“If a plaintiff does not take advantage of the opportunity to fix his complaint, 21 a district court may convert the dismissal of the complaint into dismissal of the entire 22 action.”
How later courts described this case
- “If a plaintiff does not take advantage of the opportunity to fix his complaint, 21 a district court may convert the dismissal of the complaint into dismissal of the entire 22 action.”
- noting that claims dismissed with leave to amend which are not re-alleged in an 15 amended pleading may be “considered waived if not repled.”
- “[C]onclusory allegations of law and unwarranted inferences are insufficient to 25 avoid a Rule 12(b)(6) dismissal.”
- “A district court should not dismiss a pro se complaint without 27 1 leave to amend unless it is absolutely clear that the deficiencies of the complaint could 2 not be cured by amendment.” (internal quotation marks and citation omitted)
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 RAYVONE ROBINSON, Case No.: 22-cv-01401-GPC-DEB
12 Plaintiff,
ORDER GRANTING DEFENDANTS’
13 v. MOTION TO DISMISS WITH
LEAVE TO AMEND
14 J. GALLEGOS, Correctional Counselor,
FRANK SHARPE, Classification and
15 [Dkt. No. 13.]
Parole Representative,
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Defendants.
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Before the Court is Defendants J. Gallegos and Frank Sharpe’s motion to dismiss
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for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No.
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13.) Plaintiff did not file an opposition.1 Based on the reasoning below, the Court
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GRANTS Defendants’ motion to dismiss with leave to amend.
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1 Even though the opposition was due on January 13, 2023, (Dkt. No. 14), on January 26, 2023, because
25 Court rescheduled the hearing date, it also granted Plaintiff leave to file an opposition by February 17,
2023. (Dkt. No. 15.) However, to date, no opposition has been filed. Moreover, a failure to file an
26 opposition “may constitute a consent to the granting of a motion . . . .” S.D. Local Civ. R. 7.1(f)(3).
Despite this rule, the Court considers the merits of Defendants’ motion.
27
1 Procedural Background
2 On September 13, 2022, Rayvone Robinson (“Plaintiff”), a state prisoner
3 incarcerated at Richard J. Donovan Correctional Facility (“RJD”), filed a civil rights action
4 pursuant to 42 U.S.C. § 1983 against Defendants Raymond Madden (“Madden”), Warden;
5 J. Gallegos (“Gallegos”), Correctional Counselor I; Frank Sharpe (“Sharpe”),
6 Classification and Parole Representative; and Kathleen Allison (“Allison”), Secretary of
7 the California Department of Corrections and Rehabilitation (“CDCR”). (Dkt. No. 1,
8 Compl.) He also filed a motion for leave to proceed in form pauperis (“IFP”) and motion
9 for temporary restraining order. (Dkt. Nos. 2, 3.) On September 20, 2022, the Court
10 granted Plaintiff’s motion to proceed IFP, denied the motion for temporary restraining
11 order and dismissed Defendants Allison and Madden without prejudice for failing to state
12 a claim pursuant to the Court’s sua sponte review under 28 U.S.C. § 1915(e)(2) and §
13 1915A(b). (Dkt. No. 6.) Defendants Gallegos and Sharpe move to dismiss the claims
14 against them. (Dkt. No. 13.)
15 Factual Background
16 According to the complaint, Plaintiff is currently serving a prison sentence for the
17 murder of a high-level member of the Compton Crip gang. (Dkt. No. 1, Compl. at 3.2) He
18 claims that prior to 2019, he was protected from violent attacks in prison by fellow
19 members of the Blood gang with which he was associated. (Id.) On April 24, 2019,
20 Plaintiff signed CDCR 128-86, Renunciation of STG3 Affiliation, Association and Illicit
21 Behavior, requesting protective placement on a Sensitive Needs Yard (“SNY”). (Id. at 3,
22 12.) Through his renunciation of STG affiliation, Plaintiff disassociated himself from the
23 Blood gang and was granted a Level IV SNY classification. (Id. at 3-4, 12.) However,
24
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26 2 Page numbers are based on the CM/ECF pagination.
3 Security Threat Group
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1 while at Level IV SNY, contrary to CDCR regulations, he discovered Security Threat
2 Group (“STG”) activities and he was the victim of violent assaults while housed there after
3 he refused to pay fellow inmates for protection. (Id. at 4.) After being subject to a couple
4 of violent assaults, Plaintiff complied and paid the “rent” for protection while he was at
5 Level IV SNY. (Id.) The STG gang members at Level IV SNY operated without any
6 restraint or consequences. (Id.) Plaintiff further claims that even though he was subject to
7 extortion and assaults, he did not report these incidents because he “would have face[d]
8 possible death because ‘snitching’ is highly disfavored within the level IV prison
9 population.” (Id. at 7.)
10 Plaintiff states that in 2022 he received a “behavior override placement” and was
11 moved to Level III SNY at RJD, which did not have any “STG gang members who were
12 carrying out violent assaults or extortion such as [Plaintiff] was constantly subjected to in
13 the level IV SNY facilities.” (Id. at 4-5.) In August 2022, Plaintiff claims Defendant
14 Gallegos told him he “[was] going to be taken to a classification committee for transfer
15 back to a level IV SNY facility due to Plaintiff becoming involed (sic) in two incidents or
16 altercations.” (Id. at 5.) He further asserts he received information from another inmate
17 that if Plaintiff returned to Level IV SNY without paying the extortion fee, he would be
18 immediately removed, meaning he would be “violently” removed. (Id.) Plaintiff further
19 claims that when he told Defendant Gallegos about his fears and threats to his safety,
20 Gallegos “completely disregarded the risk to Plaintiff[’s] safety” and told Plaintiff “he
21 would still be taking Plaintiff to a classification committee for transfer to a level IV SNY
22 facility.” (Id. at 7.) Plaintiff additionally alleges that Defendant Sharpe, as Gallegos’
23 supervisor, approved taking “Plaintiff to the classification committee for transfer . . .
24 disregarding the risk to Plaintiff’s safety.” (Id.)
25 The complaint alleges Defendants Gallegos and Sharpe violated his Eighth
26 Amendment right for failing to protect Plaintiff by facilitating consideration of his transfer
27
1 from a Level III to a Level IV correctional facility. (Dkt. No. 1, Compl. at 7.) He also
2 seeks an injunction barring Defendants from “transferring or placing [Plaintiff] in any level
3 IV facility . . . where . . . gang members exist, without written notice to the court and good
4 cause shown,” $300,000 in compensatory relief, and $25,000 in punitive damages from
5 each defendant. (Id. at 11.)
6 Discussion
7 A Legal Standard on Motion to Dismiss Under Rule 12(b)(6)
8 Federal Rule of Civil Procedure 8(a)(2) requires that any “pleading that states a claim
9 for relief must contain . . . a short and plain statement of the claim showing that the pleader
10 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard “does not require
11 ‘detailed factual allegations,’ but it demands more than an unadorned, the defendant-
12 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
13 Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
14 A Rule 12(b)(6) motion to dismiss “tests the legal sufficiency of a claim.” Navarro
15 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a complaint
16 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
17 plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A
18 claim is facially plausible when there exists sufficient factual content such that the court
19 may “draw the reasonable inference that the defendant is liable for the misconduct alleged.”
20 Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
21 statements, do not suffice.” Id. at 678; Twombly, 550 U.S. at 555 (noting that on a motion
22 to dismiss the court is “not bound to accept as true a legal conclusion couched as a factual
23 allegation”); see Turner v. City & Cnty. of San Francisco, 788 F.3d 1206, 1210 (9th Cir.
24 2015) (“[C]onclusory allegations of law and unwarranted inferences are insufficient to
25 avoid a Rule 12(b)(6) dismissal.”) (quoting Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th
26 Cir. 2009)). And though “[t]he plausibility standard is not akin to a ‘probability
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1 requirement,’” it does “ask[] for more than a sheer possibility that a defendant has acted
2 unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). In determining
3 plausibility, the Court is permitted “to draw on its judicial experience and common sense.”
4 Id. at 679.
5 Claims asserted by pro se petitioners, “however inartfully pleaded,” are held “to less
6 stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.
7 519, 520 (1972). Thus, courts “continue to construe pro se filings liberally when evaluating
8 them under Iqbal” and “afford the petitioner the benefit of any doubt.” Hebbe v. Pliler,
9 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th
10 Cir. 1985)).
11 B. 42 U.S.C. § 1983 – Failure to Protect Under the Eighth Amendment
12 “Section 1983 creates a private right of action against individuals who, acting under
13 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
14 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show
15 both (1) deprivation of a right secured by the Constitution and laws of the United States,
16 and (2) that the deprivation was committed by a person acting under color of state law.”
17 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (quoting Chudacoff v.
18 Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011)).
19 The Eighth Amendment requires prison officials to provide “adequate food,
20 clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the
21 safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (quoting Hudson
22 v Palmer, 468 U.S. 517, 526-27 (1984)). As such, “prison officials have a duty . . . to
23 protect prisoners from violence at the hands of other prisoners.” Id. at 833 (omission in
24 original) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.
25 1988)); see Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020) (same); United States v.
26 Williams, 842 F.3d 1143, 1153 (9th Cir. 2016) (“California's . . . prisoners may be
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1 murderers, rapists, drug dealers, and child molesters, but California is responsible for
2 protecting even those sorts of people from murder by other prisoners.”).
3 Prison officials violate the Eighth Amendment when two requirements are satisfied:
4 1) the deprivation alleged must be, objectively, “sufficiently serious”, or “the inmate must
5 show that he is incarcerated under conditions posing a substantial risk of serious harm”;
6 and 2) the prison official “must have a ‘sufficiently culpable state of mind’” or “deliberate
7 indifference’ to inmate health or safety’”. Farmer, 511 U.S. at 834 (citations omitted).
8 “[A] prison official violates an inmate's Eighth Amendment right only if that official is
9 “deliberately indifferent”—in other words, if the official is subjectively aware of a
10 substantial risk of serious harm to an inmate and disregards that risk by failing to respond
11 reasonably.” Wilk v. Neven, 956 F.3d 1143, 1147 (9th Cir. 2020). If a prisoner faces a
12 substantial risk of serious harm, he need not wait until he suffers an attack before asserting
13 a deliberate indifference or threat-to-safety claim. See Helling v. McKinney, 509 U.S. 25,
14 33 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a
15 novel proposition.”).
16 1. Defendant Gallegos4
17 Defendants argue that Plaintiff failed to allege facts sufficient to support his claim
18 for deliberate indifference arising from his proposed transfer to a Level IV SNY yard. (Dkt.
19 No. 13 at 14-16.) First, they first argue that speculative and general threats of violence
20 from other inmates do not support a claim for deliberate indifference and Plaintiff failed to
21 identify specific inmate enemies to Defendant Gallegos. (Id. at 14.) Second, they maintain
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4 Defendants also challenge the sufficiency of the complaint’s allegations that “Defendants were
25 deliberately indifferent to [Plaintiff]’s safety by subjecting [Plaintiff] to physical assaults and extortions
while on the Level IV yard.” (Dkt. No. 13 at 12.) However, Plaintiff raised these allegations against the
26 dismissed defendants, not Defendants Gallegos and Sharpe, (Dkt No. 1 at 2, 6-7), and so the Court does
not need to address the issue.
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1 that the allegation that he was told by Gallegos that he would be taken to a classification
2 committee to be considered for transfer to a Level IV SNY facility does not rise to a claim
3 of deliberate indifference. (Id. at 15.) In fact, Plaintiff admits that he was involved in
4 altercations that could subject an inmate to reclassification. (Id. at 15-16.)
5 Even though prison officials have an obligation to protect inmates from attack by
6 other inmates, a plaintiff must allege that the defendant knew of and disregarded threats by
7 other inmates when making future housing decisions and that such threats are more than
8 speculative. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (“The deliberate
9 indifference standard ‘does not require that the guard or official believe to a moral certainty
10 that one inmate intends to attack another at a given place at a time certain before that officer
11 is obligated to take steps to prevent such an assault. But, on the other hand, he must have
12 more than a mere suspicion that an attack will occur.’”). In Berg, the plaintiff alleged that
13 he had been placed in the protective custody unit because his “life was in danger.” Id. at
14 460. He further claimed that he told the defendant prison official that his life would be in
15 danger if he reported to his tier porter job, but the defendant ignored his plea and ordered
16 him to report to that job anyway, and he was subsequently beaten and raped. Id. at 460-
17 61. Because the defendant did not present any supporting affidavit to challenge the
18 plaintiff’s allegations, the Ninth Circuit held that his pro se complaint, read liberally, stated
19 a prima facie cause of action under the Eighth and Fourteenth amendments. Id. at 461.
20 Moreover, in Hearns v. Terhune, 413 F.3d 1036, 1041-42 (9th Cir. 2005), the Ninth
21 Circuit held that the pro se plaintiff’s allegation that prison officials knew that Muslim
22 inmates had previously attacked the plaintiff, but was left unsupervised with those inmates
23 were sufficient to “raise an inference that the prison officials acted with deliberate
24 indifference, or knew that he faced a substantial risk of serious harm and ‘disregard[ed]
25 that risk by failing to take reasonable measures to abate it.’” The Ninth Circuit noted the
26 detailed allegations in the amended complaint detailing religiously motivated violence that
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1 was known by the prison officials that, when accepted as true and construed in the light
2 most favorable to the plaintiff, raise an inference that the prison officials created the risk
3 and then facilitated the attacks. Id. at 1040-41.
4 In this case, Plaintiff has alleged facts that he was subject to threats and attacks while
5 previously housed at Level IV SNY and that if he returned and did not pay the “rent” for
6 protection, he would be “violently” removed. (Dkt. No. 1, Compl. at 3-5.) However, he
7 summarily alleges that despite informing Defendant Gallegos about the threat to his safety
8 while in Level IV SNY facility, Gallegos disregarded the risk and indicated he would still
9 place Plaintiff before a classification committee for transfer to a Level IV SNY facility.
10 (Id. at 7.) Plaintiff does not provide facts as to what he told Defendant Gallegos to
11 demonstrate that Gallegos was aware of the “obvious, substantial risk” to Plaintiff’s safety
12 or aware of facts from which an inference can be drawn that a substantial risk of serious
13 harm exists. Therefore, Plaintiff has failed to allege an Eighth Amendment failure to
14 protect claim against Gallegos for facilitating consideration of his transfer to a Level IV
15 SNY facility. Moreover, even though Plaintiff had not yet appeared before a classification
16 committee when he filed his complaint, he has not filed an opposition to provide updates
17 as to his housing status and whether he is still threatened with an imminent threat of
18 irreparable harm of serious injury or death.
19 Defendants next argue that Gallegos’ action deciding to place Plaintiff before the
20 classification committee to be considered for a transfer to a Level IV facility, does not, on
21 its own, constitute a violation of his Eighth Amendment rights. (Dkt. No. 13 at 15-16.)
22 The Eighth Amendment does not endow prisoners with the right to be housed with a
23 particular security classification. Myron v. Landsberger, 476 F.3d 716, 719 (9th Cir. 2007)
24 (“mere act of classification ‘does not amount to an infliction of pain,’ it ‘is not condemned
25 by the Eighth Amendment.’”); Abreu v. Jaime, Case No.: 1:16–CV–00715–BAM (PC),
26 2017 WL 5900074, at *3 (Nov. 30, 2017) (“The Constitution does not require that plaintiff
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1 be placed in ‘protective custody,’ only that the defendants take reasonably available
2 measures to abate a substantial the risk of harm.”); see also Hall v. Tilton, No. C 07–3233
3 RMW (PR), 2010 WL 2629914 at *4 (N.D. Cal. June 29, 2010) (rejecting a prisoner's claim
4 that retaining him in a Level III facility when he was a Level II inmate violated his rights
5 under the Eighth Amendment), aff'd 530 Fed. App’x 690 (9th Cir. 2013).
6 As such, Plaintiff’s allegation that his Eighth Amendment right was violated when
7 Gallegos decided to place Plaintiff before the classification committee to be considered for
8 a transfer to a Level IV facility does not support a claim under the Eighth Amendment.
9 Accordingly, in sum, the Court GRANTS Defendants’ motion to dismiss the claims against
10 Defendant Gallegos.
11 2. Defendant Sharpe
12 Defendants argue that Plaintiff has failed to adequately plead a theory of supervisor
13 liability as to Defendant Sharpe. (Dkt. No. 13 at 16-18.)
14 The complaint summarily alleges that Defendant Sharpe is liable because he is
15 Gallegos’ supervisor, and therefore, approved Gallegos’ conduct of taking Plaintiff to the
16 classification committee for transfer to Level IV SNY facility and disregarded the risk to
17 Plaintiff’s safety. (Dkt. No. 1, Compl. at 7.)
18 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v.
19 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into causation
20 must be individualized and focus on the duties and responsibilities of each individual
21 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.”
22 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362,
23 370-71 (1976)). “A defendant may be held liable as a supervisor under § 1983 ‘if there
24 exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a
25 sufficient causal connection between the supervisor's wrongful conduct and the
26 constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting
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1 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). “A supervisor can be liable in his
2 individual capacity for his own culpable action or inaction in the training, supervision, or
3 control of his subordinates; for his acquiescence in the constitutional deprivation; or for
4 conduct that showed a reckless or callous indifference to the rights of others.” Watkins v.
5 City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998) (internal alteration and quotation
6 marks omitted).
7 In this case, Plaintiff has failed to allege facts to support Sharpe’s personal
8 involvement in the alleged constitutional deprivation, his acquiescence in the constitutional
9 deprivation, or any conduct that shows reckless indifference to the rights of others.
10 Plaintiff merely alleges liability based on Sharpe’s role as Gallegos’ supervisor.
11 Accordingly, the Court GRANTS Defendants’ motion to dismiss as to Defendant Sharpe.
12 C. Eleventh Amendment Immunity
13 Defendants move to dismiss the claims for money damages against Defendants in
14 their official capacity as barred under the Eleventh Amendment. (Dkt. No. 13 at 18.)
15 The Eleventh Amendment to the United States Constitution bars federal courts from
16 hearing suits brought by private citizens against state governments unless the State has
17 waived its immunity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989);
18 Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (suit against State and its Board
19 of Corrections barred by Eleventh Amendment absent State's consent to suit). “The State
20 of California has not waived its Eleventh Amendment immunity with respect to claims
21 brought under § 1983 in federal court, and the Supreme Court has held that § 1983 was not
22 intended to abrogate a State's Eleventh Amendment immunity[.]” Brown v. California
23 Dep't of Corrections, 554 F.3d 747, 752 (9th Cir. 2009) (quoting Dittman v. California,
24 191 F.3d 1020, 1025-26 (9th Cir. 1999)). Moreover, “a suit against a state official in his
25 or her official capacity is not a suit against the official but rather is a suit against the
26 official’s office . . . . As such, it is no different from a suit against the State itself.” Will,
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1 491 U.S. at 71 (“We hold that neither a State nor its officials acting in their official
2 capacities are ‘persons’ under § 1983.”). However, the Eleventh Amendment does not bar
3 a plaintiff from seeking prospective injunctive relief against the state official for a violation
4 of federal law. Id. at 71 n. 10 (“[o]f course a state official in his or her official capacity,
5 when sued for injunctive relief, would be a person under § 1983 because “official-capacity
6 actions for prospective relief are not treated as actions against the State.”) (quoting
7 Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) and citing Ex Parte Young, 209 U.S.
8 123, 159-60 (1908)).
9 Here, Plaintiff seeks monetary damages against Defendants in their official and
10 personal capacities. (Dkt. No. 1, Compl. at 2.) To the extent Plaintiff seeks damages
11 against Defendants in their official capacity, they are barred by the Eleventh Amendment.
12 Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s claims for
13 monetary damages against them in their official capacities.
14 D. Leave to Amend
15 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless
16 the court determines that the allegation of other facts consistent with the challenged
17 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc.,
18 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture
19 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would
20 be futile, the Court may deny leave to amend. See DeSoto, 957 F.2d at 658; Schreiber,
21 806 F.2d at 1401. Moreover, in the Ninth Circuit, “[p]ro se plaintiffs proceeding [in
22 forma pauperis] must . . . be given an opportunity to amend their complaint [prior to
23 dismissal] unless it is absolutely clear that the deficiencies of the complaint could not be
24 cured by amendment.” Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984)
25 (citation and internal quotation marks omitted); see also Akhtar v. Mesa, 698 F.3d 1202,
26 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint without
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1 leave to amend unless it is absolutely clear that the deficiencies of the complaint could
2 not be cured by amendment.” (internal quotation marks and citation omitted)).
3 Here, because leave to amend would not be futile, the Court GRANTS Plaintiff
4 leave to file an amended complaint.
5 Conclusion
6 Based on the reasoning above, the Court GRANTS Defendants’ unopposed motion
7 to dismiss the complaint with leave to amend. Plaintiff shall file an amended complaint
8 that cures all the deficiencies of pleading noted no later than May 5, 2023. Plaintiff’s
9 amended complaint must be complete by itself without reference to his previous
10 pleadings. Defendants not named and any claim not re-alleged in his amended
11 complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.
12 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
13 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
14 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
15 amended pleading may be “considered waived if not repled.”).
16 If Plaintiff fails to file an amended complaint within the time provided, the Court
17 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to
18 state a claim upon which relief can be granted, and his failure to prosecute in compliance
19 with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th
20 Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint,
21 a district court may convert the dismissal of the complaint into dismissal of the entire
22 action.”).
23 / / /
24 / / /
25 / / /
26 / / /
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1 Finally, the Clerk of the Court is DIRECTED to provide Plaintiff with a blank
2 || court-approved form Amended Civil Rights Complaint pursuant to 42 U.S.C. § 1983 for
3 || his use and convenience.
4 The hearing set on March 10, 2023 shall be vacated.
5 IT IS SO ORDERED.
6 || Dated: March 7, 2023 □□
7 Cor 2aho Coke
8 United States District Judge
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