(PS) Siratsamy v. Sacramento County Sheriffs Department ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SOMPHOTH BOBY SIRATSAMY, No. 2:21–cv–0678–JAM–KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND GRANTING LEAVE TO AMEND 13 v. (ECF Nos. 1-2) 14 SACRAMENTO COUNTY SHERIFF DEPARTMENT, et al., 15 Defendants. 16 17 18 Plaintiff is representing himself in this action and seeks leave to proceed in forma pauperis 19 (“IFP”).1 (ECF No. 1.) See 28 U.S.C. § 1915. Plaintiff’s affidavit in support of his IFP request 20 makes the required financial showing. Accordingly, the court grants plaintiff’s IFP request. 21 The determination that a plaintiff may proceed IFP does not complete the required 22 inquiry, however. Pursuant to the IFP statute, federal courts must screen IFP complaints and 23 dismiss the case if the action is “frivolous or malicious,” “fails to state a claim on which relief 24 may be granted,” or seeks monetary relief against an immune defendant. 28 U.S.C. 25 § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 26 (“[S]ection 1915(e) not only permits but requires a district court to dismiss an [IFP] complaint 27 1 This action proceeds before the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local 28 Rule 302(c)(21). 1 that fails to state a claim.”). Further, federal courts have an independent duty to ensure that 2 federal subject-matter jurisdiction exists. See United Investors Life Ins. Co. v. Waddell & Reed 3 Inc., 360 F.3d 960, 967 (9th Cir. 2004). 4 Legal Standards 5 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 6 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 7 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 8 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 9 490 U.S. at 327. 10 To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 11 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 12 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 13 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 14 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, relief 15 cannot be granted for a claim that lacks facial plausibility. Twombly, 550 U.S. at 570. “A claim 16 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 17 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 18 678. When considering whether a complaint states a claim upon which relief can be granted, the 19 court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 20 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 21 Allain, 478 U.S. 265, 283 (1986). 22 In addition, the court must dismiss a case if, at any time, it determines that it lacks subject 23 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has jurisdiction 24 over a civil action when (1) a federal question is presented in an action “arising under the 25 Constitution, laws, or treaties of the United States” or (2) there is complete diversity of 26 citizenship between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. 27 §§ 1331, 1332(a). 28 Pleadings by self-represented litigants are liberally construed. See Haines v. Kerner, 404 1 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 2 Unless it is clear that no amendment can cure the defects of a complaint, a self-represented 3 plaintiff proceeding IFP is ordinarily entitled to notice and an opportunity to amend before 4 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other 5 grounds by statute as stated in Lopez, 203 F.3d 1122; Franklin v. Murphy, 745 F.2d 1221, 1230 6 (9th Cir. 1984). Nevertheless, leave to amend need not be granted when further amendment 7 would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 8 The Complaint 9 Plaintiff filed this civil form complaint against the Sacramento County Sheriff’s 10 Department and the owner, the manager, and an assistant of the apartment complex where he 11 lives. (ECF No. 1 at 2-3.) The complaint is very difficult to understand. As best the court can 12 tell, this suit relates to plaintiff’s altercations with other tenants which at some point led to 13 plaintiff’s arrest and temporary detention. As the basis for the court’s jurisdiction, plaintiff 14 checked the box for “Federal question,” but in the space for listing the federal laws violated, 15 plaintiff provides a disjointed narrative of events citing only his “his 3rd and 4th amendment 16 [right] to bear arms and the right to protect.” (Id. at 3-4.) Plaintiff references an “invasion of 17 privacy” and claims that he “experienced multiple handouts of tort in the omni domain of the ego 18 in mal practice” by “Sam,” whom he identifies as the “Fiduciary/Manager” of the apartment 19 complex. (Id.) Plaintiff asserts that “local Sherriffs [sic]” were involved and the “associated 20 deputies burglarized [his] apartment and materialized a[] deadly weapon by stealing [his] 21 property out of [his] apartment”; he was later “released from county jail with mal-nutrition.” (Id. 22 at 4.) 23 As his Statement of Claim, plaintiff pleads some sort of “malice act” by Sam after 24 plaintiff was assaulted by another tenant’s son. (Id. at 5.) He also describes some sort of 25 “boycott” and conspiracy against him by the other tenants who eventually “disposed the aggrivate 26 through local deputy services [sic].” (Id.) The section for Relief adds that plaintiff was “harassed 27 by lower unit neighbor, correlating with the manager, Sam, concluding how [his] private 28 information was given away to the lower unit tenant.” (Id. at 6.) Plaintiff refers throughout the 1 complaint to a “plot of omni domain” without explaining the phrase. (Id. at 4-6.) Plaintiff claims 2 that all this caused him lost study time during his midterms, “Defamintation damages,” and 3 emotional distress. (Id. at 6.) 4 Analysis 5 There are several problems with this complaint which plaintiff must fix if he wishes to 6 move forward with this suit. 7 1. Unintelligible Statement of the Claim 8 First, the complaint does not clearly describe the events plaintiff is complaining about. 9 Rule 8 of the Federal Rules of Civil Procedure requires a “short and plain statement” of (1) the 10 grounds for the court’s jurisdiction and (2) the claim showing that plaintiff is entitled to relief. 11 Fed. R. Civ. P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (purpose of these 12 pleading requirements is to “give the defendant fair notice of what the . . . claim is and the 13 grounds upon which it rests” (cleaned up)). The current allegations do not clearly state what 14 happened to plaintiff, when it happened, or who did what. For example, although the complaint 15 lists Bruce Mentzer and Niki Con as two of the four defendants, plaintiff does not include any 16 allegations about those individuals or state how they harmed him. (See ECF No. 1 at 2-3.) If 17 plaintiff chooses to amend the complaint, he must specify who did what, when the events 18 occurred, and how he was harmed by the alleged conduct. Plaintiff is welcome to use additional 19 pages to explain these details, beyond the space provided in the complaint form; however, the 20 statement of the claim should be kept relatively “short.” 21 2. No Viable Causes of Action 22 Second, the complaint currently does not identify any viable causes of action over which 23 this court possesses subject-matter jurisdiction. 24 a. No Subject-Matter Jurisdiction over State Law Claims Against In-State 25 Defendants 26 Plaintiff refers generally to various sorts of tort claims—such as defamation, assault, and 27 fraud—which he seems to assert against the building manager “Sam” and other building residents 28 (who are not named as defendants). But these sorts of personal injury claims arise under state 1 law, not federal law, so this court would only have subject-matter jurisdiction over those claims in 2 two specific circumstances. First, the court could have subject-matter jurisdiction over the state 3 law claims if the parties were completely “diverse” from each other and the amount in 4 controversy exceeded $75,000. See 28 U.S.C. § 1332(a)(1). Complete diversity requires that 5 each plaintiff must be a citizen of a different state from the defendant(s). See Exxon Mobil Corp. 6 v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). However, here, all three of the individual 7 defendants reside in California, like plaintiff. (ECF No. 1 at 2-3 (listing California addresses for 8 all parties).) Alternatively, the court could exercise subject-matter jurisdiction over state law 9 claims if they were “so related to” federal claims in the action that they “form part of the same 10 case or controversy.” See 28 U.S.C. § 1367 (supplemental jurisdiction). Moreover, at this time 11 there are no valid federal claims asserted, so the court cannot exercise supplemental jurisdiction. 12 b. No Viable Federal Claims 13 The only provisions of federal law plaintiff mentions in the complaint are the 14 constitutional right to bear arms (found in the Second Amendment, not the Third Amendment) 15 and a supposed constitutional “right to protect.” (ECF No. 1 at 4.) But the Constitution, itself, 16 does not provide a private right of action to litigants. Instead, plaintiffs complaining of 17 constitutional violations must assert a cause of action under 42 U.S.C. § 1983 to bring their 18 constitutional claims. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) 19 (explaining that § 1983 was enacted to create a private cause of action for violations of the U.S. 20 Constitution); Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) 21 (“Plaintiff has no cause of action directly under the United States Constitution.”). 22 42 U.S.C. § 1983 provides: 23 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 24 of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit 25 in equity, or other proper proceeding for redress. 26 The term “person[s]” in § 1983 encompasses state and local officials sued in their individual 27 capacities, private individuals, and entities which act under the color of state law—including local 28 governmental entities. See Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 1 (9th Cir. 1999) (party charged with constitutional deprivation must be a governmental actor 2 because “§ 1983 excludes from its reach merely private conduct, no matter how discriminatory or 3 wrong”). 4 Accordingly, plaintiff cannot assert a § 1983 claim against the private individual 5 defendants, unless he can plausibly allege they were acting under color of state law. However, it 6 appears that plaintiff may be trying to assert various constitutional deprivations against the 7 Sacramento County Sheriff’s Department. The complaint suggests at least three attempts at 8 § 1983 claims: (1) under the Second Amendment (right to bear arms), (2) under the Fourth 9 Amendment (unreasonable search and seizure), and (3) under the Fourth or Fourteenth 10 Amendments (conditions of confinement). In order to sufficiently assert such claims, however, 11 plaintiff will need to amend the complaint. 12 i. Claims against the County 13 The only governmental actor plaintiff names in the complaint is the Sacramento County 14 Sheriff’s Department. If plaintiff wishes to proceed with the above potential claims at the entity 15 level—rather than asserting them against the individual officers involved—he will need to meet 16 the legal standard for stating a constitutional claim against a municipal entity. Although there is 17 split authority on this subject, the undersigned continues to hold that a California sheriff’s 18 department or police department is not a “person” under § 1983 and therefore not a proper 19 defendant for § 1983 claims. See Gunn v. Stanton Corr. Facility, No. 2: 21-CV-0456-KJN-P, 20 2021 WL 1402141, at *2 (E.D. Cal. Apr. 14, 2021) (citing Cantu v. Kings Cty., No. 1:20-CV- 21 00538-NONE-SAB, 2021 WL 411111, at *1-2 (E.D. Cal. Feb. 5, 2021) (discussing split authority 22 in this district)). This is because the Sheriff’s Department is a subdivision of a local government 23 entity, in this case Sacramento County. Nelson v. County of Sacramento, 926 F. Supp. 2d 1159, 24 1170 (E.D. Cal. Feb. 26, 2013) (“Under § 1983, ‘persons’ includes municipalities. It does not 25 include municipal departments.”). Thus, plaintiff would need to sue Sacramento County, not the 26 Sheriff’s Department. If plaintiff files an amended complaint naming Sacramento County as a 27 defendant, the legal standard for stating a claim against a municipal entity is as follows. 28 Liability under 42 U.S.C. § 1983 may be imposed on local governments when their 1 official policies or customs cause their employees to violate an individual’s constitutional rights. 2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). A plaintiff may establish Monell 3 liability by showing that a city or county employee committed an alleged constitutional violation 4 pursuant to a formal governmental policy or a “longstanding practice or custom which constitutes 5 the ‘standard operating procedure’ of the local governmental entity.” Gillette v. Delmore, 979 6 F.2d 1342, 1346 (9th Cir. 1992) (per curiam) (citation omitted). A “policy” is a “deliberate 7 choice to follow a course of action . . . made from among various alternatives by the official or 8 officials responsible for establishing final policy with respect to the subject matter in question.” 9 Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008) (citation omitted). A “custom” is a 10 “widespread practice that, although not authorized by written law or express municipal policy, is 11 so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” St. 12 Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (citation omitted). In order to hold the 13 municipality liable, the policy, practice, or custom must be the “moving force behind a violation 14 of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). 15 Further, the policy or custom must “reflect[] deliberate indifference to the constitutional rights of 16 [the municipality’s] inhabitants.” City of Canton v. Harris, 489 U.S. 378, 392 (1989); Castro v. 17 Cty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). 18 Therefore, for any constitutional violation plaintiff might wish to assert against 19 Sacramento County via § 1983, he would have to allege facts showing “that a [County] employee 20 committed the alleged constitutional violation pursuant to a formal governmental policy or a 21 longstanding practice or custom which constitutes the standard operating procedure of the 22 [County].” Gillette, 979 F.2d at 1346. In very restricted circumstances, the lack of a county 23 policy to limit constitutional violations—for instance a failure to train county employees or 24 officers—can also give rise to Monell liability. See City of Canton, 489 U.S. at 390; Oviatt v. 25 Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (“[T]he decision not to take any action to alleviate 26 the problem of detecting missed arraignments constitutes a policy for purposes of § 1983 27 municipal liability.”). 28 The current complaint lacks sufficient facts to raise a Monell claim of any sort against the 1 County based on any constitutional violation. Plaintiff merely alleges that the Sherriff’s 2 Department—as a whole—invaded his privacy, “burglarized” his apartment during an apparent 3 search and seizure, and provided insufficient nutrition while he was in jail. (ECF No. 1 at 4.) 4 Plaintiff does not allege which specific County officers or employees violated his constitutional 5 rights, or how they did so; nor does it connect their conduct to a County policy, practice, or 6 custom. 7 Should plaintiff wish to pursue constitutional claims via § 1983 against the County or 8 County employees or government actors, the court briefly addresses the problems with the 9 potential constitutional claims suggested in the current complaint—so that plaintiff can address 10 them in any amended complaint, if he chooses. 11 ii. Second Amendment Claim 12 The Second Amendment protects an individual’s right to keep and bear arms for the 13 purpose of self-defense. McDonald v. City of Chicago, 561 U.S. 742, 749-50 (2010). Plaintiff 14 seems to assert that Sheriff’s deputies violated his Second Amendment right by seizing a “deadly 15 weapon” during a search of his apartment. (ECF No. 1 at 4.) “The mere occurrence of a . . . 16 seizure . . . , however, is not enough to establish a Second Amendment violation.” Partin v. 17 Gevatoski, No. 6:19-CV-1948-AA, 2020 WL 4587386, at *4 (D. Or. Aug. 10, 2020). Thus, 18 plaintiff would need to allege facts—beyond whatever seizure may have occurred—that implicate 19 his Second Amendment rights. 20 iii. Fourth Amendment Seizure Claim 21 The Fourth Amendment protects individuals against “unreasonable searches and seizures” 22 by the government. Terry v. Ohio, 392 U.S. 1, 8-9 (1968). Plaintiff appears to assert that 23 Sheriff’s deputies unlawfully seized property from his apartment. (ECF No. 1 at 4 (alleging that 24 deputies “burglarized my apartment and materialized a[] deadly weapon by stealing my property 25 out of my apartment”).) “The Fourth Amendment does not proscribe all state-initiated searches 26 and seizures; it merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S. 27 248, 250 (1991); see Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016). 28 Removing personal property is certainly a seizure within the meaning of the Fourth 1 Amendment. See, e.g., Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). And “a 2 “seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless . . . 3 it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent 4 circumstances.’” United States v. Device, Labeled “Theramatic”, 641 F.2d 1289, 1292 (9th Cir. 5 1981) (emphasis added) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971)). 6 The complaint currently does not contain enough facts to plausibly allege that a seizure occurred, 7 or that such seizure was unreasonable. For instance, there is no allegation whether the deputies 8 had a warrant to search plaintiff’s apartment or seize any property therein, what property the 9 deputies took, whether plaintiff’s weapon (or other property) was later returned to him, or other 10 surrounding circumstances relevant to assessing the nature of the alleged seizure. 11 iv. Conditions of Confinement Claim 12 The complaint currently contains only one sentence suggesting that plaintiff might be 13 raising a conditions of confinement claim. Plaintiff simply states—without describing how he got 14 to jail in the first place—that at some unstated time after Sheriff’s deputies came to his apartment 15 he was “released from county jail with mal-nutrition, administered at Keister Permanente with 16 3000 cc of saline.” (ECF No. 1 at 4.) 17 Based on this allegation, the court infers that plaintiff might be attempting to raise a 18 challenge to his conditions of confinement under either the Fourth Amendment or the Fourteenth 19 Amendment Due Process Clause.2 It is unclear which Amendment would form the basis of the 20 claim because the complaint does not indicate plaintiff’s precise custodial status while in jail. 21 The Fourth Amendment “sets the applicable constitutional limitations on the treatment of an 22 arrestee detained without a warrant up until the time such arrestee is released or found to be 23 legally in custody based upon probable cause for arrest.” Pierce v. Multnomah Cty., 76 F.3d 24 1032, 1043 (9th Cir. 1996). Thereafter, the Due Process Clause of the Fourteenth Amendment 25 26 2 Based on plaintiff’s reference to being released from County “jail,” the court infers that plaintiff was not serving a post-conviction prison term which would place his malnourishment claim under 27 the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 599 n.16 (1979) (pretrial detainees are protected by Due Process Clause, whereas sentenced inmates are protected by the Eighth 28 Amendment’s Cruel and Unusual Punishment Clause). 1 protects the rights of pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 535 (1979). 2 Plaintiff does not seem to allege a traditional excessive force claim for his treatment while 3 in custody, but the Fourth Amendment’s “objective reasonableness standards” also “apply to 4 evaluate the condition of such custody.” Pierce, 76 F.3d at 1043. Under the Fourth Amendment, 5 the court balances “the nature and quality of the intrusion on the individual’s Fourth Amendment 6 interests against the countervailing governmental interests at stake,” asking whether the 7 defendants’ actions, judged from the perspective of a reasonable officer, are “objectively 8 reasonable in light of the facts and circumstances confronting them, without regard to [the 9 officer’s] underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989) 10 (internal quotation marks omitted). 11 If plaintiff’s alleged malnourishment occurred after an arraignment or probable cause 12 hearing, however, plaintiff’s claim would arise under the Fourteenth Amendment Due Process 13 Clause. Bell, 441 U.S. at 535. Under the Fourteenth Amendment, “[p]retrial detainees are 14 entitled to adequate food, clothing, shelter, sanitation, medical care, and personal safety.” 15 Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996) (cleaned up). The 16 Constitution “requires only that prisoners receive food that is adequate to maintain health.” 17 Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1259 (9th Cir. 2016) (quoting Foster v. Runnels, 18 554 F.3d 807, 813 n.2 (9th Cir. 2009). The Ninth Circuit evaluates the sufficiency of a 19 malnourishment claim by considering whether the allegations lead to a “permissible inference 20 that the [plaintiff]’s nutrition was inadequate and could not sustain him.” Mendiola-Martinez, 21 836 F.3d at 1259. 22 To state a claim of unconstitutional conditions of confinement against an individual 23 defendant, a pretrial detainee must allege facts that show: “(i) the defendant made an intentional 24 decision with respect to the conditions under which the plaintiff was confined; (ii) those 25 conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not 26 take reasonable available measures to abate that risk, even though a reasonable official in the 27 circumstances would have appreciated the high degree of risk involved—making the 28 consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the 1 defendant caused the plaintiff’s injuries.” Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th 2 Cir. 2018). These elements constitute an “objective deliberate indifference standard,” wherein the 3 plaintiff must “prove more than negligence but less than subjective intent—something akin to 4 reckless disregard.” Id. at 1124-25 5 Whether viewed under the Fourth Amendment or the Fourteenth Amendment, plaintiff’s 6 current complaint does not allege sufficient facts to show that the conditions of his detention in 7 the County jail were objectively unreasonable under the circumstances, or that his jailers were 8 objectively deliberately indifferent to the adequacy of his food. Plaintiff’s conclusory statement 9 that he was released from jail “with mal-nutrition” is not enough. At a minimum, plaintiff would 10 need to allege facts showing how he was malnourished, that someone intentionally decided to 11 give him inadequate sustenance, that this decision was objectively unreasonable, and that the 12 decision caused him harm. 13 v. Conclusion 14 Plaintiff is reminded that for any of these (or other) constitutional violations plaintiff 15 might assert against the County in any amended complaint, he must plausibly allege a policy, 16 custom, or practice of such violations to adequately state a § 1983 claim against the County. That 17 requirement would not apply if, instead, plaintiff amended his complaint to name as defendants 18 specific officers or deputies of the Sheriff’s Department, in their individual capacities. 19 Leave to Amend 20 In light of plaintiff’s pro se status, and because it is at least conceivable that plaintiff could 21 allege additional facts to potentially state a claim for relief against Sacramento County, the court 22 grants plaintiff an opportunity to amend the complaint. See Lopez, 203 F.3d at 1130 (“leave to 23 amend should be granted if it appears at all possible that the plaintiff can correct the defect”) 24 (cleaned up). 25 To summarize, plaintiff cannot proceed with any state law claims against the private 26 individuals currently named (because they, like plaintiff, are citizens of California), unless the 27 amended complaint shows that such claims share a common set of facts with a valid federal 28 claim. The court grants plaintiff this opportunity to amend the complaint to attempt to state a 1 || valid federal claim that meets the standards described above. 2 Plaintiff is informed that the court cannot refer to a prior complaint or other filing m order 3 || to make plaintiff's first amended complaint complete. Local Rule 220 requires that an amended 4 || complaint be complete in itself without reference to any prior pleading. As a general rule, an 5 || amended complaint supersedes the original complaint, and once the first amended complaint is 6 || filed, the original complaint no longer serves any function in the case. 7 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 8 | plaintiff determines that he is unable to amend his complaint in compliance with the court’s order, 9 || he may alternatively file a notice of voluntary dismissal of his claims without prejudice pursuant 10 || to Federal Rule of Civil Procedure 41(a)(1)(A)(a). 11 ORDER 12 Accordingly, IT IS HEREBY ORDERED that 13 1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is GRANTED; 14 2. Within 30 days of this order, plaintiff shall file either (a) a first amended complaint in 15 accordance with this order, or (b) a notice of voluntary dismissal of the action; and 16 3. Failure to file either a first amended complaint or a notice of voluntary dismissal by this 17 deadline may result in the imposition of sanctions, including potential dismissal of the 18 action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 19 | ITIS SO ORDERED. 20 || Dated: May 28, 2021 Aectl Aharon 22 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 23 24 AW, sira.0678 25 26 27 28 12