“Ifa plaintiff does not take advantage 7 ||of the opportunity to fix his complaint, a district court may convert the dismissal of the 8 ||complaint into dismissal of the entire action.”’
How later courts described this case
- “Ifa plaintiff does not take advantage 7 ||of the opportunity to fix his complaint, a district court may convert the dismissal of the 8 ||complaint into dismissal of the entire action.”’
- noting that claims 28 dismissed with leave to amend which are not re-alleged in an amended pleading may be 1 || “considered waived if not repled’’
- discussing 28 23 U.S.C. § 1915A(b)
- district court properly dismissed § 1983 claims against defendants who 25 “were only involved in the appeals process”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 ALEX ISTOK ACUNA Case No.: 21cv1910-LL-AGS
CDCR #P-85538,
12
ORDER (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
vs. PAUPERIS [ECF No. 2] AND (2)
14
DISMISSING COMPLAINT FOR
MARCUS POLLARD, Warden, M.
15 GLYNN, C.E.O.1, R. VARGAS, FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C.
16 Correctional Sergeant, C. GIPSON,
§ 1915(e)(2) AND 28 U.S.C. § 1915A(b)
Director of Adult Institutions, B.
17
HENDRICKS, C.D.W., HOWARD
18 MOSELY, Associate Director,
STEADMAN, L.V.N, S. GATES, Health
19
Care Correspondence Appeals Branch,
20 Defendants.
21
22 Alex Acuna, (“Acuna” or “Plaintiff”), currently incarcerated at Richard J. Donovan
23 State Prison (“RJD”) located in San Diego, California, and proceeding pro se, has filed a
24 civil rights complaint pursuant to 42 U.S.C. § 1983, together with a motion to proceed in
25 forma pauperis (“IFP”). See Compl., ECF No. 1; ECF No. 2.
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1 I. Motion to Proceed IFP
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 $402.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
5 prepay the entire fee only if granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a).
6 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169
7 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP
8 remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels,
9 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and
10 regardless of whether the action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2);
11 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,
23 577 U.S. at 85.
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2 In civil actions except for applications for a writ of habeas corpus, civil litigants bringing
26
suit must pay the $350 statutory fee in addition to a $52 administrative fee. See 28 U.S.C.
27 § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14
(eff. Dec. 1, 2020). The $52 administrative fee does not apply to persons granted leave to
28
1 In support of his IFP Motion, Acuna submitted a certified copy of his trust account
2 statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. See ECF No. 2
3 at 5–7; Andrews, 398 F.3d at 1119. The Court has reviewed Acuna’s trust account activity,
4 as well as the attached prison certificate verifying his available balances. See ECF No. 2 at
5 5–7. These documents show that Acuna carried an average monthly balance of $0.00, had
6 average monthly deposits to his trust account for the six months preceding the filing of this
7 action of $0.00, and an available balance of $0.00 at the time of filing. See id. at 5.
8 Therefore, the Court GRANTS Acuna’s Motion to Proceed IFP (ECF No. 2) and
9 assesses no initial partial filing fee because his trust account statement shows he “has no
10 means to pay it.” Bruce, 577 U.S. at 84–85. The Court directs the Secretary of the
11 California Department of Corrections and Rehabilitation (“CDCR”) to collect the entire
12 $350 balance of the filling fees required by 28 U.S.C. § 1914 and forward them to the Clerk
13 of Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
14 Id.
15 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
16 A. Standard of Review
17 Because Acuna is a prisoner, his Complaint requires a pre-answer screening pursuant
18 to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court must sua
19 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,
20 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
21 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C.
22 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28
23 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous
24 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
25 903, 920 n.1 (9th Cir. 2014) (citation omitted).
26 “The standard for determining whether Acuna has failed to state a claim upon which
27 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
28 Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108,
1 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)
2 (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in
3 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”).
4 Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted as true, to
5 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
6 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
7 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
8 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
9 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
10 [is] . . . . a context-specific task that requires the reviewing court to draw on its judicial
11 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
12 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
13 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
14 B. Plaintiff’s Factual Allegations
15 Acuna alleges that while he was incarcerated at RJD in December of 2020, a fellow
16 inmate, Sancho, was placed in quarantine for a suspected case of Covid-19. Compl., ECF
17 No. 1 at 3. According to Acuna, Sancho tested negative for Covid-19 on December 5, 2020,
18 but remained in quarantine during which time Sancho “was exposed to infected inmates
19 for eleven days and [and then] transferred to Echo Yard without prior Covid screening.”
20 Id. Following Sancho’s transfer, an outbreak of Covid-19 occurred, “beginning in Sancho’s
21 6 man cell,” which spread to other cells. Id. On December 19, 2021, Acuna tested positive
22 for Covid-19, which he alleges was a result of prison officials’ “fail[ure] to implement
23 proper protocol which would have stopped the spread.” Id. On December 20,2020, Acuna
24 filed a grievance claiming the Covid-19 protocols implemented by RJD were insufficient
25 and the cause of his Covid-19 infection, which was denied. Id. at 3–4.
26 On December 29, 2020, Acuna and thirty other inmates who were sick with Covid-
27 19 and in quarantine were “asked to relocate to the gym on day 13 of the 14-day
28 quarantine.” Id. at 4. Acuna alleges that he and the other inmates refused to be relocated
1 because they were worried about being exposed to another Covid-19 variant. Id.; ECF No.
2 1-1 at 15. He further claims that “on two prior occasions during this quarantine two separate
3 mass bed relocations occurred without any safety protocols observed which only
4 aggravated the outbreak.” Compl. at 4. Disciplinary proceedings were initiated against
5 Acuna for his refusal. Id.; ECF No. 1-1 at 15.
6 Acuna filed several grievances alleging the Covid-19 protocols at RJD were
7 insufficient and were contributing to the spread of Covid-19 at RJD, which were denied.
8 Id.; ECF No. 1-1 at 6–14, 17–21, 24–25. Acuna also filed health care grievances on
9 February 12 and 21, 2021, claiming he was “being discouraged from having my post-
10 Covid-19 illnesses diagnosed and treated” which were denied. Id.; ECF No. 1-1 at 27–40.
11 Acuna appealed the denials of his grievances but alleges that “none of his numerous
12 appeals were addressed on their merits[,] but instead were time barred.” Compl., ECF No.
13 1 at 4; ECF No. 1-1 at 6–14, 17–21, 24–25, 27–40.
14 According to Acuna, RJD “entered into phase 1 Covid-19 status due to another
15 outbreak of covid” on April 19, 2021. Id.; ECF No. 1-1 at 40–48. Acuna alleges that under
16 phase 1 conditions, “absolutely no inmate moves or transfers are to occur . . . . [b]ut inmate
17 Steven Fenner #AT-9225 was transferred from Delta Yard to Echo Yard against protocol.”
18 Compl., ECF No. 1 at 4. Acuna filed a grievance alleging Fenner’s transfer violated the
19 phase 1 Covid-19 protocols, which was denied. ECF No. 1-1 at 40–41, 45. Acuna appealed
20 the denial but received no response. Id. at 42–45.
21 C. 42 U.S.C. § 1983
22 “Section 1983 creates a private right of action against individuals who, acting under
23 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
24 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
25 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
26 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citations
27 omitted). “To establish § 1983 liability, Acuna must show both (1) deprivation of a right
28 secured by the Constitution and laws of the United States, and (2) that the deprivation was
1 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698
2 F.3d 1128, 1138 (9th Cir. 2012).
3 D. Discussion
4 1. Eighth Amendment
5 Although Acuna does not specifically identify the Eighth Amendment as the basis
6 for his claims about contracting and being treated for Covid-19, when a specific
7 constitutional Amendment “provides an explicit textual source of constitutional protection
8 against a particular sort of government behavior, that Amendment . . . . must be the guide
9 for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality)
10 (quotation marks omitted). Acuna’s allegations are most properly interpreted as Eighth
11 Amendment claims.
12 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”
13 U.S. Const. Amend. VIII. In order to state a plausible Eighth Amendment claim for relief,
14 a Plaintiff must allege facts sufficient to show that Defendants acted with “deliberate
15 indifference.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016); Iqbal,
16 556 U.S. at 678. “A prison official acts with ‘deliberate indifference . . . . only if the [prison
17 official] knows of and disregards an excessive risk to inmate health and safety.’” Toguchi
18 v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290
19 F.3d 1175, 1187 (9th Cir. 2002)), overruled on other grounds by Castro, 833 F.3d at 1076.
20 “Under this standard, the prison official must not only ‘be aware of facts from which the
21 inference could be drawn that a substantial risk of serious harm exists,’ but that person
22 ‘must also draw the inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837
23 (1994)). Prison officials have a duty to protect inmates from communicable diseases. See,
24 e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (finding prison officials may not “be
25 deliberately indifferent to the exposure of inmates to a serious, communicable disease”);
26 Hutto v. Finney, 437 U.S. 678, 682–83 (1978) (affirming a finding of an Eighth
27 Amendment violation where a facility housed individuals in crowded cells with others
28 suffering from infectious diseases, such as Hepatitis and venereal disease, and the
1 individuals’ “mattresses were removed and jumbled together each morning, then returned
2 to the cells at random in the evening”); Cervantes, 493 F.3d at 1050 (recognizing a cause
3 of action under the Eighth Amendment and 42 U.S.C. § 1983 for an alleged policy of not
4 screening inmates for infectious diseases – HIV, Hepatitis C, and Heliobacter pylori – and
5 for housing contagious and healthy individuals together during a known “epidemic of
6 hepatitis C”); Maney v. Brown, 516 F. Supp. 3d 1161, 1179 2021 WL 354384, at *12 (D.
7 Or. Feb. 2, 2021) (citing cases recognizing prison officials’ duty to protect inmates from
8 exposure to communicable diseases under the Eighth Amendment).
9 Acuna lists eight defendants in his Complaint. Compl., ECF No. 1 at 1–2. But
10 nowhere in the body of his Complaint does he explain what actions any individual
11 defendant took or failed to take which violated his Eighth Amendment rights. An official
12 can only be liable in a § 1983 action for his or her own misconduct. Iqbal, 556 U.S. at 677.
13 “A plaintiff must allege facts, not simply conclusions, that show that [each defendant] was
14 personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d
15 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks v. United States, 197
16 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required element of a § 1983
17 claim”). While the Court acknowledges Covid-19 poses a substantial risk of serious harm,
18 see Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one
19 questions that [Covid-19] poses a substantial risk of serious harm” to prisoners.”), in order
20 to plead a viable Eighth Amendment claim, Acuna must provide more than conclusory
21 statements that prison officials did not do enough to control the spread of the disease within
22 the entire prison, did not adhere to Covid-19 protocols, or did not provide him sufficient
23 follow-up medical care. See Iqbal, 556 U.S. at 678. He must plead some factual content to
24 plausibly suggest each defendant acted with a “sufficiently culpable state of mind.” Id. at
25 297 (internal quotation marks, emphasis and citations omitted); see also Booth v. Newsom,
26 No. 2:20-cv-1562 AC P, 2020 WL 6741730, at *3 (E.D. Cal. Nov. 17, 2020) (sua sponte
27 dismissing Eighth Amendment claims against the Governor for “failing to provide
28 adequate means for prisoners to reduce their exposure to Covid-19”); see also Blackwell v.
1 Covello, No. 2:20-CV-1755 DB P, 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021)
2 (failure to state a claim against warden for failure to adequately control the spread of Covid-
3 19 in the prison).
4 Here, Acuna has not provided the Court with sufficient allegations to plausibly
5 allege an Eighth Amendment violation because the Complaint does not contain any
6 individualized allegations against any of the eight Defendants. Iqbal, 556 U.S. at 676; see
7 also Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007) (stating that an
8 individual’s liability under § 1983 “is predicated on his ‘integral participation’ in the
9 alleged violation”) (quoting Chuman v. Wright, 76 F.3d 292, 294–95 (9th Cir. 1996)); see
10 also Benitez v. Sierra Conservation Ctr., Warden, No. 1:21-CV-00370-BAM PC, 2021 WL
11 4077960, at *6 (E.D. Cal. Sept. 8, 2021) (“In order to state a cognizable Eighth Amendment
12 claim against the warden and the Health Executive Officer, Plaintiff must provide more
13 than generalized allegations that the warden and the Health Executive Officer have not
14 done enough regarding control the spread [of Covid-19].”), report and recommendation
15 adopted, 2021 WL 4593841 (E.D. Cal. Oct. 6, 2021). Thus, Plaintiff’s Eighth Amendment
16 claims must be dismissed sua sponte for failing to state an Eighth Amendment claim upon
17 which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
18 § 1915A(b)(1). See Watison 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.
19 2. Grievance Procedure/Due Process
20 Acuna faults Defendants for failing to respond to his appeals within the sixty-day
21 time limit set by Title 15, § 3486(i)(10), resulting in the response to his appeals being “time
22 expired” and no decisions on the merits of his appeals. Compl., ECF No. 1 at 4; ECF No.
23 1-1 at 9, 24–25, 48. As with his Eighth Amendment claims, the Complaint does not contain
24 any individualized allegations regarding the handling of his grievances against any of the
25 eight Defendants. As noted above, an official can only be liable in a § 1983 action for his
26 or her own misconduct. Iqbal, 556 U.S. at 677. While Acuna has attached forty-eight pages
27 of grievances and appeals he filed regarding the Covid-19 situation at RJD, some of which
28 are signed by various Defendants, “‘a pro se litigant cannot simply dump a stack of exhibits
1 on the court and expect the court to sift through them to determine if some nugget is buried
2 somewhere in that mountain of papers, waiting to be unearthed and refined into a
3 cognizable claim.’” Thomas v. Donovan, No. 3:19-CV-02181-JAH-RBB, 2020 WL
4 5106663, at *5 (S.D. Cal. Aug. 28, 2020) (quoting Samtani v. City of Laredo, 274 F. Supp.
5 3d 695, at *2 (S.D. Texas 2017)). “The Court will not comb through attached exhibits
6 seeking to determine whether a claim possibly could have been stated where the pleading
7 itself does not state a claim. In short, [Plaintiff] must state a claim, not merely attach
8 exhibits.” Stewart v. Nevada, No. 2:09-CV-01063, 2011 WL 588485, at *2 (D. Nev. Feb.
9 9, 2011). Thus, without any specific allegations about what each Defendant did or did not
10 do to violate his civil rights, Acuna has failed to state a plausible claim for relief pursuant
11 to 42 U.S.C. § 1983.
12 Further, “[t]he Fourteenth Amendment’s Due Process Clause protects persons
13 against deprivations of life, liberty, or property; and those who seek to invoke its procedural
14 protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545
15 U.S. 209, 221 (2005). But prisoners do not have a “separate constitutional entitlement to a
16 specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)
17 (citation omitted); see also Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process
18 not violated simply because defendant fails properly to process grievances submitted for
19 consideration); see also Todd v. California Department of Corrections and Rehabilitation,
20 615 Fed. Appx. 415, 415 (9th Cir. 2015) (district court properly dismissed claim based on
21 improper “processing and handling of . . . . prison grievances,” since prisoners have no
22 “constitutional entitlement to a specific prison grievance procedure”) (citing Ramirez, 334
23 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545, 547
24 (9th Cir. 2014) (district court properly dismissed § 1983 claims against defendants who
25 “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at 860); Daniels v.
26 Aguilera, No. 2:16-CV-00996-JAM-CKD P, 2018 WL 558658, at *1 (E.D. Cal. Jan. 24,
27 2018), report and recommendation adopted sub nom. Daniels v. Aguillera, No. 2:16-CV-
28 00996-JAM-CKD P, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018) (“Because there is no
1 right to any particular grievance process, it is impossible for due process to have been
2 violated by ignoring or failing to properly process prison grievances.”). Accordingly,
3 Acuna has failed to state a plausible due process claim against any Defendant. See 28
4 U.S.C. § 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678.
5 III. Conclusion and Order
6 Based on the foregoing, the Court:
7 (1) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2);
8 (2) ORDERS the Secretary of the CDCR, or her designee, to collect from
9 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly
10 payments from the account in an amount equal to twenty percent (20%) of the preceding
11 month’s income and forward payments to the Clerk of the Court each time the amount in
12 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS
13 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO
14 HIS ACTION;
15 (3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
16 on Kathleen Allison, Secretary, California Department of Corrections and Rehabilitation,
17 P.O. Box 942883, Sacramento, California, 94283-0001, or in the alternative by forwarding
18 an electronic copy to trusthelpdesk@cdcr.ca.gov;
19 (4) DISMISSES Plaintiff’s Complaint for failing to state a claim pursuant to 28
20 U.S.C. § 1915(e)(2) and § 1915A(b); and
21 (5) GRANTS Plaintiff 45 days leave from the date of this Order in which to file
22 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s
23 Amended Complaint must be complete in itself without reference to his original pleading.
24 Defendants not named and any claims not re-alleged in the Amended Complaint will be
25 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
26 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
27 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
28 dismissed with leave to amend which are not re-alleged in an amended pleading may be
1 || “considered waived if not repled’’).
2 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter
3 final Order dismissing this civil action based both on Plaintiffs failure to state a claim
4 ||upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b),
5 his failure to prosecute in compliance with a court order requiring amendment. See
6 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage
7 ||of the opportunity to fix his complaint, a district court may convert the dismissal of the
8 ||complaint into dismissal of the entire action.”’).
9 The Clerk of Court is directed to mail Plaintiff a court approved civil rights
10 |}complaint form for his use in amending.
11 IT IS SO ORDERED. NO
12 || DATED: January 20, 2022 CF
13 Hon. Linda Lopez
14 United States District Judge
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