Gregory Franklin v. R. Franklin ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 GREGORY FRANKLIN, Case No. CV 19-6255-CBM (KK) 11 Plaintiff, 12 v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 13 R. FRANKLIN, ET AL., 14 Defendant(s). 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Gregory Franklin (“Plaintiff”), proceeding pro se and in forma 20 pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”) alleging 21 violations of his First, Eighth, and Fourteenth Amendment rights. For the reasons 22 discussed below, the Court dismisses the Complaint with leave to amend. 23 II. 24 ALLEGATIONS IN THE COMPLAINT 25 On July 19, 2019, Plaintiff, an inmate at California State Prison – Los Angeles 26 County (“CSP-LAC”), constructively filed1 the Complaint against defendants (1) 27 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a 1 Lieutenant R. Franklin, (2) Lieutenant A.H. Martinez, (3) Correctional Officer J. 2 Hernandez, (4) Correctional Officer E. Gollette, (5) Correctional Counselor II J. 3 Tingely, (6) Correctional Officer E. Delgadillo, (7) Captain S. Rivera, (8) Chief Deputy 4 Warden R. Johnson, (9) Associate Warden C. Wood, (10) Sergeant R. Aguirre, (11) 5 Correctional Officer Drayton, (12) Correctional Officer J. Makarade, (13) Correctional 6 Officer J. Resendiz, (14) Lieutenant I. Mijares, (15) Correctional Counselor S. Nave, 7 (16) Correctional Officer Rios, (17) Sergeant Moses, (18) F. Villalobos, (19) Warden 8 M. Stratman, (20) Correctional Officer K. Penate, (21) Correctional Officer G. 9 Rodriguez, (22) Chief Appeal Officer T. Ramos, and (23) Correctional Officer D. 10 Moore (“Defendants”) in their individual and official capacities. ECF Docket No. 11 (“Dkt.”) 1. Plaintiff alleges each Defendant violated his First, Eighth, and Fourteenth 12 Amendment rights. 13 The Complaint sets forth the following allegations: 14 On February 13, 2012, Plaintiff arrived at CSP-LAC after being transferred 15 from Calpatria State Prison. Id. at 13-14. While at Calpatria State Prison, Plaintiff 16 had filed a civil rights lawsuit in 2007 against thirteen correctional officers at Calpatria 17 State Prison, a second civil rights lawsuit in June 2008 against eight correctional 18 officers at Calpatria State Prison, and a third civil rights lawsuit in 2011 against seven 19 correctional officers at Calpatria State Prison. Id. at 12-13. 20 At some point after his transfer to CSP-LAC, defendants Rodriguez and Moses 21 told Plaintiff they were placing another inmate in Plaintiff’s cell. Id. at 15. Defendant 22 Rodriguez “said he was aware of Plaintiff suing officers.” Id. at 16. Plaintiff stated he 23 “needed to see the prisoner before he [would] accept him as a cellmate.” Id. at 15. 24 Before Plaintiff met the proposed cellmate, however, Plaintiff was placed in 25 administrative segregation for “refusing a cellie.” Id. Defendant Franklin “said he 26 provided Plaintiff a disciplinary hearing and he found Plaintiff guilty,” but no 27 1 disciplinary hearing occurred. Id. at 15-16. As a result, Plaintiff spent 60 days 2 confined to his cell with “no outdoor or inside recreation.” Id. at 16. 3 On July 21, 2015, defendants Rodriguez and Moses again told Plaintiff an 4 inmate had been assigned to his cell. Id. at 17. Plaintiff told them “he don’t want no 5 cellie that is violent and psychotic.” Id. Plaintiff was given a rule violation for 6 “refusing a cellie.” Id. Defendant Martinez, the hearing officer for Plaintiff’s 7 disciplinary hearing, refused to call Plaintiff’s requested witnesses and found Plaintiff 8 guilty of the rule violation. Id. As a result, Plaintiff was confined to his cell for 90 9 consecutive days immediately following the previous 60 days for a total of five 10 months. Id. at 17-18. 11 On July 21, 2015, defendant Moore packed Plaintiff’s property and placed it in 12 Release and Receiving for Plaintiff to receive when he was released from 13 administrative segregation. Id. at 34. On August 17, 2015, Plaintiff was released from 14 administrative segregation and received his property. Id. His legal work, however, 15 was missing and several inmates told Plaintiff they saw a bundle of legal work on the 16 dayroom floor after Plaintiff’s property was taken to Release and Receiving. Id. 17 On September 13, 2015, Plaintiff was placed on “C-status” (i.e., “privilege 18 group C”) for the two rule violations for refusing “a cellie.” Id. at 18. On November 19 1, 2015, Plaintiff sent a request to defendants Nave and Tingely, correctional 20 counselors, to remove Plaintiff from C-status. Id. at 19. Both defendants Nave and 21 Tingely “made comments about Plaintiff[’s] pending lawsuits,” denied him a hearing 22 regarding his removal from C-status, and refused to take Plaintiff off C-status. Id. 23 On October 11, 2015, Plaintiff filed a lawsuit against five CSP-LAC employees, 24 including defendant Martinez. Id. at 20. On October 19, 2017, defendant Martinez 25 supervised cell searches in the building where Plaintiff was housed. Id. at 20. After 26 the search, Plaintiff’s food items were missing. Id. The cell search receipt stated 27 defendant Gollette and Hernandez had conducted the search. Id. at 20-21. 1 Defendant Gollette “had previously made comments about Plaintiff bringing 2 lawsuits.” Id. at 21. 3 At his annual classification hearings on October 19, 2016 and October 10, 4 2017, Plaintiff’s requests to be transferred to a lower security prison, have “single cell 5 status”, and to enter “rehabilitative/work programs” were denied. Id. at 22. 6 Counselor Tingely, who had previously told Plaintiff “it disturb[s] him Plaintiff ha[s] 7 brought lawsuit’s [sic] against his co-horts,” was the chairperson for the annual 8 classification on October 19, 2016, and defendant Rivera was the chairperson on 9 October 10, 2017. Id. 10 Ten days after Plaintiff’s annual classification2 and one day after Plaintiff wrote 11 a grievance challenging the denial of his request for single cell status, defendant 12 Penata wrote Plaintiff a rule violation for refusing “a cellie.” Id. at 23. Defendant 13 Villalobos found Plaintiff guilty of the rule violation, which resulted in “90 days loss 14 of telephone, credits, dayroom, and clean time.” Id. 15 On an unspecified date, Plaintiff gave defendant Delgadillo a complaint 16 regarding loss of personal property to mail to the Government Claim Board, but the 17 complaint never reached the Government Claim Board and it was not logged into the 18 mailroom. Id. at 24-25. On August 14, 2017 and November 2, 2017, defendant 19 Delgadillo refused to pick up Plaintiff’s mail. Id. at 25. 20 On January 7, 2018, defendant Aguirre interviewed Plaintiff regarding 21 Plaintiff’s grievance against defendant Delgadillo. Id. at 26. During the interview, 22 defendant Aguirre told Plaintiff he could give Plaintiff a “cellie” and if Plaintiff 23 refused, Plaintiff would be disciplined. Id. Defendant Aguirre then asked Plaintiff 24 whether he wanted to withdraw the grievance against defendant Delgadillo. Id. 25 Plaintiff refused to withdraw the grievance. Id. The next day, defendant Aguirre 26 27 1 wrote Plaintiff up for refusing a “cellie,” resulting in 90 days of lost privileges and 2 placement on C-status. Id. 3 On February 12, 2018 and February 19, 2018, defendant Drayton refused to 4 sign Plaintiff’s laundry slip to have Plaintiff’s laundry returned to him and stated “until 5 Plaintiff take[s] a cell-mate he will not have his laundry replaced.” Id. at 27. 6 Therefore, Plaintiff had to sleep on dirty sheets for “numerous weeks” and his “body 7 was itching excessively.” Id. 8 On April 2, 2018, defendant Drayton moved Plaintiff to another building 9 where defendants Resendiz and Makarade told Plaintiff he would be moving into a 10 cell with another inmate. Id. at 28. Plaintiff refused. Id. Defendants Resendiz and 11 Makarade handcuffed Plaintiff and took him to the cage in the gym to await being 12 sent to administrative segregation. Id. at 29. Defendant Mijares interviewed Plaintiff 13 regarding his refusal to share a cell. Id. Plaintiff was then placed in administrative 14 segregation from April 2, 2018 to April 14, 2018. Id. 15 On April 14, 2018, defendant Rios took Plaintiff’s appliances because Plaintiff 16 was being placed on C-status. Id. at 30. On July 3, 2018, Plaintiff was released from 17 C-status and asked defendant Rios for his appliances. Id. Receiving and Release told 18 Plaintiff defendant Rios had to retrieve the appliances and defendant Rios told 19 Plaintiff other officers had to retrieve them. Id. at 30-31. On August 7, 2018, 20 Plaintiff’s appliances were returned to him. Id. at 31. 21 Finally, defendant Stratman has implemented a policy, which defendant Ramos 22 is enforcing, that discriminates against inmates in the same privilege group because 23 inmates that are working are allowed to receive night yard and inmates that are not 24 working are not allowed to receive night yard. Plaintiff alleges this policy was 25 implemented as retaliation against “prison litigators” like himself because their jobs 26 may be taken away “on a whim,” and without a job, they are arbitrarily denied night 27 yard. Id. at 32. 1 III. 2 STANDARD OF REVIEW 3 Where a plaintiff is incarcerated and/or proceeding in forma pauperis, a court 4 must screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to 5 dismiss the case at any time if it concludes the action is frivolous or malicious, fails to 6 state a claim on which relief may be granted, or seeks monetary relief against a 7 defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see 8 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 9 Under Rule 8, a complaint must contain a “short and plain statement of the 10 claim showing the pleader is entitled to relief,” and “[e]ach allegation must be simple, 11 concise, and direct.” Fed. R. Civ. P. 8(a), (d). In determining whether a complaint 12 fails to state a claim for screening purposes, a court applies the same pleading 13 standard as it would when evaluating a motion to dismiss under Federal Rule of Civil 14 Procedure 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 15 A complaint may be dismissed for failure to state a claim “where there is no 16 cognizable legal theory or an absence of sufficient facts alleged to support a 17 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 18 considering whether a complaint states a claim, a court must accept as true all of the 19 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 20 2011). However, the court need not accept as true “allegations that are merely 21 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 22 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 23 need not include detailed factual allegations, it “must contain sufficient factual matter, 24 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 25 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 26 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it 27 “allows the court to draw the reasonable inference that the defendant is liable for the 1 underlying facts to give fair notice and to enable the opposing party to defend itself 2 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 3 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 4 however inartfully pleaded, must be held to less stringent standards than formal 5 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). 6 However, liberal construction should only be afforded to “a plaintiff’s factual 7 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 8 339 (1989), and a court need not accept as true “unreasonable inferences or assume 9 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 10 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 11 If a court finds the complaint should be dismissed for failure to state a claim, 12 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 13 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it 14 appears possible the defects in the complaint could be corrected, especially if the 15 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 16 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 17 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 18 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 19 IV. 20 DISCUSSION 21 A. THE ELEVENTH AMENDMENT BARS ALL SECTION 1983 22 CLAIMS FOR MONETARY DAMAGES AGAINST DEFENDANTS 23 IN THEIR OFFICIAL CAPACITY 24 1. Applicable Law 25 “The Eleventh Amendment prohibits federal courts from hearing suits brought 26 against an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 27 F.2d 1050, 1053 (9th Cir. 1991) (citing Pennhurst State School & Hosp. v. Halderman, 1 includes “suits naming state agencies and departments as defendants,” and it applies 2 whether a plaintiff “seek[s] damages or injunctive relief.” Id.; Pennhurst State School, 3 465 U.S. at 102. As to state officials sued in their official capacity, the Eleventh 4 Amendment immunizes state officials sued in their official capacity from claims for 5 retrospective relief (including monetary damage claims) but does not immunize them 6 from claims for prospective relief (such as forward-looking injunctive relief). 7 Kentucky v. Graham, 473 U.S. 159, 169-70, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); 8 Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ex Parte 9 Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 2d 714 (1908). 10 2. Analysis 11 Here, Plaintiff’s claims against Defendants in their official capacity for 12 monetary damages are barred by the Eleventh Amendment. See Graham, 473 U.S. at 13 169-70 (holding the Eleventh Amendment bar “remains in effect when State officials 14 are sued for damages in their official capacity”). Thus, Plaintiff’s claims against 15 Defendants in their official capacity for monetary damages are subject to dismissal. 16 B. THE COMPLAINT IMPROPERLY JOINS DISTINCT CLAIMS AND 17 FAILS TO COMPLY WITH RULE 8 18 1. Applicable Law 19 A basic lawsuit is a single claim against a single defendant. Federal Rule of 20 Civil Procedure 18(a) allows a plaintiff to add multiple claims to the lawsuit when they 21 are against the same defendant. Federal Rule of Civil Procedure 20(a)(2) allows a 22 plaintiff to join multiple defendants to a lawsuit where the right to relief arises out of 23 the same “transaction, occurrence, or series of transactions” and “any question of law 24 or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). In 25 contrast, unrelated claims against different defendants must be brought in separate 26 lawsuits to avoid confusion and prevent “the sort of morass [a multiple claim, 27 multiple defendant] suit produce[s].” George v. Smith, 507 F.3d 605, 607 (7th Cir. 1 different lawsuits, in part to prevent prisoners from circumventing filing-fee 2 requirements and three-strikes rule under Prison Litigation Reform Act); Gonzalez v. 3 Maldonado, No. 1:11-cv-01774-SAB (PC), 2013 WL 4816038, at *2 (E.D. Cal. Sept. 9, 4 2013) (same). 5 Rule 8 “has been held to be violated by a pleading that was needlessly long, or a 6 complaint that was highly repetitious, or confused, or consisted of incomprehensible 7 rambling.” Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058-59 (9th Cir. 8 2011) (discussing cases in which the Ninth Circuit affirmed Rule 8 dismissals); see also 9 Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981) (affirming 10 dismissal with prejudice of a first amended complaint that “was 23 pages long with 24 11 pages of addenda, named additional defendants without leave of court, and was 12 equally as verbose, confusing and conclusory as the initial complaint”). Moreover, a 13 complaint may be dismissed for violating Rule 8 even if “a few possible claims” can 14 be identified and the complaint is not “wholly without merit.” McHenry v. Renne, 84 15 F.3d 1172, 1177-79 (9th Cir. 1996) (stating that Rule 8’s requirements apply “to good 16 claims as well as bad” and affirming the dismissal of a complaint under Rule 8 for 17 being “argumentative, prolix, replete with redundancy, and largely irrelevant”). 18 Complaints that fail to comply with Rule 8 “impose unfair burdens on litigants and 19 judges” who “cannot use [such] complaint[s]” and “must prepare outlines to 20 determine who is being sued for what.” Id. at 1179-80; Jacobson v. Shwarzenegger, 21 226 F.R.D. 395, 397 (C.D. Cal. 2005) (“Neither the court nor the defendants should 22 be compelled to cull through pages of rambling narrative, argument and needless 23 digression to discover the factual bases for [Plaintiff’s] claims.”). “Experience teaches 24 that, unless cases are pled clearly and precisely, issues are not joined, discovery is not 25 controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and 26 society loses confidence in the court’s ability to administer justice.” Bautista v. L.A. 27 Cty., 216 F.3d 837, 841 (9th Cir. 2000). 1 2. Analysis 2 Here, the Complaint is a narrative of numerous unrelated incidents involving 3 twenty-three defendants allegedly violating Plaintiff’s rights from 2015 through the 4 present. See dkt. 1. The improper joinder of various unrelated claims against 5 different defendants imposes an unfair burden on the Court and Defendants to 6 decipher “who is being sued for what.” See McHenry, 84 F.3d at 1177-79. For 7 example, the Complaint improperly joins claims against defendants Moses and 8 Rodriguez for allegedly fabricating rules violations with claims against defendant 9 Drayton for refusing to return Plaintiff’s laundry and with claims against defendant 10 Delgadillo for refusing to pick up and deliver Plaintiff’s mail. 11 Plaintiff appears to have intended to join his claims on the grounds that each 12 defendant retaliated against him because of his litigation activity. First, conclusory 13 allegations of retaliation are insufficient to state a claim for retaliation. See Williams v. 14 Wood, 223 F. App’x 670 (9th Cir. 2007) (affirming dismissal of conclusory allegations 15 of retaliatory transfer “because these claims lacked factual support demonstrating a 16 causal link between the civil actions [plaintiff] has filed and the denial of a transfer”); 17 Wise v. Washington State Dep’t of Corrections, 244 Fed. App’x 106, 108 (9th Cir. 18 2007), cert. denied, 552 U.S. 1282, 128 S. Ct. 1733, 170 L. Ed. 2d 518 (2008) (finding 19 plaintiff’s conclusory allegations of retaliation insufficient “without supporting facts 20 connecting the defendants to his litigation activities”); Stine v. Bureau of Prisons, No. 21 2:18-CV-0684-KJN (P), 2018 WL 2771332, at *6 (E.D. Cal. June 7, 2018) (finding 22 plaintiff’s generalized assertion regarding retaliation insufficient to demonstrate that 23 each named defendant retaliated against plaintiff for his protected conduct). Second, 24 even if each incident of retaliation was based on the same alleged protected conduct, 25 each incident does not arise out of the same “transaction, occurrence, or series of 26 transactions” and is, therefore, improperly joined under Rule 20. See Hollis v. 27 Gonzalez, No. 1:08-CV-1834-OWW-DLB (PC), 2010 WL 2555781, at *6 (E.D. Cal. 1 Aug. 9, 2010) (dismissing unrelated claims of retaliation for “grievance activity” 2 against different prison staff members as improperly joined). 3 Hence, Plaintiff’s various unrelated claims against different defendants must be 4 brought in separate lawsuits. At this juncture, the Court declines to cull through the 5 Complaint to determine which, if any, of Plaintiff’s distinct claims are sufficiently 6 pled. Plaintiff may, therefore, file an amended complaint setting forth properly joined 7 claims, but must file separate lawsuits to pursue any unrelated claims. 8 V. 9 LEAVE TO FILE A FIRST AMENDED COMPLAINT 10 For the foregoing reasons, the Complaint is subject to dismissal. As the Court 11 is unable to determine whether amendment would be futile, leave to amend is granted. 12 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 13 advised that the Court’s determination herein that the allegations in the Complaint are 14 insufficient to state a particular claim should not be seen as dispositive of that claim. 15 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 16 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 17 face, Plaintiff is not required to omit any claim in order to pursue this action. 18 However, if Plaintiff asserts a claim in his First Amended Complaint that has been 19 found to be deficient without addressing the claim’s deficiencies, then the Court, 20 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned 21 district judge a recommendation that such claim be dismissed with prejudice for 22 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 23 the district judge as provided in the Local Rules Governing Duties of Magistrate 24 Judges. 25 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 26 service date of this Order, Plaintiff choose one of the following two options: 27 1. Plaintiff may file a First Amended Complaint to attempt to cure the 1 blank Central District civil rights complaint form to use for filing the First 2 Amended Complaint, which the Court encourages Plaintiff to use. 3 If Plaintiff chooses to file a First Amended Complaint, he must clearly 4 designate on the face of the document that it is the “First Amended Complaint,” it 5 must bear the docket number assigned to this case, and it must be retyped or 6 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 7 include new defendants or allegations that are not reasonably related to the claims 8 asserted in the Complaint. In addition, the First Amended Complaint must be 9 complete without reference to the Complaint, or any other pleading, attachment, or 10 document. 11 An amended complaint supersedes the preceding complaint. Ferdik v. 12 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 13 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 14 leave to amend as to all his claims raised here, any claim raised in a preceding 15 complaint is waived if it is not raised again in the First Amended Complaint. 16 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 17 The Court advises Plaintiff that it generally will not be well-disposed toward 18 another dismissal with leave to amend if Plaintiff files a First Amended Complaint 19 that continues to include claims on which relief cannot be granted. “[A] district 20 court’s discretion over amendments is especially broad ‘where the court has already 21 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 22 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 23 1261. Thus, if Plaintiff files a First Amended Complaint with claims on which 24 relief cannot be granted, the First Amended Complaint will be dismissed 25 without leave to amend and with prejudice. 26 2. Alternatively, Plaintiff may voluntarily dismiss the action without 27 prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is 1 | directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court 2 | encourages Plaintiff to use if he chooses to voluntarily dismiss the action. 3 Plaintiff is explicitly cautioned that failure to timely respond to this 4 | Order will result in this action being dismissed with prejudice for failure to 5 | state a claim, or for failure to prosecute and/or obey Court orders pursuant to 6 | Federal Rule of Civil Procedure 41(b). 7 8 | Dated: August 27, 2019 aly 9 FSONORABLE KIBNLY KIYA KATO 10 United States Macigitrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28