(PC) Ticer v. Ojeda ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY TICER, 1:20-cv-01202-GSA-PC 12 Plaintiff, SCREENING ORDER 13 vs. ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH 14 OJEDA, et al., LEAVE TO AMEND 15 Defendants. (ECF No. 1.) 16 THIRTY DAYS TO FILE FIRST AMENDED COMPLAINT 17 18 19 I. BACKGROUND 20 Timothy Ticer (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this 21 civil rights action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized 22 Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1. Plaintiff filed the Complaint 23 commencing this action on August 26, 2020. (ECF No. 1.) The Complaint is now before the 24 court for screening. 28 U.S.C. § 1915. 25 II. SCREENING REQUIREMENT 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 1 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 4 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 5 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 6 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 A complaint is required to contain “a short and plain statement of the claim showing that 8 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 12 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 13 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 14 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 15 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 16 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 17 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 18 plausibility standard. Id. 19 III. SUMMARY OF COMPLAINT 20 Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility 21 and State Prison (SATF), in Corcoran, California, in the custody of the California Department of 22 Corrections and Rehabilitation (CDCR), where the events at issue in the Complaint allegedly 23 occurred. Plaintiff names as defendants Chaplain Ojeda, Chaplain D. Hetebrinks, and Warden 24 Stuart Sherman (collectively, “Defendants”). Defendants are all sued in their individual 25 capacities. 26 A summary of Plaintiff’s allegations follows: 27 Plaintiff is of Muslim faith and he embraced its five pillars, duties, and community 28 prayers. Plaintiff is entitled to receive and have his religious service of Jumu’ah on Fridays. 1 Defendants Ojeda, Hetebrinks, and Sherman violated Plaintiff’s religious rights by delaying and 2 denying Jumu’ah services on Fridays. Plaintiff’s religion requires community prayers, such as 3 Jumu’ah on Fridays for Muslims, which is similar to services for Christian and Jewish faiths on 4 Sundays and Saturdays, respectively. 5 Defendants refused to accommodate Plaintiff’s religious services but will accommodate 6 Christian and Jewish religious services. Plaintiff is being treated unequally. Defendants’ conduct 7 is discriminatory. Defendants treat Plaintiff differently than Jewish and Christian inmates 8 without any rational basis for the disparate treatment. 9 Defendants denied Plaintiff the practice of his faith by denying his Jumu’ah services by 10 preventing him from engaging in his duties and beliefs he sincerely believes in, consistent with 11 his faith. Defendants violated Plaintiff’s equal protection rights. Plaintiff’s sincerely held 12 religious beliefs are entitled to Constitutional protection. Plaintiff seeks declaratory relief stating 13 that he is entitled to have his Jumu’ah services on Fridays while he is a CDCR inmate. 14 Plaintiff’s Islam rights were violated in July, 9/6, 13, 20 and October 4, 2019 because 15 Defendants denied Plaintiff his Jumu’ah services on Fridays. Defendants do not deny Christian 16 and Jewish Inmates their religious services when they are participating in their religious belief. 17 Plaintiff was similarly situated to Jewish and Christian inmates but was being treated unequally. 18 Defendants’ conduct was discriminatory. Defendants treated Plaintiff differently than Jewish 19 and Christian inmates without any rational basis for the disparate treatment. 20 Plaintiff seeks as relief a declaratory judgment, monetary damages including punitive 21 damages, costs of suit, and reasonable attorney’s fees. 22 IV. PLAINTIFF’S CLAIMS 23 A. 42 U.S.C. § 1986 24 The Civil Rights Act under which this action was filed provides: 25 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 26 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 27 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 28 1 42 U.S.C. § 1983. 2 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 3 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 4 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 5 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 6 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 7 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 8 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 9 federal Constitution, Section 1983 offers no redress.” Id. 10 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 11 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 12 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 13 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 14 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 15 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 16 which he is legally required to do that causes the deprivation of which complaint is made.’” 17 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 18 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 19 established when an official sets in motion a ‘series of acts by others which the actor knows or 20 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 21 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 22 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 23 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 24 1026 (9th Cir. 2008). 25 1. Equal Protection 26 The Equal Protection Clause requires the State to treat all similarly situated people 27 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 28 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 1 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1 F.3d 2 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 3 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 4 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against 5 [them] based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens, 6 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 7 Cir. 2001)), or that similarly situated individuals were intentionally treated differently without a 8 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 9 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 10 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North 11 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 12 Plaintiff alleges that the Jumu’ah Friday services for Muslims, which require community 13 prayer, are similar to Saturday services for Jews and Sunday services for Christians. He alleges 14 that Defendants Ojeda, Hetebrinks, and Sherman delayed and denied Jumu’ah services on 15 Fridays, but they do not deny Christian and Jewish Inmates their religious services. Plaintiff 16 claims that Defendants’ conduct is discriminatory because they treat Plaintiff differently than 17 Jewish and Christian inmates without any rational basis for the disparate treatment. 18 Plaintiff may be able to state an equal protection claim. However, he has not alleged facts 19 showing that each of the individually named Defendants personally acted against him when he 20 requested Jumu’ah Friday services. To state an equal protection claim, Plaintiff must 21 demonstrate exactly how each of the individual Defendants exhibited their own personal conduct 22 against him, either by action, inaction, or policy, with an intent or purpose to discriminate against 23 Plaintiff because he is Muslim. Plaintiff must explain what happened on dates stated in the 24 Complaint -- “July, 9/6, 13, 20 and October 4, 2019” -- , when and where it happened, who said 25 or did what, indicating an intent to discriminate against Plaintiff because he is a Muslim, 26 explaining how each of the Defendants treated similarly situated persons of other faiths 27 differently. Plaintiff shall be granted leave to file an amended complaint curing the deficiencies 28 in this claim identified by the court. 1 /// 2 Thus, based on the foregoing, Plaintiff fails to state a claim for violation of his right to 3 equal protection. 4 2. Free Exercise of Religion – First Amendment Claim 5 The First Amendment is made applicable to state action by incorporation through the 6 Fourteenth Amendment. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947). In order 7 to establish a free exercise violation, a prisoner must show that a defendant substantially 8 burdened the practice of his religion without any justification reasonably related to legitimate 9 penological interests. See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008); see, e.g., 10 Bolds v. Cavazos, No. 14-15176, 599 Fed. Appx. 307 (9th Cir. March 20, 2015) (unpublished 11 memorandum disposition) (dismissing Free Exercise Clause claim because inmate failed to show 12 that confiscation of television “substantially burdened” the practice of religion). “A substantial 13 burden . . . place[s] more than an inconvenience on religious exercise; it must have a tendency to 14 coerce individuals into acting contrary to their religious beliefs or exert substantial pressure on 15 an adherent to modify his behavior and to violate his beliefs.” Jones v. Williams, 791 F.3d 1023, 16 1031-32 (9th Cir. 2015). De minimis or minor burdens on the free exercise of religion are not of 17 a constitutional dimension, even if the belief upon which the exercise is based is sincerely held 18 and rooted in religious belief. See e.g., Rapier v. Harris, 172 F.3d 999, 1006 n. 4 (7th Cir. 1999) 19 (the unavailability of a non-pork tray for inmate at 3 meals out of 810 does not constitute more 20 than a de minimis burden on inmate’s free exercise of religion). 21 The “sincerity test,” and not the centrality test, applies to prisoners’ free-exercise claims. 22 Penwell v. Holtgeerts, 386 F. App’x 665, 667 (9th Cir. 2010) (citing see Shakur, 514 F.3d at 23 884–85). Under the sincerity test, a prisoner’s religious concern implicates the free exercise 24 clause if it is (1) “sincerely held” and (2) “rooted in religious belief,” rather than in secular 25 philosophical concerns. Id. (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (quotations 26 omitted); see also Shakur, 514 F.3d at 885 (adopting Malik’s formulation of the sincerity test)). 27 A prison regulation that impinges on an inmate’s First Amendment rights is valid if it is 28 reasonably related to legitimate penological interests. See O’Lone v. Estate of Shabazz, 482 U.S. 1 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Allegations of denial of an 2 opportunity to practice religion “must be found reasonable in light of four factors: (1) whether 3 there is a ‘valid, rational connection’ between the regulation and a legitimate government interest 4 put forward to justify it; (2) ‘whether there are alternative means of exercising the right that 5 remain open to prison inmates’; (3) whether accommodation of the asserted constitutional right 6 would have a significant impact on guards and other inmates; and (4) whether ready alternatives 7 are absent (bearing on the reasonableness of the regulation).” Pierce v. County of Orange, 526 8 F.3d 1190, 1209 (9th Cir. 2008) (citing Turner, 482 U.S. at 89-90); see Beard v. Banks, 548 U.S. 9 521, 532-33 (2006) (noting that application of the Turner factors does not turn on balancing the 10 factors, but on determining whether the defendants show a reasonable relation, as opposed to 11 merely a logical relation). 12 Here, Plaintiff has established that he is of the Muslim faith and has embraced its five 13 pillars, duties, and community prayers. Thus, Plaintiff has demonstrated that his religious 14 concern is sincerely held and rooted in religious belief and therefore implicates the free exercise 15 clause. Plaintiff alleges that he was denied the opportunity to participate in Jumu’ah community 16 prayer on Friday nights, required for Muslims, similar to prayer services for Christian and Jewish 17 faiths on Sundays and Saturdays, respectively. This prevented him from engaging in duties and 18 beliefs he sincerely believes in, consistent with his faith. Plaintiff gives at least five dates when 19 he was denied Jumu’ah prayer meetings. 20 Plaintiff has shown that he sincerely identifies as a Muslim and that his practice of 21 religion has been burdened by the denial of Jumu’ah community prayers on Fridays. However, 22 to state a free exercise claim, Plaintiff must allege facts showing that his religious practice was 23 “substantially” burdened, that it was more than just an inconvenience to him to miss a few Friday 24 services. He must also allege that the cancellation of Friday services was not reasonably related 25 to legitimate penological interests. As discussed above, Plaintiff must allege facts showing how 26 each of the individual Defendants, by name, personally acted against him by action, inaction or 27 policy, substantially burdening his practice of religion. Plaintiff shall be granted leave to amend 28 the complaint to cure the deficiencies in this claim. 1 /// 2 Therefore, Plaintiff fails to state a claim that his rights to freely exercise his religion under 3 the First Amendment were violated. 4 B. RLUIPA – Right to Practice Religion 5 The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) provides: 6 No government shall impose a substantial burden on the religious exercise1 of a person residing in or confined to an institution . . ., 7 even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden 8 on that person: 9 (1) is in furtherance of a compelling government interest; and 10 (2) is the least restrictive means of furthering that compelling government interest. 11 12 42 U.S.C. § 2000cc-1. 13 “RLUIPA is to be construed broadly in favor of protecting an inmate’s right to exercise 14 his religious beliefs.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). “RLUIPA 15 disallows policies that impose ‘a substantial burden on . . . religious exercise’ unless the burden 16 ‘furthers “a compelling governmental interest,” and does so by “the least restrictive means.”’” 17 Alvarez v. Hill, 518 F.3d 1152 (9th Cir. 2008) (quoting id. at 994 quoting 42 U.S.C. § 2000cc– 18 1(a)). A “substantial burden” is one that imposes a significantly great restriction or onus on 19 religious exercise. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034–35 20 (9th Cir. 2004). The Supreme Court has found a substantial burden “where the state denies an 21 important benefit because of conduct mandated by religious belief, thereby putting substantial 22 pressure on an adherent to modify his behavior and to violate his beliefs.” Warsoldier, 418 F.3d 23 at 995 (quoting Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717–18 24 (1981)). In any RLUIPA claim, one must first identify the “religious exercise” allegedly 25 26 1 “Congress defined ‘religious exercise’ to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’” Holt v. Hobbs, 135 S.Ct. 853, 860, 190 L.Ed.2d 747 27 (2015). (quoting § 2000cc-5(7)(A)). In fact, RLUIPA bars inquiry into whether a particular belief or practice is ‘central’ to a prisoner’s religion.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13, 125 S.Ct. 2113, 161 L.Ed. 1020 28 (2005) (overruling Establishment Clause to RLUIPA). 1 impinged upon, and then must ask whether the prison regulation at issue “substantially burdens” 2 that religious exercise. Greene v. Solano County Jail, 513 F.3d 982, 987 (9th Cir. 2008). “Courts 3 are expected to apply RLUIPA’s standard with due deference to the experience and expertise of 4 prison and jail administrators in establishing necessary regulations and procedures to maintain 5 good order, security and discipline, consistent with consideration of costs and limited resources.” 6 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1124-25 (9th Cir. 2013) (citing 7 Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2325 (2003)) (internal quotation marks 8 omitted). 9 Money damages are not available under RLUIPA against the state or state officials sued 10 in their official capacities, Sossamon v. Texas, 563 U.S. 277, 279, 131 S.Ct. 1651, 1655 (2011), 11 and RLUIPA does not contemplate liability of government employees in their individual 12 capacity. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). Thus, a RLUIPA claim may 13 proceed only for declaratory or injunctive relief against defendants acting within their official 14 capacities. 15 Plaintiff fails to state a claim for monetary damages for violation of RLUIPA. He requests 16 monetary damages, which are not available in a RLUIPA claim. Moreover, although he has 17 requested a declaratory judgment, he is not suing any of the Defendants in their official 18 capacities. He states in the Complaint that he is only suing Defendants in their individual 19 capacities, which is not allowed in a RLUIPA claim. Plaintiff shall be granted leave to amend 20 this claim to correct the deficiencies in his RLUIPA claim identified by the court, if he can do so 21 in good faith. 22 Thus, Plaintiff fails to state a claim for violation of RLUIPA. 23 C. Relief 24 In addition to monetary damages and costs of suit, Plaintiff requests a declaratory 25 judgment and attorney fees. 26 Plaintiff's request for declaratory relief should be denied because it is subsumed by 27 Plaintiff’s damages claim. See Rhodes v. Robinson, 408 F.3d 559, 565-66 n.8 (9th Cir. 2005) 28 (because claim for damages entails determination of whether officers’ alleged conduct violated 1 plaintiff’s rights, the separate request for declaratory relief is subsumed by damages action); see 2 also Fitzpatrick v. Gates, No. CV 00-4191-GAF (AJWx), 2001 WL 630534, at *5 (C.D. Cal. 3 Apr. 18, 2001) (“Where a plaintiff seeks damages or relief for an alleged constitutional injury 4 that has already occurred declaratory relief generally is inappropriate[.]”) 5 With regard to attorney’s fees, “[i]n any action or proceeding to enforce a provision of 6 section[] 1983. . . , the court, in its discretion, may allow the prevailing party. . . reasonable 7 attorney’s fees. . . .” 42 U.S.C. § 1988(b). However, Plaintiff’s contention that he is entitled to 8 attorney’s fees if he prevails is without merit. Plaintiff is representing himself in this action. 9 Because Plaintiff is not represented by an attorney, he is not entitled to recover attorney’s fees if 10 he prevails. See Friedman v. Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990), superseded by 11 statute as stated in Warsoldier, 418 F.3d 989; Gonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 12 1987); see also Rickley v. Cnty. of Los Angeles, 654 F.3d 950, 954 (9th Cir. 2011) (“The Court 13 accordingly adopted a per se rule, categorically precluding an award of attorney’s fees under § 14 1988 to a pro se attorney-plaintiff.”) 15 V. CONCLUSION 16 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable 17 § 1983 or RLUIPA claims in the Complaint against any of the individual Defendants. Under 18 Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave to amend 19 when justice so requires.” Plaintiff shall be granted leave file a First Amended Complaint within 20 thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 21 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 22 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights. 23 Iqbal, 556 U.S. at 678; Jones, 297 F.3d. at 934. Plaintiff must set forth “sufficient factual matter 24 . . . to ‘state a claim that is plausible on its face.’” Iqbal at 678 (quoting Twombly, 550 U.S. at 25 555). There is no respondeat superior liability, and each defendant is only liable for his or her 26 own misconduct. Iqbal, 556 U.S. at 677. Plaintiff must demonstrate that each Defendant 27 personally participated in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added). 28 Plaintiff should note that although he has been given the opportunity to amend, it is not for the 1 purpose of adding new defendants for unrelated issues. Plaintiff should also note that he has not 2 been granted leave to add allegations of events occurring after the initiation of this suit on August 3 26, 2020. 4 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey 5 v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012), and it must be complete in itself 6 without reference to the prior or superseded pleading. Local Rule 220. Once an amended 7 complaint is filed, the original complaint no longer serves any function in the case. Therefore, 8 in an amended complaint, as in an original complaint, each claim and the involvement of each 9 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 10 titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed 11 under penalty of perjury. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Based on the foregoing, the court finds that Plaintiff fails to state any cognizable 14 claims in the Complaint against any of the Defendants upon which relief may be 15 granted under § 1983 or RLUIPA; 16 2. Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to amend 17 within thirty (30) days from the date of service of this order; 18 3. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 19 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and 20 refer to the case number 1:20-cv-00892-NONE-GSA-PC; and 21 5. Plaintiff’s failure to comply with this order shall result in a recommendation that 22 this case be dismissed. 23 IT IS SO ORDERED. 24 25 Dated: November 1, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28