Scott v. Yoo

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 BILLIE D. SCOTT, Case No.: 21-cv-1319-MMA (KSC)

CDCR #AY-8804

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ORDER GRANTING MOTION TO

13 PROCEED IN FORMA PAUPERIS

Plaintiff,

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vs. [Doc. No. 5]

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AND DISMISSING THE

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FRANK KEVIN YOO, et al., COMPLAINT FOR FAILURE TO

17 Defendants. STATE A CLAIM PURSUANT TO

28 U.S.C. § 1915(e)(2)(B) AND

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§ 1915A(b)

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20 On July 21, 2021, Billie D. Scott (“Plaintiff”), a state inmate currently incarcerated

21 at California Health Care Facility (“CHCF”), located in Stockton, California and

22 proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Doc.

23 No. 1 (“Compl.”). Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to

24 commence a civil action when he filed his Complaint; instead, he filed a motion to

25 proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), along with a motion

26 for extension of time to submit his prison trust account statement. See Doc. Nos. 2, 3.

27 On August 24, 2021, the Court denied Plaintiff’s request to proceed IFP, dismissed

28 the Complaint without prejudice, and granted Plaintiff an extension of time to either

1 prepay the $402 filing fee or file a renewed motion to proceed IFP. See Doc. No. 4. On

2 August 30, 2021, Plaintiff filed a motion to proceed IFP, along with a copy of this prison

3 trust account statement. See Doc. No. 5.

4 I. MOTION TO PROCEED IN FORMA PAUPERIS

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

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

7 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

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

10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation Reform Act’s

11 (“PLRA”) amendments to section 1915 require that all prisoners who proceed IFP to pay

12 the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84

13 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

14 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1)–(2); Taylor v.

15 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

16 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment

17 of fees to file an affidavit that includes a statement of all assets possessed and

18 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

19 Cir. 2015). In support of this affidavit, the PLRA also requires prisoners to submit a

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

21 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

22 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

23 trust account statement, the Court assesses an initial payment of twenty percent (20%) of

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

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52.

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

(eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to

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1 monthly balance in the account for the past six months, whichever is greater, unless the

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

3 institution having custody of the prisoner then collects subsequent payments, assessed at

4 twenty percent (20%) of the preceding month’s income, in any month in which his

5 account exceeds $10, and forwards those payments to the Court until the entire filing fee

6 is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84.

7 In support of his IFP Motion, Plaintiff has submitted a copy of his California

8 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report as

9 well as a Prison Certificate completed by an accounting officer at CHCF. See Doc. No. 5

10 at 4–7; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These

11 statements show Plaintiff maintained an average monthly balance of $612.37 and had

12 $241.67 in average monthly deposits credited to his account over the six (6) month period

13 immediately preceding the filing of his Complaint. His available balance as of July 14,

14 2021, was $589.12. See Doc. No. 5 at 4. Therefore, the Court GRANTS the motion and

15 assesses an initial partial filing fee of $122.47, pursuant to 28 U.S.C. § 1915(b)(1). The

16 remaining balance of the $350 total fee owed in this case must be collected by the agency

17 having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28

18 U.S.C. § 1915(b)(2).

19 II. INITIAL SCREENING PER 28 U.S.C. §§ 1915(E)(2)(B) & 1915A(B)

20 A. Legal Standard

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

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

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

24 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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

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

27 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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

1 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

2 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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

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

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

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

7 Cir. 2012) (noting that screening pursuant to section 1915A “incorporates the familiar

8 standard applied in the context of failure to state a claim under Federal Rule of Civil

9 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual

10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

11 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

12 570 (2007)); Wilhelm, 680 F.3d at 1121. In deciding whether to dismiss the complaint

13 for failure to state a claim, the court is generally bound by the facts and allegations

14 contained within the four corners of the complaint. Hydrick v. Hunter, 500 F.3d 978, 985

15 (9th Cir. 2007). However, if the plaintiff has supplemented the complaint by attaching

16 documents, the court may consider these documents as part of the complaint when

17 determining whether the plaintiff can prove the allegations asserted in the complaint.

18 During v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

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

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

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

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

23 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

24 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

25 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

26 (9th Cir. 2009).

27 Finally, while a plaintiff’s factual allegations are taken as true, courts “are not

28 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d

1 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Indeed, while

2 courts “have an obligation where the petitioner is pro se, particularly in civil rights cases,

3 to construe the pleadings liberally and to afford the petitioner the benefit of any doubt,”

4 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773

5 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that

6 were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268

7 (9th Cir. 1982). Even before Iqbal, “[v]ague and conclusory allegations of official

8 participation in civil rights violations [were] not sufficient to withstand a motion to

9 dismiss.” Id.

10 B. Plaintiff’s Allegations

11 Plaintiff alleges that in August 2019, while he was an inmate at R.J. Donovan State

12 Prison (“RJD”), he was referred to Tri City Medical Center (“TCMC”) in Oceanside,

13 California for spinal surgery. See Compl. at 3. The CDCR had a contract with TCMC at

14 the time to treat RJD patients referred there by prison doctors. Id. Plaintiff was seen by

15 Dr. Yoo, who reviewed Plaintiff’s MRI results and told him he needed “corrective

16 surgery on his spine to infuse his vertebral T-11 and T-12, to alleviate the debilitating

17 pain in Plaintiff’s lower back.” Id. The surgery was scheduled for sometime in

18 September 2019. Id. Shortly after seeing Dr. Yoo, Plaintiff’s pain worsened and became

19 “unmanageable, causing nerve damage and uncontrollable incontinence and . . . rather

20 than wait for the scheduled September procedure, . . . Plaintiff was sent to TCMC” on

21 August 31, 2021, for an “emergency visit.” Id. Plaintiff was seen by Dr. Yoo again, who

22 recommended they “expedite the surgery to fuse T-11 and T-12.” Id. Plaintiff was told

23 this was “standard procedure” and that Dr. Yoo had performed similar procedures

24 successfully a number of times. Plaintiff consented to the surgery. Id.

25 After the surgery, Plaintiff experienced severe pain and learned that “instead of

26 fusing T-11 and T-12, as was agreed during consultations,” Dr. Yoo had “installed

27 bolts/hardware into Plaintiff’s spin[al] cord [at] T-10.” Id. This required “swift

28 corrective surgery” that was ordered by RJD medical staff. On September 5, 2019,

1 Plaintiff was sent back to TCMC for corrective surgery and removal of the wrongly

2 installed bolts/hardware into T-10. While Plaintiff was at TCMC, Dr. Yoo visited him

3 and apologized for his error. Id. at 4. After the second surgery, Plaintiff states Dr. Yoo

4 “abandoned him” and he suffered additional complications as a result, including

5 developing fluid in his lungs. As a result of Dr. Yoo performing surgery on the wrong

6 vertebrae, Plaintiff states he has suffered pain, “lifelong mobility impairment and

7 incontinence.” Id. at 5. He seeks compensatory and punitive damages in a sum to be

8 determined by the factfinder. See id.

9 C. 42 U.S.C. § 1983

10 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

11 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451

12 F.3d 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, Plaintiff must

13 allege two essential elements: (1) a right secured by the Constitution or laws of the

14 United States was violated and (2) the alleged violation was committed by a person

15 acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v.

16 Frey, 789 F.3d 1030, 1035‒36 (9th Cir. 2015).

17 D. Eight Amendment Medical Care

18 To state a claim under the Eighth Amendment, Plaintiff must plead facts to

19 plausibly suggest that Defendants: (1) exposed him to a substantial risk of serious harm

20 and (2) did so with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 837,

21 842 (1994); Iqbal, 556 U.S. at 678. Specifically, in a medical care case such as this,

22 Plaintiff must first allege he suffered from or faced an objectively “serious medical

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

24 Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). “A medical need is serious when the

25 failure to treat it could result in significant injury or the unnecessary and wanton

26 infliction of pain.” Jett, 439 F.3d at 1096; see also McGuckin v. Smith, 974 F.2d 1050,

27 1059 (9th Cir. 1992) (overruled on other grounds by WMX Technologies, Inc. v. Miller,

28 104 F.3d 1133 (9th Cir. 1997)).

1 In addition, Plaintiff must allege facts sufficient to demonstrate Defendants acted

2 with “deliberate indifference” to his serious medical needs. See Erickson v. Pardus, 551

3 U.S. 89, 90 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[D]eliberate

4 indifference to serious medical needs of prisoners constitutes the unnecessary and wanton

5 infliction of pain . . . proscribed by the Eighth Amendment,” and this includes

6 “indifference . . . manifested by prison doctors in their response to the prisoner’s

7 needs.”)). “Deliberate indifference is a high legal standard.” Hamby v. Hammond, 821

8 F.3d 1085, 1092 (9th Cir. 2016) (citing Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.

9 2004)). Inadvertent failures to provide adequate medical care, mere negligence or

10 medical malpractice, delays in providing care (without more), and differences of opinion

11 over what medical treatment or course of care is proper, are all insufficient to constitute

12 an Eighth Amendment violation. Estelle, 429 U.S. at 105–07; Sanchez v. Vild, 891 F.2d

13 240, 242 (9th Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407

14 (9th Cir. 1985).

15 1. Defendant Dr. Yoo

16 Plaintiff alleges his Eighth Amendment rights were violated by Dr. Yoo, who he

17 contends was deliberately indifferent to his serious medical needs. Compl. at 3–5. He

18 claims Dr. Yoo was supposed to perform a fusion of his T-11 and T-12 vertebrae but

19 instead, Dr. Yoo “installed bolts/hardware into Plaintiff’s spinal cord at T-10 [vertebrae]

20 instead of fusing T-11 with T-12, as was agreed [upon] during consultations based on

21 MRIs [and] X-rays.” Id. at 3. As a result of Dr. Yoo’s error, Plaintiff required corrective

22 surgery a few days later to remove the bolts and hardware from T-10 and to fuse the T-11

23 and T-12, as originally intended. See id.

24 First, although Dr. Yoo is not a CDCR employee, Plaintiff alleges that the CDCR

25 contracted with TCMC and Dr. Yoo to provide medical services to RJD patients. Compl.

26 at 5. Prison officials act “under color of state law” when housing and providing medical

27 care to prisoners. See West, 487 U.S. at 49–50. The court in West also held that a

28 “private physician or hospital,” like Dr. Yoo, “act[s] under color of law for purposes of

1 § 1983,” when they perform under contract with a state prison, in this case RJD. See id.;

2 see also Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam)

3 (finding state action where hospital “contract[ed] with the state . . . to provide medical

4 services to indigent citizens”). Second, Plaintiff has alleged sufficient facts to show he

5 had an objectively “serious medical need.” See Jett, 439 F.3d at 1096 (stating that a

6 serious medical need exists when “the failure to treat it could result in significant injury

7 or the unnecessary and wanton infliction of pain”).

8 As discussed above, however, to state an Eight Amendment claim based on

9 inadequate medical care, Plaintiff must also allege facts to show Dr. Yoo was

10 “deliberately indifferent” to those medical needs. To meet this high standard, prison

11 officials must have “a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see

12 also Toguchi, 391 F.3d at 1060. Liability will not lie unless the official knows of and

13 disregards a substantial risk to inmate health or safety. “[T]he official must both be

14 aware of facts from which the inference could be drawn that a substantial risk of serious

15 harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see also

16 Hunt, 865 F.2d at 200. The state actor must “recognize[ ][an] unreasonable risk and

17 actually intend[ ] to expose the plaintiff to such risks without regard to the consequences

18 to the plaintiff.” L.W. v. Grubbs, 92 F.3d 894, 898–900 (9th Cir. 1996)). In other words,

19 the defendant “knows that something is going to happen but ignores the risk and exposes

20 [the plaintiff] to it.” Id. at 900.

21 Here, Plaintiff’s allegations do not rise to the level of deliberate indifference.

22 While Dr. Yoo’s purported mistake in operating on the wrong vertebrae is alarming,

23 Plaintiff alleges no facts to suggest Dr. Yoo purposely operated on the wrong vertebrae

24 with the intention to “expose [Plaintiff] to such risks without regard to the

25 consequences.” Id. at 899. Based on the facts alleged in the Complaint, Dr. Yoo

26 seemingly made a terrible mistake. However, allegations of medical malpractice alone

27 do not rise to a constitutional violation. Estelle, 429 U.S. at 106; see, e.g., Anderson v.

28 County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974 F.2d at 1050;

1 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). Even gross

2 negligence is insufficient to establish deliberate indifference to serious medical needs.

3 See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Instead, Plaintiff must

4 allege that “‘the course of treatment the doctors chose was medically unacceptable under

5 the circumstances’ and that the defendants ‘chose this course in conscious disregard of an

6 excessive risk to [his] health.’” Hamby, 821 F.3d at 1092 (citations omitted). Here, the

7 facts as alleged are insufficient to state an Eight Amendment claim of deliberate

8 indifference against Dr. Yoo. See id.; see also Fulford v. Griffen, No. C 13-2535 CW

9 (PR), 2013 WL 5371878, at *2 (N.D. Cal. Sept. 24, 2013) (concluding plaintiff failed to

10 state a claim for deliberate indifference when he alleged the prison doctor removed half

11 the bone in a toe that was not injured).

12 2. Defendant Tri City Medical Center

13 Plaintiff also alleges his Eight Amendment right to adequate medical care was

14 violated by TCMC. Compl. at 5. Plaintiff contends that at the time of his surgery,

15 TCMC had a contractual relationship with CDCR to provide treatment to RJD inmates.

16 As such, he has sufficiently alleged TCMC is a state actor. See Lopez, 939 F.2d at 883

17 (state action was sufficiently alleged by a complaint stating that the defendant hospital

18 was under contract with the State of Arizona to provide medical services to indigents);

19 George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 934 (N.D. Cal. 2010) (“A

20 private . . . hospital that contracts with a public prison system to provide treatment for

21 inmates performs a public function and acts under color of law for purposes of § 1983.”).

22 Plaintiff’s Eighth Amendment claim against TCMC, however, fails for the same

23 reason as his claim against Dr. Yoo. Plaintiff contends TCMC staff “abandoned” him

24 after his “second surgery by Dr. Yoo, their employee.” Compl. at 5. He states that after

25 the surgery, “TCMC staff” used an air pump during his recovery to assist him with

26 breathing but the pump was “broken” and caused him to develop fluid in his lungs. Id.

27 This, he alleges, required another corrective procedure to drain the fluid from his lungs.

28 Id. Plaintiff also contends TCMC “refused to apologize or attempt [to] remedy this

1 malpractice and battery or this deliberate and ‘malicious’ indifference.” Id.

2 Plaintiff, however, alleges no facts specific to TCMC that rise to the level of

3 deliberate indifference with regard to the surgeries performed by Dr. Yoo. Further, to the

4 extent he alleges deliberate indifference by TCMC related to use of an allegedly defective

5 “air pump,” he does not state that TCMC staff knew the pump was defective when it was

6 initially used to assist Plaintiff after surgery; nor does he allege that when the purported

7 defect was discovered, TCMC staff failed to take corrective action. See Compl. at 5.

8 Indeed, Plaintiff has not alleged facts to show TCMC “actually intended to expose the

9 plaintiff to such risks [of a faulty pump] without regard to the consequences.” See

10 Grubbs, 92 F.3d at 898–900. Thus, the Court finds the facts as alleged are insufficient to

11 state an Eighth Amendment claim of deliberate indifference against TCMC.

12 E. State Law Negligence, Medical Malpractice, and Intentional Tort Claims

13 In addition to his Eight Amendment claims against Dr. Yoo and TCMC, Plaintiff

14 alleges Dr. Yoo and TCMC were negligent and committed malpractice. Compl. at 3–5.

15 Plaintiff also claims that Dr. Yoo committed the battery under California tort law when

16 he operated on Plaintiff’s T-10 vertebrae without his consent. Id. at 3–4. “In any civil

17 action of which the district courts have original jurisdiction, the district courts shall have

18 supplemental jurisdiction over all other claims that are so related to claims in the action

19 within such original jurisdiction that they form part of the same case or controversy under

20 Article III of the United States Constitution.” 28 U.S.C. § 1367(a). However, “once

21 judicial power exists under § 1367(a), retention of supplemental jurisdiction over state

22 law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999,

23 1000 (9th Cir. 1997).

24 “The district courts may decline to exercise supplemental jurisdiction over a claim

25 under subsection (a) if . . . (3) the district court has dismissed all claims over which it has

26 original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that “if

27 the federal claims are dismissed before trial, . . . the state claims should be dismissed as

28 well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). As

1 discussed above, the Court has found Plaintiff’s Complaint fails to state a plausible claim

2 for relief. Therefore, in the absence of any viable federal claim upon which relief may be

3 granted, the Court exercises its discretion and DISMISSES Plaintiff’s supplemental state

4 law claims against Dr. Yoo and TCMC without prejudice pursuant to 28 U.S.C. §

5 1367(c)(3). Id.

6 F. Leave to Amend

7 Based on the foregoing, the Court finds Plaintiff’s Complaint fails to state any

8 section 1983 claim upon which relief can be granted, and that it must be dismissed sua

9 sponte and in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

10 See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because Plaintiff is

11 proceeding pro se, however, the Court having now provided him with “notice of the

12 deficiencies in his complaint,” will also grant him an opportunity to fix them. Akhtar v.

13 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258,

14 1261 (9th Cir. 1992)).

15 In light of Plaintiff’s pro se status, the Court grants him leave to amend his

16 pleading to attempt to sufficiently allege section 1983 claims against Defendants. See

17 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not

18 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. §

19 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint

20 could not be cured by amendment.’” (quoting Akhtar, 698 F.3d at 1212)).

21 III. CONCLUSION

22 For the foregoing reasons, the Court GRANTS Plaintiff’s motion to proceed IFP

23 pursuant to 28 U.S.C. § 1914(a) and/or 28 U.S.C. § 1915(a) and DIRECTS the Secretary

24 of the CDCR, or her designee, to collect from Plaintiff’s trust account the $122.47 initial

25 filing fee assessed, if those funds are available at the time this Order is executed, and

26 forward whatever balance remains of the full $350 owed in monthly payments in an

27 amount equal to twenty percent (20%) of the preceding month’s income to the Clerk of

28 Court each time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C.

1 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME

2 || AND NUMBER ASSIGNED TO THIS ACTION. The Court further DIRECTS the

3 Clerk of Court to serve a copy of this Order on Kathleen Allison, Secretary, CDCR, P.O.

4 || Box 942883, Sacramento, California, 94283-0001. Finally, the Court DISMISSES this

5 || civil action sua sponte based on Plaintiff's failure to state a claim upon which relief may

6 ||be granted and GRANTS Plaintiff forty-five (45) days leave from the date of this Order

7 which to file an Amended Complaint which cures the deficiencies of pleading noted

8 ||above. The Amended Complaint must be complete by itself without reference to his

9 || original pleading. Any defendants not named and any claim not re-alleged in his

10 |] Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach

11 || Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

12 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

13 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

14 ||amended pleading may be considered “waived if not repled’’).

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

16 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to state

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

18 || 1915A(b), and his failure to prosecute in compliance with a court order requiring

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

20 take advantage of the opportunity to fix his complaint, a district court may convert the

21 || dismissal of the complaint into dismissal of the entire action.””). The Court DIRECTS the

22 ||Clerk of Court to mail to Plaintiff, together with this Order, a blank copy of the Court’s

23 || form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983” for his use in amending.

24 IT IS SO ORDERED.

25 Dated: October 7, 2021

26 Mike lu ~ Ldilte

27 HON. MICHAEL M. ANELLO

28 United States District Judge

-12- 21-cv-1319-MMA (KSC)