Juarez v. Hill

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 LUIS JUAREZ, Case No.: 24-cv-2315-MMA (LR)

CDCR #AI-3330,

12

ORDER:

Plaintiff,

13

vs. (1) GRANTING MOTION TO

14

PROCEED IN FORMA PAUPERIS;

JAMES HILL, Warden, et al.,

15

Defendants. [Doc. No. 2]

16

17 (2) DENYING MOTION FOR

EXTENSION OF TIME AS MOOT;

18

AND

19

[Doc. No. 5]

20

21 (3) SCREENING COMPLAINT

PURSUANT TO 28 U.S.C.

22

§§ 1915(e)(2) & 1915A(b)

23

24

25 Plaintiff Luis Juarez, a state prisoner proceeding pro se, has filed a civil rights

26 Complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1. Plaintiff has not paid the civil

27 filing fee but has instead filed a Motion to proceed in forma pauperis (“IFP”). Doc.

28 No. 2. Plaintiff has also filed a motion seeking an extension of time to submit a prisoner

1 trust account statement in support of his IFP motion. Doc. No. 5. Because the Court has

2 received a copy of Plaintiff’s inmate trust account statement, see Doc. No. 3 at 1-3, the

3 Court DENIES Plaintiff’s motion for extension of time as moot.

4 I. MOTION TO PROCEED IFP

5 Anyone instituting a civil action in a district court of the United States must

6 typically pay a filing fee of $405, consisting of a $350 statutory fee plus an additional

7 administrative fee of $55, although the administrative fee does not apply to persons

8 granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of

9 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The action may

10 proceed despite a failure to prepay the entire fee only if IFP is granted pursuant to 28

11 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).

12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified

13 copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month

14 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

15 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

16 statement, the Court assesses an initial payment of 20% of (a) the average monthly

17 deposits in the account for the past six months, or (b) the average monthly balance in the

18 account for the past six months, whichever is greater, unless the prisoner has insufficient

19 assets. See 28 U.S.C. § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016).

20 Prisoners who proceed IFP must pay any remaining balance in “increments” or

21 “installments,” regardless of whether their action is ultimately dismissed. 28 U.S.C.

22 § 1915(b)(1)&(2); Bruce, 577 U.S. at 84.

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

24 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report which

25 indicates that during the six months prior to filing suit Plaintiff had an average monthly

26 balance of $531.71, average monthly deposits of $180.00, and an available balance of

27 $459.53 in his account at the time he filed suit. Doc. No. 3 at 3. The Court GRANTS

28 Plaintiff’s motion to proceed IFP assesses an initial partial filing fee of $106.34 pursuant

1 to 28 U.S.C. § 1915(b)(1). This initial fee need be collected only if sufficient funds are

2 available in Plaintiff’s account. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

3 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or

4 criminal judgment for the reason that the prisoner has no assets and no means by which to

5 pay the initial partial filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

6 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

7 solely on a “failure to pay . . . due to the lack of funds available to him when payment is

8 ordered”). Pursuant to 28 U.S.C. § 1915(b)(2), the CDCR or any agency later having

9 custody will forward payments to the Clerk until the $350 statutory fee is paid in full.

10 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

11 A. Standard of Review

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

13 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua

14 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,

15 malicious, fails to state a claim, or seeks damages from defendants who are immune.

16 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (citing 28 U.S.C.

17 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C.

18 § 1915A(b)).

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

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

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

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

23 Cir. 2012) (noting that § 1915A screening “incorporates the familiar standard applied in

24 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”).

25 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true,

26 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

27 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

28 “Determining whether a complaint states a plausible claim for relief [is] . . . a context-

1 specific task that requires the reviewing court to draw on its judicial experience and

2 common sense.” Id.

3 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,

4 acting under color of state law, violate federal constitutional or statutory rights.”

5 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability,

6 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws

7 of the United States, and (2) that the deprivation was committed by a person acting under

8 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

9 B. Allegations in the Complaint

10 Plaintiff alleges that while housed at the Richard J. Donovan Correctional Facility

11 (“RJD”) in San Diego, California, he “was the victim of excessive force which led to me

12 sustaining injuries consisting of 2nd degree burns on my arms and [a] hernia which I have

13 received surgery for.” Doc. No. 1 at 4. Plaintiff states that he has a mental disability

14 within the meaning of the Americans with Disabilities Act (“ADA”) and is a member of

15 the CDCR Enhanced Outpatient Program (“EOP”). Id. at 6. He claims RJD has a history

16 of abusing inmates with mental health disabilities such that it has led to RJD being the

17 first prison in the CDCR to require body worn cameras by correctional officers, and that

18 the events at issue here were captured on video. Id. at 4–5.

19 Plaintiff alleges that on June 21, 2024, he “attempted to receive mental health

20 treatment and refuse[d] a medical transport because I was afraid to travel with officers.

21 While in the prison’s treatment area I had a mental episode/panic attack after being

22 refused mental health treatment for the fact I told officers I was suicidal and did not want

23 to be alone with them.” Id. at 7. Plaintiff alleges that Defendants RJD Correctional

24 Officers Perez and Abdi, in retaliation for the loss of overtime pay they would have

25 received had they been allowed to transport him, “maliciously used excessive force on

26 me and placed me on a burning hot surface, then knowingly and continuously held me

27 down subjecting me to torture [which] also led me to sustaining hernia injury.” Id. at 6–

28 7. He alleges Perez “maliciously used hot metal on ground plate to burn me,” and

1 “Abdi’s malicious intent can be further shown by his action of threatening to place me

2 back on steam plate if I kept refusing medical transport.” Id. at 4.

3 Plaintiff claims that “according to the incident report” Defendant RJD Correctional

4 Officer Clark “also used force with above mentioned as well as failed to stop the

5 malicious force and usage of steam plate to burn me.” Id. at 5. He states that Defendants

6 RJD Correctional Officers Law, Cole, Shelland, Perez, Moss and Canedo “were all on

7 [the] report” of the incident and “all potentially either physically used force maliciously

8 which burned me, gave me hernia that I will soon get surgery for, caused serious mental

9 suffering or failed to stop other involved staff from torturing which they are required to

10 do by law.” Id. Plaintiff claims Defendant RJD Registered Nurse John Doe “also

11 subjected me to cruel & unusual punishment with malicious intent when he gave me

12 treatment which was inadequate and showed deliberate indifference.” Id. He alleges

13 Defendant RJD Warden Hill “is in official care of me and my well being and had not

14 protected me from this action of excessive force.” Id. at 4.

15 Plaintiff claims violations of his rights under the ADA, the “Monell Doctrine,”1 to

16 be free from cruel and unusual punishment under the Eighth Amendment, and to be free

17 from retaliation under the Eighth and Fourteenth Amendments. Id. at 4-7.

18 C. Discussion

19 1. Eighth Amendment

20 The Cruel and Unusual Punishments Clause of the Eighth Amendment forbids

21 prison officials from “the unnecessary and wanton infliction of pain.” Whitley v. Albers,

22 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused of using excessive

23 physical force in violation of the Cruel and Unusual Punishments Clause, the core

24

25

26 1 To the extent this is a reference to Monell v. Department of Social Services, 436 U.S. 658, 694 (1978),

providing that municipalities may be liable for acts of their employees, it is not applicable here because

27 there are no allegations of, or claims for, municipal liability. See Hernandez v. County of Tulare, 666

F.3d 631, 637 (9th Cir. 2012) (a complaint with conclusory allegations of municipal liability under

28

1 judicial inquiry is that set out in Whitley: whether force was applied in a good-faith effort

2 to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson

3 v. McMillian, 503 U.S. 1, 6-7 (1992).

4 “[A] prison official violates the Eighth Amendment when two requirements are

5 met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer

6 v. Brennan, 511 U.S. 825, 834 (1994). Second, Plaintiff must allege the prison official he

7 seeks to hold liable had a “‘sufficiently culpable state of mind’ . . . [T]hat state of mind is

8 one of ‘deliberate indifference’ to inmate health or safety.” Id. A prison official can only

9 be held liable under the Eighth Amendment if he “knows of and disregards an excessive

10 risk to inmate health and safety;” he “must both be aware of facts from which the

11 inference could be drawn that a substantial risk of serious harm exists, and he must also

12 draw the inference.” Id. at 837.

13 Plaintiff alleges Defendants Perez and Abdi “placed me on a burning hot surface,

14 then knowingly and continuously held me down subjecting me to torture [which] also led

15 me to sustaining [a] hernia injury” and second degree burns, that Perez “maliciously used

16 hot metal on ground plate to burn me,” and that Abdi “threaten[ed] to place me back on

17 steam plate if I kept refusing medical transport.” Doc. No. 1 at 4, 6–7. These allegations

18 are sufficient to survive the “low threshold” of the screening required by 28 U.S.C.

19 §§ 1915(e)(2) & 1915A(b) with respect to an Eighth Amendment claim against

20 Defendants Perez and Abdi. Wilhelm, 680 F.3d at 1123; Farmer, 511 U.S. at 837;

21 Hudson, 503 U.S. at 6-7; see also Rhodes v. Chapman, 452 U.S. 337, 347 (1981)

22 (“Conditions must not involve the wanton and unnecessary infliction of pain.”); Baze

23 v. Rees, 553 U.S. 35, 48 (2008) (recognizing the Eighth Amendment prohibits torture).

24 Plaintiff is entitled to have the U.S. Marshal effect service of the summons and

25 Complaint against Defendants Perez and Abdi. See 28 U.S.C. § 1915(d) (“The officers of

26 the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R.

27 Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal

28 or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

1 U.S.C. § 1915.”).

2 The allegations against the remaining Defendants, however, are too conclusory to

3 plausibly allege an Eighth Amendment violation. Plaintiff merely alleges that “according

4 to the incident report” Defendant Clark used force and “failed to stop the malicious force

5 and usage of steam plate to burn me.” Doc. No. 1 at 5. He alleges Defendants Law,

6 Cole, Shelland, Moss, and Canedo were all mentioned in the report of the incident and

7 “all potentially either physically used force maliciously . . . or failed to stop other

8 involved staff from torturing which they are required to do by law.” Id. There are no

9 factual allegations regarding what actions these Defendants took or failed to take, and

10 what facts they were aware of or witness to which shows they actually drew an inference

11 there was a substantial risk of serious harm to Plaintiff which they failed to prevent and

12 which led to his injuries. Farmer, 511 U.S. at 837; Iqbal, 556 U.S. at 678 (conclusory

13 assertions that defendants took some action or failed to do so are insufficient to state a

14 § 1983 claim).

15 With respect to Plaintiff’s Eighth Amendment claim for denial of medical care, the

16 allegations of severe burns and a hernia are sufficient to allege a serious medical need.

17 See Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (“[I]ndicia of a

18 ‘serious’ medical need include (1) the existence of an injury that a reasonable doctor

19 would find important and worthy of comment or treatment, (2) the presence of a medical

20 condition that significantly affects an individual’s daily activities, and (3) the existence of

21 chronic or substantial pain.”). However, with respect to the medical care received, the

22 only allegations in the Complaint are that Defendant John Doe “also subjected me to

23 cruel & unusual punishment with malicious intent when he gave me treatment which was

24 inadequate and showed deliberate indifference.” Doc. No. 1 at 5. The allegations

25 regarding denial of medical care in the Complaint are entirely conclusory and lack any

26 factual allegations as to why the medical care was inadequate. See Jett v. Penner, 439

27 F.3d 1091, 1096 (9th Cir. 2006) (to plausibly allege deliberate indifference to a serious

28 medical need a prisoner must allege that a purposeful act or failure to respond to the

1 medical need caused harm); Iqbal, 556 U.S. at 678 (a complaint is subject to dismissal for

2 failure to state a claim if it does not “contain sufficient factual matter, accepted as true, to

3 state a claim to relief that is plausible on its face,” as the “mere possibility of

4 misconduct” falls short of the plausibility standard); Wood v. Housewright, 900 F.2d

5 1332, 1334 (9th Cir. 1990) (allegations of negligent medical care are insufficient to state

6 claim for denial of prisoner medical treatment).

7 Plaintiff alleges RJD Warden Hill was responsible for his safety and welfare but

8 failed to protect him. Doc. No. 1 at 3. “In a section 1983 claim, a supervisor is liable for

9 the acts of his subordinates if the supervisor participated in or directed the violations, or

10 knew of the violations of subordinates and failed to act to prevent them.” Corales

11 v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (internal quote marks omitted). There are

12 no factual allegations that Warden Hill participated in or was aware of any of the

13 Defendants’ alleged acts or failures to act which injured Plaintiff and that Warden Hill

14 failed to act to prevent them. Id.; see also Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

15 2002) (“In order for a person acting under color of state law to be liable under section

16 1983 there must be a showing of personal participation in the alleged rights

17 deprivation.”); Iqbal, 556 U.S. at 678 (conclusory assertions that defendants took some

18 action or failed to do so are insufficient to state a § 1983 claim).

19 Accordingly, Plaintiff’s Eighth Amendment claims are dismissed sua sponte for

20 failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) as to all

21 Defendants other than the Eighth Amendment excessive force claim against Perez and

22 Abdi. Wilhelm, 680 F.3d at 1121; Watison, 668 F.3d at 1112.

23 2. ADA

24 Plaintiff claims his rights were violated under the ADA because he is a disabled

25 person and RJD staff are trained to deal with disabled EOP prisoners such as himself but

26 they chose to maliciously hurt him. Doc. No. 1 at 6. To state a claim under the ADA, a

27 prisoner must allege:

28

1 (1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to

participate in or receive the benefit of some public entity’s services, programs,

2

or activities;’ (3) he ‘was either excluded from participation in or denied the

3 benefits of the public entity’s services, programs, or activities, or was

otherwise discriminated against by the public entity;’ and (4) ‘such exclusion,

4

denial of benefits, or discrimination was by reason of (his) disability.’

5

6 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007).

7 The Complaint fails to state an ADA claim because Plaintiff fails to plausibly

8 allege any action by any Defendant was taken by reason of his disability. Id.; Iqbal, 556

9 U.S. at 678 (the “mere possibility of misconduct” or “unadorned, the defendant-

10 unlawfully-harmed me accusation[s]” fall short of meeting the plausibility standard).

11 In addition, Plaintiff may not pursue an ADA claim against the individual

12 Defendants in their individual capacities. See Vinson v. Thomas, 288 F.3d 1145, 1156

13 (9th Cir. 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a

14 State official in [their] individual capacity to vindicate rights created by Title II of the

15 ADA.”); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (holding that the “ADA

16 applies only to public entities”). Although as a prisoner with a disability Plaintiff may

17 sue the CDCR under the ADA, see United States v. Georgia, 546 U.S. 151, 153 (2006),

18 he must still prove intentional discrimination. Duvall v. County of Kitsap, 260 F.3d 1124,

19 1138, 1139-41 (9th Cir. 2001). The public entity’s actions “must be a result of conduct

20 that is more than negligent, and involves an element of deliberateness.” Id. at 1139

21 (noting that intentional discrimination under the ADA is similar to the deliberate

22 indifference standard requiring knowledge that a harm to a federally protected right is

23 substantially likely, and a failure to act upon that likelihood). Plaintiff’s Complaint fails

24 to plausibly allege any Defendant acted because of his disability. See Iqbal, 556 U.S. at

25 678 (“Threadbare recitals of the elements of a cause of action, supported by mere

26 conclusory statements, do not suffice” to state a claim).

27 Plaintiff’s ADA claim therefore is dismissed sua sponte for failure to state a claim

28 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Wilhelm, 680 F.3d at 1121; Watison,

1 668 F.3d at 1112; O’Guinn, 502 F.3d at 1060; Iqbal, 556 U.S. at 678.

2 3. Retaliation

3 Finally, Plaintiff alleges that Defendants Perez and Abdi used excessive force and

4 tortured him in retaliation for the loss of overtime they would have received but for

5 Plaintiff’s refusal to allow them to medically transport him. Doc. No. 1 at 6–7. “Within

6 the prison context, a viable claim of First Amendment retaliation entails five basic

7 elements: (1) An assertion that a state actor took some adverse action against an inmate

8 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

9 inmate’s exercise of [her] First Amendment rights, and (5) the action did not reasonably

10 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th

11 Cir. 2005). Plaintiff must allege a retaliatory motive, that is, a causal connection between

12 the adverse action and his protected conduct. Watison, 668 F.3d at 1114.

13 The Complaint contains no factual allegations regarding why Plaintiff contends

14 Defendants Perez and Abdi retaliated against him because they were denied overtime

15 from Plaintiff failing to agree to medical transport, merely a conclusion they were so

16 motivated. Such conclusory statements of retaliatory intent are insufficient to state a

17 claim. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)

18 (plaintiff must show that the protected conduct was a “substantial” or “motivating” factor

19 in the defendant’s decision to act); Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014)

20 (“We have repeatedly held that mere speculation that defendants acted out of retaliation

21 is not sufficient.”).

22 The retaliation claim in the Complaint is dismissed sua sponte for failure to state a

23 claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Rhodes, 408 F.3d at 567–68;

24 Wilhelm, 680 F.3d at 1121; Watison, 668 F.3d at 1112, 1114.

25 D. Plaintiff’s Options

26 Because the Court has determined that Plaintiff’s Eighth Amendment excessive

27 force claim against Defendants Perez and Abdi survives the sua sponte screening process

28 but his remaining claims against the remaining Defendants do not, Plaintiff is given the

1 opportunity to either: (1) notify the Court of his intent to proceed only with the Eighth

2 Amendment claim in the Complaint against Defendants Perez and Abdi; or (2) file a First

3 Amended Complaint that attempts to correct any or all of the deficiencies of pleading

4 identified in this Order. Plaintiff must choose one of those options within forty-five

5 (45) days from the date this Order is filed. If Plaintiff notifies the Court he wishes to

6 proceed only with his claims against Defendants Perez and Abdi, the Court will issue an

7 Order directing the Clerk to issue the summons as to those Defendants and direct the U.S.

8 Marshal to effect service of the summons and Complaint on Defendants Perez and Adbi,

9 and all remaining claims and Defendants will remain dismissed from this action.

10 III. CONCLUSION

11 Accordingly, good cause appearing, the Court:

12 1) DENIES as moot Plaintiff’s Motion for an extension of time to submit a trust

13 account statement (Doc. No. 5).

14 2) GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2).

15 3) DIRECTS the Secretary of the CDCR, or his designee, to collect from

16 Plaintiff’s prison trust account an initial partial filing fee of $106.34 if sufficient funds are

17 available and to collect the balance of $350 filing fee owed in this case by collecting

18 monthly payments from the account in an amount equal to twenty percent (20%) of the

19 preceding month’s income and forward payments to the Clerk of the Court each time the

20 amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).

21 4) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

22 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,

23 P.O. Box 942883, Sacramento, California, 94283-0001.

24 5) DISMISSES all claims against all Defendants in the Complaint for failure to

25 state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) with the exception of the

26 Eighth Amendment claim against Perez and Abdi.

27 6) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

28 which to (1) notify the Court of his intent to proceed only with his claims in the Complaint

| |}against Defendants Perez and Abdi; or (2) file a First Amended Complaint that attempts to

2 ||correct any or all of the deficiencies of pleading identified in this Order. Any amended

3 ||complaint must be complete by itself without reference to any prior version of the

4 ||complaint. Defendants not named and any claims not re-alleged in an amended complaint

5 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard

6 || Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

7 || supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012)

8 (noting that claims dismissed with leave to amend which are not re-alleged in an amended

9 || pleading may be “considered waived if not repled”’).

10 Failure to respond to this Order will result in dismissal of this action for failure to

11 prosecute. See Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to

12 || prosecute or comply with the federal rules or court order).

13 IT IS SO ORDERED.

14 Dated: April 16, 2025

15 BMaikek. WM - / hipltr

16 HON. MICHAEL M. ANELLO

17 United States District Judge

18

19

20

21

22

23

24

25

26

27

28