Musgrove v. Hanifin

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 IRVIN MUSGROVE, Case No.: 20-cv-00614-GPC

11 Plaintiff,

ORDER DISMISSING THE FIFTH

12 v. AMENDED COMPLAINT

WITHOUT PREJUDICE PURSUANT

13 ANGIE HANIFIN, SUSANA SOTO,

TO 28 U.S.C. § 1915(e)(2)(B)

MARGERY PIERCE, KEYSA

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MACHADO, AND OCEANSIDE

[ECF No. 49.]

15 HOUSING AUTHORITY,

16 Defendants.

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18 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and for the reasons that follow, the Court

19 DISMISSES Plaintiff’s Fifth Amended Complaint. Plaintiff will be granted one

20 additional opportunity to file a further amended complaint.

21 I. PROCEDURAL HISTORY

22 On March 31, 2020 Plaintiff Irvin Musgrove, proceeding pro se, initiated this

23 action. ECF No. 1. On the same day, Plaintiff filed a motion to proceed in forma

24 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. On June 3, 2020, Plaintiff

25 filed a Third Amended Complaint naming Angie Hanifin, Susana Soto, Margery Pierce,

26 Keysa Machado, and Oceanside Housing Authority as Defendants. ECF No. 13. On

27 August 4, 2020, this Court granted Plaintiff’s motion to proceed IFP and sua sponte

1 dismissed Plaintiff’s Third Amended Complaint without prejudice pursuant to 28 U.S.C.

2 § 1915(e)(2)(B). ECF No. 15. On August 5, 2020, Plaintiff filed a Fourth Amended

3 Complaint.1 ECF No. 16. On January 25, 2021, the Court sua sponte dismissed

4 Plaintiff’s Fourth Amended Complaint without prejudice. ECF No. 47. On January 27,

5 2021, Plaintiff filed a Fifth Amended Complaint (“5AC”). ECF No. 49.

6 A summons was subsequently issued on the 5AC and Plaintiff attempted to serve

7 Defendants, and later filed requests for entry of default and motions for default judgments

8 against Defendants. See ECF Nos. 48–75. The Court found Plaintiff’s requests for entry

9 of default and motions for default judgment must be denied because Plaintiff had not

10 established that he had properly served the Defendants and had not adequately supported

11 his motions for default judgment. ECF No. 76. However, the Court had not yet screened

12 the 5AC pursuant to 28 U.S.C. § 1915(e)(2)(B); had it done so and found the 5AC should

13 not be dismissed, the Court would have been required to order service be made by the

14 U.S. Marshal pursuant to Federal Rule of Civil Procedure (“Rule”) 4(c)(3) because

15 Plaintiff is proceeding IFP. Fed. R. Civ. P. 4(c)(3) (“The court must [] order [service be

16 made by a United States marshal or deputy marshal or by a person specially appointed by

17 the court] if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §

18 1915 or as a seaman under 28 U.S.C. § 1916.”). The Court therefore erred in requiring

19 Plaintiff to personally complete service of the 5AC.

20 However, under 28 U.S.C. § 1915(e)(2)(B), the Court shall first determine whether

21 the 5AC must be dismissed before ordering the U.S. Marshals to complete service of the

22 complaint. Accordingly, the Court will now review whether the 5AC fails to state a

23 claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

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1 Plaintiff filed two subsequent amendments to his complaint without seeking leave of the Court.

26 Because Plaintiff had already amended his complaint once as of right and was thus required to seek

leave to amend, Fed. R. Civ. P. 15(a), the Court struck these amended complaints from the record. See

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1 II. FACTUAL BACKGROUND

2 A. First and Second Reasonable Accommodation Requests

3 The following facts come from Plaintiff’s Fifth Amended Complaint filed on

4 January 27, 2021. ECF No. 49 (“5AC”). Plaintiff alleges that in June 2018, the

5 Oceanside Housing Authority (“OHA”) and his apartment manager “had a lapse in

6 communication” that resulted in the annual Section 8 inspection for his apartment not

7 being scheduled. Id. at 2.2 Plaintiff does not explicitly state what the inspection was for,

8 but it appears from the face of the complaint that the inspection focused on whether

9 certain repairs had been completed in Plaintiff’s apartment at the time. Id. Plaintiff

10 states that the final repair had been completed before the inspection deadline, but “[i]t

11 had totally slipped my mind due to my memory problem,” of which Plaintiff’s apartment

12 manager and his case manager, Susana Soto (“Soto”), were aware. Id. OHA did not pay

13 its rent portion for Plaintiff’s apartment. Id.

14 On July 3, 2018, when Plaintiff inquired why OHA had not paid its rent portion for

15 his apartment, Plaintiff was informed that the computer system reflected that he did not

16 want to live in the apartment anymore, even though he had told Soto that he wanted to

17 remain at the apartment. Id. Plaintiff then provided the OHA receptionist with a

18 statement confirming that he wanted to remain in his apartment. Id.

19 On July 9, 2018, Plaintiff received a “‘Housing Choice Voucher Termination

20 Notice’ due to a failed inspection,” and Soto confirmed that the termination was due to a

21 failed inspection. Id. Plaintiff called an OHA inspector, who said she would inspect the

22 apartment so that Plaintiff’s housing voucher could be reinstated. Id. The OHA

23 inspector came to the apartment to conduct the inspection, and the apartment passed. Id.

24 On July 20, 2020, Plaintiff called Soto to “tell her the good news,” but Soto informed

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1 Plaintiff “her hands were tied” and that Plaintiff’s housing voucher had been terminated.

2 Id. Plaintiff told Soto about his desire to stay in the apartment because of the hardship a

3 move would cause to Plaintiff and Plaintiff’s son, but Soto said “her hands were tied” and

4 told Plaintiff he needed to obtain a new housing voucher.3 Id. at 2–3. Plaintiff states that

5 he and his son “were hatefully & maliciously evicted by The OHA,” including by Soto

6 and her supervisor Angie Hanifin (“Hanifin”), who “helped make the decision,” and were

7 “discriminated against while being bullied into homelessness.” Id. at 3.

8 Plaintiff moved out of the apartment in mid-August 2018 and was unable to get an

9 apartment for a few months. Id. Plaintiff states that it was “extremely difficult for me to

10 get an apartment unlike before.” Id. Over the course of the next 9 months, Plaintiff

11 wrote to the OHA Director, Margery Pierce (“Pierce”) eight or nine times, and made a

12 Reasonable Accommodation Request (“RAR”). Id. Plaintiff does not describe what the

13 RAR requested. Plaintiff alleges Pierce never answered and passed the emails to Hanifin.

14 Id. at 3.

15 Because of Plaintiff’s housing voucher termination, Plaintiff and Plaintiff’s son did

16 not have housing for months. Id. While Plaintiff was homeless, Child Protective

17 Services took custody of Plaintiff’s son. Id.

18 B. Third Reasonable Accommodation Request

19 Plaintiff states that Plaintiff’s psychiatrist informed him that he had post-traumatic

20 stress disorder (“PTSD”) on top of his “major depression,” and that as a result he had

21 “developed an issue with making initial contacts with the property managers.” Id. at 4.

22 Plaintiff’s psychiatrist made an RAR to Pierce on Plaintiff’s behalf, seeking assistance in

23 securing a place for Plaintiff and his son. Id. This resulted in a meeting between Plaintiff

24 and Hanifin at an unidentified time. Id. Hanifin apparently told Plaintiff that OHA is not

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3 It is not clear from the 5AC whether Plaintiff is alleging that he made a Reasonable Accommodation

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1 required to help Plaintiff and only is required to provide him with a listing of rental units.

2 Id. Plaintiff said the only assistance he needed was for someone at OHA to call ahead to

3 the apartments and announce that he would be stopping by to fill out an application for an

4 apartment. Id. at 4–5. This RAR was denied. Id.

5 In the 5AC, Plaintiff does not state what relief he is seeking. In the Fourth

6 Amended Complaint, Plaintiff had sought damages for the over 18-month period during

7 which he experienced homelessness, the 12-month period during which his family “had

8 been torn apart,” the “traumatic affects [sic] homelessness [and] 12+ months that CPS

9 custody has had on [his son], and the two year period he had to endure with “extreme

10 pain in [his] hip that was in need of surgery.” ECF No. 16 at 5.

11 III. DISCUSSION

12 A. Legal Standard under 28 U.S.C. § 1915(e)(2)(B)

13 An action filed by a litigant proceeding IFP “shall” be dismissed if the action “(i) is

14 frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)

15 seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

16 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (noting that 28 U.S.C.

17 § 1915(e)(2)(B) is not limited to prisoners). When considering the pleadings of pro se

18 litigants, the Court interprets pleadings “liberally.” Draper v. Rosario, 836 F.3d 1072,

19 1080 (9th Cir. 2016). In giving liberal interpretation to a pro se civil rights complaint,

20 however, courts may not “supply essential elements of claims that were not initially

21 pled.” Ivey v. Bd. Of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

22 B. Federal Rule of Civil Procedure 8

23 Rule 8(a)(3) states that a complaint for relief must contain “a demand for the relief

24 sought.” Fed. R. Civ. P. 8(a)(3). A well-pleaded complaint “fully sets forth who is being

25 sued, for what relief, and on what theory, with enough detail to guide discovery.”

26 McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). Some indication of the relief

27 sought is necessary to permit the defendant to have fair notice of the claim. Cf.

1 McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Plaintiff’s 5AC is missing any

2 description whatsoever of the relief he seeks (for example, monetary damages). While

3 the Court recognizes that Plaintiff’s previous complaints indicated he is seeking monetary

4 damages, an amended complaint completely replaces the earlier complaints and the Court

5 cannot consider information in the earlier complaints. See Ferdik v. Bonzelet, 963 F.2d

6 1258, 1262 (9th Cir. 1992), as amended (May 22, 1992).

7 The Court therefore finds that the 5AC must be dismissed because Plaintiff has not

8 stated what relief he is seeking and the Court accordingly cannot conclude that the 5AC

9 states a claim for relief. However, the Court will grant Plaintiff leave to amend. The

10 Court cautions Plaintiff that his Sixth Amended Complaint must be complete in itself

11 without reference to prior complaints or filings, and that any claim not re-alleged in the

12 new amended complaint will be considered waived. See Lacey v. Maricopa Cnty., 693

13 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which

14 are not re-alleged in an amended pleading may be “considered waived if not repled.”).

15 C. Section 504 of the Rehabilitation Act

16 Because the Court will grant Plaintiff leave to amend, the Court also considers

17 whether Plaintiff has stated a claim under the Rehabilitation Act,4 to allow Plaintiff to fix

18 any deficiencies in his complaint prior to refiling.

19 The Ninth Circuit has held that Section 504 of the Rehabilitation Act, 29 U.S.C. §

20 794, which prohibits discrimination on the basis of disability by programs receiving

21 federal financial assistance, creates a private right of action. Kling v. Los Angeles Cty.,

22 633 F.2d 876, 878 (9th Cir. 1980). “[S]ection 504 guarantees ‘meaningful access’ to

23 programs or activities receiving federal financial assistance for otherwise qualified

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4 Plaintiff’s complaint includes statements suggesting that Defendants failed to comply with certain

26 requirements of the housing voucher program. See 5AC at 4. However, as Plaintiff’s claim appears to

be based solely on Defendants’ alleged discrimination on the basis of his disability, the Court analyzes

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1 handicapped individuals.” Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir. 1988) (quoting

2 Alexander v. Choate, 469 U.S. 287, 301 (1985)). “[T]o assure meaningful access,

3 reasonable accommodations in the . . . program or benefit [receiving federal financial

4 assistance] may have to be made.” Id.

5 To state a claim under the Rehabilitation Act, “a plaintiff must show that (1) she is

6 [disabled5] within the meaning of the [Rehabilitation Act]; (2) she is otherwise qualified

7 for the benefit or services sought; (3) she was denied the benefit or services solely by

8 reason of her [disability]; and (4) the program providing the benefit or services receives

9 federal financial assistance.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).

10 “A failure to provide reasonable accommodation can constitute discrimination under

11 section 504 of the Rehabilitation Act.” Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir.

12 2002). To obtain damages under the statute, a plaintiff must also show that the defendant

13 acted with deliberate indifference. See Lovell, 303 F.3d at 1056.

14 i. Federal Assistance

15 Plaintiff states that OHA administered the Section 8 housing program, seemingly

16 referring to the housing choice voucher program funded by the federal government.

17 From this, the Court can gather that Plaintiff alleges discrimination in a program that

18 receives federal financial assistance. At this stage, the Court need not determine whether

19 OHA in fact receives such assistance. See Bonner, 857 F.2d at 563 (“Whether the prison

20 or its programs receive federal financial assistance is a question of fact to be resolved in

21 the district court.”). The Court finds that Plaintiff adequately alleges the program at issue

22 receives federal financial assistance.

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1 ii. Individual with a Disability

2 For the purposes of a Rehabilitation Act claim, in order to be considered an

3 individual with a disability, the person must have “a physical or mental impairment that

4 substantially limits one or more major life activities,” have “a record of having such an

5 impairment,” or be “regarded as having such an impairment.” 42 U.S.C. § 12102(1); 29

6 U.S.C. § 705(20)(B) (incorporating ADA definition). “[M]ajor life activities include, but

7 are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating,

8 sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,

9 concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2).

10 “‘Substantially limits’ is not meant to be a demanding standard.” 29 C.F.R. § 1630.2.

11 Plaintiff states that he suffers from depression and post-traumatic stress disorder

12 (“PTSD”). Plaintiff alleges that this has caused him problems in contacting property

13 managers, as corroborated by his psychiatrist. 5AC at 4. Interacting with others has been

14 found to be a “major life activity.” See Weaving v. City of Hillsboro, 763 F.3d 1106,

15 1113 (9th Cir. 2014). However, mere interpersonal problems do not amount to a

16 disability; rather, a plaintiff must show that her “relations with others were characterized

17 on a regular basis by severe problems, for example, consistently high levels of hostility,

18 social withdrawal, or failure to communicate when necessary.” Id. (quoting McAlindin v.

19 County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999)). At this stage, the Court finds

20 that Plaintiff has sufficiently alleged that his PTSD and depression are impairments that

21 substantially limit his ability to communicate.

22 Plaintiff also indicates that he has a “memory problem,” 5AC at 2, but does not

23 allege that this problem is the result of any mental impairment or that it substantially

24 limits any major life activities. The Court therefore finds that the 5AC does not

25 adequately allege Plaintiff has a memory-related disability.

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1 iii. Otherwise Qualified for Program

2 A person is “otherwise qualified” under Section 504 if she “is able to meet all of a

3 program’s requirements in spite of” the disability. Southeastern Community College v.

4 Davis, 442 U.S. 397, 406 (1979); see also Jacobson v. Delta Airlines, Inc., 742 F.2d

5 1202, 1205 (9th Cir. 1984) (defining “otherwise qualified” as meeting all program

6 requirements other than those that are “unreasonable and discriminatory”).

7 Based on the Court’s initial review of the 5AC, Plaintiff appears to allege that he

8 would have been otherwise qualified for the housing voucher program had he received

9 what he claims are reasonable accommodations for his disability. Accordingly, at this

10 stage, the Court determines that Plaintiff has adequately alleged he was otherwise

11 qualified for the program.

12 iv. Discrimination through Denial of a Reasonable Accommodation

13 As noted above, the failure of the defendant to provide a reasonable

14 accommodation for the plaintiff’s disability can constitute discrimination under the

15 Rehabilitation Act. See Vinson, 288 F.3d at 1154; Mark H. v. Hamamoto, 620 F.3d 1090,

16 1096 (9th Cir. 2010). While Section 504 “does not require ‘substantial adjustments in

17 existing programs beyond those necessary to eliminate discrimination against otherwise

18 qualified individuals,’ it . . . does require reasonable modifications necessary to correct

19 for instances in which qualified disabled people are prevented from enjoying

20 ‘“meaningful access” to a benefit because of their disability.’” Mark H. v. Lemahieu, 513

21 F.3d 922, 937 (9th Cir. 2008) (quoting Southeastern Community College, 442 U.S. at

22 410). A requested accommodation must be “reasonable on its face, i.e., ordinarily or in

23 the run of cases,” or must be “reasonable on the particular facts” of the case. Giebeler v.

24 M & B Assocs., 343 F.3d 1143, 1157 (9th Cir. 2003) (quoting U.S. Airways, Inc. v.

25 Barnett, 535 U.S. 391, 401 (2002)). “Reasonableness ‘depends on the individual

26 circumstances of each case, and requires a fact-specific, individualized analysis of the

27 disabled individual’s circumstances and the accommodations that might allow him to

1 [enjoy meaningful access to the program.]’” Hamamoto, 620 F.3d at 1098 (quoting

2 Vinson, 288 F.3d at 1154) (alterations in original).

3 Here, Plaintiff indicates that OHA discriminated against him in three incidents: (1)

4 cancelling his housing voucher after the missed inspection and refusing to reinstate it

5 upon completion of the belated inspection; (2) refusing to grant Plaintiff’s RAR that he

6 emailed to Pierce after moving out of his apartment; and (3) refusing to grant the RAR

7 submitted by Plaintiff’s psychiatrist that requested OHA’s assistance in contacting

8 property managers so that Plaintiff could apply to apartments.

9 It follows that in order to state a Rehabilitation Act claim based on denial of a

10 reasonable accommodation, a plaintiff must first request an accommodation. See

11 Colombini v. Members of Bd. of Directors of Empire Coll. Sch. of Law, 2001 WL

12 1006785, at *7 (N.D. Cal. Aug. 17, 2001), aff’d sub nom. Colombini v. Members of Bd. of

13 Directors, 61 F. App’x 387 (9th Cir. 2003). It is unclear from the 5AC whether Plaintiff

14 requested a disability accommodation from OHA with respect to the late housing

15 inspection, and if so, what accommodation he requested and for what disability. Nor has

16 Plaintiff otherwise explained how the cancellation of his voucher was based solely on his

17 disability, rather than on the fact that he had not passed the housing inspection on time.

18 Additionally, as noted above, Plaintiff has not adequately alleged that he has a memory-

19 related disability that significantly interferes with major life activities. Thus, Plaintiff

20 does not adequately allege this event denied him access to the housing voucher program

21 solely as a result of his disability. Plaintiff’s complaint therefore does not state a claim

22 arising from the initial cancellation of his housing voucher or refusal to reinstate because

23 of the missed inspection.

24 With regard to the second incident, Plaintiff does not explain what disability

25 accommodation he requested in his emails to Pierce, or why he was unable to access the

26 voucher program without this accommodation. Plaintiff has therefore not alleged facts

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1 that would show he was denied a reasonable accommodation when Pierce did not

2 respond to his emails.

3 As to the third incident, Plaintiff states that his psychiatrist helped him submit an

4 RAR that requested OHA to provide assistance in contacting property managers, and that

5 OHA denied this request. 5AC at 4–5. Taking the facts in the complaint as true, Plaintiff

6 appears to allege that he was not able to meaningfully access the housing voucher

7 program without an accommodation because continued participation in the program

8 required him to contact property managers, which he was unable to do because of his

9 disability. At this stage, the Court also finds that the requested accommodation was

10 facially reasonable. While a defendant cannot be compelled to make a requested

11 accommodation if it requires a fundamental alteration of the program or imposes an

12 undue burden, the fact that an accommodation may bring about additional costs does “not

13 automatically disqualify a requested accommodation.” Giebeler, 343 F.3d at 1152

14 (emphasis in original); Pierce v. Cnty of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008).

15 Whether the accommodation is in fact reasonable is highly fact-specific, and thus

16 the Court need not resolve this question in determining whether Plaintiff’s complaint

17 should be sua sponte dismissed for failure to state a claim. See Disabled in Action v.

18 Board of Elections in the City of New York, 752 F.3d 189, 202 (2d Cir. 2014) (quoting

19 Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003)) (“‘[I]t is enough for the

20 plaintiff to suggest the existence of a plausible accommodation, the costs of which,

21 facially, do not clearly exceed its benefits,’ and once this is done ‘the risk of

22 nonpersuasion falls on the defendant.’”); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d

23 131, 139 (2d Cir. 1995) (summary judgment is appropriate only “in cases in which the

24 plaintiff’s proposal is either clearly ineffective or outlandishly costly.”).

25 Accordingly, the Court finds that Plaintiff has plausibly alleged that he was

26 discriminated against by OHA’s denial of the RAR that sought OHA’s assistance in

27 contacting property managers on his behalf.

1 v. Deliberate Indifference

2 Compensatory damages are only available under the Rehabilitation Act if the

3 defendant acted with deliberate indifference. Lovell, 303 F.3d at 1056. “Deliberate

4 indifference requires both knowledge that a harm to a federally protected right is

5 substantially likely, and a failure to act upon that likelihood.” Id. (quoting Duvall v.

6 County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)). The defendant has the requisite

7 knowledge when the defendant “has notice that an accommodation is required,” and fails

8 to act when the defendant’s failure to provide the accommodation “involves an element

9 of deliberateness.” Id.

10 As noted, Plaintiff does not state in the 5AC what relief he seeks. However,

11 because Plaintiff’s previous complaint indicates that he seeks damages, the Court will

12 address the deliberate indifference standard in the event that Plaintiff amends his

13 complaint to include a request for damages. With respect to the first two incidents

14 described above—namely, the cancellation of Petitioner’s housing voucher due to his

15 delayed housing inspection and Pierce’s failure to respond to the emails sent by Plaintiff

16 that included an unspecified RAR—Plaintiff has not adequately alleged that OHA knew

17 that he required an accommodation and deliberately failed to provide it. As to the RAR

18 submitted by Plaintiff’s psychiatrist, however, Plaintiff sufficiently alleges that OHA had

19 notice of the required the accommodation and deliberately refused to provide it.

20 Thus, if Plaintiff includes a request for compensatory damages in his Sixth

21 Amended Complaint, the Court would find that he likely can allege deliberate

22 indifference with respect to the actions taken in response to the RAR submitted by

23 Plaintiff’s psychiatrist, but not with respect to two prior incidents.

24 vi. Summary

25 While Plaintiff’s 5AC must be dismissed because of his failure to request any

26 relief, the Court finds that the allegations are otherwise potentially sufficient to state a

27 claim under Section 504 of the Rehabilitation Act arising from Defendants’ denial of the

1 RAR submitted by Plaintiff’s psychiatrist.6 However, the Court finds that the allegations

2 with respect to (1) the initial cancellation and refusal of reinstatement of Plaintiff’s

3 housing voucher and (2) the emails Plaintiff sent to Pierce regarding an unspecified RAR

4 are not sufficient to support a Rehabilitation Act claim. If Plaintiff wishes to allege a

5 Rehabilitation Act claim arising from these incidents, he must fix the issues identified

6 above.

7 D. Leave to Amend

8 “A pro se litigant must be given leave to amend his or her complaint, and some

9 notice of its deficiencies, unless it is absolutely clear that the deficiencies of the

10 complaint could not be cured by amendment.” Cato v. United States, 10 F.3d 1103, 1106

11 (9th Cir. 1995) (citing Noll v. Carlson, 803 F.2d 1446, 1448 (9th Cir. 1987)). However,

12 where amendment of a pro se litigant’s complaint would be futile, denial of leave to

13 amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

14 As noted above, the Court will grant Plaintiff leave to amend to cure the

15 deficiencies identified above. If Plaintiff wishes to do so, Plaintiff must file a Sixth

16 Amended Complaint within 30 days of the publication date of this order. Plaintiff is

17 reminded that he must re-allege any claims he wishes to bring in the Sixth Amended

18 Complaint; he cannot rely on information alleged in earlier filings. The Court further

19 cautions Plaintiff that any further failures to fix the deficiencies in his complaint may lead

20 to dismissal without leave to amend. See Rutman Wine Co. v. E. & J. Gallo Winery, 829

21 F.2d 729, 738 (9th Cir. 1987).

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6 The Court notes that sua sponte screening under Section 1915 is not intended to be a replacement for a

26 motion to dismiss filed by a defendant. Thus, defendants are not precluded from challenging this claim

merely because the Court did not decide it was subject to dismissal sua sponte. See Teahan v. Wilhelm,

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1 IV. CONCLUSION

2 For the reasons set forth above, the Court DISMISSES the Fifth Amended

3 Complaint under 28 U.S.C. § 1915(e)(2). Plaintiff is GRANTED 30 days to cure the

4 || deficiencies in his Fifth Amended Complained, as outlined above, by filing a Sixth

5 || Amended Complaint.

6 The Court also clarifies that Plaintiff shall not be required to personally serve

7 Defendants his Sixth Amended Complaint. Pursuant to Rule 4(c)(3), the Court shall

8 || direct the U.S. Marshals to effect service of the complaint at Plaintiff's request should

9 || Plaintiff's Sixth Amended Complaint not be dismissed pursuant to 28 U.S.C. §

10 |] 1915(e)(2)(B).

11 The Court additionally DENIES as moot Plaintiff's pending requests for entry of

12 clerk default (ECF Nos. 84-88).

13 IT IS SO ORDERED.

14 || Dated: May 12, 2021

15 Hon. athe Cae

16 United States District Judge

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