# Rapinoe v. San Diego County Sheriffs Officer

> District Court, S.D. California · July 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10084038

## Case

- **Court:** District Court, S.D. California
- **Decided:** July 15, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10084038

## How later opinions describe it (automated extraction)

- noting that claims dismissed with leave to amend which are not re-alleged in an 16 ||amended pleading may be “considered waived if not repled.”
- noting that § 1915A screening “incorporates the familiar standard applied in the 27 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”
- noting that although prisoners have 6 federal constitutional rights to petition the government for redress of grievances and of 7 access to the courts, those rights are “not compromised by the prison’s refusal to entertain 8 his grievance.”

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 BRIAN JAMES RAPINOE, Case No.: 21cv1162-DMS (RBM)
BOOKING #20944775,
12
ORDER GRANTING MOTION TO
Plaintiff,
13 PROCEED IN FORMA PAUPERIS
vs. AND DISMISSING COMPLAINT
14
WITH LEAVE TO AMEND

15 PURSUANT TO 28 U.S.C.
SAN DIEGO COUNTY SHERIFF’S
§§ 1915(e)(2)(B) & 1915A(b)
16 OFFICE, DOCTOR MONTGOMERY,
DOCTOR RAFFI and DOCTOR ARCY,
17
Defendants.
18
19
20 Plaintiff Brian James Rapinoe, incarcerated at the Vista Detention Facility in Vista,
21 California, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.
22 (ECF No. 1.) Plaintiff claims he has been denied proper medical care because his knee
23 injury was not properly evaluated, his inmate grievances were not properly handled, and
24 the San Diego Sheriff’s Office has implemented a no-narcotics policy which prevents
25 doctors from providing proper medical care where narcotic pain medication is required.
26 (See id. at 2-5.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. Section
27 1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis
28 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (ECF No. 2.)
1 I. 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 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the
5 entire fee only if leave to proceed in forma pauperis (“IFP”) is granted pursuant to 28
6 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section
7 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a “certified copy
8 of the trust fund account statement (or institutional equivalent) for . . . the 6-month period
9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.
10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the
11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account
12 for the past six months, or (b) the average monthly balance in the account for the past six
13 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1)
14 &(4). The institution collects subsequent payments, assessed at 20% of the preceding
15 month’s income, in any month in which the account exceeds $10, and forwards those
16 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
17 Plaintiff remains obligated to pay the entire fee in monthly installments regardless of
18 whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28
19 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
20 Plaintiff’s prison certificate shows he had an average monthly balance of $0.83 and
21 average monthly deposits of $70.00 for the 6-months preceding the filing of this action,
22 and an available balance of $5.00. (ECF No. 2 at 4.)
23 The Court GRANTS Plaintiff’s Motion to Proceed IFP and declines to impose an
24 initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1) because his prison certificate
25

26
27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP,
must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial
28
1 indicates he may have “no means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing that
2 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil
3 action or criminal judgment for the reason that the prisoner has no assets and no means by
4 which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
5 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based
6 solely on a “failure to pay . . . due to the lack of funds available to him when payment is
7 ordered.”) Instead, the Court directs the Secretary of the CDCR, or her designee, to collect
8 the entire $350 balance of the filing fee required by 28 U.S.C. § 1914 and to forward it to
9 the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.
10 § 1915(b)(1).
11 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)
12 A. Standard of Review
13 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
14 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes,
15 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which
16 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are
17 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing
18 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
19 (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets
20 of frivolous or malicious suits need not bear the expense of responding.” Nordstrom v.
21 Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted).
22 “The standard for determining whether a plaintiff has failed to state a claim upon
23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
25 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
26 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
27 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule
28 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state
1 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
2 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
4 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
6 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
7 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
8 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
9 standard. Id.
10 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
11 acting under color of state law, violate federal constitutional or statutory rights.”
12 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a
13 source of substantive rights, but merely provides a method for vindicating federal rights
14 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation
15 marks and citations omitted). “To establish § 1983 liability, a plaintiff must show both
16 (1) deprivation of a right secured by the Constitution and laws of the United States, and
17 (2) that the deprivation was committed by a person acting under color of state law.” Tsao
18 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
19 B. Plaintiff’s Allegations
20 In his first cause of action, Plaintiff alleges that on January 1, 2017, the
21 Administrative and Medical Department of the San Diego Sheriff’s Office “implemented
22 a policy dictating a primary care physician mode of treatment in the use of narcotic pain
23 medication.” (ECF No. 1 at 3.) He contends the policy provides that every San Diego
24 Sheriff’s facility is a non-narcotic facility, and therefore every inmate, even before being
25 seen by a doctor, is already denied proper medical care to the extent narcotic medication is
26 medically necessary. (Id.) Plaintiff states that as a result he has been denied adequate
27 medical care at every San Diego Sheriff’s facility he has been housed in since 2017 which
28 “resulted in a further sustained injury during my stay in Pelican Bay State Prison.” (Id.)
1 He contends he was transferred to the custody of the San Diego Sheriff in November 2020
2 due to the Covid-19 pandemic, and “in place of my correct pain medication I am instead
3 given high doses of Tylenol & Motrin which exacerbates a pre-existing condition of
4 Hepatitis-C.” (Id.) Plaintiff does not identify his “correct pain medication,” but describes
5 his medical condition as involving an ACL tear, an ACL separation, a lateral meniscus tear
6 and advanced osteoarthritis, which requires him to use a cane with a risk of sudden
7 extremely painful knee dislocations. (Id. at 4.) He contends that even with his well-
8 documented medical history, the San Diego Sheriff’s Office policy “caused” Defendant
9 Chief Medical Officer Dr. Montgomery to order Defendants primary care physicians Dr.
10 Raffi and Dr. Arcy to “disregard” that documentation, resulting in constant pain arising
11 from gross negligence and cruel and unusual punishment. (Id. at 2-4.)
12 The second cause of action in the Complaint alleges that Plaintiff has submitted
13 numerous inmate grievances regarding the non-narcotic policy and the lack of proper
14 medical treatment and has spoken to officers to mediate his dispute. (Id. at 5.) He claims
15 that his grievance forms have been altered to be received as requests, thereby denying him
16 his right to the inmate grievance procedures. (Id.)
17 In the third and final cause of action, Plaintiff alleges Defendant Dr. Raffi and Dr.
18 Brown, who is not a named Defendant, have never evaluated his knee in an office setting,
19 but instead came to the door of his housing unit for a visual inspection while Plaintiff was
20 surrounded by other inmates and expected to discuss his medical needs. (Id. at 6.) He also
21 states that “they have directed the nursing staff to try and catch me cheeking my
22 psychotropic medication Wellbutrin so as to discontinue it.” (Id.)
23 Plaintiff claims he was denied adequate medical care, subjected to cruel and unusual
24 punishment, denied due process, received negligent medical care, and had his right to
25 patient confidentiality breached. (Id. at 3-6.) He seeks an injunction preventing the San
26 Diego Sheriff’s Office from directing how physicians treat their incarcerated patients, for
27 surgery to repair any injuries sustained as a result of the lack of proper medical care, as
28 well as compensatory and punitive damages. (Id. at 8.)
1 C. Analysis
2 “In order to prevail on an Eighth Amendment claim for inadequate medical care, a
3 plaintiff must show ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v.
4 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014), quoting Estelle v. Gamble, 429 U.S. 97,
5 104 (1976). “Deliberate indifference ‘may appear when prison officials deny, delay or
6 intentionally interfere with medical treatment, or it may be shown by the way in which
7 prison physicians provide medical care.’” Id., quoting Hutchinson v. United States, 838
8 F.2d 390, 394 (9th Cir. 1988).
9 “[A] prison official violates the Eighth Amendment when two requirements are met.
10 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.
11 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991).
12 Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently
13 culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.”
14 Id., quoting Wilson, 501 U.S. at 302-03. A prison official can be held liable only if he
15 “knows of and disregards an excessive risk to inmate health or safety; the official must
16 both be aware of facts from which the inference could be drawn that a substantial risk of
17 serious harm exists, and he must also draw the inference.” Id. at 837.
18 With respect to the first cause of action, there are no factual allegations in the
19 Complaint from which a plausible inference can be drawn that any named Defendant was
20 aware that without a narcotic drug Plaintiff faced an excessive risk to his health or safety,
21 and, knowing of that risk, deliberately disregarded it. Taken in the light most favorable to
22 Plaintiff, he alleges he is receiving improper medical care because the pain medication he
23 currently receives, Tylenol and Motrin, presents a risk to his liver because he has Hepatitis-
24 C, but he does not allege that a narcotic pain medication presents a lesser risk, or that any
25 doctor has or would prescribe a narcotic pain medication if they were permitted to do so.
26 The Complaint contains no allegation that Plaintiff has in the past or should now be
27 prescribed a narcotic drug. Rather, as currently drafted, the Complaint merely alleges that
28 the no-narcotics policy prevents treating physicians from providing proper medical care
1 whenever a narcotic drug is medically necessary, that he is currently at risk for painful knee
2 dislocations, and “in place of my correct pain medication I am instead given high doses of
3 Tylenol & Motrin which exacerbates a pre-existing condition of Hepatitis-C.” (ECF No.
4 1 at 3.) It is unclear whether Plaintiff contends his “correct pain medication” is a narcotic
5 which he should be receiving, or whether he anticipates a future knee dislocation where he
6 may need to be prescribed a narcotic. In any case, Plaintiff does not allege his treating
7 doctors would have prescribed him narcotics but for the policy, or that they are aware he
8 has a serious medical need for narcotic medication and have been deliberately indifferent
9 to that need. See Farmer, 511 U.S. at 837 (holding that a prison official can be held liable
10 only if he or she is “aware of facts from which the inference could be drawn that a
11 substantial risk of serious harm exists, and . . . also draw the inference.”); Iqbal, 556 U.S.
12 at 678 (the “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-
13 harmed me accusation[s]” fall short of stating a § 1983 claim). Although Plaintiff may
14 have intended to allege he has a serious medical need for narcotic pain medication he is
15 not receiving due to a no-narcotics policy, he has not done so in the Complaint as currently
16 drafted. While the court has an “obligation . . . where the petitioner is pro se, particularly
17 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the
18 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), citing Bretz v.
19 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc), it may not, in so doing, “supply
20 essential elements of the claim that were not initially pled.” Ivey v. Board of Regents of
21 the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
22 Even were the Court to liberally construe the Complaint as alleging Plaintiff has a
23 serious medical need for narcotic pain medication and is not receiving it due to the no-
24 narcotics policy, there remains an absence of factual allegations which plausibly allege that
25 any Defendant became aware of, or should have become aware of, Plaintiff’s serious
26 medical need for a narcotic drug but made a decision not to prescribe narcotic medication
27 based on deliberate indifference to that serious medical need rather than simply a
28 disagreement over the appropriate course of medical care. See Estelle, 429 U.S. at 105-07
1 (inadvertent failure to provide medical care, mere negligence or medical malpractice and
2 differences of opinion over what medical treatment is proper, do not state an Eighth
3 Amendment claim); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (“[T]o prevail
4 on a claim involving choices between alternative courses of treatment, a prisoner must
5 show that the chosen course of treatment was medically unacceptable under the
6 circumstances, and was chosen in conscious disregard of an excessive risk to (the
7 prisoner’s) health.”) (internal quote marks omitted). Although Plaintiff alleges the no-
8 narcotics policy “caused” Defendant Chief Medical Officer Dr. Montgomery to order
9 Defendants primary care physicians Drs. Raffi and Arcy to “disregard” information in his
10 medical file (ECF No. 1 at 4), there are no specific allegations in the Complaint regarding
11 what information Plaintiff refers to or whether that information would have required a
12 treating physician to prescribe narcotic pain medication. This “unadorned, the defendant-
13 unlawfully-harmed me accusation” falls short of meeting the plausibility pleading
14 standard, as “mere conclusory statements, do not suffice” to state a § 1983 claim. Iqbal,
15 556 U.S. at 678.
16 In order to cure the pleading defect against Defendants Drs. Montgomery, Raffi and
17 Arcy, Plaintiff must set forth factual allegations which plausibly suggest one or more of
18 the doctor Defendants determined or should have determined that prescribing a narcotic
19 drug would be the medically necessary course of treatment needed to prevent a serious risk
20 of harm to Plaintiff due to his medical condition but demonstrated a conscious disregard
21 of an excessive risk to his health by deliberately disregarding that risk in failing to prescribe
22 appropriate medication. Farmer, 511 U.S. at 844. Plaintiff’s failure to present factual
23 allegations which, if true, plausibly show he would have been prescribed narcotic
24 medication but for the no-narcotics policy, also fails to state a claim against Defendant San
25 Diego Sheriff’s Office. See City of Canton v. Harris, 489 U.S. 378, 385 (1989) (holding
26 that in order to state a claim for municipal liability, there must be a “direct causal link”
27 between the municipal policy and the alleged constitutional violation); see also Castro v.
28 Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc) (“It is not sufficient
1 for a plaintiff to identify a custom or policy, attributable to the municipality, that caused
2 his injury. A plaintiff must also demonstrate that the custom or policy was adhered to with
3 ‘deliberate indifference to the constitutional rights’ [of the plaintiff].”), quoting City of
4 Canton, 489 U.S. at 392.
5 The Court notes that it is not entirely clear from the face of the Complaint whether
6 Plaintiff was a pre-trial detainee at the time of the events or whether he was transferred to
7 the custody of the San Diego County Sheriff’s office to serve a term of incarceration as a
8 state prisoner. (See ECF No. 1 at 3-4.) If he was a pre-trial detainee at the time of the
9 events alleged in the Complaint, then an objective test under the Fourteenth Amendment
10 rather than a subjective Eighth Amendment analysis applies. See Bell v. Wolfish, 441 U.S.
11 520, 535 n.16 (1979) (noting that “the Due Process Clause [of the Fifth Amendment] rather
12 than the Eighth Amendment” is applicable to claims of pre-trial detainees because “Eighth
13 Amendment scrutiny is appropriate only after the State has complied with the constitutional
14 guarantees traditionally associated with criminal prosecutions.”) Unlike the Eighth
15 Amendment requirement that Defendants were aware of Plaintiff’s need for a narcotic
16 drug, the objective standard requires Plaintiff to allege “more than negligence but less than
17 subjective intent - something akin to reckless disregard.” Gordon v. Cty. of Orange, 888
18 F.3d 1118, 1125 (9th Cir. 2018). Even under an objective standard, however, allegations
19 of negligence or accident are insufficient to state a claim. Kinglsey v. Hendrickson, 576
20 U.S 389, 396 (2015); Daniels v. Williams, 474 U.S. 327, 331-32 (1986) (negligence does
21 not violate due process even if it causes injury). Plaintiff’s failure to allege he had an
22 objectively serious need for a narcotic drug, and his failure to allege he was examined by
23 a Defendant who was deliberately indifferent or showed a reckless disregard to that need
24 by failing to prescribe a narcotic drug, as opposed to a disagreement over the appropriate
25 course of medical treatment, fails to state a § 1983 claim under either standard.
26 Plaintiff alleges in his second count that his right to utilize inmate grievance
27 procedures was denied because his submissions were improperly treated as requests rather
28 than grievances. (ECF No. 1 at 5.) There is no independent constitutional right to an
1 inmate administrative appeal or grievance system. See Ramirez v. Galaza, 334 F.3d 850,
2 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific
3 prison grievance procedure.”), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)
4 (“There is no legitimate claim of entitlement to a [state prison] grievance procedure.”); see
5 also Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (noting that although prisoners have
6 federal constitutional rights to petition the government for redress of grievances and of
7 access to the courts, those rights are “not compromised by the prison’s refusal to entertain
8 his grievance.”) Thus, with respect to the allegations against the Defendants based on their
9 role in the processing of Plaintiff’s CDCR-602 Inmate Appeals, the Complaint fails to state
10 a claim because there is no constitutional requirement regarding how a grievance system
11 is operated. Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640; see also Wright v. Riveland,
12 219 F.3d 905, 913 (9th Cir. 2000) (identification of a constitutionally protected interest is
13 required to state a due process claim), citing Portman v. County of Santa Clara, 995 F.2d
14 898, 904 (9th Cir. 1993).
15 Finally, Plaintiff alleges in count three that Dr. Brown and Defendant Dr. Raffi have
16 never evaluated his knee in an office setting, but instead came to the door of his housing
17 unit for a visual inspection while Plaintiff was surrounded by other inmates and expected
18 to discuss his medical needs. (ECF No. 1 at 6.) Plaintiff’s allegation that he was examined
19 under less than ideal circumstances does not state a claim for denial of medical care, as
20 there are no allegations that the failure to conduct the examination in an office rather than
21 in the holding cell amounted to deliberate indifference to a serious medical need. See
22 Estelle, 429 U.S. at 105-07 (an inadvertent failure to provide medical care, mere negligence
23 or medical malpractice and differences of opinion over what medical treatment is proper,
24 do not state an Eighth Amendment claim); Gordon, 888 F.3d at 1124 (a “mere lack of due
25 care by a state official” is insufficient to state a constitutional claim for lack of medical
26 care by a pretrial detainee).
27 Accordingly, the Court sua sponte dismisses all claims in the Complaint against all
28 Defendants based on a failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii) &
1 § 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. To the extent
2 Plaintiff seeks to bring claims under state law, for negligence, medical malpractice, or
3 breach of medical confidentiality for example, the Court may “decline to exercise
4 supplemental jurisdiction” over any supplemental state law claim if it “has dismissed all
5 claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); Sanford v. Member
6 Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all federal-
7 law claims are eliminated before trial, the balance of factors to be considered under the
8 pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over
9 the remaining state-law claims.”) Because the Court has dismissed all of Plaintiff’s federal
10 claims, the Court declines to exercise supplemental jurisdiction over any state law claims
11 raised in the Complaint at this time.
12 D. Leave to Amend
13 In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading
14 to attempt to sufficiently allege a § 1983 claim against the dismissed Defendants if he can
15 and if he wishes to attempt to do so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.
16 2015) (“A district court should not dismiss a pro se complaint without leave to amend
17 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the
18 deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar v.
19 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
20 III. Conclusion and Orders
21 Good cause appearing, the Court:
22 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).
23 2. ORDERS the Secretary of the CDCR, or her designee, to collect from
24 Plaintiff’s prison trust account the $350 filing fee owed by collecting monthly payments
25 from Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding
26 month’s income and forwarding those payments to the Clerk of the Court each time the
27 amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). All
28 payments should be clearly identified by the name and number assigned to this action.
1 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen
2 || Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
3 ||942883, Sacramento, California 94283-0001.
4 4. DISMISSES all claims against all Defendants in the Complaint without
5 || prejudice and with leave to amend pursuant to 28 U.S.C. $§ 1915(e)(2) & 1915A(b).
6 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
7 || which to file a First Amended Complaint which cures the deficiencies of pleading noted in
8 || this Order with respect to any or all other Defendants. Plaintiff’s First Amended Complaint
9 || must be clearly entitled “First Amended Complaint,” include Civil Case No. 21cv1162-
10 |] DMS (RBM) in its caption and must be complete by itself without reference to his original
11 |}Complaint. Defendants not named and any claims not re-alleged in the First Amended
12 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.
13 ||v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (‘[A]n amended
14 || pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir.
15 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
16 ||amended pleading may be “considered waived if not repled.”)
17 6. DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its
18 Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use in amending
19 || should he choose to do so.
20 IT IS SO ORDERED.
21 ||Dated: July 15, 2021 » gf, p
22 a Yn:
33 Hon. Dana M. Sabraw, Chief Judge
United States District Court
24
25
26
27
28
12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10084038. Public record. Not legal advice.