The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 DILON ANDREW DALTON HESS, Case No.: 3:26-cv-1620-JES-LR
Booking #25701006,
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ORDER: (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
vs. PAUPERIS [ECF No. 2] AND
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SAN DIEGO DISTRICT ATTORNEY,
15 (2) DISMISSING COMPLAINT
SUMMER STEPHAN, KATIA DAVILA,
WITHOUT PREJUDICE FOR
16 CHP OCEANSIDE, CHP SAN DIEGO,
FAILURE TO STATE A CLAIM
OCEANSIDE POLICE DEP’T,
17 PURSUANT TO 28 U.S.C.
HOLLYWOOD, MOYER, MORRISON,
§§ 1915(e)(2)(B) AND 1915A(b)
18 HUTHMAKER, DALEY, NELSON, C.
REARDON, S. REARDON, SMITH,
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HOLLINS, SHIELDS, HERB WESTON,
20 RICHARD COLMAN,
21 Defendants.
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23 I. INTRODUCTION
24 Plaintiff Dilon Andrew Dalton Hess (“Hess” or “Plaintiff”), a detainee proceeding
25 pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983, along with a motion
26 to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. Hess raises claims related to criminal
27 proceedings in San Diego County Superior Court Case No. SCN455335. See ECF No. 1 at
28 3–6. For the reasons discussed below, the Court grants the IFP motion and dismisses the
1 complaint without prejudice for failure to state a claim against any Defendant.
2 II. IFP MOTION
3 All parties instituting any civil action, suit or proceeding in a district court of the
4 United States, except an application for writ of habeas corpus, must pay a filing fee of
5 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire
6 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant
7 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
8 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an]
9 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the
10 fee[s] [a]re paid.”).
11 To proceed IFP, prisoners must “submit an affidavit that includes a statement of all
12 assets they possess,” as well as a “certified copy of their trust fund account statement (or
13 institutional equivalent) for the 6-month period immediately preceding the filing of the
14 complaint.” 28 U.S.C. § 1915(a)(1), (2) (citation modified). Using this financial
15 information, the court assesses an initial partial filing fee which is “calculated based on
16 ‘the average monthly deposits to the prisoner’s account’ or ‘the average monthly balance
17 in the prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in
18 ‘monthly payments of 20 percent of the preceding month’s income credited to the
19 prisoner’s account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short,
20 while prisoners may qualify to proceed IFP without having to pay the full statutory filing
21 upfront, they remain obligated to pay the full amount due in monthly payments. See Bruce
22 v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2).
23 In support of his IFP Motion, Hess has provided a signed copy of his prison
24 certificate which reflects an average monthly balance of $50.00, average monthly deposits
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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See
27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
Dec. 1, 2023). The additional $55 administrative fee does not apply to persons granted leave to proceed
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1 of $50.00, and an available account balance of $0.27. ECF No. 2 at 4. Accordingly, the
2 Court GRANTS Plaintiff’s IFP motion. Because the initial partial filing fee would exceed
3 the balance in Plaintiff’s account, the Court assesses no initial partial filing fee. See 28
4 U.S.C. § 1915(b)(4) (providing that a prisoner should not be prohibited from bringing a
5 civil action or appealing a civil action solely because he has no assets and no means to pay
6 the initial partial filing fee). The facility where Plaintiff is detained must collect the full
7 balance of the $350 fee owed and forward payments to the Clerk of the Court as provided
8 by 28 U.S.C. § 1915(b)(2).
9 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A(b)
10 A. Standard of Review
11 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a
12 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,
13 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
14 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,
15 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has
16 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the
17 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”
18 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a
19 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible
20 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
21 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements
22 of a cause of action, supported by mere conclusory statements, do not suffice” to state a
23 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-
24 harmed me accusation[s]” fall short of meeting this plausibility standard. Id.
25 B. Plaintiff’s Allegations
26 In his Complaint, Hess alleges claims related to criminal proceedings taking place
27 in San Diego County Superior Court Case No. SCN455335. Hess states that he was
28 “illegally arrested” on May 6, 2024. ECF No. 1 at 3, 5. He claims law enforcement officers
1 involved in his case “intentionally hid evidence and created evidence illegally.” Id.
2 Specifically, Hess alleges that officers “submitted photoshopped pictures to connect him
3 to the charged filed.” Id. at 3. Plaintiff further alleges that the assistant district attorney
4 prosecuting his case has “withheld evidence favorable to [his] defense.” Id. at 5.
5 On February 18, 2026, the judge presiding over Hess’s criminal proceedings ordered
6 a competency evaluation, despite Hess expressing his wish to proceed to trial. Id. at 4. Hess
7 also states that his appointed defense counsel has improperly waived his appearance to
8 certain court proceedings “without his consent.” Id. When Plaintiff sought to relieve his
9 appointed counsel and represent himself, he was “deemed incompetent twice.”2 Id. Hess
10 states that the prosecutor in his case “purposely had a doctor find [him] incompetent.” Id.
11 C. Discussion
12 In his Complaint, Hess names numerous Defendants as follows: San Diego District
13 Attorney, Summer Stephan and Assistant District Attorney, Katia Davila; California
14 Highway Patrol (“CHP”) Oceanside, CHP San Diego, CHP Officers Hollywood and
15 Meyer; Oceanside Police Department; San Diego Police (“SDPD”) Officers Morrison,
16 Huthmaker, Daley, Nelson, C. Reardon, S. Reardon, Smith, Hollins, and Shields; and
17 Plaintiff’s appointed defense attorneys, Weston and Colman. Id. at 2, 8–9. Hess sues all
18 Defendants in the official capacities only. Id.
19 Hess raises claims pursuant to 42 U.S.C. § 1983 which requires he allege (1) a right
20 secured by the Constitution or laws of the United States was violated; and (2) the alleged
21 violation was committed by “a person” acting under the color of state law. West v. Atkins,
22 487 U.S. 42, 48 (1988). In ground one, Hess alleges Davila called Officers Moyer, Shields
23 and Daley as witnesses at some point during the criminal proceedings and they, in turn,
24 provided “dishonest” testimony. ECF No. 1 at 3. In ground two, Hess alleges he has been
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27 2 It is not clear from the facts alleges whether Hess’s reference to being “deemed incompetent” two times
preceded (or includes) the trial court’s February 18, 2026 order that Hess be “evaluated.” See ECF No. 1
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1 denied “access to courts” because he has been deemed incompetent twice during the
2 criminal proceedings. Id. at 4. Last, he alleges claims of false imprisonment and cruel and
3 unusual punishment after he was “illegally arrested” by Defendant Moyer, with the
4 involvement of Defendants Hollywood, Morrison, Huthmaker, Daley, Nelson, C. Reardon,
5 S. Reardon, Smith, Hollins, and Shields. He further claims officers also hid evidence and
6 “created evidence” illegally. Id. at 5. Hess seeks money damages and release from custody.
7 Id. at 7.
8 1. Official Capacity
9 As noted above, Hess names all Defendants in their official capacities only. Official
10 capacity suits “generally represent only another way of pleading an action against an entity
11 of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting
12 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).
13 a. District Attorney Defendants
14 First, Hess’s official capacity claims against Stephan, District Attorney of San Diego
15 County and Davila, a Deputy District Attorney, are treated as claims against state. See
16 Weiner v. San Diego Cnty., 210 F.3d 1025, 1030–31 (9th Cir. 2000) (holding that under
17 California law, a county district attorney acts as a state official when deciding whether to
18 prosecute an individual). And the Eleventh Amendment bars a prisoner’s § 1983 claims for
19 money damages against state actors sued in their official capacities. Will v. Michigan Dep’t
20 of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a State nor its officials acting
21 in their official capacities are ‘persons’ under § 1983.”); see also Dittman v. California,
22 191 F.3d 1020, 1025–26 (9th Cir. 1999) (“The State of California has not waived its
23 Eleventh Amendment immunity with respect to claims brought under § 1983 in federal
24 court.”). Thus, Hess’s claims for money damages against Stephan and Davila must be
25 dismissed.
26 In addition, to the extent Hess seeks injunctive relief, the prosecutors are entitled to
27 absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (“[A]cts
28 undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial,
1 and which occur in the course of his role as an advocate for the State.”). Therefore, Hess
2 has not stated a claim against Defendant San Diego District Attorney Stephan and
3 Defendant Davila.
4 b. CHP Officer Defendants
5 Plaintiff’s official capacity claims against the Oceanside CHP, San Diego CHP and
6 CHP Officers Hollywood and Meyer must also be dismissed. An official capacity suit
7 against a CHP entity or officer is, in effect, a suit against the state. See Will, 491 U.S. at
8 71. Therefore, because the state of California has not waived its immunity, Plaintiff cannot
9 proceed with his claims seeking money damages against CHP entities and CHP officers
10 acting in their official capacities. See O’Leary v. Cal. Highway Patrol, 923 F.2d 862, 1991
11 WL 2545 (9th Cir. 1991) (unpublished) (stating “the State and the CHP enjoy sovereign
12 immunity and cannot be sued under section 1983” and the Eleventh Amendment “bars
13 [plaintiff’s] claims against the CHP officers sued in their official capacities for monetary
14 damages”); Baker v. State of Cal. Highway Patrol, No. 13-CV-00073-MEJ, 2013 WL
15 4427199, at *7 (N.D. Cal. Aug. 14, 2013), aff’d sub nom. Baker v. California Highway
16 Patrol, 601 Fed. App’x. 556 (9th Cir. 2015) (“Actions against state officials in their official
17 capacities are treated as suits against the State, and are therefore generally barred by the
18 Eleventh Amendment . . .. This principle is applicable to lawsuits against CHP employees
19 in their official capacities.”). Therefore, Hess has not stated a claim against Defendants
20 CHP Oceanside, CHP San Diego, or CHP Officers Hollywood and Meyer.
21 c. Oceanside Police Department and SDPD Officers
22 Finally, Plaintiff is suing the Oceanside Police Department and SDPD Officers
23 Morrison, Huthmaker, Daley, Nelson, C. Reardon, S. Reardon, Smith, Hollins and Shields
24 in their official capacities, which is the same as suing the City of Oceanside and City of
25 San Diego themselves. See Monell, 436 U.S. at 690 n.55. A local government entity may
26 not be held vicariously liable under § 1983 simply based on allegedly unconstitutional acts
27 of its employees. Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead, a plaintiff
28 asserting municipal liability must show the “local government had a deliberate policy,
1 custom, or practice that was the moving force behind the constitutional violation [they]
2 suffered.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).
3 Thus, to state a claim, Hess “must show that (1) []he was deprived of a constitutional right;
4 (2) the [municipality] had a policy; (3) the policy amounted to a deliberate indifference to
5 h[is] constitutional right; and (4) the policy was the moving force behind the constitutional
6 violation.” Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110–
7 11 (9th Cir. 2001).
8 Here, Plaintiff has not identified or alleged a policy, practice or custom from the City
9 of Oceanside or the City of San Diego that may have caused a deprivation of his rights,
10 and he also fails to allege that any such practice was the moving force behind his alleged
11 injury. Plaintiff has also failed to plead sufficient facts to support an allegation that there
12 was a direct causal link between an Oceanside or San Diego policy or custom and any
13 alleged constitutional violation. See Dougherty v. City of Covina, 654 F.3d 892, 900–01
14 (9th Cir. 2011) (“The Complaint lacked any factual allegations regarding key elements of
15 the Monell claims, or, more specifically, any facts demonstrating that [plaintiff’s]
16 constitutional deprivation was the result of a custom or practice of the City of Covina or
17 that the custom or practice was the ‘moving force’ behind his constitutional deprivation.”).
18 Therefore, Hess has failed to state an official-capacity claim against the Oceanside Police
19 Department or SDPD Officers Morrison, Huthmaker, Daley, Nelson, C. Reardon, S.
20 Reardon, Smith, Hollins and Shields.
21 d. Appointed Defense Counsel
22 Lastly, Hess cannot state an official-capacity claim against his court appointed
23 defense attorneys, Weston and Colman. Appointed criminal defense counsel, including
24 public defenders, are generally not state actors capable of being sued under 42 U.S.C.
25 § 1983. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act
26 under color of state law when performing a lawyer’s traditional functions as counsel to a
27 defendant in a criminal proceeding.”); see also Miranda v. Clark County, Nev., 319 F.3d
28 465, 468 (9th Cir. 2003) (finding that a court-appointed attorney was not a state actor within
1 the meaning of § 1983 because “his function was to represent his client, not the interests
2 of the state or county”); Garnier v. Clarke, 332 Fed. Appx. 416 (9th Cir. 2009) (affirming
3 district court’s sua sponte dismissal of prisoner’s § 1983 claims against appointed counsel).
4 As such, Hess fails to state a claim against Defendants Weston and Colman.
5 2. Individual Capacity
6 Even assuming Plaintiff had named Defendants in their individual capacities, as
7 pleaded he has not stated a claim against any individual Defendant for the reasons
8 discussed below.
9 a. District Attorney Defendants
10 As discussed above, to the extent Plaintiff seeks to raise claims against District
11 Attorney Stephan and Deputy District Attorney Davila for malicious prosecution, use of
12 perjured testimony and suppression of evidence, Stephan3 and Davila are absolutely
13 immune from liability in their roles as advocates for the government in judicial
14 proceedings. Prosecutors are immune from liability for all “acts undertaken by a prosecutor
15 in preparing for the initiation of judicial proceedings or for trial, and which occur in the
16 course of his role as an advocate for the State.” See Buckley v. Fitzsimmons, 509 U.S. 259,
17 273 (1993); Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (concluding prosecutorial
18 immunity protects eligible government officials who perform functions “intimately
19 associated with the judicial phase of the criminal process”); Genzler v. Longanbach, 410
20 F.3d 630, 637 (9th Cir. 2005) (noting absolute immunity applies even if it “leave[s] the
21 genuinely wronged defendant without civil redress against a prosecutor whose malicious
22 or dishonest action deprives him of liberty”). “This immunity covers the knowing use of
23 false testimony at trial, the suppression of exculpatory evidence, and malicious
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26 3 In addition, Plaintiff does not describe any specific action by District Attorney Stephan. To the extent
Plaintiff asserts claims against District Attorney Stephan they appear to be based solely on her role as the
27 District Attorney of San Diego County. Supervisory personnel such as District Attorney Stephan are
generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior.
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1 prosecution.” Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001). Therefore, because
2 Defendants Stephan and Davila are entitled to immunity, as currently pleaded Hess cannot
3 state an individual-capacity claim against them.
4 b. Appointed Defense Counsel
5 Hess cannot state an individual-capacity § 1983 claim against his court-appointed
6 defense attorneys, Weston and Colman. As discussed above, appointed counsel acting in
7 their roles as advocates are not state actors who can be sued under § 1983. Georgia v.
8 McCollum, 505 U.S. 42, 53 (1992).
9 c. Individual CHP and SDPD Officers
10 In addition, Plaintiff has not stated an individual capacity claim against any CHP or
11 SDPD Defendant for “illegal arrest” or for “creating evidence.” See ECF No. 1 at 5. “A
12 claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth
13 Amendment, provided the arrest was without probable cause or other justification.” Lacey
14 v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir.2012) (quoting Dubner v. City & Cnty. of
15 S.F., 266 F.3d 959, 964 (9th Cir. 2001). In addition, to state a § 1983 claim, Hess must
16 allege facts to establish a causal link between the Defendants’ conduct and an alleged
17 unlawful arrest. Without causation, there is no deprivation of a plaintiff’s constitutional
18 rights. Rizzo v. Goode, 423 U.S. 362, 370–71 (1976). Here, Hess provides only the
19 conclusory allegation that he was “illegally arrested” and as such, has not plausibly alleged
20 he was arrested without probable cause. See ECF No. 1 at 5.
21 As to Plaintiff’s allegation regarding fabrication of evidence, there is a “clearly
22 established due process right not to be subjected to criminal charges on the basis of false
23 evidence that was deliberately fabricated by the government.” Devereaux v. Abbey, 263
24 F.3d 1070, 1074–75 (9th Cir. 2001). To prevail on a section 1983 claim of deliberate
25 fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated
26 evidence and (2) the deliberate fabrication caused the plaintiff's deprivation of liberty.
27 Spencer v. Krause, 857 F.3d 789, 798 (9th Cir. 2017). Here, Hess has failed to allege any
28 specific facts as to any individual law enforcement defendant sufficient to support an
1 individual capacity claim based on fabrication of evidence. See id; see also Rizzo, 423 U.S.
2 at 370–71. Therefore, he has not stated an individual capacity claim against law
3 enforcement Defendants Hollywood, Meyer, Morrison, Huthmaker, Daley, Nelson, C.
4 Reardon, S. Reardon, Smith, Hollins and Shields.
5 3. Abstention
6 Finally, it appears Hess’s state criminal proceedings are ongoing.4 If this is the case,
7 this civil action is barred by the abstention doctrine set forth in Younger v. Harris, 401 U.S.
8 37, (1971). Under Younger, unless extraordinary circumstances are present, federal courts
9 must abstain from hearing suits where: (1) state judicial proceedings are ongoing; (2) the
10 state proceedings implicate important state interests; (3) the federal plaintiff is not barred
11 from litigating federal constitutional issues in the state proceeding; and (4) the federal court
12 action would enjoin the proceeding or have the practical effect of doing so. San Jose Silicon
13 Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087,
14 1092 (9th Cir. 2008). Younger abstention applies to actions for damages as well as
15 declaratory and injunctive relief. Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir. 2004).
16 Here, all the above elements appear to be met. First, it appears state criminal
17 proceedings were pending when Hess filed this case.5 See Beltran v. State of California,
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4 The Court takes judicial notice of the fact that Hess has been charged with numerous felonies and
21 misdemeanors in San Diego County Case No. SCN455335, including carjacking, hit and run, recklessly
evading police officers, and possession of stolen property. Information available on the San Diego County
22 Sheriff’s Department website indicates proceedings in Hess’s criminal case are ongoing. And while the
precise stage of the proceedings is unclear, Hess has not been sentenced and the next hearing in Case No.
23 SCN455335 is scheduled for June 9, 2026. See San Diego County Sheriff’s Office, Who’s In Jail,
https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=Gd67iBOzmOf3fUZG2qY3iBQaqnVUov85Q2
24
3WZaQl%2fXo%3d#! (visited June 8, 2026). Based on the allegations in the complaint, it appears
25 criminal proceedings were paused on February 18, 2026, when the trial judge “ordered an evaluation” of
Plaintiff’s competency. See ECF No. 1 at 4. It is not clear whether proceedings have since resumed.
26
5 If plaintiff’s state criminal proceedings are concluded, his claims are likely barred under Heck v.
27 Humphrey, 512 U.S. 477, 486–87 (1994), which holds that to recover damages based on an
unconstitutional conviction, a section 1983 plaintiff must show that conviction was reversed, expunged,
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1 871 F.2d 777, 782 (9th Cir. 1988) (for purposes of Younger abstention analysis, the
2 pendency of state proceedings is determined “at the time the federal action was filed”).
3 Hess alleges he has been “deemed incompetent twice” during these proceedings and states
4 that on February 18, 2026, the trial court ordered him evaluated. ECF No. 1 at 4. Second,
5 the State of California’s interest in prosecuting individuals charged with violating its laws
6 is an important state interest. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“This Court
7 has recognized that the States’ interest in administering their criminal justice systems free
8 from federal interference is one of the most powerful of the considerations that should
9 influence a court considering equitable types of relief.” (internal citations omitted)). Third,
10 Hess has the opportunity to raise challenges to his arrest, speedy trial rights, competency
11 proceedings, and the effectiveness of his trial lawyers in state court proceedings. See Duke
12 v. Gastelo, 64 F.4th 1088, 1096 (9th Cir. 2023).
13 Thus, to the extent criminal proceedings are ongoing in state court, Hess’s claims
14 are barred under Younger. Where Younger applies, the district court must dismiss the
15 federal action. Beltran, 871 F.2d at 782.
16 D. Leave to Amend
17 Given Plaintiff’s pro se status, the Court grants Plaintiff leave to amend his
18 complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court
19 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.
20 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint
21 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
22 Cir. 2012)).
23 IV. CONCLUSION AND ORDER
24 Accordingly, the Court:
25 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
26 (ECF No. 2).
27 2. ORDERS the Facility Commander of the San Diego County Central Jail, or
28 his designee, to garnish from Plaintiff’s trust account the full $350 filing fee owed for this
1 ||case, and to forward in monthly payments an amount equal to twenty percent (20%) of the
2 ||preceding month’s income to the Clerk of the Court each time the amount in his account
3 || exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).
4 3. DIRECTS the Clerk of the Court to serve a copy of this Order on the Facility
5 |}Commander, San Diego Central Jail, 1173 Front Street, San Diego, California 92101.
6 4. DISMISSES the Complaint in its entirety for failure to state a claim against
7 Defendant pursuant to 28 U.S.C. §§ 1915(e)(2)(B)G)) & 1915A(b)(1).
8 5. GRANTS Plaintiff sixty (60) days leave from the date of this Order in which
9 file a First Amended Complaint which cures the deficiencies of pleading noted in this
10 || Order. Plaintiff's Amended Complaint must be complete by itself without reference to his
11 || original Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
12 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
13 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
14 || dismissed with leave to amend which are not re-alleged in an amended pleading may be
15 ||““considered waived if not repled.”).
16 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final
17 || Order dismissing this civil action based both on failure to state a claim upon which relief
18 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)q1) and § 1915A(b)(1), and failure to
19 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427
20 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity
21 fix his complaint, a district court may convert the dismissal of the complaint into
22 || dismissal of the entire action.’’).
23 IT IS SO ORDERED.
24 || Dated: June 23, 2026
25 =| oe San—
26 Honorable James E. Simmons Jr.
17 United States District Judge
28
12