Care Grievance CAL HC 19000212,

8 complaining that Dr. Estock had failed to provide him with an “adequate . . . examination,

9 diagnosis and treatment.” Id. at 8. He alleged that Dr. Estock was acting with “deliberate

10 indifference” to his needs and repeated his request for an MRI. Id. at 9. The January 23,

11 2020 Institutional Level Response to this grievance indicates Plaintiff’s health record was

12 reviewed, he was “seen on December 26, 2019 by Telemedicine for a left knee pain follow-

13 up appointment,” and an MRI was authorized and completed on January 17, 2020. Id. at

14 10, 11. By the time a Headquarters Level Response to CAL HC 19000212 was issued on

15 May 28, 2020 on behalf of Defendant S. Gates, the Chief of the California Correctional

16 Health Care Services Correspondence and Appeals Branch, Plaintiff had received a

17 physical exam; was “advised to rest, limit activity, and use non-steroidal anti-inflammatory

18 medication as needed”; and informed that left knee arthroscopic surgery had been approved

19 as of May 18, 2020. Id. at 16.

20 In fact, Plaintiff acknowledges he has received an x-ray and physical therapy, and

21 admits he “was placed on [a] surgery list, which is still pending.” Id. at 4, 6. But he now

22 seeks $150,000 in general and punitive damages against Dr. Estock, CAL’s unnamed Chief

23 Medical Officer, and S. Gates, because “it took medical staff a long time to provide [him]

24 with an MRI and medication for the pain.” Id. at 4, 7.

25 III. 42 U.S.C. § 1983

26 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

27 secured by the Constitution and laws of the United States, and (2) that the deprivation was

28 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

1 F.3d 1128, 1138 (9th Cir. 2012); see also Rawson v. Recovery Innovations, Inc., No. 19-

2 35520, __ F.3d __, 2020 WL 5405684, at *3 (9th Cir. Sept. 9, 2020) (“Pursuant to § 1983,

3 a defendant may be liable for violating a plaintiff’s constitutional rights only if the

4 defendant committed the alleged deprivation while acting under color of state law.”).

5 Plaintiff claims Dr. Estock was employed by CDCR and acted in her official and

6 individual capacity as a Facility D Doctor at CAL when she refused to order an MRI of his

7 knee in June 2019. See Compl. at 2, 3. Plaintiff also alleges Defendants S. Gates and the

8 unidentified Chief Medical Officer at CAL acted “under color of law” in their official and

9 individual capacities, although his Complaint includes no further factual allegations

10 describing their personal participation in the course of his medical treatment. See id. at 2.

11 While there is no “‘rigid formula’ for determining whether a state or local law

12 official is acting under color of state law . . . [,] [s]tate employment is generally sufficient

13 to render the defendant a state actor.” Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir.

14 2006) (citations omitted). Thus, the Court need only consider whether Plaintiff’s

15 Complaint “contain[s] sufficient factual matter” to demonstrate that Dr. Estock, S. Gates,

16 and CAL’s unidentified Chief Medical Officer, “through their own individual actions,

17 ha[ve] violated the Constitution.” Iqbal, 556 U.S. at 676, 678.

18 IV. Eighth Amendment—Medical Needs

19 Plaintiff claims Dr. Estock violated his rights to medical care and subjected him to

20 “cruel and unusual punishment” when she denied his request for an MRI as unnecessary.

21 See Compl. at 3. But this is a legal conclusion—and one that is not entitled to the

22 assumption of truth unless it is further supported by factual allegations that state a plausible

23 claim for relief. Iqbal, 556 U.S. at 678–79.

24 Where a prisoner’s constitutional claim is one for inadequate medical care, he must

25 allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious

26 medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jett v. Penner, 439 F.3d 1091,

27 1096 (9th Cir. 2006). The plaintiff must first establish a “serious medical need by

28 demonstrating that [the] failure to treat [his] condition could result in further significant

1 injury or the unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096 (citation

2 omitted). A medical need is serious “if the failure to treat the prisoner’s condition could

3 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”

4 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) (quoting Estelle, 429 U.S. at 104),

5 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

6 1997).

7 Next, the plaintiff must show that the defendant’s response to his objectively serious

8 medical need was deliberately indifferent. Jett, 439 F.3d at 1096. To establish deliberate

9 indifference, a prisoner must allege facts to show: (1) a purposeful act or failure to respond

10 to his pain or possible medical need; and (2) harm caused by the indifference. Id.

11 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060

12 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

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

14 but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan,

15 511 U.S. 825, 837 (1994)). “If a prison official should have been aware of the risk, but

16 was not, then the official has not violated the Eighth Amendment, no matter how severe

17 the risk.” Id. (citation omitted).

18 Here, even assuming Plaintiff’s complaints of significant knee pain were sufficient

19 to show he suffered an objectively serious medical need in June 2019, when he presented

20 himself to Dr. Estock in CAL’s medical clinic, he has failed to allege further facts sufficient

21 to show Dr. Estock ignored, let along purposefully disregarded, his need on that occasion

22 or any other. See Jett, 439 F.3d at 1096. Plaintiff does claim he continued to have knee

23 pain‒‒but he does not allege Dr. Estock knew his pain continued, was aware of facts to

24 suggest his condition had worsened, or drew any inference that he faced a substantial risk

25 of serious harm after she first determined an MRI was unnecessary sometime in June 2019.

26 See Toguchi, 391 F.3d at 1057. In addition, Plaintiff’s Health Care Grievance CAL HC

27 19000212, filed on November 2, 2019, also fails to explain what role Dr. Estock personally

28 played in the course of his care after her initial assessment. See Compl. at 4, 8; Iqbal, 556

1 U.S. at 677 (noting that “each Government official, his or her title notwithstanding, is only

2 liable for his or her own misconduct.”). And delay by itself, regardless of whether Plaintiff

3 had attributed, or could attribute, that delay to Dr. Estock, does not constitute deliberate

4 indifference. See Hallett v. Morgan, 296 F.3d 732, 745‒46 (9th Cir. 2002) (to establish a

5 claim of deliberate indifference arising from delay in providing care, a plaintiff must show

6 that the delay was harmful); see also Reyes v. Brown, No. 16-CV-84 JLS (BLM), 2018 WL

7 1905459, at *6 (S.D. Cal. Apr. 23, 2018) (finding allegations of delay between prisoner’s

8 initial treatment, follow-up, and surgical referral insufficient to support an Eighth

9 Amendment violation).

10 Thus, as currently pleaded, the Court finds Plaintiff’s Complaint fails to contain

11 “sufficient factual matter, accepted as true,” to plausibly show that Dr. Estock acted with

12 deliberate indifference to Plaintiff’s serious medical needs. Iqbal, 556 U.S. at 678. At

13 most, Plaintiff’s Complaint alleges either negligence or a difference of opinion between

14 Plaintiff and Dr. Estock in June 2019 as to the critical nature of his condition and/or the

15 appropriate course of treatment. Neither scenario, however, plausibly supports an Eighth

16 Amendment violation. See Toguchi, 391 F.3d at 1058 (“[A] mere difference of medical

17 opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.”)

18 (internal citation omitted); Reed v. Marshall, 1993 WL 372255, at *3 (N.D. Cal. Sept. 14,

19 1993) (“[A] difference of opinion, or even negligence in providing medical care, does not

20 rise to the level of an Eighth Amendment violation.” (internal citation omitted)).

21 Simply put, Plaintiff’s belief that he should have received a more immediate

22 intervention and/or a different course of diagnostic or arthroscopic treatment does not by

23 itself give rise to an Eighth Amendment claim. See Vaught v. Miranda, 2012 WL 525573,

24 at *11 (E.D. Cal. Feb. 16, 2012), aff’d, 502 Fed. Appx. 709 (9th Cir. 2013) (“Plaintiff’s

25 belief that he should have received a MRI is no more than a difference of opinions between

26 plaintiff and the defendants who provided and/or reviewed his medical treatment.”);

27 Estelle, 429 U.S. at 107 (“A medical decision not to order an X-ray, or like measures, does

28 not represent cruel and unusual punishment.”); Lively v. Tovar, 2012 WL 838483, at *5

1 (S.D. Cal. Feb. 14, 2012) (“Even if [p]laintiff’s self-diagnosis were correct, this would not

2 amount to deliberate indifference.”). As pleaded, and without “further factual

3 enhancement,” Bell Atlantic Corp. v. Twombly, 550 U.S 544, 557 (2007), Plaintiff’s

4 allegations are insufficient plausibly to plead that Dr. Estock’s June 2019 medical

5 assessment that an “MRI was not necessary” was medically unacceptable under the

6 circumstances or was implemented in conscious disregard of an excessive risk to his health.

7 See Compl. at 3, 8; Toguchi, 391 F.3d at 1058; see also Chavira v. Olukanmi, No.

8 LACV157371PAJCG, 2018 WL 1779349, at *2-3 (C.D. Cal. Mar. 14, 2018) (finding no

9 deliberate indifference where prisoner alleged to have been treated with non-steroidal anti-

10 inflammatory medication for knee pain, but was denied a requested MRI), report and

11 recommendation adopted, No. LACV157371PAJCG, 2018 WL 1787511 (C.D. Cal. Apr.

12 11, 2018).

13 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a plausible

14 Eighth Amendment inadequate medical care claim against Dr. Estock; therefore, Plaintiff’s

15 claims against Dr. Estock are subject to sua sponte dismissal pursuant to 28 U.S.C.

16 §§ 1915(e)(2)(b)(ii) and 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d

17 at 1121.

18 V. Personal Liability

19 Finally, with respect to the unnamed Chief Medical Officer at CAL and Chief

20 Medical Officer S. Gates, whom Plaintiff also has named as Defendants, the Complaint

21 contains no factual allegations as to their individual acts or omissions whatsoever. See

22 Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th

23 Cir. 1984) (even pro se plaintiff must “allege with at least some degree of particularity

24 overt acts which defendants engaged in,” in order to state a claim). Instead, Plaintiff

25 appears to hold these parties vicariously liable based on their job titles. “Because vicarious

26 liability is inapplicable to . . . § 1983 suits, [Plaintiff] must plead that each government-

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

28 Constitution.” Iqbal, 556 at 676. “A plaintiff must allege facts, not simply conclusions,

1 t[o] show that [each defendant] was personally involved in the deprivation of his civil

2 rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of

3 Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation

4 is, of course, a required element of a § 1983 claim.”). Supervisory officials may only be

5 held liable under § 1983 if Plaintiff alleges their “personal involvement in the constitutional

6 deprivation, or . . . a sufficient causal connection between the supervisor’s wrongful

7 conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242–43 (9th

8 Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

9 Although Plaintiff lists an unidentified CAL Chief Medical Officer and S. Gates as

10 Defendants, he points to no specific conduct by either of these parties and fails to connect

11 either of them to any decision made with respect to his medical care.2 In fact, Plaintiff

12 identifies each only by the positions they hold and does not mention them again. See

13 Compl. at 2. Therefore, the Court also dismisses Plaintiff’s Eighth Amendment claims

14 against CAL’s unnamed Chief Medical Officer and S. Gates sua sponte based on Plaintiff’s

15 failure to state a claim against either of them. See 28 U.S.C. §§ 1915(e)(2)(B)(ii),

16 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

17 VI. Leave to Amend

18 Because Plaintiff is proceeding without counsel, and it is not “absolutely clear that

19 the deficiencies of [his] complaint could not be cured by amendment,” the Court will grant

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2 The Court notes that the Headquarters Level Response to Plaintiff’s Health Care Grievance Appeal, CAL

22 HC 19000212, dated May 28, 2020, was “reviewed and signed” by a representative of the California

Correctional Health Care Services Correspondence and Appeals Branch “for” S. Gates, who is titled as its

23 “Chief.” See Compl. at 16. But nowhere in his Complaint, or in the appeals record Plaintiff attached as

an exhibit, does he allege Gates was involved in any treatment decisions at CAL, personally was

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responsible for reviewing Plaintiff’s health records, played any role in determining what diagnostic testing

25 was required to treat Plaintiff’s knee, or participated in Plaintiff’s surgical referral. Id. And, to the extent

Plaintiff seeks to hold Gates liable based solely on alleged “violations arising from his or her

26 superintendent responsibilities” with regard to the grievance review, see Iqbal, 556 U.S. at 677, he cannot

state a plausible claim for relief. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (finding prison

27 official’s processing or review of a prisoner’s grievance or appeal, without more, was insufficient to

support an independent basis for § 1983 liability because prisoners do not have a “separate constitutional

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1 him leave to fix the deficiencies, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

2 Cir. 2012) (“‘Before dismissing a pro se complaint the district court must provide the

3 litigant with notice of the deficiencies in his complaint in order to ensure that the litigant

4 uses the opportunity to amend effectively.’”) (quoting Ferdik v. Bonzelet, 963 F.2d 1258,

5 1261 (9th Cir. 1992)).

6 CONCLUSION

7 For the foregoing reasons, the Court:

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

9 (ECF No. 2).

10 (2) ORDERS the Secretary of the CDCR, or her designee, to collect from Plaintiff’s

11 trust account the $44.57 initial filing fee assessed, if those funds are available at the time

12 this Order is executed, and forward whatever balance remains of the full $350 owed, in

13 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s

14 income, to the Clerk of the Court each time the amount in Plaintiff’s account exceeds $10

15 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY

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

17 (3) DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen

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

19 (4) DISMISSES Plaintiff’s Complaint (ECF No. 1) sua sponte for failure to state a

20 claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)

21 and 1915A(b)(1).

22 (5) GRANTS Plaintiff 45 days’ leave from the date of this Order in which to file an

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

24 Amended Complaint must be complete in itself without reference to his original pleading.

25 Defendants not named and any claims not realleged in the Amended Complaint will be

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

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

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

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 Plaintiff’s 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: October 26, 2020 . tt

12 pee Janis L. Sammartino

3 United States District Judge

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