(PC) Quair v. CDCR HQ ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID SABINO QUAIR, III, No. 2:19-cv-1106 DB P 12 Plaintiff, 13 v. ORDER 14 CDCR HQ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 I. Screening Requirement 4 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion 5 thereof, that may have been paid, the court shall dismiss the case at any time if the court 6 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 7 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 8 II. Pleading Standard 9 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 10 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 11 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 12 substantive rights, but merely provides a method for vindicating federal rights conferred 13 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 14 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 15 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 16 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 17 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 18 A complaint must contain “a short and plain statement of the claim showing that the 19 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 20 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 22 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 23 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial 24 plausibility demands more than the mere possibility that a defendant committed misconduct and, 25 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78. 26 III. Plaintiff’s Allegations 27 Plaintiff brings this action for “violations of all titles of constitutional and federal 28 regulations” against L. Lomonaco, Correctional Counselor II; Julie Duszynski, “ACPA” at the 1 Office of Internal Affairs; Timothy M. Lockwood, Director of “Reg & Policy Man.” at CDCR 2 Headquarters; and M. Voong, Chief of Inmate Appeals. 3 Plaintiff’s allegations may be fairly summarized as follows: 4 Plaintiff has Type 1 diabetes and is a transgender inmate. From April 27, 2018, to the 5 present, plaintiff has been falsely imprisoned, denied proper medical care, not provided 6 medication continuity, and “been subject[ed] to official encouraged attacks and deliberate 7 indifference through subjective recklessness.” As a result of this alleged medical neglect, plaintiff 8 now has cirrhosis of the liver. Relatedly, plaintiff accuses Nurse Practitioner Peggy Hanna of 9 California State Prison in San Quentin of “medical malpractice,” though he provides no further 10 details involving the provision of medical care as it relates to her. 11 From April 23, 2018, through the present, plaintiff has “been denied [his] right to equal 12 protection, access to courts, protection of harm by state actors.” He claims he has been subjected 13 to retaliation and placed under Work Privilege Group C and singled out by the administration at 14 the California Institution for Men. 15 Plaintiff also identifies several inmate grievances that he claims have been canceled 16 without due process. 17 IV. Discussion 18 A. Linkage 19 Under § 1983, the plaintiff must demonstrate that each named defendant personally 20 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo 21 County, 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 22 (9th Cir. 2009). Liability may not be imposed on supervisory personnel under the theory of 23 respondeat superior. Iqbal, 556 U.S. at 676-77. Supervisory personnel may only be held liable if 24 they “participated in or directed the violations, or knew of the violations and failed to act to 25 prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) accord Starr v. Baca, 652 F.3d 26 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012). 27 //// 28 //// 1 Plaintiff’s complaint fails to provide any level of detail as to how the defendants were 2 personally involved in the violations of his rights. For this reason alone, plaintiff’s complaint is 3 subject to dismissal. 4 B. Federal Rule of Civil Procedure 8 5 In addition, the complaint must not force the Court and defendant to guess at what is being 6 alleged against whom, require the Court to spend its time “preparing the ‘short and plain 7 statement’ which Rule 8 obligated plaintiff to submit,” or require the Court and defendant to 8 prepare lengthy outlines “to determine who is being sued for what.” McHenry v. Renne, 84 F.3d 9 1172, 1179 (9th Cir. 1996); see also Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 10 1995) (“[a]lthough a pro se litigant . . . may be entitled to great leeway when the court construes 11 his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a 12 defendant with notice of what it is that it allegedly did wrong”). 13 Plaintiff’s complaint paints in broad strokes. For example, he claims that he has had “no 14 proper medical care,” been “subject[ed] to official encouraged attacks and deliberate 15 indifference,” experienced retaliation, and denied due process in the context of his inmate 16 grievances. But these conclusory statements are insufficient to satisfy Rule 8’s requirement that 17 the plaintiff provide a “short and plain statement” that informs the defendants the basis of the 18 claim(s) asserted against them. Because it is unclear what each of the defendants did, how 19 plaintiff has been denied proper medical care, who has subjected him to attacks, how he has 20 experienced retaliation, and in what manner his due process rights have been violated, the Court 21 is forced to conclude that the complaint is also subject to dismissal for violating Rule 8. 22 In the remainder of this Screening Order, the Court will set forth the legal standards for 23 several potential claims that plaintiff alludes to in his complaint. If plaintiff intends to file an 24 amended complaint, he shall carefully review these standards to ensure that any allegations 25 included in the new pleading comply with the claim’s legal requirements. 26 C. Eighth Amendment Medical Indifference 27 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the 28 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate 1 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth 2 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and 3 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 4 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 5 Cir. 1997) (en banc). 6 A serious medical need exists if the failure to treat the condition could result in further 7 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 8 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of 9 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 10 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant 11 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk 12 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted 13 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842. 14 In applying this standard, the Ninth Circuit has held that before it can be said that a 15 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 16 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause 17 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 18 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating 19 a medical condition does not state a valid claim of medical mistreatment under the Eighth 20 Amendment. Medical malpractice does not become a constitutional violation merely because the 21 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 22 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate 23 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 24 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support 25 a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 26 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 27 at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a 28 plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th 1 Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 2 1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this 3 regard, “[a] prisoner need not show his harm was substantial; however, such would provide 4 additional support for the inmate’s claim that the defendant was deliberately indifferent to his 5 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at 6 1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that 7 inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 8 1989) (per curiam). A failure to competently treat a serious medical condition, even if some 9 treatment is prescribed, may constitute deliberate indifference in a particular case. Id. 10 D. First Amendment 11 a. Access to Courts 12 The First Amendment guarantees the right to “petition the Government for a redress of 13 grievances.” U.S. Const. amend. I. “It is well settled that the right to access to the courts is 14 subsumed within the right to petition.” Laws v. City of Seattle, 2009 WL 3836122, at *3 (W.D. 15 Wash. Nov. 12, 2009) (citing Bill Johnson’s Rests., Inc. v. Nat'l Labor Relations Bd., 461 U.S. 16 731, 741 (1983)). This right of access to courts is also guaranteed to individuals who are detained 17 pursuant to civil commitment. Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir. 1995), as amended 18 (May 23, 1995) (citing King v. Atiyeh, 814 F.2d 565, 568 n. 2 (9th Cir. 1987)). A prisoner or 19 detainee’s right to litigate without active interference under the First Amendment applies to all 20 “claims that have a reasonable basis in law or fact.” Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th 21 Cir. 2011) (citations and internal quotations omitted). The Supreme Court has held that a prisoner 22 or detainee must demonstrate that he lost access to a past, present, or potential opportunity for 23 litigation, and the actions of prison officials actively led to the denial of access. See Christopher 24 v. Harbury, 536 U.S. 403, 414-15 (2002). Though this right does not require officials to actively 25 assist with a prisoner’s filings, it prohibits officials from erecting barriers which are intended to 26 “impede the right of access of incarcerated persons.” Id. at 1102-03 (citations and internal 27 quotations omitted). A detainee arguing his right to access the courts has been violated must also 28 demonstrate an actual injury. Lewis, 518 U.S. at 349; Madrid v. Gomez, 190 F.3d 990, 996 (9th 1 Cir. 1999). To show actual injury, plaintiff must demonstrate that he suffered “actual prejudice 2 with respect to contemplated or existing litigation, such as the inability to meet a filing deadline 3 or to present a claim.” Lewis, 518 U.S. at 348. Mere negligence is not sufficient to establish an 4 unconstitutional denial of access to the courts. See Stevenson v. Koskey, 877 F.2d 1435, 1441 5 (9th Cir. 1989). 6 b. Retaliation 7 The fundamentals of a retaliation claim are easily summarized: “Within the prison 8 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 9 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 10 prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First 11 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 12 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d 13 443, 449 (9th Cir. 2000)). It is the plaintiff's burden to prove each of these elements. Pratt v. 14 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 15 Under the first element, plaintiff need not prove that the alleged retaliatory action, in 16 itself, violated a constitutional right. Id. (to prevail on a retaliation claim, plaintiff need not 17 “establish an independent constitutional interest” was violated); see also Hines v. Gomez, 108 18 F.3d 265, 268 (9th Cir. 1997) (upholding jury determination of retaliation based on filing of a 19 false rules violation report); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (transfer of 20 prisoner to a different prison constituted adverse action for purposes of retaliation claim). The 21 interest cognizable in a retaliation claim is the right to be free of conditions that would not have 22 been imposed but for the alleged retaliatory motive. 23 To prove the second element – retaliatory motive – plaintiff must show that his protected 24 activities were a “substantial” or “motivating” factor behind the defendant's challenged conduct. 25 Brodheim v. Cry, 584 F.3d 1262, 1269, 1271 (9th Cir. 2009). Plaintiff must provide direct or 26 circumstantial evidence of defendant's alleged retaliatory motive; mere speculation is not 27 sufficient. See McCollum v. CDCR, 647 F.3d 870, 882–83 (9th Cir. 2011); accord Wood v. 28 Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In addition to demonstrating defendant's knowledge of 1 plaintiff's protected conduct, circumstantial evidence of motive may include: (1) proximity in 2 time between the protected conduct and the alleged retaliation; (2) defendant's expressed 3 opposition to the protected conduct; and (3) other evidence showing that defendant's reasons for 4 the challenged action were false or pretextual. McCollum, 647 F.3d at 882. 5 The third element concerns a prisoner's First Amendment right to access the courts. Lewis 6 v. Casey, 518 U.S. 343, 346 (1996). While prisoners have no freestanding right to a prison 7 grievance process, see Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), “a prisoner's 8 fundamental right of access to the courts hinges on his ability to access the prison grievance 9 system.” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on other grounds by 10 Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001). Because filing administrative grievances and 11 initiating civil litigation are protected activities, it is impermissible for prison officials to retaliate 12 against prisoners for engaging in these activities. Rhodes, 408 F.3d at 567–68. Protected speech 13 also includes an inmate's statement of intent to pursue an administrative grievance or civil 14 litigation. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Rhodes, 408 F.3d at 567; 15 Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). 16 Under the fourth element, plaintiff need not demonstrate a “total chilling of his First 17 Amendment rights,” only that defendant's challenged conduct “would chill or silence a person of 18 ordinary firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568–69 (citation 19 and internal quotation marks omitted). Moreover, direct and tangible harm will support a 20 retaliation claim even without demonstration of a chilling effect on the further exercise of a 21 prisoner's First Amendment rights. Id. at 568 n.11. “[A] plaintiff who fails to allege a chilling 22 effect may still state a claim if he alleges he suffered some other harm” as a retaliatory adverse 23 action. Brodheim, 584 F.3d at 1269 (citing Rhodes, 408 F.3d at 568 n.11). 24 Regarding the fifth element, the Ninth Circuit has held that preserving institutional order, 25 discipline, and security are legitimate penological goals that, if they provide the motivation for an 26 official act taken, will defeat a claim of retaliation. Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 27 1994); Rizzo, 778 F.2d at 532. When considering this final factor, courts should “‘afford 28 appropriate deference and flexibility’ to prison officials in the evaluation of proffered legitimate 1 penological reasons for conduct alleged to be retaliatory.” Pratt, 65 F.3d at 807 (quoting Sandin v. 2 Conner, 515 U.S. 472, 482 (1995)). Plaintiff bears the burden of pleading and proving the 3 absence of legitimate correctional goals for defendant's challenged conduct. Pratt, 65 F.3d at 806. 4 A plaintiff must prove that the alleged retaliatory motive was the but-for cause of the challenged 5 actions. Hartman v. Moore, 547 U.S. 250, 260 (2006). 6 E. Americans with Disabilities Act 7 Title II of the Americans with Disabilities Act (“ADA”) provides that “no qualified 8 individual with a disability shall, by reason of such disability, be excluded from participation in or 9 be denied the benefits of the services, programs, or activities of a public entity, or be subject to 10 discrimination by such entity.” 42 U.S.C. § 12132. Title II applies to the services, programs, and 11 activities provided for inmates by jails and prisons. Pennsylvania Dep’t of Corr. v. Yeskey, 524 12 U.S. 206, 208–13 (1998); Simmons v. Navajo Cty., 609 F.3d 1011, 1021–22 (9th Cir. 2010); 13 Pierce v. Cty. of Orange, 526 F.3d 1190, 1214–15 (9th Cir. 2008). 14 “To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a 15 qualified individual with a disability; (2) [he] was excluded from participation in or otherwise 16 discriminated against with regard to a public entity’s services, programs, or activities; and (3) 17 such exclusion or discrimination was by reason of [his] disability.” Lovell v. Chandler, 303 F.3d 18 1039, 1052 (9th Cir. 2002); accord Simmons, 609 F.3d at 1021; McGary v. Cty. of Portland, 386 19 F.3d 1259, 1265 (9th Cir. 2004). 20 F. Violation of Prison Regulations 21 As a general rule, the violation of state regulations does not rise to the level of a 22 constitutional violation. See Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989), overruled on 23 other grounds, Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016); Ybarra v. Bastian, 647 F.2d 891, 24 892 (9th Cir. 1981). Therefore, in itself, a state employee’s failure to follow state law does not 25 state a claim under Section 1983. 26 G. Inmate Appeal / Grievance Process 27 Prisoners do not have an independent constitutional due process entitlement to a specific 28 administrative grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann 1 v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Prison officials are not required under federal law to 2 process or respond to an inmate’s grievances or appeals in any specific way. Todd v. Cal. Dept. of 3 Corr. & Rehab., 615 F. App’x 415 (9th Cir. 2015) (holding that district court properly dismissed 4 prisoner’s “claim regarding the processing and handling of his prison grievances because 5 prisoners do not have a ‘constitutional entitlement to a specific prison grievance procedure[ ]’ ”) 6 (citation omitted); Shallowhorn v. Molina, 572 F. App’x 545, 547 (9th Cir. 2014) (holding that 7 district court properly dismissed procedural due process claim against defendants only involved 8 in appeals process because “defendants cannot be held liable under § 1983 for denying 9 [prisoner’s] appeal[ ]”); Williams v. Cate, 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) 10 (“Plaintiff has no protected liberty interest in the vindication of his administrative claims.”). Thus, 11 a claim based solely on the handling, processing, or resolution of his appeals will not be 12 cognizable. 13 H. State Law Claims 14 Insofar as plaintiff intends to pursue a tort claim against a public entity or its employees, 15 California’s Government Claims Act requires that such a claim be presented to the Department of 16 General Services’ Government Claims Program no more than six months after the cause of action 17 accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a timely written 18 claim and action on, or rejection of, the claim are conditions precedent to suit. DiCampli-Mintz v. 19 County of Santa Clara, 55 Cal. 4th 983, 989-90 (2012); see also Mangold v. Cal. Pub. Utils. 20 Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). Therefore, in order to state a tort claim against a 21 public employee, a plaintiff must allege compliance with California’s Government Tort Claim 22 Act. DiCampli-Mintz, 55 Cal. 4th at 990; see also Mangold, 67 F.3d at 1477. 23 V. Conclusion 24 Plaintiff’s complaint fails to state a claim. The Court will grant plaintiff the opportunity to 25 file an amended complaint to cure noted defects, to the extent he believes in good faith he can do 26 so. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Alternatively, plaintiff may forego 27 amendment and notify the Court that he wishes to stand on his complaint. See Edwards v. Marin 28 Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). 1 If plaintiff wishes to proceed on his complaint as written, the undersigned will issue 2 findings and recommendations recommending that the complaint be dismissed with leave to 3 amend, plaintiff will be provided an opportunity to file objections, and the matter will be decided 4 by a district judge. 5 If plaintiff chooses to amend, he must demonstrate that the alleged acts resulted in a 6 deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth 7 “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting 8 Twombly, 550 U.S. at 555). Plaintiff should note that although he has been given the opportunity 9 to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 10 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff should carefully read this screening order 11 and focus his efforts on curing the deficiencies set forth above. 12 If plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it must 13 state what each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, 14 Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual allegations must be 15 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 16 (citations omitted). 17 Finally, an amended complaint supersedes the prior complaint, see Loux v. Rhay, 375 18 F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the prior or 19 superseded pleading,” Local Rule 220. 20 Accordingly, it is HEREBY ORDERED that: 21 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 22 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 23 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 24 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 25 Director of the California Department of Corrections and Rehabilitation filed concurrently 26 herewith. 27 3. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form; 28 4. Within thirty (30) days from the date of service of this order, plaintiff must: 1 a. File an amended complaint curing the deficiencies identified by the Court 2 in this order, or 3 b. Notify the Court in writing that he wishes to stand on his complaint as 4 written; and 5 5. If plaintiff fails to comply with this order, the undersigned will recommend the action 6 | be dismissed for failure to obey a court order and failure to prosecute. 7 | Dated: January 28, 2020 8 9 10 .B ORAH BARNES UNITED STATES MAGISTRATE JUDGE 11 12 13 DB Inbox/Substantive/quail 106,serm 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12