Cruz v. San Diego County CWS

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 Leila Cruz, Case No.: 3:23-CV-0957-GPC-KSC

12 Plaintiff,

13 v. ORDER

(1) GRANTING MOTION TO

14 San Diego County CWS, Lynette Miller,

PROCEED IN FORMA PAUPERIS,

Christopher Hines,

15 [ECF No. 2];

Defendants. (2) SUA SPONTE DISMISSING

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PLAINTIFF’S COMPLAINT FOR

17 FAILURE TO STATE A CLAIM;

(3) DENYING MOTION TO

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APPOINT COUNSEL, [ECF NO. 6];

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(4) DENYING “MOTION TO ADD

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CLAIMS FOR RELIEF”, [ECF NO. 7]

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22 Plaintiff Leila Cruz (“Plaintiff” or “Cruz”), proceeding pro se, filed a complaint

23 against Defendants San Diego County CWS, Lynette Miller, and Christopher Hines in the

24 United States District Court for the Eastern District of Missouri on May 4, 2023. (ECF

25 No. 1, Compl.) On May 24, 2023, the District Court in the Eastern District of Missouri

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1 transferred the action to this Court to cure the defect in venue. (ECF No. 3 at 7–8.1) Cruz

2 also filed a motion to proceed in forma pauperis (“IFP”), (ECF No. 2), which was

3 provisionally granted by the Eastern District of Missouri and subject to modification by

4 this Court. (ECF No. 3 at 8.)

5 For the following reasons, the Court GRANTS Plaintiff’s motion to proceed in

6 forma pauperis; sua sponte DISMISSES the action for failure to state a claim with leave to

7 amend; DENIES the motion to appoint counsel; and DENIES the “motion to add claims

8 for relief.”

9 A. Motion to Proceed in Forma Pauperis

10 All parties instituting any civil action, suit, or proceeding in a United States

11 District Court must pay a $402 filing fee.2 See 28 U.S.C. § 1914(a). An action may

12 proceed despite a plaintiff’s failure to prepay the entire fee only if she is granted leave to

13 proceed IFP pursuant to 28 U.S.C. § 1915(a)(1) (“§ 1915(a)”). See Andrews v.

14 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177

15 (9th Cir. 1999). An affidavit in support of an IFP application is “sufficient” if it alleges

16 the plaintiff “cannot pay the court costs and still afford the necessities of life.” Escobedo

17 v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015); see also 28 U.S.C. § 1915(a)(1) (IFP

18 applicant must “submit[] an affidavit that includes a statement of all assets such

19 [applicant] possesses that the person is unable to pay such fees . . . .”). Although there is

20 no established formula to determine IFP status provided by statute, regulation or caselaw,

21 a plaintiff must allege poverty “with some particularity, definiteness and certainty.”

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1 Page numbers are based on the CM/ECF pagination.

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2 Effective December 1, 2020, civil litigants must pay an additional administrative fee of $52, in

25 addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of

Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not

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apply to persons granted leave to proceed IFP. Id.

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1 Escobedo, 787 F.3d at 1234-35. The district court has discretion in determining whether

2 the plaintiff has satisfied the statute’s IFP requirements. Cal. Men’s Colony, Unit II

3 Men’s Advisory Council v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on

4 other grounds by 506 U.S. 194 (1993); see also United States v. McQuade, 647 F.2d 938,

5 940 (9th Cir. 1981) (“It [is] within the court's discretion to make a factual inquiry and to

6 deny the motion when [plaintiffs are] unable, or unwilling, to verify their poverty.”)

7 (internal citations omitted).

8 Here, Cruz’s IFP form indicates that (1) she has $520.00 in her bank account, (2)

9 her only form of income is a monthly disability payment of $712, and (3) her monthly

10 expenses total $1,089. (ECF No. 2 at 2, 4, 5.). The IFP form also indicates Cruz is a

11 blind mother with three dependent children, including a disabled son. (Id. at 3, 5.)

12 Given that Cruz’s expenses exceed her income by more than $300, the Court

13 agrees with the Eastern District of Missouri’s assessment and finds Plaintiff has

14 demonstrated that “because of poverty” she cannot “meet court costs and still provide

15 [herself] . . . with the necessities of life.” See Escobedo, 787 F.3d at 1235. Therefore, the

16 Court GRANTS Plaintiff’s motion to proceed IFP.

17 B. Sua Sponte Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)

18 1. Legal Standard

19 Courts must engage in a sua sponte review of any complaints filed by any person

20 proceeding IFP pursuant to § 1915(a), and courts should dismiss claims that are

21 “frivolous or malicious; fail[] to state a claim on which relief may be granted; or seek[]

22 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915

23 (e)(2)(B)(i)–(iii); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“It is also

24 clear that section 1915(e) not only permits but requires a district court to dismiss an in

25 forma pauperis complaint that fails to state a claim.”).

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1 Under Federal Rule of Civil Procedure (“Rule”) 8, a complaint must contain “a short

2 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

3 P. 8(a)(2). While a plaintiff need not give “detailed factual allegations,” a plaintiff must

4 plead sufficient facts that, if true, “raise a right to relief above the speculative level.” Bell

5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, legal conclusions are “not

6 entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A claim

7 is facially plausible when the factual allegations permit “the court to draw the reasonable

8 inference that the defendant is liable for the misconduct alleged.” Id. at 678. A complaint

9 should disclose “who is being sued, for what relief and on what theory, with enough detail

10 to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Allegations

11 that do not “identify[] the transaction or occurrence giving rise to the claim and the

12 elements of the prima facie case” fail to satisfy Rule 8. Bautista v. Los Angeles Cty, 216

13 F.3d 837, 840 (9th. Cir. 2000).

14 Courts “liberally construe[]” pro se claims, Estelle v. Gamble, 429 U.S. 97, 106

15 (1976), holding them to “less stringent standards than formal pleadings drafted by

16 lawyers.” Id. (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). “This rule is

17 particularly important in civil rights cases.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th

18 Cir. 1987). Nonetheless, pro se plaintiffs remain subject to “the same rules of procedure

19 that govern other litigants.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th

20 Cir. 1997) (quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (overruled on other

21 grounds)).

22 2. Discussion

23 Cruz’s complaint does not meet Rule 8 pleading standards because it fails to allege

24 facts providing a basis for relief. The complaint solely alleges seven statements:

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26 The Defendant Provides “Remote” Services in MO

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1. Plaintiff was denied a qualified reader, interpreter, Auxiliary Aids, Adaptive

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Software after providing letter from SSA/Doctor. Plaintiff was denied

3 physical modifications and Deprived of Equal Access to Services.

2. Between March 1, 2022 and April 30, 2023 it is ongoing[.]

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3. 1201 Elleta Blvd Columbia MO 65202

5 4. Removal of Child, Underpayment in Benefits[,] Costs of Travel & Defense

from false allegation[.]

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5. Miller + Hines Discriminated based on Race, Disability Religion[.]

7 6. Agency/Miller/Hines Discriminated against Plaintiff for exercising Religious

Conscience in her parenting/Religious Practices[.]

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7. Agency/Miller/Hines Discriminated against Plaintiff base [sic] on her

9 Ethnic/Cultural Identity, Perception of Race + Skin color as well as her Sexual

Preference.

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11 (ECF No. 1, Compl. at 7–8.). As the basis for federal jurisdiction, Cruz lists the Americans

12 with Disabilities Act, the Unruh Act, Rehabilitation Act, Civil Rights Act, First

13 Amendment and Fourteenth Amendment. (Id. at 5.) She seeks damages for loss of income,

14 loss of housing, loss of child custody, damage to her professional reputation and emotional

15 distress. (Id. at 7.) She seeks $40 million plus punitive damages. (Id. at 6.)

16 As plead, the complaint does not provide “a short and plain statement of the elements

17 of . . . [each] claim, identifying the transaction or occurrence giving rise to the claim[s] and

18 the elements of a prima facie case,” as required by Rule 8. See Bautista, 216 F.3d at 840.

19 Because the complaint is conclusory, Defendants do not have “sufficient notice of the

20 allegations against them.” See Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal.

21 1988). Further, Plaintiff “must allege the basis of [her] claim against each defendant.” See

22 Dougherty v. Bank of America, N.A., 177 F. Supp. 3d 1230, 1253 (E.D. Cal. 2016) (quoting

23 Gauvin, 682 F. Supp. at 1071). The complaint alleges all three Defendants discriminated

24 against her without specifying which Defendant engaged in what acts of discrimination.

25 Because Cruz’s complaint fails to allege facts supporting a cause of action and

26 does “not afford defendants a fair opportunity” to defend themselves, she fails to state a

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1 claim upon which relief could be granted. See McHenry, 84 F.3d at 1175. The Court sua

2 sponte DISMISSES the complaint pursuant to 28 U.S.C. § 1915(e)(2) for failing to state a

3 claim.

4 C. Leave To Amend

5 District courts “should not dismiss a pro se complaint without leave to amend unless

6 ‘it is absolutely clear that the deficiencies of the complaint could not be cured by

7 amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v.

8 Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988)). In this case, because the deficiencies in

9 the complaint could be cured, the Court GRANTS Cruz leave to file an amended complaint.

10 The amended complaint must be complete by itself without reference to any previous

11 pleading. See Civ. L. Rule 15.1(a). The amended complaint should clearly state the causes

12 of action upon which Cruz’s claims are based as well as alleging facts to support each cause

13 of action.

14 The Court cautions Cruz to file an amended complaint rather than filing a new civil

15 case as she has a history of repeatedly filing new complaints without heeding the courts’

16 instructions informing her of deficiencies in many of her prior lawsuits. The Court notes,

17 before filing this lawsuit, in a two-month period, Cruz filed five separate actions appearing

18 to arise out of the same events and alleging similar claims of discrimination by San Diego

19 Child Welfare Services, Hines, and/or Miller that have all been dismissed.3 In the two

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22 3 Cruz-McCoy v. San Diego Child Welfare Servs., No. 2:22-cv-04193-NKL, ECF No. 1, Compl. (W.D.

Mo. Dec. 29, 2022) (dismissed for lack of personal jurisdiction and improper venue); Cruz-McCoy v.

23 San Diego Child Welfare Servs., No. 2:22-cv-04194-NKL, ECF No. 1, Compl. (W.D. Mo. Dec. 29,

2022) (denying request to remove lawsuit from San Diego Superior Court and dismissed as “frivolous”);

24 Cruz-McCoy, v. Rady Children’s Hosp., No. 3:23-cv-00035-GPC-KSC, ECF No. 1, Compl. (S.D. Cal.

Jan. 9, 2023) (dismissed for failure to state a claim and failure to prosecute); Cruz-McCoy v. San Diego

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Child Welfare Servs., No. 2:23-cv-04012-NKL, ECF No. 1, Compl. (W.D. Mo. Jan. 12, 2023)

26 (dismissed for lack of personal jurisdiction and improper venue); Cruz v. Cnty. of San Diego CWS/HHS,

No. 3:23-cv-00273-GPC-KSC, ECF No. 1, Compl. (S.D. Cal. Feb. 10, 2023) (dismissed for failure to

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1 actions brought in the Southern District of California earlier this year, this Court sua sponte

2 dismissed her complaints and granted Cruz leave to amend her complaints to satisfy Rule

3 8 pleading standards. See McCoy v. San Diego Cnty. Child Welfare Servs., No. 3:23-CV-

4 0273-GPC(KSC), ECF No. 3 (S.D. Cal. Apr. 26, 2023); Cruz-McCoy, v. Rady Children’s

5 Hosp., No. 3:23-cv-00035-GPC(KSC), ECF No. 5 (S.D. Cal. Apr. 27, 2023). Cruz did not

6 amend either pleading and both cases were dismissed and judgment entered for failure to

7 state a claim pursuant to 28 U.S.C. § 1915(e)(2) and failure to prosecute under Rule 41(b)

8 on June 29, 2023. See McCoy, No. 3:23-CV-0035-GPC(KSC), ECF No. 6, 7; McCoy, No.

9 3:23-CV-0273-GPC(KSC), ECF No. 7, 8. Shortly after the dismissals of the complaints in

10 this district, on May 4, 2023, Plaintiffs filed the instant case in the Eastern District of

11 Missouri which was subsequently transferred to this Court.4 (ECF No. 1, Compl.; Dkt. No.

12 3.)

13 Courts have authority to issue pre-filing injunctions against vexatious litigants with

14 “a pattern of frivolous or abusive litigation in different jurisdictions.” Ringgold-Lockhart

15 v. Cnty. of Los Angeles, 761 F.3d 1057, 1065–66 (9th Cir. 2014). “Under the power of 28

16 U.S.C. § 1651(a)5[], enjoining litigants with abusive and lengthy histories is one such form

17 of restriction that the district court may take.” De Long v. Hennessey, 912 F.2d 1144, 1147

18 (9th Cir. 1990). While pre-filing orders are issued with caution, particularly against pro se

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21 state a claim and failure to prosecute). Moreover, in April 2022, Cruz filed a complaint against San

Diego Health and Human Services in the Western District of Missouri in Case No. 22cv4059-NKL, ECF

22 No. 1, Compl. (W.D. Mo. Apr. 19, 2022), which was dismissed for failing to provide required

information to proceed IFP.

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4 In the Eastern District of Missouri transfer order, the district court notes that Plaintiffs appears to have

24 filed about twenty-five cases across the nation since 2016. (Dkt. No. 3 at 1.)

25 5 “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28

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U.S.C. § 1651(a).

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1 litigants, the court cannot “enable[] one person to preempt the use of judicial time that

2 properly could be used to consider the meritorious claims of other litigants.” Id. at 1148.

3 Before declaring a litigant to be vexatious, the litigant must be provided with notice and an

4 opportunity to be heard, there must be an adequate record for review and the court must

5 make “substantive findings as to the frivolous and harassing nature of the litigant’s

6 actions.” De Long, 912 F.2d at 1147-48. Finally, the order must be narrowly tailored so

7 as “to closely fit the specific vice encountered.” Id. at 1148.

8 The Court acknowledges Cruz’s disability may hinder her ability to navigate the

9 court system; however, many district courts have issued orders noting her deficiencies and

10 directing her to amend or cure the deficiencies which she has failed to do. Instead, she files

11 new complaints alleging similar claims in the same or different districts.6 Should Cruz

12 continue a pattern of filing new lawsuits against the Defendants, the Court warns Cruz she

13 could face future pre-filing orders limiting her ability to bring forth another such lawsuit

14 in this district. See Kellog v. Wilson, No. 18-cv-01216-BAS-JLB 2018 WL 3546324, at *2

15 (S.D. Cal. Jul. 24, 2018) (warning litigant about his “repeated filing of frivolous complaints

16 concerning the same subject matter against many of the same defendants.”). Therefore, if

17 Plaintiff so chooses, she must file an amended complaint if she seeks to pursue her

18 grievances against Defendants.

19 D. “Motion to Add Claims for Relief”

20 Cruz motioned the Court to add claims for “[a]buse of [p]rocess” and “failure to

21 comply with [a] CADSS state appeals judge ruling to remedy ADA/Unruh Act violations.”

22 (ECF No. 7 at 1.) The motion mirrors the original complaint, repeating that Defendants

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25 6 In 2020, the District of Colorado imposed filing restrictions against Cruz in response to her

“piecemeal” filings. McCoy v. Krane, et al., No. 1:20-cv-2814-LTB, ECF No. 19 at 2–3 (D. Colo. Dec.

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21, 2020).

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1 discriminated against Cruz by denying her various services and modifications. (Id. at 1.).

2 Cruz additionally alleges Defendants have not complied with orders by administrative law

3 judges granting benefits to Cruz and her family. (Id. at 2.). To the extent Cruz seeks to

4 add those claims, she may add them to an amended complaint but cautions Plaintiff that

5 the amended complaint must comply with Rule 8. The Court, therefore, DENIES the

6 motion to add claims for relief.

7 E. Request for Appointment of Counsel

8 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resol. Tr.

9 Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, courts are afforded discretion to

10 appoint counsel for “any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The

11 appointment of counsel requires “exceptional circumstances.” Terrell v. Brewer, 935 F.2d

12 1015, 1017 (9th Cir. 1991); accord Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir.

13 1986). “A finding of exceptional circumstances requires an evaluation of both ‘the

14 likelihood of success on the merits and the ability of the petitioner to articulate his claims

15 pro se in light of the complexity of the legal issues involved.’” Terrell, 935 F.2d at 1017

16 (quoting Wilborn, 789 F.2d at 1331). Neither factor “is dispositive and both must be

17 viewed together before reaching a decision.” Id. (quoting Wilborn, 789 F.2d at 1331).

18 Indigent plaintiffs are required to “make a reasonably diligent effort to secure counsel as a

19 prerequisite to the court’s appointing counsel for them.” Bailey v. Lawford, 835 F. Supp.

20 550, 552 (S.D. Cal. 1993); accord Skelly v. United States Dep’t of Educ., No. 19-cv-1812-

21 GPC-BLM, 2019 WL 6840398, at *5 (S.D. Cal. Dec. 16, 2019).

22 Cruz requests court-appointed counsel because she is “blind and developmentally

23 disabled;” Southern California libraries lack accessible equipment; a state judge in a prior

24 suit declared Cruz “‘unable’ to represent herself due to mental/physical disabilities;” and

25 the Court lacks accessible audio formatting. (ECF No. 6 at 1.) Cruz’s motion alleges

26 “State Blind Services,” cannot assist her because they are closed due to the pandemic; in

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1 addition, “SoCal Legal Aid,” and “CA Disability law cannot take the case.” Id. Further,

2 Cruz’s motion states she and her children “cannot adequately represent themselves”

3 evidenced by their errors in submitting “multiple filings” rather than amending the

4 pleadings.7 Id.

5 As discussed above, the Court finds Cruz’s financial circumstances clearly establish

6 her indigency and she alleges she has made diligent efforts to obtain counsel. However,

7 due to the above-described deficiencies in the complaint, the Court is unable to assess her

8 success on the merits. Kelly v. Intuit, No. 23-cv-00694-JAH-JLB, 2023 WL 4220768, at

9 *2 (S.D. Cal. June 27, 2023); see Skelly, 2019 WL 6840398, at *5 (denying counsel

10 appointment despite plaintiff receiving IFP and demonstrating reasonably diligent effort to

11 obtain counsel because plaintiff failed to show exceptional circumstances). Accordingly,

12 the Court concludes Cruz has not demonstrated she is entitled to appointment of counsel at

13 this stage of the proceedings, and DENIES her request for counsel.

14 Conclusion

15 Based on the reasoning above, the Court GRANTS Plaintiff’s motion to proceed in

16 forma pauperis; sua sponte DISMISSES the complaint with leave to amend for failure to

17 state a claim. The Court DENIES Plaintiff’s motion for appointment of counsel and

18 Plaintiff’s “motion to add claims.” In the event Plaintiff seeks to file an amended

19 complaint, she must do so no later than September 30, 2023. If Plaintiff does not file an

20 amended complaint by the deadline, the Court will enter a final Order dismissing the

21 entire action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff

22 does not take advantage of the opportunity to fix his complaint, a district court may

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7 Cruz’s children are not plaintiffs in this action, though Cruz appears to refer to her children as

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plaintiffs in her request for appointment of counsel. (See ECF No. 6 at 1.).

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1 || convert the dismissal of the complaint into dismissal of the entire action.”’).

2 IT IS SO ORDERED.

3 Dated: August 24, 2023 □□

4 Cor athe Cie

5 United States District Judge

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