# Fields v. Newsom

> District Court, S.D. California · March 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10085358

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 4, 2022
- **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/10085358

## How later opinions describe it (automated extraction)

- noting that claims dismissed with leave to amend which are not re-alleged 19 in an amended pleading may be “considered waived if not repled.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 28 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 1 12(b)(6)”
- noting that only “exceptional circumstances” support such a 3 discretionary appointment

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 MARCUS BRENT FIELDS, Case No.: 22cv0044-LL-MDD
CDCR #V-46240,
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ORDER (1) GRANTING LEAVE TO
Plaintiff,
13 PROCEED IN FORMA PAUPERIS;
vs. (2) DENYING MOTION TO APPOINT
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COUNSEL; AND (3) DISMISSING
GAVIN NEWSOM, Governor; NADINE
15 COMPLAINT FOR FAILING TO
BURKE HARRIS, California Surgeon
STATE A CLAIM PURSUANT TO 28
16 General; KATHLEEN ALLISON, CDCR
U.S.C. § 1915(e)(2)(B) AND 28 U.S.C.
Secretary; S. GATES, Chief of Health
17 § 1915A(b)
Care Appeals,

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Defendants. [ECF Nos. 2, 3]
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21 On January 12, 2022, Plaintiff Marcus Brent Fields, while incarcerated at Richard J.
22 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se,
23 filed a civil rights complaint filed pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”)
24 at 1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a). Instead,
25 he filed a Motion for Leave to Proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C.
26 § 1915(a), along with a Motion to Appoint Counsel. See ECF Nos. 2, 3.
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1 LEAVE 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). An action may proceed despite a plaintiff’s failure to
5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners. If granted
8 leave to proceed IFP, they nevertheless remain obligated to pay the entire fee in
9 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v.
10 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether their actions are
11 dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281
12 F.3d 844, 847 (9th Cir. 2002).
13 To qualify, section 1915(a)(2) requires prisoners seeking leave to proceed IFP to
14 submit a “certified copy of the trust fund account statement (or institutional equivalent) for
15 . . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
17 trust account statement, the Court assesses an initial payment of 20% of (a) the average
18 monthly deposits in the account for the past six months, or (b) the average monthly balance
19 in the account for the past six months, whichever is greater, unless the prisoner has no
20 assets. See 28 U.S.C. §§ 1915(b)(1); 1915(b)(4). The institution having custody of the
21 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s
22 income, in any month in which his account exceeds $10, and forwards those payments to
23 the Court until the entire filing fee is paid. See id. § 1915(b)(2); Bruce, 577 U.S. at 84.
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26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative
27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does
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1 Plaintiff’s Prison Certificate and a certified copy of his CDCR Inmate Statement
2 Report has been submitted by RJD accounting officials. See ECF No. 4 at 1‒4; 28 U.S.C.
3 § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show
4 Plaintiff carried an average monthly balance of $341.60 and an average monthly deposit of
5 $117.64 to his account over the 6-month period immediately preceding the filing of his
6 Complaint. See ECF No. 4 at 1.
7 Based on this accounting, the Court GRANTS Plaintiff leave to proceed IFP (ECF
8 No. 2) and assesses an initial partial filing fee of $68.32 pursuant to 28 U.S.C. § 1915(b)(1).
9 However, this initial fee need be collected only if sufficient funds are available in Plaintiff’s
10 account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n
11 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil
12 action or criminal judgment for the reason that the prisoner has no assets and no means by
13 which to pay the initial partial filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850
14 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a
15 prisoner’s IFP case based solely on a “failure to pay . . . . due to the lack of funds available
16 to him when payment is ordered.”). The remaining balance of the $350 total fee owed in
17 this case must be collected by the Secretary of the California Department of Corrections
18 and Rehabilitation (“CDCR”), or any subsequent agency having custody of Plaintiff, and
19 forwarded to the Clerk of the Court pursuant to the installment payment provisions set out
20 in 28 U.S.C. § 1915(b)(2).
21 MOTION FOR APPOINTMENT OF COUNSEL
22 Plaintiff requests appointment of counsel due to the “complexity of this case.” Pl.’s
23 Mot., ECF No 3 at 1. All documents filed pro se are liberally construed, and “a pro se
24 complaint, however inartfully pleaded, must be held to less stringent standards than formal
25 pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
26 Estelle, 429 U.S. at 106). There is no constitutional right to counsel in a civil case, and the
27 decision to appoint counsel under 28 U.S.C. § 1915(e)(1) is within “the sound discretion
28 of the trial court and is granted only in exceptional circumstances.” Agyeman v. Corr.
1 Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015,
2 1017 (9th Cir. 1991) (noting that only “exceptional circumstances” support such a
3 discretionary appointment). Exceptional circumstances exist where there is a cumulative
4 showing of both a likelihood of success on the merits and an inability of the pro se litigant
5 to articulate his claims in light of their legal complexity. Palmer v. Valdez, 560 F.3d 965,
6 970 (9th Cir. 2009).
7 Plaintiff’s Complaint demonstrates that while not formally trained in law, he is fully
8 capable of legibly articulating the facts and circumstances relevant to his claims and has
9 yet to show he is likely to succeed on the merits of his claims. Accordingly, the Court
10 DENIES Plaintiff’s motion for appointment of counsel without prejudice.
11 SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b)
12 I. Legal Standards
13 A. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
14 Because Plaintiff is a prisoner, his Complaint requires a pre-answer screening
15 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these statutes, the Court
16 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it that is frivolous,
17 malicious, failing to state a claim, or seeking damages from defendants who are immune.
18 See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C.
19 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28
20 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous
21 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
22 903, 920 n.1 (9th Cir. 2014) (citation omitted).
23 “The standard for determining whether a plaintiff has failed to state a claim upon
24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
26 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
27 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
28 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
1 12(b)(6)”). Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to
2 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
3 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
4 Wilhelm, 680 F.3d at 1121.
5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
6 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
7 Iqbal, 556 U.S. at 678. The court “ha[s] an obligation where the petitioner is pro se,
8 particularly in civil rights cases, to construe the pleadings liberally and to afford the
9 petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
10 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). However, it may
11 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents
12 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
13 B. 42 U.S.C. § 1983
14 “Section 1983 creates a private right of action against individuals who, acting under
15 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
16 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
17 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
18 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citation
19 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a
20 right secured by the Constitution and laws of the United States, and (2) that the deprivation
21 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,
22 698 F.3d 1128, 1138 (9th Cir. 2012).
23 II. Plaintiff’s Allegations
24 Plaintiff alleges that he was diagnosed with a blockage in his heart in December of
25 2020. See Compl., ECF No. 1 at 3. On March 4, 2021, Plaintiff was “given the Pfizer
26 vaccine” and by September 3, 2021 his “hematology, chemistry, urinalysis, virology, [and]
27 body fluids changed for the worse.” Id. Plaintiff alleges the “State of California received”
28 a “tainted Pfizer vaccine without specific instructions or research for Black people with
1 heart conditions.” Id. Plaintiff alleges that the vaccine “damaged” his heart. Id. at 5.
2 Plaintiff seeks $72,000,000 in compensatory damages and an unspecified amount in
3 punitive damages. See id.
4 A. Eighth Amendment & Personal Liability
5 As a preliminary matter, the Court finds Plaintiff’s Complaint fails to state any
6 plausible claim for relief against any of the named Defendants. These Defendants are
7 named in their supervisory roles and are alleged to have “signed off for the California
8 prisons to receive vaccines” but failed to take into account his “heart problems.” See
9 Compl. at 2. Because “vicarious liability is inapplicable to … § 1983 suits, a plaintiff must
10 plead that each Government-official defendant, through the official’s own individual
11 actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; Palmer v. Sanderson, 9
12 F.3d 1433, 1437-38 (9th Cir. 1993) (noting there is no respondeat superior liability under
13 42 U.S.C. § 1983). Supervisory officials may only be held liable under § 1983 if the
14 plaintiff alleges their “personal involvement in the constitutional deprivation, or . . . a
15 sufficient causal connection between the supervisor’s wrongful conduct and the
16 constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242‒43 (9th Cir. 2018); Starr
17 v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). In other words, “a supervisor is liable for
18 the acts of his subordinates ‘if the supervisor participated in or directed the violations, or
19 knew of the violations of subordinates and failed to act to prevent them.’” Corales v.
20 Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (citations omitted).
21 Plaintiff’s Complaint pleads no factual content that allows the court to draw the
22 reasonable inference that Governor Newsom, Surgeon General Harris, Secretary Allison,
23 or Chief of Appeals Gates are liable for the misconduct alleged. Iqbal, 556 U.S. at 678.
24 Plaintiff includes no specific factual allegations with respect to any of the named
25 Defendants, and he does not describe what any of them either did, or failed to do, with
26 respect to his housing, health, safety, or medical treatment. Id. at 679 (“Determining
27 whether a complaint states a plausible claim for relief [is] . . . . a context-specific task.”).
28 “The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws
1 cruel and unusual ‘punishments.’” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, to
2 be held personally liable for Plaintiff’s injuries under the Eighth Amendment Defendants
3 must be specifically alleged to have acted with deliberate indifference to a serious risk to
4 Plaintiff’s health or safety. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir.
5 2016); Iqbal, 556 U.S. at 678. “A prison official acts with ‘deliberate indifference . . . .
6 only if the [prison official] knows of and disregards an excessive risk to inmate health and
7 safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty.
8 of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro,
9 833 F.3d at 1076. “Under this standard, the prison official must not only ‘be aware of facts
10 from which the inference could be drawn that a substantial risk of serious harm exists,’ but
11 that person ‘must also draw the inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825,
12 837 (1994)). Thus, even “[p]rison official[s] who actually kn[o]w of a substantial risk to
13 inmate health or safety may be found free from liability if they respond[] reasonably to the
14 risk, even if the harm ultimately [i]s not averted.” Farmer, 511 U.S. at 844.
15 The Court acknowledges Covid-19 poses a substantial risk of serious harm. See
16 Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions
17 that [Covid-19] poses a substantial risk of serious harm[.]”). However, in order to plead a
18 viable Eighth Amendment claim, Plaintiff must provide more than conclusory statements
19 that supervisory prison officials provided a “faulty Pfizer vaccine.” See Iqbal, 556 U.S. at
20 678. In situations where the challenged “conduct is harmful enough to satisfy the objective
21 component of an Eighth Amendment claim, whether it can be characterized as ‘wanton’
22 depends upon the constraints facing the official.” Wilson v. Seiter, 501 U.S. 294, 303
23 (1991) (citations omitted) (emphasis original). Because “only the unnecessary and wanton
24 infliction of pain implicates the Eighth Amendment,” prisoners alleging cruel and unusual
25 punishment must plead some factual content to plausibly suggest each defendant acted with
26 a “sufficiently culpable state of mind.” Id. at 297 (internal quotation marks, emphasis and
27 citations omitted). Plaintiff’s Complaint is devoid of any facts sufficient to plausibly
28 suggest any of the named Defendants were personally aware of his underlying medical
1 vulnerabilities, or that he was at risk for any health complications if he received the vaccine.
2 It is not even clear that Plaintiff was required to receive the vaccine or whether it was his
3 decision to have the vaccine administered to him. See Farmer, 511 U.S. at 838 (“[An
4 official’s failure to alleviate a significant risk that he should have perceived but did not,
5 while no cause for commendation, cannot under our cases be condemned as the infliction
6 of punishment.”).
7 While Federal Rule of Civil Procedure 8 “does not require ‘detailed factual
8 allegations,’” it “demands more than an unadorned, the-defendant-unlawfully-harmed-me
9 accusation.” Iqbal, 556 U.S. at 678 (citation omitted). In order “[t]o survive a motion to
10 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
11 claim for relief that is plausible on its face.’” Id. (citations omitted). As currently pleaded,
12 however, nothing in Plaintiff’s Complaint plausibly suggests Defendants “through [their]
13 own individual actions, . . . violated the Constitution.” Iqbal, 556 at 676; see also Jones v.
14 Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir.
15 1984) (even pro se plaintiff must “allege with at least some degree of particularity overt
16 acts which defendants engaged in” in order to state a claim). Therefore, Plaintiff’s Eighth
17 Amendment claims against all named Defendants must be dismissed sua sponte for failing
18 to state an Eighth Amendment claim upon which § 1983 relief can be granted pursuant to
19 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison 668 F.3d at 1112; Wilhelm,
20 680 F.3d at 1121.
21 B. Eleventh Amendment Immunity
22 To the extent Plaintiff sues these Defendants in their official capacities, his suit is
23 further barred by the Eleventh Amendment. “The Eleventh Amendment bars suits for
24 money damages in federal court against a state, its agencies, and state officials acting in
25 their official capacities.” Aholelei v. Dep’t of Public Safety, 488 F.3d 1144, 1147 (9th Cir.
26 2007). Indeed, the Eleventh Amendment prohibits federal courts from hearing a Section
27 1983 lawsuit in which damages or injunctive relief is sought against a state, its agencies or
28 state officials, absent “a waiver by the state or a valid congressional override.” Dittman v.
1 California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The Eleventh Amendment bars suits
2 which seek either damages or injunctive relief against a state, ‘an arm of the state,’ its
3 instrumentalities, or its agencies.” See Fireman’s Fund Ins. Co. v. City of Lodi, Cal., 302
4 F.3d 928, 957 n.28 (9th Cir. 2002) (internal quotation and citations omitted). “The State
5 of California has not waived its Eleventh Amendment immunity with respect to claims
6 brought under § 1983 in federal court.” Dittman, 191 F.3d at 1025–26 (citing Atascadero
7 State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)). Thus, because Defendants are alleged
8 to be state officials acting in their official capacities on behalf of the State of California,
9 they are immune from suit for money damages under the Eleventh Amendment.
10 C. Leave to Amend
11 For the reasons discussed, the Court finds Plaintiff’s Complaint fails to state any
12 § 1983 claim upon which relief can be granted, and dismisses it sua sponte pursuant to 28
13 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm,
14 680 F.3d at 1121. However, the Court will also grant Plaintiff leave to amend. See Rosati
15 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro
16 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it
17 is absolutely clear that the deficiencies of the complaint could not be cured by
18 amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).
19 CONCLUSION
20 For the foregoing reasons, the Court:
21 (1) DENIES Plaintiff’s Motion to Appoint Counsel without prejudice (ECF No.
22 3);
23 (2) GRANTS Plaintiff leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)
24 (ECF No. 2);
25 (3) ORDERS the Secretary of the CDCR, or her designee, to collect from
26 Plaintiff’s trust account the $68.32 initial filing fee assessed, if those funds are available
27 at the time this Order is executed, and to forward whatever balance remains of the full $350
28 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding
1 month’s income to the Clerk of the Court each time the amount in Johnson’s account
2 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY
3 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
4 (4) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
5 on Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-
6 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov;
7 (5) DISMISSES Plaintiff’s Complaint sua sponte and in its entirety based on his
8 failure to state a claim upon which relief may be granted and pursuant to 28 U.S.C.
9 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); and
10 (6) GRANTS Plaintiff sixty (60) days’ leave from the date on which this Order
11 is filed to file an Amended Complaint which cures all the deficiencies of pleading noted.
12 Plaintiff’s Amended Complaint must be clearly entitled “Amended Complaint,” include
13 Civil Case No. 22cv0044-LL-MDD in its caption, and must be complete by itself without
14 reference to his original Complaint. Defendants not named and any claims not re-alleged
15 in the amended complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach
16 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n
17 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928
18 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged
19 in an amended pleading may be “considered waived if not repled.”).
20 If Plaintiff fails to file an Amended Complaint within 60 days, the Court will enter
21 a final Order dismissing this civil action based both on his failure to state a claim upon
22 which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his
23 failure to prosecute in compliance with a court order requiring amendment. See Lira v.
24 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of
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| opportunity to fix his complaint, a district court may convert the dismissal of the
2 complaint into dismissal of the entire action.’’).
3 IT IS SO ORDERED.
4 ||Dated: March 4, 2022 NO
5 Je J
6 Honorable Linda Lopez
5 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10085358. Public record. Not legal advice.