Turner v. County of San Diego ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, Jr., Case No.: 3:20-cv-0652-AJB-RBB Booking No. 19734785, 12 ORDER Plaintiff, 13 vs. 1) GRANTING MOTIONS TO 14 PROCEED IN FORMA PAUPERIS 15 (ECF Nos. 4, 6, 8) COUNTY OF SAN DIEGO; WILLIAM 16 D. GORE; SHERIFF DEPUTIES DOES AND 17 1-3; METROPOLITAN TRANSIT POLICE DOE 1, 2) DISMISSING COMPLAINT 18 Defendants. PURSUANT TO 28 U.S.C. 19 § 1915(e)(2) AND 28 U.S.C. § 1915A(b) 20 21 David Bryan Turner, Jr. (“Plaintiff”), incarcerated at the George Bailey Detention 22 Facility1 (“GBDF”) in San Diego, California, has filed a pro se civil rights Complaint 23 24 1 According to the San Diego County Sheriff’s Department’s website, Turner was last booked on June 4, 25 2019, has been sentenced, and is serving his prison term in San Diego Superior Court Case No. SCD282052 in local custody. See https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=zRQs IHv WI 26 OkylpP4ARqdZiQYVorV1xdJ7ApeWLojNrs%3d (last accessed June 10, 2020). The Court may take judicial notice of public records available on online inmate locators. See United States v. Basher, 629 27 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ inmate locator available to the public); see also Foley v. Martz, No. 3:18-cv-02001-CAB-AGS, 2018 WL 5111998, at *1 (S.D. Cal. 28 1 pursuant to 42 U.S.C. Section 1983. (See ECF No. 1, Compl.) Plaintiff alleges that his 2 constitutional rights have been violated by unnamed San Diego County Sheriff Deputies 3 while housed at GBDF. (See id. at 3, 4.) In addition, Plaintiff alleges that in October of 4 2018 excessive force was used against him by unnamed San Diego County Sheriff 5 Deputies and unnamed Metropolitan Transit Officers (“MTS”). (Id. at 6.) 6 Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. Section 7 1914(a) at the time of filing, and instead filed three Motions to Proceed In Forma 8 Pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF Nos. 4, 6, 8.) 9 I. Motions to Proceed In Forma Pauperis 10 A. Standard of Review 11 All parties instituting any civil action, suit or proceeding in a district court of the 12 United States, except an application for writ of habeas corpus, must pay a filing fee of 13 $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 14 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 15 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) 16 (hereafter “Cervantes”); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 17 However, a prisoner who is granted leave to proceed IFP remains obligated to pay 18 the entire fee in “increments” or “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 19 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 20 whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1)-(2); Taylor v. 21 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 22 In addition to requiring prisoners to “pay the full amount of a filing fee,” in 23 “increments” as provided by 28 U.S.C. Section 1915(a)(3)(b), Williams, 775 F.3d at 24 1185, the Prison Litigation Reform Act (“PLRA”) amended Section 1915 to preclude the 25 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does not apply to persons granted leave to 28 1 privilege to proceed IFP: 2 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 3 appeal in a court of the United States that was dismissed on the 4 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 5 imminent danger of serious physical injury. 6 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 7 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 8 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 9 Id.; see also Cervantes, 493 F.3d at 1052 (stating that under the PLRA, “[p]risoners who 10 have repeatedly brought unsuccessful suits may entirely be barred from IFP status under 11 the three strikes rule . . . .”). The objective of the PLRA is to further “the congressional 12 goal of reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 13 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims 14 applies to claims dismissed both before and after the statute’s effective date.” Id. at 1311. 15 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 16 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 17 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 18 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 19 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 20 The Court takes judicial notice of its own dockets on PACER which show Turner 21 has filed more than thirty similar cases over the course of the last ten years, most of them 22 alleging excessive force and the denial of medical care, and seeking monetary relief from 23 the City and County of San Diego, County Sheriff’s Department officials, and MTS.3 24 25 26 3 See https://ecf.casd.uscourts.gov (last accessed June 9, 2020). A court may take judicial notice of its 27 own records, see Molus v. Swan, No. 05cv452-MMA(WMc), 2009 WL 160937, *2 (S.D. Cal. 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. 28 1 B. Imminent Danger Exception 2 Here, Plaintiff alleges that he is in imminent danger of serious injury “because of 3 the Covid-19.” (Compl. at 3.) Plaintiff claims that he is “feeling sick and needs medical 4 care.” (Id.) He further claims that the conditions of his confinement are overcrowded 5 which has “placed [Plaintiff] and others in imminent danger of getting Covid-19.” (Id.) 6 The Court finds that these allegations are sufficient to find that Plaintiff has alleged 7 that he may be in “imminent danger” at the time he filed this action, and thus, is entitled 8 to proceed IFP. 9 C. IFP 10 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 11 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 12 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 13 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 14 trust account statement, the Court assesses an initial payment of 20% of (a) the average 15 monthly deposits in the account for the past six months, or (b) the average monthly 16 balance in the account for the past six months, whichever is greater, unless the prisoner 17 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 18 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 19 preceding month’s income, in any month in which his account exceeds $10, and forwards 20 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 21 1915(b)(2); Bruce, 136 S. Ct. at 629. 22 In support of his IFP Motions, Plaintiff has submitted a certified copy of his trust 23 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. 24 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity. 25 26 courts, both within and without the federal judicial system, if those proceedings have a direct relation to 27 matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson 28 1 (See ECF No. 6 at 4.) This document shows that Plaintiff had an available balance of just 2 $0.01 at the time of filing. (See id.) 3 Therefore, the Court GRANTS Plaintiff’s Motions to Proceed IFP (ECF Nos. 4, 6, 4 8), but declines to impose an initial partial filing fee pursuant to 28 U.S.C. Section 5 1915(b)(1) because his prison certificate indicates he may currently have “no means to 6 pay it.” See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 7 prohibited from bringing a civil action or appealing a civil action or criminal judgment 8 for the reason that the prisoner has no assets and no means by which to pay the initial 9 partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. Section 1915(b)(4) 10 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 11 “failure to pay . . . due to the lack of funds available to him when payment is ordered.”). 12 Instead, the Court directs the Watch Commander of George Bailey Detention Facility, or 13 their designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C. 14 Section 1914 and to forward them to the Clerk of the Court pursuant to the installment 15 payment provisions set forth in 28 U.S.C. Section 1915(b)(1). 16 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 17 1915A(b) 18 A. Standard of Review 19 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 20 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under 21 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any 22 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 23 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 24 (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 25 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of 26 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 27 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 28 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal 3 Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 4 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 5 (9th Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the 6 familiar standard applied in the context of failure to state a claim under Federal Rule of 7 Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 8 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 9 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 10 1121. 11 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 12 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 13 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 14 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 15 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 16 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 17 this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 18 Cir. 2009). 19 B. Plaintiff’s Factual Allegations 20 Plaintiff alleges that he is “in imminent danger of serious injury because of the 21 Covid-19.” (Compl. at 3.) Plaintiff claims he is “feeling sick and needs medical care” 22 but he has been denied medical treatment “for weeks.” (Id.) 23 Plaintiff alleges that the “County of San Diego and William D. Gore continue to 24 house 3 persons in cells” that have a maximum capacity for two people. (Id.) As a 25 result, Plaintiff claims that this has placed him and “other’s in imminent danger of getting 26 Covid-19.” (Id.) 27 On October 18, 2018, Plaintiff alleges he was denied medical care at the San Diego 28 Central Jail for “injuries caused by County of San Diego [Sheriff] Deputies a week before 1 at the Lemon Grove Trolley.” (Id. at 5.) Plaintiff also alleges that he was “abused by the 2 County of San Diego and MTS.” (Id.) He further claims that the “County of San Diego 3 and MTS continue to practice overly excessive force that injured [Plaintiff] in the past.” 4 (Id.) 5 On October 13, 2018. Plaintiff allege he was injured by MTS Officers and County 6 of San Diego Sheriff Deputies when they “slammed [Plaintiff] on his face after applying 7 overly tight hand-cuffs.” (Id. at 6.) He claims he was taken to the San Diego Central Jail 8 where he was “denied medical care for his broken hand.” (Id.) 9 Plaintiff seeks injunctive relief, $21,000,000 in compensatory damages, 10 $21,000,000 in punitive damages, and states he is “willing to accept settlement for 11 $10,000,000 for all injuries.” (Id. at 9.) 12 C. 42 U.S.C. Section 1983 13 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged violation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 17 1035-36 (9th Cir. 2015). 18 D. Duplicative claims 19 As an initial matter, the Court DISMISSES Plaintiff’s claims arising from actions 20 he alleged occurred on October 13 and October 18, 2018. (See Compl. at 5-6.) These 21 claims are subject to sua sponte dismissal because the are duplicative of other civil rights 22 Complaints he filed in the Southern District of California. See Turner v. United States of 23 America, et al., S.D. Cal. Civil Case No 3:19-cv-01305-JAH-MDD; Turner v. State of 24 California, et al., S.D. Cal. Civil Case No. 3:19-cv-02363-BAS-LL; Turner v. County of 25 San Diego, et al., S.D. Cal. Civil Case No. 3:20-cv-00163-JAH-AHG. 26 / / / 27 / / / 28 / / / 1 A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it 2 “merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 3 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and 4 internal quotations omitted). 5 Because Plaintiff previously sought to bring the identical claims presented in the 6 instant action against the same parties in above referenced actions, the Court must 7 dismiss these duplicative claims. See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 8 n.1. This dismissal is with prejudice and Plaintiff may not re-allege them in an amended 9 complaint. 10 E. Eighth Amendment claims 11 As stated above, Plaintiff has alleged that he is ill and is being denied medical 12 attention. See Compl. at 3. 13 In order to determine whether Plaintiff has pleaded a plausible claim for relief 14 against any named Defendant based on their alleged denials of his request for medical 15 treatment, the Court must review Plaintiff’s Complaint and decide whether it contains 16 sufficient “factual content that allows [it] to draw the reasonable inference” that “each 17 Government-official defendant, through the official’s own individual actions, has 18 violated the Constitution,” and thus, may be held “liable for the misconduct alleged.” 19 Iqbal, 556 U.S. at 676, 678. 20 Only “deliberate indifference to serious medical needs of prisoners constitutes the 21 unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.” 22 Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks 23 omitted). “A determination of ‘deliberate indifference’ involves an examination of two 24 elements: (1) the seriousness of the prisoner’s medical need and (2) the nature of the 25 defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 26 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 27 Cir. 1997) (en banc) (quoting Estelle, 429 U.S. at 104). 28 / / / 1 “Because society does not expect that prisoners will have unqualified access to 2 health care, deliberate indifference to medical needs amounts to an Eighth Amendment 3 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 4 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 5 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 6 wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 7 104); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Mendiola-Martinez v. Arpaio, 8 836 F.3d 1239, 1248 (9th Cir. 2016). “The existence of an injury that a reasonable doctor 9 or patient would find important and worthy of comment or treatment; the presence of a 10 medical condition that significantly affects an individual’s daily activities; or the 11 existence of chronic and substantial pain are examples of indications that a prisoner has a 12 ‘serious’ need for medical treatment.” McGuckin, 974 F.2d at 1059 (citing Wood v. 13 Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)). 14 Here, Plaintiff fails to plead facts to show that he suffers from an objectively 15 serious medical need. Plaintiff alleges he is “sick” but does not describe his illness or 16 any symptoms from which he is suffering. (Compl. at 3.) 17 However, even if the Court were to assume Plaintiff’s health conditions are 18 sufficiently serious, his pleading fails to include any further “factual content” to show 19 that any Defendant acted with “deliberate indifference” to those needs. McGuckin, 974 20 F.2d at 1060; Jett, 439 F.3d at 1096; Iqbal, 556 U.S. at 678. “Deliberate indifference is a 21 high legal standard.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citing 22 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)). 23 Specifically, Plaintiff fails to identify any single individual or GBDF employee who 24 denied him medical attention. “A plaintiff must allege facts, not simply conclusions, t[o] 25 show that [each defendant] was personally involved in the deprivation of his civil rights.” 26 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex 27 rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, 28 a required element of a § 1983 claim.”). 1 To state an Eighth Amendment claim, Plaintiff’s Complaint must contain 2 “sufficient factual matter,” and not just “labels and conclusions,” Iqbal, 556 U.S. at 678, 3 to plausibly show Defendants’ “purposeful act or failure to respond to [his] pain or 4 possible medical need,” and the “harm caused by [this] indifference.” Wilhelm v. Rotman, 5 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 439 F.3d at 1096). Plaintiff offers no 6 specific factual allegations with regard to the purported failure to provide him medical 7 attention nor does Plaintiff identify any specific individual whom he claims denied him 8 medical attention. 9 Accordingly, the Court finds that Plaintiff fails to state a plausible Eighth 10 Amendment inadequate medical care claim and therefore, this claim must be dismissed 11 for failing to state a claim upon which relief may be granted. 12 F. County of San Diego and William Gore 13 To the extent Plaintiff also asserts a claim against the County of San Diego itself, 14 his allegations are also insufficient. A municipal entity may be held liable under § 1983 15 only if he alleges facts sufficient to plausibly show that he was deprived of a 16 constitutional right by individually identified employees who acted pursuant to the 17 municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 18 274, 280 (1977); Monell v. Dep’t of Social Servs, 436 U.S. 658, 691 (1978); Villegas v. 19 Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). The County of San 20 Diego may not be held vicariously liable under § 1983 simply because one of its 21 employees is alleged to have acted wrongfully. See Board of Cty. Comm’rs. v. Brown, 22 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691 (“[A] a municipality cannot be held 23 liable solely because it employs a tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th 24 Cir. 2014). Instead, the municipality may be held liable “when execution of a 25 government’s policy or custom ... inflicts [a constitutional] injury.” Monell, 436 U.S. at 26 694; Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 36 (2010). 27 While William Gore, the San Diego County Sheriff is a “person” subject to suit 28 under § 1983, there are no specific factual allegations as to this Defendant. Plaintiff only 1 alleges that he is the “law enforcement for the County of San Diego and MTS.” (Compl. 2 at 2.) 3 These types of broad and conclusory allegations fail to plausibly show how, or to 4 what extent, Gore may be held individually liable for any constitutional injury. See Iqbal, 5 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d 6 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of 7 particularity overt acts which defendants engaged in” in order to state a claim). As 8 pleaded, Plaintiff plainly seeks to hold Gore liable for the acts of unidentified 9 subordinates. But “vicarious liability is inapplicable to … § 1983 suits.” Iqbal, 556 U.S. 10 at 676. Instead, “Plaintiff must plead that each Government-official defendant, through 11 [his] own individual actions, has violated the Constitution” in order to plead a plausible 12 claim for relief. Id.; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) 13 (supervisor may be held liable under §1983 only if there is “a sufficient causal connection 14 between the supervisor’s wrongful conduct and the constitutional violation”) (citations 15 and internal quotation marks omitted); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 16 1979) (when a named defendant holds a supervisorial position, the causal link between 17 the defendant and the claimed constitutional violation must be specifically alleged). 18 For all these reasons, the Court finds Plaintiff fails to state a claim against the 19 County of San Diego or Gore, and therefore, all claims against these Defendants must be 20 dismissed for failing to state a claim upon which relief may be granted. 21 G. Leave to Amend 22 For all these reasons, the Court finds that Plaintiff’s Complaint fails to state a claim 23 upon which Section 1983 relief can be granted and dismisses it sua sponte in its entirety 24 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 25 1126-27; Rhodes, 621 F.3d at 1004. Having now provided Plaintiff with “notice of the 26 deficiencies in his complaint,” however, the Court will also grant Plaintiff an opportunity 27 to fix his Eighth Amendment claims only, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 28 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 1 Plaintiff’s claims arising from events that occurred in October of 2018 are DISMISSED 2 without leave to amend. 3 III. Conclusion and Orders 4 For the reasons explained, the Court: 5 1. GRANTS Plaintiff’s Motions to Proceed IFP pursuant to 28 U.S.C. Section 6 1915(a) (ECF No. 4, 6, 8). 7 2. DIRECTS the Watch Commander of George Bailey Detention Facility, or 8 his designee, to collect from Plaintiff’s inmate trust account the $350 filing fee owed in 9 this case by garnishing monthly payments in an amount equal to twenty percent (20%) of 10 the preceding month’s income and forwarding those payments to the Clerk of the Court 11 each time the amount in the account exceeds $10 pursuant to 28 U.S.C. Section 12 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME 13 AND NUMBER ASSIGNED TO THIS ACTION. 14 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 15 Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, California, 16 92158. 17 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 18 relief may be granted and as frivolous pursuant to 28 U.S.C. Section 1915(e)(2)(B) and 19 Section 1915A(b) and GRANTS him thirty (30) days leave from the date of this Order in 20 which to file an Amended Complaint which cures all the deficiencies of pleading noted. 21 Plaintiff’s Amended Complaint must be complete by itself without reference to his 22 original pleading. Defendants not named and any claim not re-alleged in his Amended 23 Complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, 24 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 25 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 26 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 27 amended pleading may be “considered waived if not repled.”). 28 / / / 1 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 2 || will enter a final Order dismissing this civil action based both on Plaintiff’ failure to 3 || state a claim upon which relief can be granted pursuant to 28 U.S.C. Section 4 || 1915(e)(2)(B) and Section 1915A(b), and his failure to prosecute in compliance with a 5 court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 6 2005) (‘If a plaintiff does not take advantage of the opportunity to fix his complaint, a 7 || district court may convert the dismissal of the complaint into dismissal of the entire 8 || action.’’). 9 IT IS SO ORDERED. 10 11 Dated: June 11, 2020 12 Hon. Anthony J Hatta 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28