(PC) Latu v. Mc Fadden ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL LATU, No. 2:20-CV-01518-WBS-DMC-P 12 Plaintiff, 13 v. ORDER 14 R. McFADDEN, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s second amended complaint, ECF No. 19 30. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement 26 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means 27 that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 28 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). 3 In order to survive dismissal for failure to state a claim, a complaint must contain 4 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp 5 v. Twombly, 550 U.S. 544, 555-56 (2007). The complaint must contain “enough facts to state a 6 claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the 7 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 9 “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 10 sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 11 The mere possibility of misconduct will not suffice to meet this standard. See id. at 679. Because 12 Plaintiff must allege with at least some degree of particularity overt acts by specific defendants 13 that support the claims, vague and conclusory allegations fail to satisfy this standard. 14 15 I. PLAINTIFF’S ALLEGATIONS 16 Plaintiff names as Defendants: (1) S. Jackson, Prison Counselor at Mule Creek 17 State Prison; (2) B. Holmes, Chief Deputy Warden at Mule Creek State Prison; and (3) N. Costa, 18 Captain at Mule Creek State Prison. See ECF No. 30, pgs. 2-3. Generally, Plaintiff alleges 19 violations of the Eighth Amendment relating to Defendants’ deliberate indifference to Plaintiff’s 20 safety concerns, Due Process under the Fourteenth Amendment, and Equal Protection under the 21 Fourteenth Amendment. See id., pg. 5. 22 Plaintiff states that he has been housed in protective custody (sensitive needs yard 23 “SNY”) since 2005 because he is a sex offender but, as a result of a 2019 memorandum, which 24 details the prison’s goals regarding designation of inmates at certain facilities, it was determined 25 that Plaintiff would be transferred to a non-designated facility (general population). See ECF No. 26 / / / 27 / / / 28 / / / 1 30, pgs. 4, 11, 17.1 At his classification hearing, Plaintiff was classified with a placement score 2 of zero, but his offender status mandates a minimum placement score of 19. Such score is 3 consistent with a level 2 placement.2 See id., pg. 11. Based on this score, Plaintiff was referred 4 for a “non-adverse” transfer to a non-designated facility and was advised that “all inmates in the 5 program are expected to safely intermingle [regardless] of prior . . . classifications.” Id., pg. 17. 6 Plaintiff contends all named Defendants are aware of Plaintiff’s conviction offense 7 and each had a hand in changing his placement status from protective custody to a non-designated 8 facility, despite Plaintiff’s objection that such placement would constitute a safety risk. See id., 9 pgs. 4, 5, 7-9. Plaintiff alleges that “prison staff are intentionally placing all SNY inmates on 10 ‘ND Yards’,” and that all level 1 and 2 inmates, but not level 3 or level 4 inmates, are being 11 “forced into this housing.” Id. Plaintiff contends Defendants’ transfer of Plaintiff to a non- 12 designated facility constitutes deliberate indifference. See id. 13 Defendant Jackson is Plaintiff’s correctional counselor, and, Plaintiff asserts, it is 14 his duty to review his prison file and place “Plaintiff’s security needs first.” Id., pg. 5. When 15 Plaintiff told Defendant Jackson that he was not signing off on his transfer, Defendant Jackson 16 stated “‘it is not voluntary, and if you get assaulted, we will move that person to a higher security 17 prison.’” Id., pg. 6. 18 / / / 19 / / / 20 / / / 21 1 Plaintiff attaches to his complaint copies of the classification committee chrono 22 and various documents pertaining to the appeal of his grievance and the classification hearing decision, which detail the events on which Plaintiff bases his allegations. The Court takes judicial 23 notice of both documents because each is a document upon which the complaint necessarily relies. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 24 2 A classification hearing is the process by which the California Department of 25 Corrections and Rehabilitation determines an inmate’s placement within a facility as well as eligibility for transfer between facilities. See Cal. Code Regs. tit. 15, § 3375. A classification 26 score reflects the security control needs of an inmate, where higher scores correspond to greater needs. See id. at § 3375(d). Zero is the minimum classification score. See id. at § 3375.1(a). 27 Prisoner classification decisions take into account an “inmate’s needs, interests, and desires,” but are ultimately based on a combination of factors, including the institution’s “security missions 28 and public safety.” Id. at § 3375(a). 1 Plaintiff claims that Defendant Costa is a captain and is in charge of all 2 committees on facility C, where Plaintiff is currently housed. See id., pg. 7. Defendant Costa 3 purportedly is briefed every day regarding prison safety and “alone has the authority to override 4 the plaintiff and keep him [there] as Plaintiff’s security and housing needs require.” Id. Plaintiff 5 claims Defendant Costa is the deciding factor and was directly involved in reviewing and 6 agreeing on Plaintiff’s transfer to a non-designated facility. See id., pg. 8. 7 Defendant Holmes is the Chief Deputy Warden at Mule Creek Prison and “has the 8 last word on who gets transferred and who does not.” Id., pg. 8. Plaintiff filed a grievance stating 9 his fear and safety concerns over the transfer to a non-designated facility, which he contends was 10 disregarded. Id. In response to Plaintiff’s grievance, Defendant Holmes allegedly stated that it 11 was policy and all level 2 inmates will transfer, “despite any of the dangers raised in plaintiff’s 12 grievance.” Id. Plaintiff contends, as Warden, Defendant Holmes had the absolute authority to 13 allow Plaintiff to stay in protective custody and not transfer to a non-designated facility. See id. 14 Plaintiff seeks declaratory relief, damages, and a temporary restraining order or 15 preliminary injunction preventing Plaintiff’s transfer to a non-designated facility. See id., pg. 3. 16 17 II. DISCUSSION 18 The Court finds Plaintiff’s claims to be defective, as discussed below. 19 A. Eighth Amendment Claims for Personal Safety 20 The treatment a prisoner receives in prison and the conditions under which the 21 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 22 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 23 511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of 24 dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 25 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 26 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 27 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 28 801 F.2d 1080, 1107 (9th Cir. 1986) abrogated in part on other grounds by Sandin v. Connor, 515 1 U.S. 472 (1995). 2 Under these principles, prison officials have a duty to take reasonable steps to 3 protect inmates from physical abuse. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 4 1982), abrogated in part on other grounds by Sandin, 515 U.S. 472 (1995); Farmer, 511 U.S. at 5 833. Liability exists only when two requirements are met: (1) objectively, the prisoner was 6 incarcerated under conditions presenting a substantial risk of serious harm; and (2) subjectively, 7 prison officials knew of and disregarded the risk. See Farmer, 511 U.S. at 837. The very 8 obviousness of the risk may suffice to establish the knowledge element. See Wallis v. Baldwin, 9 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not liable, however, if evidence is 10 presented that they lacked knowledge of a safety risk. See Farmer, 511 U.S. at 844. The 11 knowledge element does not require that the plaintiff prove that prison officials know for a 12 certainty that the inmate’s safety is in danger, but it requires proof of more than a mere suspicion 13 of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Finally, the plaintiff must 14 show that prison officials disregarded a risk. Thus, where prison officials actually knew of a 15 substantial risk, they are not liable if they took reasonable steps to respond to the risk, even if 16 harm ultimately was not averted. See Farmer, 511 U.S. at 844. 17 Plaintiff fails to allege sufficient facts to substantiate a claim here. Plaintiff alleges 18 that it was indifferent of Defendants to place him in a non-designated facility because of the 19 potential for assault based on Plaintiff’s sex offender status. First, Plaintiff’s allegations 20 regarding his safety are speculative. While Plaintiff alleges a hypothetical danger of being a sex 21 offender housed in a non-designated facility and resulting violence against him, he has not alleged 22 facts to show that his commitment offense is known in the general population such that a safety 23 risk would arise from such a placement. Plaintiff asserts only that since Defendants have begun 24 integrating inmates into non-designated facilities that “numerous people have been stabbed, 25 beaten to a pulp, or been subjected to all sorts of prison riots.” ECF No. 30, pg. 4. However, 26 Plaintiff does not allege those inmates who were subjected to violence were all classified as sex 27 offenders, such that Plaintiff could expect to be exposed to a similar substantial risk of serious 28 harm. Plaintiff’s prediction is insufficient to establish that he faces a substantial risk of serious 1 harm. 2 Second, Plaintiff’s allegations that Defendants have knowledge of a substantial 3 risk to Plaintiff’s safety are conclusory and unsupported. Plaintiff alleges that “[e]very inmate 4 upon entering a new facility will show other inmates their paperwork” and that “[a]ll staff from 5 correctional officers to wardens are aware of this long time requirement.” Id., pg. 5. Plaintiff 6 asks this Court to conclude that because other inmates will be shown Plaintiff’s paperwork, 7 Defendants have knowledge of a substantial risk to Plaintiff’s safety. However, Plaintiff fails to 8 provide any facts to substantiate that nexus. Moreover, Plaintiff has not provided Defendants any 9 information that would put them on notice that Plaintiff is at risk of serious harm by being 10 transferred to a non-designated facility. See ECF No. 30, pg. 11 (noting Plaintiff “has not 11 specified any threat or allegations of ‘mortal or serious injury’” to warrant protective custody). 12 Third, Plaintiff fails to provide facts that, in light of any purported knowledge, 13 Defendants disregarded the risk to his safety. Plaintiff asserts otherwise. Plaintiff was told that if 14 he “becomes aware of specific threats to [his] safety, [he] is advised to immediately notify staff,” 15 as well as “if you get assaulted, we will move that person to a higher security prison.” Id., pgs. 6, 16 11. Thus, Defendants’ have not disregarded a risk of serious harm to Plaintiff, but instead, have 17 provided an avenue in which to address such risk if and when circumstances warrant. Plaintiff’s 18 speculation about his safety and Defendants’ knowledge is insufficient to state a claim for failure 19 to protect under the Eighth Amendment. 20 B. Due Process 21 The Due Process Clause protects prisoners from being deprived of life, liberty, or 22 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to 23 state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or 24 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 25 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). 26 / / / 27 / / / 28 / / / 1 / / / 2 1. Property and liberty interests 3 Due process protects against the deprivation of property where there is a legitimate 4 claim of entitlement to the property. See Bd. of Regents, 408 U.S. at 577. Protected property 5 interests are created, and their dimensions are defined, by existing rules that stem from an 6 independent source – such as state law – and which secure certain benefits and support claims of 7 entitlement to those benefits. See id. To have a property interest in a benefit, a person “clearly 8 must have more than an abstract need or desire for it . . . . [The person] must, instead, have a 9 legitimate claim of entitlement to it.” Id. 10 An inmate’s liberty interests are protected under certain circumstances. Liberty 11 interests can arise both from the Constitution and from state law. See Hewitt v. Helms, 459 U.S. 12 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976); Smith v. Sumner, 994 F.2d 13 1401, 1405 (9th Cir. 1993). In determining whether the Constitution itself protects a liberty 14 interest, the court should consider whether the practice in question “is within the normal limits or 15 range of custody which the conviction has authorized the State to impose.” Wolff, 418 U.S. at 16 557-58; Smith, 994 F.2d at 1405. The Constitution itself provides no liberty interest in remaining 17 in the general population, see Sandin, 515 U.S. at 485-86; in not losing privileges, see Baxter v. 18 Palmigiano, 425 U.S. 308, 323 (1976); or in staying at a particular institution, see Meachum, 427 19 U.S. at 225-27. Generally speaking, changes in conditions relating to classification and 20 reclassification do not implicate the Due Process Clause itself. See Hernandez v. Johnston, 833 21 F.2d 1316, 1318 (9th Cir. 1987) (citing Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (no 22 constitutional right to a particular classification)); see also Myron v. Terhune, 476 F.3d 716, 718 23 (9th Cir. 2007) (determining California regulations governing security classification of prisoners 24 and subsequent prison placement did not give rise to a protected liberty interest). 25 In determining whether state law confers a liberty interest, the Supreme Court has 26 adopted an approach in which the existence of a liberty interest is determined by focusing on the 27 nature of the deprivation. See Sandin, 515 U.S. at 481-84. In doing so, the Court held that state 28 law creates a liberty interest deserving of protection only where the deprivation in question: 1 (1) restrains the inmate’s freedom in a manner not expected from the sentence; and (2) “imposes 2 atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 3 Id. at 483-84. Otherwise, federal courts should afford appropriate deference and flexibility to 4 state officials managing a volatile prison environment. See Sandin, 515 U.S. at 482 (citing Wolff, 5 418 U.S. at 561-63). 6 Here, Plaintiff has neither a property nor liberty interest deserving of protection 7 and thus his Due Process claim must fail. Plaintiff claims that based on his classification as a 8 sexual offender, he should remain in protective custody instead of transferring to a non- 9 designated facility because his “security and housing needs” require him to remain housed there. 10 See ECF No. 30, pgs. 4, 7. Plaintiff cannot, and does not, state any facts that would confer any 11 property interest in remaining in protective custody. Because Plaintiff alleges only predictions 12 and conclusory statements about his safety in a non-designated facility, protective custody is 13 merely a benefit that Plaintiff currently enjoys and desires for the future; he is not entitled to a 14 certain classification or protected status. 15 Plaintiff also does not have a liberty interest that is being deprived by his transfer 16 to a non-designated facility. Plaintiff must allege, specifically, how the conditions in the non- 17 designated facility will confine his freedoms in a manner not normally expected from his 18 incarceration. Plaintiff has stated only that conditions in the non-designated facility are generally 19 threatening and dangerous. Plaintiff alleges a hypothetical danger of being a sex offender housed 20 in a non-designated facility and possible resulting violence against him; but has not alleged facts 21 to show how having his commitment offense known in the general population with the potential 22 of violence, restrains his liberty. In order to survive dismissal, Plaintiff must allege specific facts 23 to show how the conditions in the non-designated facility pose an overt threat to Plaintiff that will 24 restrict his freedom in a manner not contemplated by his incarceration. 25 Next, Plaintiff must allege facts sufficient to show that conditions in the non- 26 designated facility will impose an atypical and significant hardship on him, different than the 27 ordinary occurrences of prison life. Plaintiff asserts that “numerous people have been stabbed, 28 beaten to a pulp, or been subjected to all sorts of prison riots” in the non-designated facility, and 1 argues his safety will be put at risk when he is “required to show” his paperwork that indicates he 2 is a sex offender. See ECF No. 30, pg. 4. However, Plaintiff does not allege that those subjected 3 to violence in the non-designated facility were all sex offenders, like Plaintiff. Plaintiff alleges, 4 generally, that such a placement would have the potential to create an unsafe living environment 5 for Plaintiff, but does not point to anything inherent in a non-designated facility that could be 6 construed as an “atypical or significant hardship” outside ordinary prison life. It is likely that 7 most, if not all, inmates have safety concerns. The mere possibility that such a placement has the 8 potential to create an unsafe living environment for Plaintiff is insufficient. In order to survive 9 dismissal, Plaintiff must allege specific facts, not conclusory statements, which detail how the 10 conditions in the non-designated facility are inevitably threatening and dangerous to Plaintiff, 11 above and beyond those conditions ordinarily found within prison life. Plaintiff must plead facts 12 showing how such danger is a credible threat to Plaintiff, not just a mere possibility. As a result, 13 Plaintiff’s freedoms are not being restrained in a manner not expected from his incarceration, and 14 transfer to a non-designated facility does not impose a significant hardship, atypical of the 15 ordinary incidents of prison life. 16 Because, at this time, Plaintiff does not have a property or liberty interest in 17 remaining in protective custody, Plaintiff cannot state a claim for deprivation of due process. 18 Plaintiff will be provided one final opportunity to amend his complaint to include facts sufficient 19 to support a claim for violation of due process based on a deprivation of his liberty interests. 20 2. Grievances 21 To the extent Plaintiff is attempting to allege a due process claim for the denial of 22 his grievances, inmates lack a liberty interest in the processing of an inmate appeal because there 23 is no “separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. 24 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 25 1988)). A prison official’s denial of an inmate appeal does not qualify as a constitutional 26 violation. See id. Plaintiff challenges the decision to transfer him to a non-designated facility and 27 claims that each Defendant could have prevented his transfer by making a different decision 28 either during the committee hearing or afterwards by overruling the committee decision. See ECF 1 No. 30, pgs. 5, 8; see also id., pgs. 10, 17-18 (showing Defendants are signatories on grievance 2 response and classification committee chrono). To the extent Plaintiff seeks relief against any 3 Defendant for deciding his grievances or administrative appeals in a particular way concerning 4 his placement in the non-designated facility, Plaintiff lacks a liberty interest in this regard. 5 Defendants’ denials of Plaintiff’s grievances and appeals do not amount to a constitutional 6 violation and thus Plaintiff fails to state a claim. 7 C. Equal Protection 8 Equal protection claims arise when a charge is made that similarly situated 9 individuals are treated differently without a rational relationship to a legitimate state purpose. See 10 San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 (1972). In order to state a § 1983 claim based on 11 a violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must allege 12 that defendants acted with intentional discrimination against plaintiff, or against a class of 13 inmates which included plaintiff, and that such conduct did not relate to a legitimate penological 14 purpose. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Thus, in order to invoke 15 the protection of the Equal Protection Clause a plaintiff must first establish that he is a member of 16 a protected class. See Furnace v. Sulivan, 705 F.3d 1021, 1030 (9th Cir. 2013). 17 Neither inmates nor sex offenders, in and of themselves, are a protected class. See 18 United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012); United States v. LeMay, 260 19 F.3d 1018, 1030 (9th Cir. 2001). Being an inmate, or an inmate with a certain arrest history, is 20 not a suspect class. See also Shallowhorn v. Molina, 572 F. App’x 545, 547 (9th Cir. 2014) 21 (affirming district court’s dismissal of inmate’s Equal Protection Clause claim because “‘inmates 22 convicted of violating certain [state penal codes] do[] not constitute a protected class, and 23 California had a rational basis for promulgating the regulation at issue”). 24 To the extent Plaintiff’s allegations concern being discriminated against on 25 account of being an inmate convicted of a sexual offense requiring protective custody, his Equal 26 Protection Clause claim must fail. Plaintiff alleges no facts to indicate that Defendants 27 intentionally discriminated against him based on any protected status in deciding whether to 28 transfer him to non-designated facility. According to Plaintiff, all level 1 and 2 inmates, but not 1 level 3 or level 4 inmates, are being “forced into this housing.” ECF No. 30, pg. 5, 17 (“All level 2 I and Level II institutions are in process of transitioning to” to non-designated facilities.). The fact 3 that all similarly situated inmates—those with Level II classifications—are being transferred to 4 non-designated facilities contradicts any argument that he is being treated differently than others 5 with his same classification. Those inmates with Level III or IV classifications, requiring higher 6 security and greater restrictions, are not similarly situated to Plaintiff. See id., pg. 5. There are 7 no facts to substantiate any suggestion of discriminatory intent by Defendants. 8 Further, Plaintiff alleges that, as a sex offender, he is a “protected class of 9 prisoner”; he is not. Being a sex offender does not constitute a class requiring heightened 10 protection under the Fourteenth Amendment. Thus, because Plaintiff is not in a protected class 11 and cannot show that he is being treated dissimilarly than other Level II inmates who are being 12 transferred to non-designated facilities, Plaintiff is unable to state a claim under the Equal 13 Protection Clause. 14 15 III. CONCLUSION 16 Because it is possible that some of the deficiencies identified in this order may be 17 cured by amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the 18 entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff 19 is informed that, as a general rule, an amended complaint supersedes the original complaint. See 20 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 21 amend, all claims alleged in the original complaint which are not alleged in the amended 22 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 23 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 24 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 25 complete in itself without reference to any prior pleading. See id. 26 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 27 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 28 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 1 || each named defendant is involved, and must set forth some affirmative link or connection 2 || between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 3 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Because some of the defects identified in this order cannot be cured by 5 || amendment, Plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now 6 || has the following choices: (1) Plaintiff may file an amended complaint which does not allege the 7 || claims identified herein as incurable, in which case such claims will be deemed abandoned and 8 | the Court will address the remaining claims; or (2) Plaintiff may file an amended complaint which 9 || continues to allege claims identified as incurable, in which case the Court will issue findings and 10 || recommendations that such claims be dismissed from this action, as well as such other orders 11 || and/or findings and recommendations as may be necessary to address the remaining claims. 12 Finally, Plaintiff is warned that failure to file an amended complaint within the 13 || time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 14 | 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 15 || with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 16 || See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiffs second amended complaint is dismissed with leave to amend; 19 | and 20 2. Plaintiff shall file a third amended complaint within 30 days of the date of 21 || service of this order. 22 23 Dated: December 29, 2022 Co 24 DENNIS M. COTA 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 12