# Shaw v. Macomber

> District Court, S.D. California · May 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11049563

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 8, 2025
- **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/11049563

## How later opinions describe it (automated extraction)

- noting that claims 15 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 16 || “considered waived if not repled.”
- finding double-celling does not 22 violate Eighth Amendment unless it amounts to unnecessary and wanton pain

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JAMES D. SHAW, Case No.: 3:25-cv-0089-RBM-MSB
CDCR #G05862,
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ORDER:
Plaintiff,
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vs. (1) GRANTING PLAINTIFF’S
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MOTION TO PROCEED IN

15 FORMA PAUPERIS [Doc. 2];

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(2) DISMISSING COMPLAINT
JEFF MACOMBER, JAMES HILL, DR.
17 ON SCREENING PURSUANT TO
SANTO, Y. SATO,
28 U.S.C. §§ 1915(e)(2)(B) AND
18 Defendants. 1915A(b) [Doc. 1]; and
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(3) DENYING PLAINTIFF’S
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MOTION FOR PRELIMINARY
21 INJUNCTION [Doc. 3]
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23 Plaintiff James E. Shaw (“Plaintiff”), an inmate proceeding pro se, has filed a civil
24 rights complaint pursuant to 42 U.S.C. § 1983 (“Complaint”) (Doc. 1), along with a Motion
25 to Proceed In Forma Pauperis (“IFP Motion”) (Doc. 2), and a Motion for Preliminary
26 Injunction Pursuant to Federal Rule of Civil Procedure 65 (Doc. 3). In his Complaint,
27 Plaintiff alleges Defendants Jeff Macomber, James Hill, Santo, and Sato (collectively,
28 “Defendants”) violated his constitutional rights, the Americans with Disabilities Act
1 (“ADA”), and the Rehabilitation Act (“RA”) when they refused to provide him with single
2 cell housing. (See generally, Doc. 1.) For the reasons discussed below, the Court
3 GRANTS Plaintiff’s IFP motion, DISMISSES the Complaint without prejudice for failure
4 to state a claim, and DENIES the motion for preliminary injunction without prejudice.
5 I. MOTION TO PROCEED IFP
6 All parties instituting any civil action, suit, or proceeding in a district court of the
7 United States, except an application for writ of habeas corpus, must pay a filing fee of
8 $405.1 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the
9 required filing fee if the Court grants leave to proceed in forma pauperis (“IFP”) based on
10 indigency. 28 U.S.C. § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir.
11 2007). To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit
12 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th
13 Cir. 2015). Prisoners must also submit a “certified copy of the [prisoner’s] trust fund
14 account statement (or institutional equivalent) for . . . the 6-month period immediately
15 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust
16 account 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 no assets. See
19 28 U.S.C. § 1915(b)(1), (4). Prisoners who proceed IFP must pay the balance of the $350
20 statutory fee in installments regardless of whether their action is ultimately dismissed. 28
21 U.S.C. § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016).
22 In support of his IFP Motion, Plaintiff provided a copy of his prison trust account
23 statement. (Doc. 2 at 6.) Prior to filing suit, Plaintiff had an average monthly balance of
24

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26 1 Civil litigants must pay an administrative fee of $55 in addition to the $350 filing fee. See
28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
27
Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply
28 to persons granted leave to proceed IFP. Id.
1 $23.75, average monthly deposits of $0.00, and an account balance of $10.45. (Id.)
2 Accordingly, the Court GRANTS Plaintiff’s IFP Motion and assesses an initial
3 partial filing fee of $4.75 pursuant to 28 U.S.C. § 1915(b)(1). However, this initial fee
4 only needs to be collected if sufficient funds are available in Plaintiff’s account at the time
5 this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a
6 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal
7 judgment for the reason that the prisoner has no assets and no means by which to pay the
8 initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding
9 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s
10 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when
11 payment is ordered.”). The California Department of Corrections and Rehabilitation
12 (“CDCR”) must thereafter collect the full balance of the $350 fee owed and forward
13 payments to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).
14 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2)(B) & 1915A(B)
15 A. Legal Standard
16 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a
17 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,
18 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
19 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,
20 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has
21 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the
22 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”
23 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a
24 complaint “contain sufficient factual matter . . . to state a claim to relief that is plausible on
25 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
26 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements
27 of a cause of action, supported by mere conclusory statements, do not suffice” to state a
28 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-
1 harmed me accusation[s]” fall short of meeting this plausibility standard. Id.
2 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation
3 of a right secured by the Constitution and laws of the United States, and (2) that the
4 deprivation was committed by a person acting under color of state law.” Tsao v. Desert
5 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
6 B. Plaintiff’s Allegations
7 In his Complaint, Plaintiff alleges he has been denied a single cell despite having a
8 disability that requires one. Specifically, Plaintiff states he was “classified in 2017 as
9 incontinent.” (Doc. 1 at 3.) At some point, Plaintiff requested a single cell assignment
10 because of “his inability to control his bowel movements.” (Id.) He is “constantly
11 ridiculed” by other inmates because of his condition and has been “assaulted on a few
12 occasions by previous cellmates.” (Id.) He did not report these incidents, however, because
13 he feared reprisals. (Id.) Despite his medical condition, Plaintiff’s housing classification
14 has not changed, and he is still assigned “double cell/dormitory” housing. (Id.) At the time
15 the Complaint was filed, Plaintiff was being housed in a dormitory setting. (Id. at 4.)
16 Plaintiff states that other “similarly situated” inmates with disabilities are permitted
17 single cell housing while he has been denied it, despite being “elderly,” “completely
18 disabled,” and incontinent. (Id.) As such, he is forced to deal with his incontinence issues
19 in front of other inmates, causing him “mental distress” and embarrassment. (Id. at 5.) He
20 also alleges that he fears for his safety because Defendants have refused to adequately
21 accommodate his disability. (Id. at 6.)
22 C. Discussion
23 Plaintiff names four defendants in their official capacities: CDCR Secretary Jeff
24 Macomber (“Defendant Macomber”), Donovan Correctional Facilities Warden James Hill
25 (“Defendant Hill”), primary care physician Dr. Santo (“Defendant Santo”), and psychology
26 clinician Dr. Sato (“Defendant Sato”). (Id. at 2.) Plaintiff alleges Defendants violated his
27 rights under the Equal Protection Clause, the ADA and RA, and the Eighth Amendment.
28 (Id. at 3–6.) He seeks money damages and an injunction requiring Defendants to provide
1 him with single cell housing. (Id. at 8.)
2 1. Equal Protection
3 Plaintiff alleges that Defendants have failed to provide him with the single cell
4 housing necessary given his medical condition, in violation of his right to equal protection.
5 (Doc. 1 at 5.) The Fourteenth Amendment provides that no state shall “deny to any person
6 within its jurisdiction the equal protection against the laws.” U.S. Const. amend. XIV; see
7 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe,
8 457 U.S. 202, 216 (1982)). To state an equal protection claim, Plaintiff must plausibly
9 allege that prison officials (1) intentionally discriminated against him (2) based on his
10 membership in a protected class. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d
11 1114, 1123 (9th Cir. 2013). “Intentional discrimination means that a defendant acted at
12 least in part because of a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071,
13 1082 (9th Cir. 2003). The Supreme Court has also recognized equal protection claims may
14 be brought by a “‘class of one,’ where the plaintiff alleges that she has been intentionally
15 treated differently from others similarly situated and that there is no rational basis for the
16 difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations
17 omitted).
18 Here, Plaintiff fails to allege that he is a member of a protected class because “the
19 disabled do not constitute a suspect class” for the purposes of equal protection analysis.
20 Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996) (citation omitted). Moreover,
21 Plaintiff fails to allege he was intentionally singled out for disparate treatment by any
22 Defendant because he is disabled. See id. (citing Personnel Adm’r of Mass. v. Feeney, 442
23 U.S. 256, 279 (1979)). ‘“Discriminatory purpose’. . . implies more than intent as volition
24 or intent as awareness of consequences. It implies that the decisionmaker . . . selected or
25 reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite
26 of,’ its adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279 (internal
27 citation omitted). Plaintiff simply states that other inmates with unspecified disabilities
28 have received accommodations, while he has not. (See Doc. 1 at 5.) Plaintiff does not
1 mention any specific conduct by any named Defendant in his Complaint. As such, his
2 conclusory allegations are insufficient to support his equal protection claim. See Iqbal,
3 556 U.S. at 678; see also Dews v. Cnty. of Kern, 599 F. App’x 681, 682 (9th Cir. 2015)
4 (affirming the district court’s dismissal of plaintiff’s equal protection claim where he failed
5 to “show that he was a member of a protected class or that he was intentionally treated
6 differently from other similarly situated individuals for an irrational reason”); Williams v.
7 Doe, 343 F. App’x 196, 197 (9th Cir. 2009) (dismissing “[v]ague and conclusory” § 1983
8 equal protection allegations for failure to state claim).
9 Therefore, the Court DISMISSES Plaintiff’s equal protection claim without
10 prejudice for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
11 2. ADA and RA
12 Plaintiff also alleges Defendants violated his rights under the ADA and RA. (See
13 Doc. 1 at 3, 5.) As these statutes have similar elements, the Court discusses them together.
14 To state a claim under Title II of the ADA, a plaintiff must allege: “(1) he is an
15 individual with a disability; (2) he is otherwise qualified to participate in or receive the
16 benefit of some public entity’s services, programs, or activities; (3) he was either excluded
17 from participation in or denied the benefits of the public entity’s services, programs, or
18 activities, or was otherwise discriminated against by the public entity; and (4) such
19 exclusion, denial of benefits, or discrimination was by reason of [his] disability.” Guinn v.
20 Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (internal quotations omitted).
21 To state a claim under Section 504 of RA, a plaintiff must allege he or she was: (1)
22 an individual with a disability; (2) otherwise qualified to receive the benefit; (3) denied the
23 benefits of the program solely by reason of his or her disability; and (4) the program
24 receives federal financial assistance. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.
25 2002). Because of the similarities between the laws and remedies available, a complaint
26 that properly states a claim under Title II of the ADA also states a claim under Section 504
27 of the RA. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999).
28 While Plaintiff states he has a qualifying disability, he does not allege any facts to
1 support his claim that Defendants denied him a single cell “by reason of his disability.”
2 See Guinn, 502 F.3d at 1060 (emphasis added). Instead, he simply alleges that his request
3 for a single cell was denied. (See Doc. 1 at 3, 5.) Such conclusory statements in the
4 Complaint, unsupported by any specific facts, are insufficient to state an ADA or RA claim.
5 See, e.g., Regal v. Cnty. of Santa Clara, Case No. 22-cv-04321-BLF, 2023 WL 2266135,
6 at *7 (N.D. Cal. Feb. 27, 2023) (dismissing ADA and RA claims where the plaintiff failed
7 to allege facts to show services were denied because of his disability).
8 Accordingly, the Court DISMISSES Plaintiff’s ADA and RA claims without
9 prejudice for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1);
10 Iqbal, 556 U.S. at 678.
11 3. Eighth Amendment
12 Finally, Plaintiff alleges that Defendants violated his Eighth Amendment rights by
13 refusing to provide him single cell housing. (Doc. 1 at 6.) The Eighth Amendment’s
14 prohibition against cruel and unusual punishment imposes a duty on prison officials to
15 “provide humane conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832
16 (1994). These include “food, clothing, shelter, sanitation, medical care, and personal
17 safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part
18 on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis,
19 217 F.3d 726, 731 (9th Cir. 2000).
20 A prisoner does not have an Eighth Amendment right to be housed in a single cell.
21 See Rhodes v. Chapman, 452 U.S. 337, 347–48 (1981) (finding double-celling does not
22 violate Eighth Amendment unless it amounts to unnecessary and wanton pain). Instead, to
23 properly plead a claim of “cruel and unusual” punishment, Plaintiff must allege facts to
24 demonstrate he was confined under conditions posing a risk of “objectively, sufficiently
25 serious” harm and that the prison officials he seeks to hold liable had a “sufficiently
26 culpable state of mind.” Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995).
27 There is both an objective and subjective component to this inquiry. Hallett v.
28 Morgan, 296, F.3d 732, 744 (9th Cir. 2002). First, the Eighth Amendment requires that
1 Plaintiff plead facts sufficient to show he was subjected to an objectively serious
2 deprivation of “the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at
3 832. The “routine discomfort inherent in the prison setting” is inadequate to satisfy the
4 objective prong of the inquiry. Johnson, 217 F.3d at 731.
5 Second, Plaintiff must allege facts sufficient to plausibly show each official acted
6 with “deliberate indifference” to his health or safety. Farmer, 511 U.S. at 834. To do so,
7 Plaintiff must allege facts demonstrating that the official displayed a subjective
8 indifference “to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128
9 (9th Cir. 1998). “Deliberate indifference” is evidenced only when “the official knows of
10 and disregards an excessive risk to inmate health or safety; the official must both be aware
11 of facts from which the inference could be drawn that a substantial risk of serious harm
12 exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. If an official
13 “should have been aware of the risk, but was not, then the [official] has not [violated a
14 party’s Constitutional rights], no matter how severe the risk.” Gibson v. Cnty. of Washoe,
15 290 F.3d 1175, 1187 (9th Cir. 2002); Farmer, 511 U.S. at 838 (“[A]n official’s failure to
16 alleviate a significant risk that he should have perceived but did not, while no cause for
17 commendation, cannot under [the Eighth Amendment] be condemned as the infliction of
18 punishment.”).
19 Here, while Plaintiff includes the legally significant term, “deliberate indifference,”
20 in his Complaint (see Doc. 1 at 6), to state a claim, he must provide more than “labels and
21 conclusions” or offer a mere “formulaic recitation of the elements” of an Eighth
22 Amendment claim. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 679. (“[L]egal
23 conclusions can provide the framework of a complaint, [but] they must be supported by
24 factual allegations.”). Beyond stating that Defendants “refuse to accommodate” his
25 requests for single cell housing, Plaintiff alleges no facts specific to any Defendant. For
26 instance, he fails to provide any factual allegations showing Defendants Macomber, Hill,
27 Santo or Sato “[knew] of and disregard[ed] an excessive risk” to either his mental health
28 or his physical safety with respect to his alleged need for single-cell placement. See
1 Farmer, 511 U.S. at 837. Indeed, to the extent Plaintiff alleges he has experienced
2 harassment and threats to his safety due to his housing placement, he concedes he failed to
3 report any of these incidents to any Defendant or other official. (See Doc. 1 at 3, 6.) As
4 such, he has failed to plausibly allege Defendants acted with deliberate indifference. See
5 Iqbal, 556 U.S. at 678.
6 The Court therefore DISMISSES Plaintiff’s Eighth Amendment claim pursuant to
7 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); see also, e.g., Dillingham v. Garcia, Case
8 No. 1:19-cv-00461-AWI-GSA-PC, 2021 WL 971331, at *8 (E.D. Cal. Mar. 15, 2021)
9 (dismissing prisoner’s Eighth Amendment claims related to double-celling pursuant to 28
10 U.S.C. § 1915A because he failed to allege facts “showing that either of the defendants
11 knew and understood that Plaintiff had a serious medical or mental health care need which
12 [posed] an excessive risk to [his] health,” if he were not single-celled and “ignored it or
13 acted unreasonably under the circumstances.”).
14 D. Leave to Amend
15 In light of Plaintiff’s pro se status, the Court GRANTS him leave to amend his
16 Complaint, as outlined at the conclusion of this Order. See Rosati v. Igbinoso, 791 F.3d
17 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without
18 leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that
19 the deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v
20 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).
21 III. MOTION FOR PRELIMINARY INJUNCTION
22 Plaintiff also seeks a preliminary injunction requiring Defendants reclassify him so
23 that he may be “housed in a Level Two facility” and provided with a single cell while he
24 litigates his case. (Doc. 3 at 11.)
25 Federal Rule of Civil Procedure 65 authorizes courts to issue preliminary
26 injunctions. A “preliminary injunction is ‘an extraordinary remedy never awarded as of
27 right.’” Benisek v. Lamone, 585 U.S. 155, 158 (2018) (per curiam) (quoting Winter v. Nat’l
28 Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). “A plaintiff seeking a preliminary
1 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer
2 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
3 favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. The Ninth
4 Circuit employs a “sliding scale” approach to preliminary injunctions as part of this four-
5 element test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
6 Under this “sliding scale,” a preliminary injunction may issue “when a plaintiff
7 demonstrates . . . that serious questions going to the merits were raised and the balance of
8 hardships tips sharply in the plaintiff’s favor,” as long as the other two Winter factors have
9 also been met. Id. (internal citations omitted). “[A] preliminary injunction is an
10 extraordinary and drastic remedy, one that should not be granted unless the movant, by a
11 clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968,
12 972 (1997).
13 As discussed above, Plaintiff fails to state a plausible claim for relief against any
14 Defendant in his Complaint. As such, he fails to carry his burden of persuasion and is not
15 entitled to injunctive relief at this time. See Williams v. Duffy, Case No. 18-cv-06921-BLF,
16 2019 WL 95924, at *3 (N.D. Cal. Jan. 3, 2019) (“[H]aving reached th[e] conclusion [that
17 Plaintiff’s complaint failed to state a claim], the Court need not reach the remainder of the
18 Winter factors.”); Asberry v. Beard, Civil No. 13CV2573 WQH (JLB), 2014 WL 3943459,
19 at *9 (S.D. Cal. Aug. 12, 2014) (denying prisoner’s preliminary injunction motion because
20 his complaint was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A).
21 Accordingly, the Court DENIES Plaintiff’s motion for preliminary injunction
22 without prejudice.
23 IV. CONCLUSION
24 Based on the foregoing considerations, Plaintiff’s IFP Motion (Doc. 2) is
25 GRANTED, the Complaint (Doc. 1) is DISMISSED without prejudice, and his Motion
26 for Preliminary Injunction (Doc. 3) is DENIED without prejudice. The Court further:
27 1. ORDERS the Secretary of the CDCR, or his designee, to collect from
28 Plaintiff’s trust account the $4.75 initial filing fee assessed, if those funds are available at
1 || the time this Order is executed, and forward whatever balance remains of the full $350
2 ||owed in monthly payments in an amount equal to twenty percent (20%) of the preceding
3 ||month’s income to the Clerk of the Court each time the amount in the account exceeds $10
4 || pursuant to 28 U.S.C. § 1915(b)(2). All payments must clearly identify the name and case
5 number assigned to this action.
6 2. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff
7 || Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by
8 ||U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
9 3. GRANTS Plaintiff leave to file a First Amended Complaint which cures the
10 || deficiencies of pleading noted in this Order on or before May 28, 2025. Plaintiff's
11 |}Amended Complaint must be complete by itself without reference to his original
12 ||Complaint. See S S.D. Cal. Civ. R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co.,
13 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
14 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
15 || dismissed with leave to amend which are not re-alleged in an amended pleading may be
16 || “considered waived if not repled.”).
17 If Plaintiff fails to file a First Amended Complaint on or before May 28, 2025, the
18 Court will enter a final order dismissing this civil action based both on failure to state a
19 ||claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(Gi) and
20 ||§ 1915A(b)(1), and failure to prosecute in compliance with a court order requiring
21 |;amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
22 ||not take advantage of the opportunity to fix his complaint, a district court may convert the
23 || dismissal of the complaint into dismissal of the entire action.”’).
24 IT IS SO ORDERED.
25 ||DATE: May 8, 2025
26 Get Barmnude, Notes! D
17 HON. RUTH BERMUDEZ'MONTENEGRO
UNITED STATES DISTRICT JUDGE
28
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AAE .. ANON DDAT □□□□

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11049563. Public record. Not legal advice.