Patton v. Flores ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL PATTON, Case No.: 3:19-cv-00659-WQH-LL CDCR #AV-5870, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION FOR 14 RELIEF FROM JUDGMENT OFFICER FLORES, et al., 15 PURSUANT TO Fed. R. Civ. P. 60(b) Defendants. [ECF No. 21] 16 17 (2) DISMISSING SECOND AMENDED COMPLAINT 18 PURSUANT TO 19 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) 20 21 AND 22 (3) DENYING MOTION FOR 23 OSC/TRO [ECF No. 19] 24 More than a year ago, Plaintiff Michael Patton, a prisoner at California Medical 25 Facility (“CMF”), and proceeding pro se, filed this civil action pursuant to 42 U.S.C. 26 § 1983. See Compl., ECF No. 1. Plaintiff has been granted leave to proceed in forma 27 pauperis (“IFP”), but both his original and amended complaints have been dismissed sua 28 1 sponte pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), despite his having been notified 2 of his pleading deficiencies and his having been granted multiple extensions of time in 3 which to fix them. See e.g., ECF Nos. 3, 5, 10, 14. On January 15, 2020, the Court 4 dismissed Plaintiff’s case entirely based both on his failure to state a claim and his failure 5 to prosecute, certified that an IFP appeal would be frivolous, and directed the Clerk to enter 6 a judgment and close the file. See ECF No. 16. The Clerk’s Judgment was entered on 7 January 21, 2020. See ECF No. 17. 8 More than two months later, Plaintiff submitted a Motion for Relief from Judgment 9 pursuant to Fed. R. Civ. P. 60(b), see ECF No. 21, a “Motion for Order to Show Cause 10 [“OSC”] for a[] Preliminary Injunction and Temporary Restraining Order [“TRO”]” see 11 ECF No. 19, and a proposed Second Amended Complaint (“SAC”). See ECF No. 23. 12 I. Motion for Relief from Judgment 13 In his Motion for Relief from Judgment, Plaintiff cites both Fed. R. Civ. P. 59(e) and 14 Fed. R. Civ. P. 60(b)(3), and asks the Court to “process [his] [Second] Amended Petition.” 15 See ECF No. 21 at 1. 16 Under Rule 60, a motion for seeking relief from a final judgment, order, or 17 proceeding may be filed within a “reasonable time,” but usually must be filed “no more 18 than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R. 19 Civ. P. 60(c)(1). Rule 60(b) provides for relief where one or more of the following is 20 shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 21 evidence that with reasonable diligence, could not have been discovered in time to move 22 for a new trial under Rule 59(b)1; (3) fraud, misrepresentation, or misconduct by an 23 24 25 1 Plaintiff also cites to Fed. R. Civ. P. 59(e) (governing motions to alter or amend judgment). Rule 59(e) requires a motion to alter or amend judgment to be filed “no later 26 than 28 days after the entry of judgment.” Plaintiff’s Motion was not filed until March 24, 27 2020. See ECF No. 21. And while the Court directed the Clerk to accept Plaintiff’s Motion nunc pro tunc to March 16, 2020, the date it was received, both those dates are more than 28 1 opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or 2 discharged, is based on an earlier judgment that has been reversed or vacated, prospective 3 application is no longer equitable; or (6) any other reason that justifies relief. See Fed. R. 4 Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 5 Here, Plaintiff specifically seeks to vacate the Court’s January 21, 2020, judgment 6 pursuant to Fed. R. Civ. P. 60(b)(3). See ECF No. 21 at 1. Rule 60(b) permits “the court 7 [to] relieve a party . . . from a final judgment, order, or proceeding” for various reasons, 8 including “fraud . . . misrepresentation, or misconduct by an opposing party,” or “any other 9 reason that justifies relief.” Fed. R. Civ. P. 60(b)(3), (6); see also Jones v. Ryan, 733 F.3d 10 825, 833 (9th Cir. 2013) (“Rule 60(b) ‘allows a party to seek relief from a final judgment, 11 and request reopening of his case, under a limited set of circumstances.’” (quoting 12 Gonzalez v. Crosby, 545 U.S. 524, 528 (2005))); Payton v. Davis, 906 F.3d 812, 818 (9th 13 Cir. 2018).2 14 15 16 Court further notes that Plaintiff’s Rule 60(b) Motion, his OSC/TRO, and his proposed 17 SAC were all signed and include “Certificates of Service” signed by him on March 9, 2020, see ECF No. 19 at 14; ECF No. 21 at 1; ECF No. 23 at 16, and all three were addressed to 18 the Clerk and included in one envelope postmarked on March 10, 2020. See ECF No. 23 19 at 32‒33. Pursuant to Houston v. Lack’s “prison mailbox rule,” the Court considers all three documents constructively filed as of March 9, 2020‒‒the date they were delivered to a 20 CMF official for deposit in the prison’s internal mail delivery system. See Douglas v. 21 Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (“Houston mailbox rule applies to § 1983 suits filed by pro se prisoners.”); Caldwell v. Amend, 30 F.3d 1199, 1201 (9th Cir. 1994) 22 (applying Houston’s mailbox rule to deadline for filing prisoner’s Fed. R. Civ. P. 50(b) 23 motion); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir. 1988) (applying prison mailbox rule to Rule 59(e) motions); see also Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 24 2003) (considering date a petition was signed as the earliest possible date applicable to 25 mailbox rule). 26 2 “Rule 60(b) is not meant to be a substitute for an appeal.” See Wolff v. California, 236 F. 27 Supp. 3d 1154, 1160–61 (C.D. Cal. 2017) (citing U.S. v. N.E. Med. Servs., Inc., 2016 WL 627417, *3 (N.D. Cal. Feb. 17, 2016) (citing 20th Century-Fox Film Corp. v. Dunnahoo, 28 1 In order to prevail on a Rule 60(b)(3) motion, Plaintiff “must prove by clear and 2 convincing evidence that the [judgment] was obtained through fraud, misrepresentation, or 3 other misconduct and the conduct complained of prevented [him as] the losing party from 4 fully and fairly presenting [a] defense.” Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 5 (9th Cir. 2004) (quoting De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 6 (9th Cir. 2000)). Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not 7 at those which are factually incorrect.” De Saracho, 206 F.3d at 880 (citing In re M/V 8 Peacock, 809 F.2d 1403, 1405 (9th Cir. 1987)). “Courts possess the inherent power to 9 vacate or amend a judgment obtained by fraud on the court.” Dixon v. Comm’r, 316 F.3d 10 1041, 1046 (9th Cir. 2003) (citing Toscano v. Comm’r, 441 F.2d 930, 933 (9th Cir. 1971)). 11 However, “that power is ‘narrowly construed, applying only to fraud that defiles the court 12 or is perpetrated by officers of the court.’” United States v. Chapman, 642 F.3d 1236, 1240 13 (9th Cir. 2011) (quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960)). 14 Plaintiff states that his Motion is filed due to “misconduct of an adverse party, 15 preventing the other party from fully and fairly presenting his case.” ECF No. 21 at 1. 16 Attached to his single-paged Motion, Plaintiff includes an unsigned and undated 17 Declaration, which appears to have been submitted in another case, and in which he claims 18 to be both an Armstrong and a Coleman class member. Id. at 2, ¶¶ 4‒5.3 In this Declaration, 19 20 21 3 Armstrong is a class action pending in the United States District Court for the Northern District of California which involves a “certified class of all present and future California 22 state prison inmates and parolees with disabilities [who] sued California state officials in 23 their official capacities, seeking injunctive relief for violations of the RA and the ADA in state prisons.” Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir. 1997). “The 24 Coleman/Plata actions are consolidated civil rights class actions pending in the United 25 States District Court for the Eastern and Northern Districts of California.” Edelbacher v. Cal. Bd. of Parole Hearings, No. 17-CV-04783-HSG (PR), 2017 WL 4340348, at *1 (N.D. 26 Cal. Sept. 29, 2017). “The Coleman class action concerns the constitutional adequacy of 27 the mental health care provided to CDCR inmates and involves the class of seriously mentally ill persons in California prisons. The Plata class action concerns the constitutional 28 1 Plaintiff claims to have been the “victim of staff misconduct,” while he was “housed in 2 Buildings 4 and 5 on Facility A at RJD [Richard J. Donovan Correctional Facility]” 3 beginning in June 2017, and until he was transferred in October 2018. Id. at 2‒5, ¶¶ 6‒15. 4 Several of the incidents of retaliation Plaintiff cites in this Declaration were also alleged in 5 his First Amended Complaint (“FAC”). All recount conditions existing at RJD three years 6 ago, and none of the allegations address any impediment Plaintiff may have faced in terms 7 of amending his complaints or prosecuting this case, which was filed in April 2019, after 8 he had already been transferred from RJD. See ECF No. 4 at 1 (noting Plaintiff’s address 9 at California State Prison‒Los Angeles County (“LAC”)); see also Notice of Change of 10 Address (noting Plaintiff’s transfer from LAC to CMF) ECF No. 15 at 1 (dated November 11 21, 2019). 12 Nothing in Plaintiff’s Motion or his unsigned Declaration shows or even plausibly 13 implies any fraud upon the Court, and nothing in the record suggests any misrepresentation 14 or misconduct by the opposing parties in this case. Plaintiff’s pleadings were dismissed sua 15 sponte based on his failures to state a claim upon which § 1983 relief could be granted 16 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and his failure to prosecute. See ECF 17 Nos. 3, 5, 16. As a result of his pleadings’ deficiencies, no Defendants have ever been 18 served. Therefore, Plaintiff cannot and has not pointed to any fraud, misrepresentation, or 19 misconduct on the opposing parties’ behalf, and Rule 60(b)(3) does not warrant 20 reconsideration of the Court’s January 21, 2020, judgment. 21 Plaintiff does not seek to vacate the Court’s judgment in this case based on any 22 mistake, inadvertence, surprise, excusable neglect, or newly discovered evidence, and he 23 fails to offer any other reason justifying relief pursuant to Fed. R. Civ. P. 60(b)(1), (2), (4), 24 25 26 with serious medical conditions. The Three-Judge Court presiding over these class actions 27 has issued various orders related to prison overcrowding and has required the State of California to undertake prison population reduction measures.” Id. 28 1 (5), or (6). Plaintiff’s Motion for Relief from Judgment per Fed. R. Civ. P. 60(b) (ECF No. 2 21) is DENIED. 3 II. Second Amended Complaint 4 Even if the Court were to vacate its January 21, 2020, judgment, it further finds that 5 the proposed Second Amended Complaint Plaintiff has submitted still fails to address the 6 pleading deficiencies identified at length in its June 5, 2019, and September 9, 2019, 7 screening Orders. See ECF No. 3 at 5‒10; ECF No. 5 at 4‒18. Because the SAC Plaintiff 8 seeks to file fails to state a claim upon which § 1983 relief can be granted, it too is subject 9 to sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). 10 A. Initial Screening 11 Because Plaintiff is a prisoner proceeding in forma pauperis, his SAC, like his 12 original Complaint and his FAC before, is subject to pre‒answer screening and dismissal 13 if it is found is frivolous, malicious, fails to state a claim, or seeks damages from defendants 14 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 15 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 16 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 17 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 18 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 19 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 20 680, 681 (7th Cir. 2012)). 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 25 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 26 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 27 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 28 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 1 556 U.S. 662, 678 (2009). 2 B. Allegations in Plaintiff’s SAC 3 Although Plaintiff’s original Complaint named 15 RJD correctional officials as 4 Defendants, and his FAC named 6, but made “at least some reference” to almost all the 5 original Defendants in its body, his SAC names only one Defendant, T. Williams, a dental 6 hygienist. See SAC, ECF No. 23 at 1, 3, 4‒8; cf. Compl. ECF No. 1 at 1‒5; FAC, ECF No. 7 4 at 1‒2, 3, 9‒11, 13. Plaintiff continues to claim that during a September 29, 2017, dental 8 appointment at RJD, Williams “repeatedly stab[ed] [his] teeth and gums” during an 9 examination and refused to use “numbing medicine” when Plaintiff asked. See SAC, ECF 10 No. 23 at 4. Plaintiff claims Williams was “mad” at him because he “had to rush to the 11 dental office without [first] brush[ing] his teeth.” Id. Plaintiff “believes the dental hygienist 12 exhibited deliberate indifference” because she “knew [he] had gum disease.” Id. 13 C. Discussion 14 The allegations in Plaintiff’s proposed SAC against Defendant Williams still fail to 15 state a plausible Eighth Amendment claim for relief. See Iqbal, 556 U.S. at 678 (citing Bell 16 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 17 In its September 9, 2019, Order, the Court advised Plaintiff that claims of inadequate 18 dental care do not constitute cruel and unusual punishment in violation of the Eighth 19 Amendment unless they rise to the level of “deliberate indifference.” See ECF No. 5 at 15 20 (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 21 U.S. 97, 104 (1976)). Plaintiff was notified that the two part test for deliberate indifference 22 requires him to plead facts sufficient to show (1) “a ‘serious medical need’ by 23 demonstrating that failure to treat [his] condition could result in further significant injury 24 or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to 25 the need was deliberately indifferent.” See ECF No. 5 at 15 (citing Jett, 439 F.3d at 1096). 26 Plaintiff was also advised that “[s]erious medical needs can relate to ‘physical, dental 27 and mental health,’” see id. (citing Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019) 28 (quoting Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other 1 grounds by Sandin v. Conner, 515 U.S. 472 (1995)), but that a prison official like 2 Defendant Williams does not act in a deliberately indifferent manner unless she is alleged 3 to have “know[n] of and disregard[ed] an excessive risk to inmate health or safety.” Id. 4 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 5 Plaintiff’s SAC still fails to allege facts sufficient to support either the objective or 6 the subjective components of an Eighth Amendment inadequate medical care claim. He 7 now claims broadly to have had “gum disease,” but he continues to offer no “factual 8 enhancement” describing the objectively serious nature his dental condition or 9 periodontitis on September 29, 2017. See SAC at 4; Iqbal, 556 U.S. at 678; cf. Hunt v. 10 Dental Dep’t, 865 F.2d 198, 199‒200 (9th Cir. 1989) (finding three-month delay in denture 11 replacement, alleged to have caused gum disease and weight loss, was sufficient to sustain 12 an Eighth Amendment violation). 13 Instead, Plaintiff simply claims to have reported to dental hygienist Defendant 14 Williams on one occasion, and to have experienced pain during that examination because 15 he was not provided any “numbing medicine.” See SAC, ECF No. 23 at 4; Wood v. 16 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (noting that “isolated occurrences of 17 neglect” are insufficient to violate the Eighth Amendment). But like his FAC, Plaintiff’s 18 SAC still offers no further detail describing how or why Williams’s alleged failure to 19 administer an anesthetic during a single dental appointment was a decision taken with 20 knowledge of or disregard to an excessive risk to either his dental health or his safety. 21 Farmer, 511 U.S. at 837; Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (to 22 allege deliberate indifference, the plaintiff “must show that the course of treatment the 23 [official] chose was medically unacceptable under the circumstances and that the [official] 24 chose this course in conscious disregard of an excessive risk to the plaintiff’s health.” 25 (quoting Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012), overruled in part on other 26 grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc)). 27 At most, and as was true for his FAC, Plaintiff’s SAC challenges only Williams’ 28 professional decision-making and methodology, and as such, his claims amount either to a 1 difference of opinion as to either his particular dental needs, or to Williams’s failure to 2 respond reasonably to a request for a numbing agent to relieve his discomfort. But neither 3 plausibly rise to the level of cruel and unusual punishment. See Estelle, 429 U.S. at 106 4 (“[A] complaint that a physician has been negligent in diagnosing or treating a medical 5 condition does not state a valid claim of medical mistreatment under the Eighth 6 Amendment. Medical malpractice does not become a constitutional violation merely 7 because the victim is a prisoner.”); Edmo, 935 F.3d at 786 (“A difference of opinion 8 between a physician and the prisoner—or between medical professionals—concerning 9 what medical care is appropriate does not amount to deliberate indifference.”) (citations 10 omitted); see also Tatum v. McGuinness, No. CIVIL 08-0925 JAH (P), 2009 WL 112379, 11 at *2 (E.D. Cal. Jan. 14, 2009) (finding claims that prison medical official improperly 12 administered anesthesia failed to rise to the level of deliberate indifference and dismissing 13 Eighth Amendment claims pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A). Inadequate 14 treatment due to malpractice, or even gross negligence, as Plaintiff arguably asserts here, 15 simply does not amount to a constitutional violation. Estelle, 429 U.S. at 106; Frost v. 16 Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (finding no merit in constitutional claims 17 stemming from alleged delays in administering pain medication, treating broken nose, and 18 providing replacement crutch, because the claims did not amount to more than negligence). 19 Thus, for all these reasons, the Court finds Plaintiff’s SAC also fails to state a claim 20 upon which § 1983 relief can be granted, that dismissal of this civil action remains proper 21 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and that the Court’s January 22 21, 2020, judgment of dismissal stands. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 23 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 24 district court may convert the dismissal of the complaint into dismissal of the entire 25 action.”). 26 III. Motion for OSC/TRO/Preliminary Injunction 27 Finally, the Court turns to documents submitted with Plaintiff’s Rule 60(b) Motion 28 and SAC entitled as a “Motion for Order to Show Cause for a[] Preliminary Injunction and 1 Temporary Restraining Order.” See ECF No. 19. 2 In this Motion, Plaintiff simply cites to Fed. R. Civ. P. 65(a), and asks the Court to 3 issue an OSC as to why a preliminary injunction should not issue against 11 RJD officials 4 named in his original Complaint, but who were no longer named as parties in either his 5 FAC or his SAC, see ECF No. 19 at 1‒2, and several other LAC officers who have never 6 been named as parties in any of his pleadings. Id. at 2. Plaintiff offers no factual support 7 for his Motion whatsoever, and he provides no legal justification for the issuance of any 8 extraordinary injunctive relief. Instead, Plaintiff merely attaches copies of a CDCR 1982 9 Reasonable Accommodation Request Form dated November 19, 2019, in which he 10 requested that CMF officials replace a color TV and locate personal property he claims 11 was lost during his transfer from LAC to CMF. See ECF No. 19 at 3‒7. 12 A federal district court may issue emergency injunctive relief only if it has personal 13 jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See Murphy 14 Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one 15 “becomes a party officially, and is required to take action in that capacity, only upon service 16 of summons or other authority-asserting measure stating the time within which the party 17 served must appear to defend.”). The court may not attempt to determine the rights of 18 persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234- 19 35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983). An injunction binds only 20 “the parties to the action,” their “officers, agents, servants, employees, and attorneys,” and 21 “other persons who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C). 22 Moreover, “at an irreducible minimum,” the party seeking immediate injunctive 23 relief “must demonstrate a fair chance of success on the merits, or questions serious enough 24 to require litigation.” Pimentel v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (internal 25 quotation marks and citation omitted)). Because the Court has consistently found that none 26 of Plaintiff’s complaints allege plausible claims upon which § 1983 relief can be granted, 27 he cannot succeed on the merits, and has not shown irreparable harm. “‘A plaintiff seeking 28 a preliminary injunction must establish that he is likely to succeed on the merits, that he is 1 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 2 || equities tips in his favor, and that an injunction is in the public interest.’” Glossip v. Gross, 3 |}__ U.S. 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural Resources Defense 4 || Council, Inc., 555 U.S. 7, 20 (2008)); see also Williams v. Duffy, No. 18-CV-06921-BLF, 5 WL 95924, at *3 (N.D. Cal. Jan. 3, 2019) (denying prisoner’s TRO based in 6 || conjunction with sua sponte screening and dismissal of complaint for failure to state a claim 7 || pursuant to 28 U.S.C. § 1915A). 8 Accordingly, because Plaintiff has failed to state any plausible claim upon which 9 || § 1983 relief can be granted in this case, and the Court lacks personal jurisdiction over any 10 || of the persons he seeks to enjoin, his Motion for OSC/TRO is DENIED. 11 Conclusion and Orders 12 For the reasons explained, the Court: 13 (1) DENIES Plaintiff's Motion for Relief from Judgment pursuant to Fed. R. Civ. 14 ||P. 60(b) [ECF No. 21]; 15 (2) DISMISSES Plaintiff's Second Amended Complaint sua sponte for failing to 16 ||state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 17 1915(e)(2)(B)Gi) and 1915A(b)(1) without further leave to amend; 18 (3) DENIES Plaintiff's Motion for OSC/TRO [ECF No. 19]; 19 (4) RE-CERTIFIES that an IFP appeal would not be taken in good faith pursuant 20 28 U.S.C. § 1915(a)(3); and 21 (5) DIRECTS the Clerk of the Court to again close the file. 22 IT IS SO ORDERED. 23 || Dated: August 13, 2020 itt Z. A a 24 Hon. William Q. Hayes 25 United States District Court 26 27 28 Il