Chapman v. United States Forest Service ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW CHAPMAN, Case No. 1:22-cv-01531-BAM 12 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO AMEND 13 v. (Doc. 1) 14 UNITED STATES FOREST SERVICE, 15 Defendant. 16 17 Plaintiff Matthew Chapman (“Plaintiff”), proceeding pro se and in forma pauperis, 18 initiated this action pursuant to the Administrative Procedures Act (“APA”) on November 29, 19 2022. (Doc. 1.) Plaintiff’s complaint is currently before the Court for screening. 20 I. Screening Requirement and Standard 21 The Court screens complaints brought by persons proceeding in pro se and in forma 22 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 23 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 24 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 25 U.S.C. § 1915(e)(2)(B)(ii). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 28 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 1 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 3 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 4 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 5 To survive screening, Plaintiff’s claims must be facially plausible, which requires 6 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 7 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 8 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 9 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 10 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 11 II. Summary of Plaintiff’s Allegations 12 Plaintiff alleges that his land in Tuolumne County is adjacent to the Stanislaus National 13 Forest and is subject to an easement under the jurisdiction and management of the Defendant 14 United States Forest Service (“USFS”). The easement provides for public access to the National 15 Forest. Plaintiff claims that his home, which is next to the forest access easement, stands to be 16 imminently adversely affected by the actions of the USFS. 17 According to the complaint, this action: 18 challenges United States Forest Service (USFS) Decision Memo determinations relating to special use roadway permits for a commercial recreational 19 development on private land, adjacent to the national forest, application of National Environmental Policy Act (NEPA) with respect thereto, and 20 jurisdictional access matters, pertaining to a Federal-Aid funded state highway, compounded with representations within a land deed that the Federal-Aid 21 highway was built in the wrong place. That representation bolstered with a claim that excess land, had been lawfully transferred back, creating 2 parcels. It has 22 been asserted as a fraudulent claim, that the highway properly exists where it was built, that there was, and is no excess land to transfer, nor deed from the state as 23 claimed; that the 2 parcels subject to development are not lawful parcels, there [sic] deed void, as a matter of law and fact. 24 25 (Doc. 1 at pp. 1-2.) Plaintiff alleges that he has partaken of the announced USFS administrative 26 scoping regarding the matter and submitted extensive commentary. He appears to seek review of 27 USFS compliance with NEPA pursuant to the Administrative Procedure Act. (Id. at pp. 4-5.) 28 Plaintiff explains that there are two separate commercial recreational projects that were 1 proposed for development. The lands for the projects are divided by “a state Federal-Aid 2 highway.” (Id. at p. 6.) Two parcels south of the highway comprise one project and two parcels 3 north of the highway comprise the second project. Plaintiff indicates that both projects propose 4 and require secondary access that can only be obtained through use of adjacent National Forest 5 System Land roadways. The instant action involves the project to the south of the highway, 6 known as Under Canvas. (Id.) 7 According to Plaintiff, Under Canvas had initially been approved by the local planning 8 agency with a declared mitigated negative declaration pursuant to the California Environmental 9 Quality Act (“CEQA”) without the need of a secondary access. On the day set for approval 10 before the local planning commission, the local planning agency cancelled the presentation and 11 announced a full CEQA Environmental Impact Review (“EIR”). A CEQA EIR process ensured 12 and a CEQA decision of approval resulted, which declared required “USFS road permits as a 13 condition to project approval.” (Id. at p. 7.) 14 Before, during, and after the CEQA decision, Plaintiff requested USFS involvement from 15 Jason Kulken, Stanislaus National Forest Supervisor. Plaintiff claimed that the USFS must 16 involve itself, that it had jurisdictional control over the roadway proposed for required secondary 17 access, that the project land parcels were the result of an unlawful land division and survey fraud, 18 never having been lawfully zoned, and that any road use permit proposals were beyond the 19 authority of the USFS to grant. (Id.) The Forest Supervisor answered Plaintiff’s concerns and 20 asserted a lack of jurisdiction concerning the matter. 21 Plaintiff further alleges that the spur access proposed, presumably for the special use 22 roadway permits, derives from a forest access road, but the “roadway” does not exist on the 23 current Motorized Vehicle Use Map. Plaintiff claims the Stanislaus National Forest has neglected 24 to address occasional use of the spur access. 25 According to Plaintiff, a USFS administrative scoping period was announced May 25, 26 2022, concerning the project’s required special use roadway permits. This scoping was to 27 proceed with the USFS exercising jurisdiction, which the Forest Supervisor had previously 28 denied. Following the scoping announcement, Plaintiff resubmitted previous submittals that had 1 been sent to Mr. Kulken, along with additional submittals. These submittals appear to have 2 included assertions of fraud, based on allegations that the state highway was designed, planned, 3 and constructed as a Federal-Aid project. Plaintiff alleges: 4 The basis of the fraud rests on a deed processed thru the Office of the County Surveyor. That deed’s legal description represents the Federal-Aid highway, as 5 having been built in the wrong place; and a false claim of 12 acres of excess land having been properly deeded back by the State of California (no deed from the 6 state with its legal description exists) Those 12 acres of land, by deed description creating 2 parcels. Those 2 parcels providing for an unlawful land division, those 7 2 parcels comprise the lands of the Under Canvas development. The unlawful land division also implicates the lands to the north of the highway and the pending 8 second proposed development. 9 (Id. at p. 12.) Plaintiff asserts that the fraud and false claims in his administrative submittals have 10 never been considered by their factual and legal merits. Plaintiff submitted relevant evidence to 11 the Federal Highway Administration and CalTrans. 12 On September 6, 2022, CalTrans issued a determination declaring no abnormalities in the 13 right of way. Subsequent contact with CalTrans indicated that the matter concerning the claimed 14 transfer of 2 acres of land was before the CalTrans legal department for resolution. 15 Six days before the CalTrans determination, the USFS released a Decision Memo on 16 August 30, 2022. The memo determined to issue the proposed three permits and claimed to 17 Categorically Exclude the action from an environmental assessment (“EA”) or an environmental 18 impact statement (“EIS”).1 Plaintiff claims the “determination [was] made, apparently unaware, 19 or in disregard of the ongoing CalTrans investigation, yet to be released, six days later.” (Id. at p. 20 13.) Plaintiff gave notice to the Stanislaus National Forest, to be relayed to Forest Supervisor 21 Kulken, of the intent to file a civil action and the intent to make a formal criminal complaint 22 pursuant to the Federal Land Policy Management Act. 23 Plaintiff alleges that despite assertions within the Decision Memo, the determination did 24 not consider all comments of public respondents and avoided consideration of his submittals 25 26 1 According to the Decision Memo attached to the complaint, the decision to issue the forest road special use permits was “categorically excluded from documentation in an environmental impact statement (EIS) 27 or an environmental assessment (EA). The applicable category of actions is identified in agency procedures as 36 CFR 220.6(e)(3) Approval, modification, or continuation of special uses that require less 28 than 20 acres of NFS lands.” (Doc. 1 at p. 40.) 1 regarding the regulatory hurdles. Plaintiff further claims that the CE determination cannot be 2 justified. Plaintiff also appears to claim that the USFS failed to comply with its NEPA statutory 3 obligations. (Id. at p. 14.) 4 As best as the Court can determine from the complaint, Plaintiff is alleging claims based 5 on the following assertions: (1) failure to consider his administrative scoping submittals; (2) the 6 USFS improperly determined that the permits at issue were categorically excluded from an EA 7 and EIS analysis required by NEPA because the project could not be built without the USFS road 8 permits: (3) the USFS’ environmental analysis is conclusory; (4) the CalTrans right-of-way 9 determination was never considered by USFS and the Decision Memo was issued despite an 10 ongoing investigation; (5) the USFS acted in violation of its authority under the Federal Land 11 Policy Management Act; and (6) the permit scheme was not properly considered and was an 12 attempt to circumvent an express limitation of the USFS’ authority to act. 13 III. Discussion 14 Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8, 18 and 20 15 and fails to state a cognizable claim upon which relief may be granted. As Plaintiff is proceeding 16 in pro se, the Court will allow Plaintiff an opportunity to amend his complaint to the extent he 17 can do so in good faith. To assist Plaintiff, the Court provides the relevant pleading and legal 18 standards. 19 A. Federal Rule of Civil Procedure 8 20 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and 21 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 22 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 23 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 24 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 25 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 26 at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are 27 not. Id.; see also Twombly, 550 U.S. at 556–557. 28 /// 1 Plaintiff’s complaint is not a short and plain statement of his claims. Plaintiff’s narrative 2 is lengthy, disjointed, confusing, and conclusory. It also contains extraneous statements and 3 information, making it difficult to separate the relevant factual allegations from the irrelevant 4 ones. It is not the type of complaint contemplated by Rule 8. See Murguia v. Langdon, No. 5 1:19-cv-00942-DAD-BAM, 2020 WL 3542310, at *12 (E.D. Cal. June 30, 2020) (dismissing 6 complaint with leave to amend where complaint failed to comply with Rule 8 and was “mostly 7 narrative ramblings and storytelling”). If Plaintiff files an amended complaint, it should be a 8 short and plain statement of his claims and must be limited only to those factual allegations 9 related to his claims that identify what happened, when it happened, and who was involved. Fed. 10 R. Civ. P. 8. 11 B. Federal Rules of Civil Procedure 18 and 20 12 Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. 13 R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 14 507 F.3d 605, 607 (7th Cir. 2007); Mackey v. Price, 2020 WL 7319420, at *3–4 (E.D. Cal. Dec. 15 11, 2020), report and recommendation adopted, 2021 WL 843462 (E.D. Cal. Mar. 5, 2021). 16 Plaintiff may bring a claim against multiple defendants so long as (1) the claim arises out of the 17 same transaction or occurrence, or series of transactions and occurrences, and (2) there are 18 commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 19 1351 (9th Cir. 1997). The “same transaction” requirement refers to similarity in the factual 20 background of a claim. Id. at 1349. Only if the defendants are properly joined under Rule 20(a) 21 will the Court review the other claims to determine if they may be joined under Rule 18(a), 22 which permits the joinder of multiple claims against the same party. 23 Here, Plaintiff appears to raise three different claims—that Defendant USFS violated 24 NEPA, that the Federal-Aid highway was built in the wrong place, and that the underlying 25 creation of the land parcels at issue in the Under Canvas project was fraudulent. The latter two 26 claims are distinct in time and do not relate to Plaintiff’s primary assertion regarding Defendant 27 USFS’ approval of the Forest Road Special Use Permits. The claims at issue here do not arise 28 out of the same transaction or occurrence, or series of transactions and occurrences, and there are 1 no common questions of law or fact underlying the claims. That all of the claims have some 2 connection, however loosely based, on the Under Canvas project is not sufficient to make the 3 claims related. The Court will therefore limit its screening to Plaintiff’s assertions of a violation 4 of NEPA. 5 C. APA 6 The APA provides that any person “adversely affected or aggrieved by agency action 7 within the meaning of a relevant statute” is entitled to judicial review so long as the substantive 8 statute expressly provides for judicial review of alleged violations, or the challenged action 9 constitutes a “final agency action for which there is no other adequate remedy in a court.” 5 10 U.S.C. §§ 702, 704; Heckler v. Chaney, 470 U.S. 821, 828 (1985); see also Lujan v. National 11 Wildlife Federation, 497 U.S. 871, 882 (1990) (“When, as here, review is sought not pursuant to 12 specific authorization in the substantive statute, but only under the general review provisions of 13 the APA, the ‘agency action’ in question must be ‘final agency action.’ ”) (citing 5 U.S.C. § 14 704); Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800 (9th Cir. 2013) (“To maintain a cause 15 of action under the APA, a plaintiff must challenge ‘agency action’ that is ‘final.’ ”) (citing 16 Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61-62 (2004) ). 17 The APA defines reviewable “agency action” to include “the whole or a part of an 18 agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 19 5 U.S.C. § 701(b)(2) (incorporating 5 U.S.C. § 551(13) ); Wild Fish Conservancy, 730 F.3d at 20 800 (citing 5 U.S.C. § 551(13) ). Although the definition is “expansive,” federal courts “have 21 long recognized that the term [agency action] is not so all-encompassing as to authorize us to 22 exercise judicial review over everything done by an administrative agency.” Wild Fish 23 Conservancy, 730 F.3d at 800-801 (citation omitted). To qualify as “final,” the action 24 challenged must “mark the consummation of the agency’s decisionmaking process” and “must 25 be one by which rights or obligations have been determined, or from which legal consequences 26 will flow.” Id. at 801, citing Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations and 27 internal quotation marks omitted). 28 A person is “adversely affected or aggrieved by agency action within the meaning of a 1 relevant [substantive] statute” (e.g., NEPA) when he personally suffered an injury that “falls 2 within the ‘zone of interests’ sought to be protected by the statutory provision whose violation 3 forms the legal basis for [the plaintiff's] complaint.” Kandi v. Langford, No. CV 17-3617 4 FMO(JC), 2018 WL 6016974, at *3 (C.D. Cal. May 17, 2018), citing 5 U.S.C. § 702; Lujan, 497 5 U.S. at 883 (citation omitted); and San Luis & Delta-Mendota Water Authority v. United States, 6 672 F.3d 676, 704 (9th Cir. 2012). To determine whether a plaintiff is within the zone of 7 interests of a statute, courts look “to the substantive provisions of the [statute], the alleged 8 violations of which serve as the gravamen of the complaint.” City of Sausalito v. O’Neill, 386 9 F.3d 1186, 1200 (9th Cir. 2004) (quoting Bennett, 520 U.S. at 175). The “zone of interest” test 10 “is not meant to be especially demanding.” Id. (quoting Clarke v. Securities Industry 11 Association, 479 U.S. 388, 399 (1987)). A plaintiff is not entitled to judicial review pursuant to 12 the APA where the interests at stake are only “marginally related to or inconsistent with the 13 purposes implicit in the [substantive] statute....” Id. (citations and internal quotation marks 14 omitted). 15 There is a “strong presumption” that the actions of an administrative agency are subject 16 to judicial review. Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 718 (9th Cir. 2011) 17 (citations omitted). “Nonetheless, the APA does not apply in certain narrow circumstances, such 18 as when the substantive statute expressly precludes review, or the challenged agency action 19 involves a function that has been completely “committed to agency discretion by law.” Kandi, 20 2018 WL 6016974, at *4 (citing 5 U.S.C. § 701(a)). 21 A federal agency’s compliance with NEPA is reviewed under the APA. Earth Island Inst. 22 v. Muldoon, No. 1:22-cv-00710-AWI-EPG, --- F. Supp. 3d --- , 2022 WL 4388197, at *10 (E.D. 23 Cal. Sept. 22, 2022) (citing 5 U.S.C. § 706(2)(A); Karuk Tribe of Cal. v. U.S. Forest Serv., 681 24 F.3d 1006, 1017 (9th Cir. 2012) (en banc). Under the APA, a court may set aside an agency 25 action if the court determines that the action was “arbitrary, capricious, an abuse of discretion, or 26 otherwise not in accordance with law.” Id. (citation omitted). “A decision is arbitrary and 27 capricious only if the agency relied on factors Congress did not intend it to consider, entirely 28 failed to consider an important aspect of the problem, or offered an explanation that runs counter 1 to the evidence before the agency or is so implausible that it could not be ascribed to a difference 2 in view or the product of agency expertise.” Conservation Cong. v. United States Forest Serv., 3 720 F.3d 1048, 1054 (9th Cir. 2013) (citing Lands Council v. McNair, 629 F.3d 1070, 1074 (9th 4 Cir. 2010)). “Agency action is valid if the agency considered the relevant factors and articulated 5 a rational connection between the facts found and the choices made.” Id. 6 D. NEPA 7 NEPA is the “basic national charter for protection of the environment.” Blue Mountains 8 Biodiversity Project v. Blackwood, 161 F.3d 1208, 1215 (9th Cir. 1998) (quoting 40 C.F.R. § 9 1500.1(a)), cert. denied, 527 U.S. 1003 (1999). NEPA was enacted in pursuit of two objectives: 10 “First, it places upon an agency the obligation to consider every significant aspect of the 11 environmental impact of a proposed action. Second, it ensures that the agency will inform the 12 public that it has indeed considered environmental concerns in its decisionmaking process.” 13 Bering Strait Citizens for Responsible Resource Development v. United States Army Corps of 14 Engineers, 524 F.3d 938, 947 (9th Cir. 2008) (quoting Baltimore Gas and Electric Co. v. Natural 15 Resources Defense Council, Inc., 462 U.S. 87, 97 (1983) ) (internal quotation marks omitted). 16 NEPA requires federal agencies to perform environmental analysis before taking any 17 “major Federal actions significantly affecting the quality of the human environment.” Envtl. 18 Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 987 (9th Cir. 2020) (citing 42 U.S.C. § 4332(2)(C)). 19 NEPA “does not mandate particular results,” but “imposes only procedural requirements to 20 ensure that the agency, in reaching its decision, will have available, and will carefully consider, 21 detailed information concerning significant environmental impacts.” Id. at 988 (citing Winter v. 22 Nat. Res. Def. Council, 555 U.S. 7, 23 (2008)). An agency can comply with NEPA in three ways: 23 (1) it can prepare an Environmental Impact Statement (“EIS”); (2) it can prepare an 24 Environmental Assessment (“EA”); or (3) it can invoke a Categorical Exclusion (“CE”). Earth 25 Island Inst., 2022 WL 4388197, at *11 (citing Carlson, 968 F.3d at 988). An EIS is the most 26 searching review and is required for any action “significantly affecting the quality of the human 27 environment.” 42 U.S.C. § 4332(2)(C). An EA is less searching and is used to determine whether 28 an EIS is required. 40 C.F.R. § 1508.9. A CE allows an agency to avoid preparing an EIS or EA. 1 Carlson, 968 F.3d at 988. The rationale for a CE is that a project that will have only a minimal 2 impact on the environment should be allowed to proceed without an EIS or EA. Id. at 990; Earth 3 Island Inst., 2022 WL 4388197, at *11. 4 “An agency’s activity qualifies for a CE only if the activity falls within a listed category 5 and there are no ‘extraordinary circumstances’ related to the proposed action.” Earth Island 6 Inst., 2022 WL 4388197, at *11 (citing 36 C.F.R. § 220.6(a); 43 C.F.R. § 46.210; Los Padres 7 ForestWatch v. United States Forest Serv., 25 F.4th 649, 661-62 (9th Cir. 2022); Earth Island 8 Inst. v. Elliott, 318 F. Supp. 3d 1155, 1172 (E.D. Cal. 2018)). An “extraordinary circumstance” is 9 a circumstance “in which a normally excluded action may have a significant environmental 10 effect.” Mt. Cmtys. for Fire Safety v. Elliott, 25 F.4th 667, 680 (9th Cir. 2022) (citing 40 C.F.R. § 11 1508.4). “If an extraordinary circumstance is present, the agency nevertheless may categorically 12 exclude the proposed action if the agency determines that there are circumstances that lessen the 13 impacts or other conditions sufficient to avoid significant effects.” 40 C.F.R. § 1501.4(b)(1); see 14 Earth Island Inst., 2022 WL 4388197, at *11. 15 Here, the Complaint does not allege facts which sufficiently show a NEPA violation. 16 According to Plaintiff’s own allegations, the USFS determined that neither an EIS nor EA was 17 required, invoking a CE. Although Plaintiff alleges that the USFS improperly invoked a CE, 18 Plaintiff’s allegations are conclusory at best. Because Plaintiff’s complaint fails to comply with 19 Rule 8 (discussed above), it is difficult to ascertain the factual allegations supporting Plaintiff’s 20 claims. There are no allegations in the complaint specific to the CE cited by the USFS, i.e., 36 21 C.F.R. 220.6(e)(3) involving less than 20 acres. Rather, Plaintiff states in a conclusory fashion 22 that USFS could not invoke a CE for the permits at issue because the Under Canvas project 23 could not be built without the USFS permits. 24 The Court recognizes that under NEPA, an agency is required to prepare an EIS for 25 “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. 26 § 4332(2)(C). The Court further recognizes that “if a federal permit is a prerequisite for a project 27 with adverse impact on the environment, issuance of that permit does constitute major federal 28 action and the federal agency involved must conduct an EA and possibly an EIS before granting 1 it.” Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir.1996) (emphasis added); see also Drakes Bay 2 Oyster Co. v. Jewell, 747 F.3d 1073, 1089 (9th Cir. 2014). Here, however, Plaintiff has not 3 alleged sufficient facts to demonstrate that the special use permits were a prerequisite for the 4 Under Canvas project. 5 Further, the complaint does not plausibly allege that Plaintiff personally suffered any 6 injury of a type involving interests protected by NEPA by the granting of the Forest Road 7 Special Use Permits. Plaintiff does not plausibly allege that he suffered a particular direct injury 8 in connection with the roadway permit or any arguable injury from the special use permits that 9 falls within the “zone of interests” NEPA protects. Plaintiff’s allegations regarding any injury 10 are conclusory. 11 IV. Conclusion and Order 12 Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8, 18 and 20 13 and fails to state a cognizable claim upon which relief may be granted. As Plaintiff is proceeding 14 pro se, the Court will grant Plaintiff an opportunity to amend his complaint to cure these 15 deficiencies to the extent he is able to do so in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 16 (9th Cir. 2000). 17 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 18 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 19 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to 20 raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 21 omitted). Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 22 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 23 “buckshot” complaints). 24 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 25 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 26 complaint must be “complete in itself without reference to the prior or superseded pleading.” 27 Local Rule 220. 28 /// 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. The Clerk’s Office shall send Plaintiff a complaint form; 3 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 4 first amended complaint curing the deficiencies identified by the Court in this order or file a 5 notice of voluntary dismissal; and 6 3. If Plaintiff fails to file an amended complaint in compliance with this order, then 7 the Court will recommend dismissal of this action, with prejudice, for failure to obey a court 8 order and for failure to state a claim upon which relief may be granted. 9 IT IS SO ORDERED. 10 11 Dated: June 23, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28