Ruiz v. Aragon ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELIAS C. RUIZ, No. 1:22-cv-1468 DAD DB PS 12 Plaintiff, 13 v. ORDER 14 TOMAS J. ARAGON, in his official capacity, et al., 15 16 Defendants. 17 18 Plaintiff Elias C. Ruiz is proceeding in this action pro se. This matter was referred to the 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 20 before the court are defendants’ motions to dismiss pursuant to Federal Rules of Civil Procedure 21 (“Rule”) 12(b)(1) and 12(b)(6), and to strike pursuant to Rule 12(f). For the reasons stated below, 22 defendants’ motions to dismiss are granted and plaintiff is granted leave to file an amended 23 complaint. 24 BACKGROUND 25 Plaintiff, proceeding pro se, commenced this action in the Freson Division on November 26 14, 2022, by filing a complaint and paying the applicable filing fee. (ECF No. 1.) The complaint 27 alleges that plaintiff has been employed by defendant Turlock Unified School District (“TUSD”) 28 //// 1 since August 16, 2010. (Compl. (ECF No. 1) at 2.1) In response to the COVID-19 pandemic, 2 from August 12, 2021, to September 16, 2022, defendant California Department of Public Health 3 (“CDPH”) implemented a mandate requiring “asymptomatic unvaccinated or incompletely 4 vaccinated school workers to undergo diagnostic COVID-19 screening testing.”2 (Id.) Pursuant 5 to the mandate employees who were “not fully vaccinated, or for whom vaccine status [was] 6 unknown or documentation [was] not provided” would be “considered unvaccinated.” (Id.) 7 “Plaintiff declined to state his COVID-19 vaccination status.” (Id.) 8 Pursuant to these allegations the complaint asserts causes of action for an Equal Protection 9 violation, disability discrimination, religious discrimination, violation of California Labor Code 10 sections, invasion of privacy, stalking, the intentional infliction of emotional distress, and 11 vicarious liability. (Id. at 2-14.) On December 29, 2022, defendants CDPH and Thomas J. 12 Aragon filed a motion to dismiss. (ECF No. 19.) Plaintiff filed an opposition on January 9, 2023. 13 (ECF No. 23.) Defendants CDHP and Aragon filed a reply on January 19, 2023. (ECF No. 26.) 14 On January 27, 2023, defendants TUSD and David Lattig filed a motion to dismiss. (ECF No. 15 29.) On September 13, 2023, this action was reassigned to the Sacramento Division pursuant to 16 Local Rule 120. (ECF No. 39.) 17 STANDARDS 18 I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(1) 19 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 20 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 21 claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction may 22 either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the 23 existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 24 594 F.2d 730, 733 (9th Cir. 1979). 25 1 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 26 system and not to page numbers assigned by the parties. 27 2 Also named as defendants in the complaint are Director of California Department of Public Health, Tomas J. Aragon, and David Lattig, TUSD Superintendent of Human Resources. 28 (Compl. (ECF No. 1) at 1.) 1 When a party brings a facial attack to subject matter jurisdiction, that party contends that 2 the allegations of jurisdiction contained in the complaint are insufficient on their face to 3 demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 4 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards 5 similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 6 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 7 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted 8 only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. 9 Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003); Miranda v. 10 Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001). Nonetheless, district courts “may review 11 evidence beyond the complaint without converting the motion to dismiss into a motion for 12 summary judgment” when resolving a facial attack. Safe Air for Everyone, 373 F.3d at 1039. 13 When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction, no 14 presumption of truthfulness attaches to the plaintiff’s allegations. Thornhill Publ’g Co., 594 F.2d 15 at 733. “[T]he district court is not restricted to the face of the pleadings, but may review any 16 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 17 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 18 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden 19 of establishing that such jurisdiction does in fact exist. Thornhill Publ’g Co., 594 F.2d at 733. 20 II. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6) 21 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 22 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 23 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 24 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 25 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 26 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 27 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 28 //// 1 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009). 3 In determining whether a complaint states a claim on which relief may be granted, the 4 court accepts as true the allegations in the complaint and construes the allegations in the light 5 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 6 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less 7 stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 8 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the 9 form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th 10 Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than 11 an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 12 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 13 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 14 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 15 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove 16 facts which it has not alleged or that the defendants have violated the . . . laws in ways that have 17 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 18 459 U.S. 519, 526 (1983). 19 III. Legal Standards Applicable to Motions to Strike Pursuant to Rule 12(f) 20 A motion to strike pursuant to Rule 12(f) allows a court to strike “from any pleading any 21 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. 22 Civ. P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and 23 money that must arise from litigating spurious issues by dispensing with those issues prior to 24 trial[.]” Whittlestone, Inc. v. Handi-Craft, Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting 25 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)), rev’d on other grounds by Fogerty 26 v. Fantasy, Inc., 510 U.S. 517, 114 (1994); see also Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 27 880, 885 (9th Cir. 1983). 28 //// 1 A motion to strike is well-taken when “it is clear that the matter to be stricken could have 2 no possible bearing on the subject matter of litigation.” LeDuc v. Kentucky Central Life Ins. Co., 3 814 F.Supp. 820, 830 (N.D. Cal. 1992). Impertinent allegations are those that are not responsive 4 or relevant to issues involved in the action and which could not be admitted as evidence in the 5 litigation. Fantasy, Inc., 984 F.2d at 1527. “Scandalous” within the meaning of Rule 12(f) 6 includes allegations that cast a cruelly derogatory light on a party or other person. Talbot v. 7 Robert Mathews Distributing Co., 961 F.2d 654, 665 (7th Cir. 1992). 8 Ultimately, whether to grant a motion to strike applying these standards lies within the 9 sound discretion of the district court. Fantasy, Inc., 984 F.2d at 1527; see also California Dept. of 10 Toxic Substances Control v. Alco Pacific, Inc., 217 F.Supp.2d 1028, 1032-33 (C.D. Cal. 2002).3 11 ANALYSIS 12 I. Defendants’ Motions to Dismiss 13 Review of the parties’ briefing finds that defendants’ motions to dismiss should be granted 14 for several reasons. 15 A. Eleventh Amendment Immunity 16 In general, the Eleventh Amendment bars suits against a state, absent the state’s 17 affirmative waiver of its immunity or congressional abrogation of that immunity. Pennhurst v. 18 Halderman, 465 U.S. 89, 98-99 (1984); Simmons v. Sacramento County Superior Court, 318 F.3d 19 1156, 1161 (9th Cir. 2003); Yakama Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d 20 1241, 1245 (9th Cir. 1999); see also Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of 21 Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The Eleventh Amendment bars suits against 22 the State or its agencies for all types of relief, absent unequivocal consent by the state.”). 23 To be a valid waiver of sovereign immunity, a state’s consent to suit must be 24 “unequivocally expressed in the statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996); see also 25 Pennhurst, 465 U.S. at 99; Yakama Indian Nation, 176 F.3d at 1245. “[T]here can be no consent 26 3 Rule 12(f) motions are generally viewed with disfavor and not ordinarily granted. Bureerong v. 27 Uvawas, 922 F.Supp. 1450, 1478 (C.D. Cal. 1996). A motion to strike should therefore not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing 28 on the litigation. Lilley v. Charren, 936 F. Supp. 708, 713 (N.D. Cal. 1996). 1 by implication or by use of ambiguous language.” United States v. N.Y. Rayon Importing Co., 2 329 U.S. 654, 659 (1947). Courts must “indulge every reasonable presumption against waiver,” 3 Coll. Sav. Bank v. Florida Prepaid, 527 U.S. 666, 682 (1999), and waivers “must be construed 4 strictly in favor of the sovereign and not enlarged beyond what the [statutory] language requires.” 5 United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citations, ellipses, and internal 6 quotation marks omitted). “To sustain a claim that the Government is liable for awards of 7 monetary damages, the waiver of sovereign immunity must extend unambiguously to such 8 monetary claims.” Lane, 518 U.S. at 192. 9 The Ninth Circuit has recognized that “[t]he State of California has not waived its 10 Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court, and 11 the Supreme Court has held that § 1983 was not intended to abrogate a State’s Eleventh 12 Amendment immunity.” Brown v. California Dept. of Corrections, 554 F.3d 747, 752 (9th Cir. 13 2009) (quoting Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999)). 14 “[T]he Eleventh Amendment bars a federal court from hearing claims by a citizen against 15 dependent instrumentalities of the state.” Cerrato v. San Francisco Community College Dist., 26 16 F.3d 968, 972-73 (9th Cir. 1994). Here, the complaint seeks “money damages” against the 17 California Department of Public Health and its director Tomas J. Aragon. (Compl. (ECF No. 1) 18 at 1-2.) CDPH and its officers are immune from suits for money damages pursuant to the 19 Eleventh Amendment. See Aids Healthcare Foundation v. Belshe, No. CV97-3235, 1998 WL 20 1157405, at *9 (C.D. Cal. Dec. 8, 1998). Thus, it does not appear that plaintiff can obtain money 21 damages from defendants CDPH and Tomas J. Aragon. 22 B. Rule 8 23 Based on the sparse facts recounted above plaintiff’s complaint asserts eight causes of 24 action. However, those causes of action frequently fail to contain allegations addressing which 25 defendant or defendants the claim is asserted against and what were the wrongful actions of the 26 defendant or defendants. Instead, the causes of action simply “reallege[] and restate[]” the factual 27 allegations noted above. 28 //// 1 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 2 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 3 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 4 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 5 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 6 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 7 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 8 557). A plaintiff must allege with at least some degree of particularity overt acts which the 9 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 10 Here, the complaint fails to allege facts that state the elements of each claim plainly and 11 succinctly. 12 C. Equal Protection 13 The complaint alleges that the defendants violated the Equal Protection Clause of the 14 Fourteenth Amendment because the “CDPH Mandate was illogical and cannot withstand strict 15 scrutiny or even a rational basis test because naturally immune individuals . . . have at least as 16 good or better immunity to the virus that causes COVID-19[.]” (Compl. (ECF No. 1) at 3.) “The 17 Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any 18 person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that 19 all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living 20 Ctr., 473 U.S. 432, 439 (1985); see also Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 21 2001). 22 To state a viable claim under the Equal Protection Clause, a plaintiff “must plead 23 intentional unlawful discrimination or allege facts that are at least susceptible of an inference of 24 discriminatory intent.” Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 25 1998). “Intentional discrimination means that a defendant acted at least in part because of a 26 plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071 (9th Cir. 2003) (quoting Maynard 27 v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)). 28 //// 1 Here, the complaint does contain any allegations that a defendant intentionally 2 discriminated against plaintiff based on plaintiff’s protected status. 3 D. Disability Discrimination 4 The complaint also alleges “disability discrimination” pursuant to the “Americans with 5 Disabilities Act.” (Compl. (ECF No. 1) at 4.) “Congress enacted the ADA ‘to provide clear, 6 strong, consistent, enforceable standards addressing discrimination against individuals with 7 disabilities.’” Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 8 669 (9th Cir. 2010) (quoting 42 U.S.C. § 12101(b)(2)). Pursuant to the ADA: 9 No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard 10 to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, 11 conditions, and privileges of employment. 12 42 U.S.C. § 12112(a). 13 “A person is ‘regarded as’ having a disability ‘if the individual establishes that he or she 14 has been subjected to an action prohibited under this chapter because of an actual or perceived 15 physical or mental impairment whether or not the impairment limits or is perceived to limit a 16 major life activity.’” Scott v. Napolitano, 717 F.Supp.2d 1071, 1086 (S.D. Cal. 2010) (quoting 42 17 U.S.C. § 12102(3)(A)). Here, the complaint fails to allege that a defendant discriminated against 18 plaintiff or subjected plaintiff to a prohibited action. 19 In this regard, the complaint alleges that the “COVID-19 surveillance testing policy 20 regarded workers with a previous antibody test for COVID-19 as immunodeficient.” (Compl. 21 (ECF No. 1) at 5.) However, “[s]ince its detection in late 2019, the outbreak of SARS-CoV-2 22 (COVID-19) has metamorphosized into the deadliest worldwide pandemic since the 1918 23 outbreak of Spanish flu.” Brox v. Hole, 590 F.Supp.3d 359, 363 (D. Mass. 2022). The pandemic 24 “has caused the deaths of over six million persons worldwide[.]” (Id.) As of December 22, 2020, 25 in California alone there had “been nearly 1.9 million cases and nearly 23,000 deaths.” Disbar 26 Corporation v. Newsom, 508 F.Supp.3d 747, 750 (E.D. Cal. 2020). The Supreme Court has 27 recognized that “[s]temming the spread of COVID-19 is unquestionably a compelling state 28 interest[.]” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (U.S. 2020). 1 Here, the complaint fails to explain how the mandate at issue was in any way 2 discriminatory, constituted an adverse employment action, or was in any way unlawful. See 3 generally Klaassen v. Trustees of Indiana University, 7 F.4th 592, 593 (7th Cir. 2021) (“These 4 plaintiffs just need to wear masks and be tested, requirements that are not constitutionally 5 problematic.”); Burcham v. City of Los Angeles, 562 F.Supp.3d 694, 704 (C.D. Cal. 2022) 6 (“Plaintiffs fail to state a claim that the City’s weekly testing requirement violates the Fourth 7 Amendment”); Troogstad v. City of Chicago, 571 F.Supp.3d 901, 910 (N.D. Ill. 2021) (“Because 8 the exigencies of the current pandemic justify the degree of intrusion at issue here, Plaintiffs have 9 not demonstrated that Defendants’ vaccine and testing policies infringe a fundamental 10 constitutional right.”); Valdez v. Grisham, 559 F.Supp.3d 1161 (D. N.M. 2021) (“federal courts 11 have consistently held that vaccine mandates do not implicate a fundamental right”). “‘[T]he 12 ADA does not provide a blanket exemption to people with disabilities from complying with 13 legitimate safety requirements necessary for safe operations.’” Warner v. Delano, Case No. 21- 14 cv-05666 HSG, 2021 WL 5507160, at *2 (N.D. Cal. Nov. 24, 2021) (quoting DEPARTMENT 15 OF JUSTICE OFFICE OF PUBLIC AFFAIRS, The Department of Justice Warns of Inaccurate 16 Flyers and Postings Regarding the Use of Face Masks and the Americans with Disabilities Act, 17 https://www.justice.gov/opa/pr/department-justice-warns-inaccurate-flyers-and-postings- 18 regarding-use-face-masks-and (last accessed May 5, 2022)). 19 E. First Amendment 20 The complaint alleges that plaintiff requested “a reasonable religious accommodation that 21 would have allowed him to continue working without being subjected to” the mandate. (Compl. 22 (ECF No. 1) at 6.) TUSD denied that request, thereby “discriminating against Plaintiff’s desire to 23 freely exercise his religious belief” in violation of the First Amendment. (Id.) 24 “The Free Exercise Clause of the First Amendment, which has been made applicable to 25 the States by incorporation into the Fourteenth Amendment, provides that ‘Congress shall make 26 no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]’” 27 Employment Div., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872, 876-77 (1990) 28 (citing U.S. Const. amend. 1) (internal citation omitted). To show a violation of the First 1 Amendment a complaint must establish there was “a substantial burden on the observation of a 2 central religious belief or practice[.]” Hernandez v. Commissioner of Internal Revenue, 490 U.S. 3 680, 699 (1989). The burden must have impacted a central religious belief or practice, one that is 4 “mandated by [plaintiff’s] faith.” Freeman v. Arparo, 125 F.3d 732, 736 (9th Cir. 1997). 5 Here, the complaint fails to contain the necessary factual allegations to support a First 6 Amendment claim. 7 F. Exhaustion 8 As noted above, the complaint makes repeated reference to alleged employment 9 discrimination. “Title VII exists in large part ‘to make persons whole for injuries suffered on 10 account of unlawful employment discrimination.’” Clemens v. Centurylink Inc., 874 F.3d 1113, 11 1115 (9th Cir. 2017) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). To this 12 end, “Title VII forbids certain employers from ‘discriminat[ing] against any individual with 13 respect to [her] compensation, terms, conditions, or privileges of employment, because of such 14 individual’s race, color, religion, sex, or national origin.’” Campbell v. Hawaii Department of 15 Education, 892 F.3d 1005, 1012 (9th Cir. 2018) (quoting 42 U.S.C. § 2000e-2(a)(1)). 16 “In order to bring a Title VII claim in district court, a plaintiff must first exhaust her 17 administrative remedies.” Sommatino v. U.S., 255 F.3d 704, 707 (9th Cir. 2001). A plaintiff 18 exhausts their “administrative remedies by filing a charge with the EEOC or an equivalent state 19 agency, like the DFEH, and receiving a right-to-sue letter.” Scott v. Gino Morena Enterprises, 20 LLC, 888 F.3d 1101, 1106 (9th Cir. 2018). The court only has jurisdiction over “charges of 21 discrimination that are like or reasonably related to the allegations made in the EEOC charge, or 22 that fall within the EEOC investigation which can reasonably be expected to grow out of the 23 charge of discrimination.” Deppe v. United Airlines, 217 F.3d 1262, 1267 (9th Cir. 2000) 24 (quotation omitted). “We ‘consider [a] plaintiff’s civil claims to be reasonably related to 25 allegations in the charge to the extent that those claims are consistent with the plaintiff’s original 26 theory of the case.’” Freeman v. Oakland Unified School 27 Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting B.K.B. v. Maui Police Dept., 276 F.3d 1091, 28 1100 (9th Cir. 2002)). 1 Here, the complaint does not allege that plaintiff exhausted any administrative remedies. 2 II. Leave to Amend 3 The undersigned has carefully considered whether plaintiff could amend the complaint to 4 state a claim upon which relief could be granted. Valid reasons for denying leave to amend 5 include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. 6 Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n 7 v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to 8 amend shall be freely given, the court does not have to allow futile amendments). 9 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend 10 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted 11 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file 12 an amended complaint “the tenet that a court must accept as true all of the allegations contained 13 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause 14 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. 15 “While legal conclusions can provide the complaint’s framework, they must be supported by 16 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line 17 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 18 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 19 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 20 in itself without reference to prior pleadings. The amended complaint will supersede the original 21 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 22 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 23 and identified in the body of the complaint, and each claim and the involvement of each 24 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 25 must also include concise but complete factual allegations describing the conduct and events 26 which underlie plaintiff’s claims. 27 //// 28 //// 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Defendants’ December 29, 2022 motion to dismiss (ECF No. 19) is granted; 4 2. Defendants’ January 27, 2023 motion to dismiss (ECF No. 29) is granted; 5 3. The complaint filed November 14, 2022 (ECF No. 1) is dismissed with leave to amend; 6 4. Within twenty-eight days from the date of this order, an amended complaint shall be 7 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 8 Procedure and the Local Rules of Practice.4 The amended complaint must bear the case number 9 assigned to this action and must be titled “Amended Complaint”; and 10 5. Plaintiff is cautioned that the failure to comply with this order in a timely manner may 11 result in a recommendation that this action be dismissed. 12 DATED: September 20, 2023 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 DLB:6 DB/orders/orders.pro se/ruiz1468.dism.ord 26 27 4 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.