Rider v. Sanchez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDRE RIDER, Case No.: 3:20-cv-02028-DMS-RBB CDCR #T-13317, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 [ECF No. 2] D. SANCHEZ, Correctional Officer; R. 16 OWENS, Correctional Sergeant; A. AND 17 SILVA, Correctional Officer; A. MIRANDA, Correctional Lieutenant; M. 2) DISMISSING CLAIMS FOR 18 POLLARD, Correctional Warden, FAILING TO STATE A CLAIM 19 Defendants. PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 20 21 22 Plaintiff Andre Rider, currently incarcerated at Richard J. Donovan Correctional 23 Facility (“RJD”) in San Diego, California has filed a civil rights complaint pursuant to 42 24 U.S.C. § 1983. Plaintiff has not paid the filing fees required by 28 U.S.C. § 1914(a), but 25 instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 26 § 1915(a). See ECF No. 2. 27 / / / 28 / / / 1 I. IFP Motion 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 8 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 9 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 10 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 11 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does 28 1 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 2 Statement Report as well as a Prison Certificate completed by a trust account official at 3 RJD. See ECF No. 2 at 4‒7; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 4 F.3d at 1119. These documents show he carried an average monthly balance of $54.18, 5 maintained $54.17 in average monthly deposits to his trust account for the 6-months 6 preceding the filing of this action, but had an available balance of only $.30 to his credit 7 at the time of filing. See ECF No. 2 at 5. 8 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 9 assesses his initial partial filing fee to be $10.84 pursuant to 28 U.S.C. § 1915(b)(1). 10 However, the Court will direct the Secretary of the CDCR, or her designee, to collect this 11 initial filing fee only if sufficient funds are available in Plaintiff’s account at the time this 12 Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 13 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 14 judgment for the reason that the prisoner has no assets and no means by which to pay the 15 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 16 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 17 case based solely on a “failure to pay ... due to the lack of funds available to him when 18 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must 19 be collected by the agency having custody of the prisoner and forwarded to the Clerk of 20 the Court pursuant to 28 U.S.C. § 1915(b)(2). 21 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 22 A. Standard of Review 23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a 24 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 25 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 27 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 28 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 1 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 2 the targets of frivolous or malicious suits need not bear the expense of responding.’” 3 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 4 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 8 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 12 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 556 U.S. 544, 570 14 (2007)); Wilhelm, 680 F.3d at 1121. 15 “Courts must consider the complaint in its entirety,” including “documents 16 incorporated into the complaint by reference” to be part of the pleading when 17 determining whether the plaintiff has stated a claim upon which relief may be granted. 18 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. 19 Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) 20 (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading 21 for all purposes.”). 22 B. Plaintiff’s Allegations 23 On September 1, 2019, Defendant Sanchez “came to Facility ‘A’ yard” and 24 informed Plaintiff that he had been “selected” to give a “urinalysis test.” (Compl. at 7.) 25 Plaintiff told Sanchez that he should not be on the “mandatory drug testing list” but 26 claims Sanchez told him “I don’t have time to answer any bullshit question right now.” 27 (Id.) Plaintiff alleges Sanchez informed him that if he refused to take the test, an “RVR 28 1 115 will be written.” (Id.) Plaintiff agreed to take the test but asked to speak to the 2 Sergeant. (See id. at 7-8.) 3 Sanchez told the “tower officer to open” Plaintiff’s cell, “asked Plaintiff to step out 4 [of] the cell, and turn and face the cell door.” (Id. at 8.) Sanchez put Plaintiff in 5 handcuffs and told Plaintiff he was “a real asshole and that Plaintiff was always causing a 6 lot of bullshit around here.” (Id.) Plaintiff claims Sanchez then tried to force him to take 7 the urinalysis test “in a very dirty, unclean area.” (Id.) 8 When Plaintiff asked again to speak to a sergeant, he alleges Sanchez responded by 9 “intentionally throw[ing] Plaintiff to the ground, real hard.” (Id.) Plaintiff claims 10 Sanchez knew he uses a walker or cane and when he asked for a walker or cane, Sanchez 11 purported responded that he did not care and continued calling Plaintiff names. (See id.) 12 Sanchez, with another officer, picked Plaintiff up off the floor and conducted the 13 urinalysis test. (See id.) 14 Plaintiff alleges he was “suffering pain from being thrown to the ground” and 15 asked to “go to medical.” (Id. at 9.) However, Sanchez told him “not right now.” (Id.) 16 On September 9, 2019, Defendant Silva was “assigned to Plaintiff’s case” as an 17 “assistant to inmates for serious rules violation.” (Id. at 10.) Plaintiff claims Silva told 18 him that he would “be the only one to handle the investigation” regarding Plaintiff’s 19 RVR. (Id.) Plaintiff alleges Silva refused to interview Plaintiff’s witnesses which 20 “would have made a difference in the outcome of Plaintiff’s RVR 115 hearing.” (Id.) 21 On October 1, 2019, Silva and Defendant Miranda, the hearing officer, “conspired” 22 prior to the hearing to find Plaintiff guilty of the rules violation. (Id. at 10-11.) Plaintiff 23 claims Miranda told him “I’m going to believe my officers, over all inmates” and found 24 him guilty. (Id. at 11.) As a result of the guilty finding, Plaintiff lost thirty (30) days of 25 yard privileges and lost ninety (90) days of good time credit. (See id.) 26 Plaintiff seeks declaratory relief, “general damages according to proof,” punitive 27 damages, compensatory damages, and attorney fees. (Id. at 14.) 28 1 C. 42 U.S.C. § 1983 2 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 3 secured by the Constitution and laws of the United States, and (2) that the deprivation 4 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 5 698 F.3d 1128, 1138 (9th Cir. 2012); see also Rawson v. Recovery Innovations, Inc., No. 6 19-35520, __ F.3d __, 2020 WL 5405684, at *3 (9th Cir. Sept. 9, 2020) (“Pursuant to 7 § 1983, a defendant may be liable for violating a plaintiff’s constitutional rights only if 8 the defendant committed the alleged deprivation while acting under color of state law.”). 9 D. Eighth Amendment claims 10 As an initial matter, Finally, the Court finds Plaintiff’s Complaint contains 11 “sufficient factual matter, accepted as true,” to state an Eighth Amendment claim against 12 Sanchez for relief that are “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, 13 sufficient to overcome the “low threshold” set for sua sponte screening pursuant to 28 14 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 15 678; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (“To prove a violation of 16 the Eighth Amendment a plaintiff must ‘objectively show that he was deprived of 17 something “sufficiently serious,” and make a subjective showing that the deprivation 18 occurred with deliberate indifference to the inmate’s health or safety.’” (citing Farmer v. 19 Brennan, 511 U.S. 825, 837, 844 (1994)); Hudson v. McMillian, 503 U.S. 1, 5 (1992) 20 (unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments 21 Clause of the Eighth Amendment); Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per 22 curiam) (for claims arising out of the use of excessive physical force, the issue is 23 “whether force was applied in a good-faith effort to maintain or restore discipline, or 24 maliciously and sadistically to cause harm.”). 25 E. Fourteenth Amendment Due Process Claims 26 Plaintiff also claims that he was denied due process with respect to the issuance of 27 a rules violation report and the disciplinary proceeding arising from the report. (See 28 Compl. at 9-11.) Plaintiff alleges Silva refused to listen to his witnesses and Miranda 1 told him that was going to find him guilty regardless of Plaintiff’s testimony. (See id.) 2 As a result of the guilty finding, Plaintiff lost thirty (30) days of yard privileges and lost 3 ninety (90) days of good time credit. (See id.) 4 The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of 5 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 6 requirements of procedural due process apply only to the deprivation of interests 7 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 8 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 9 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 10 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 11 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 12 995 F.2d 898, 904 (9th Cir. 1993)). 13 A prisoner is entitled to certain due process protections when he is charged with a 14 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 15 Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such protections include the rights 16 to call witnesses, to present documentary evidence and to have a written statement by the 17 fact-finder as to the evidence relied upon and the reasons for the disciplinary action 18 taken.” Id. These procedural protections, however, “adhere only when the disciplinary 19 action implicates a protected liberty interest in some ‘unexpected matter’ or imposes an 20 ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of 21 prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); Ramirez v. 22 Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 23 Although the level of the hardship must be determined on a case-by-case basis, and 24 “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for 25 identifying the baseline from which to measure what is atypical and significant in any 26 particular prison system,” Wilkinson v. Austin, 545 U.S. 209, 223 (2005), courts in the 27 Ninth Circuit look to: 28 1 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus 2 comported with the prison’s discretionary authority; 2) the duration of the 3 condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 4 5 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87); see also Chappell v. 6 Mandeville, 706 F.3d 1052, 1064-65 (9th Cir. 2013). Only if the prisoner alleges facts 7 sufficient to show a protected liberty interest must courts next consider “whether the 8 procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 F.3d at 860. 9 Plaintiff’s due process claims require sua sponte dismissal pursuant to 28 U.S.C. 10 § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) because he fails to allege facts sufficient 11 to show that the deprivations he suffered as a result of his disciplinary conviction, i.e., 90 12 days of lost good time credit and 30 days of yard privileges, see Compl. at 11, imposed 13 the type of “atypical and significant hardships” required by Sandin to invoke liberty 14 interests entitled to Wolff’s procedural safeguards. Sandin, 515 U.S. at 484; see e.g., 15 Salinas v. Montgomery, No. 3:19-cv-0744-AJB-RBB, 2019 WL 2191349, at *5 (S.D. 16 Cal. May 21, 2019) (finding allegations that inmate was “assessed a good-time credit loss 17 of 90 days” insufficient to show atypical and significant hardship); Cal. Code Regs., tit. 18 15 § 3044(f)(2) (explaining “Privilege Group C” “privileges and non-privileges”); 19 Sanchez v. Miller, 2016 WL 536890, at *5 (S.D. Cal. 2016) (concluding that time-limited 20 “C-status deprivations” did not constitute hardship that is “atypical and significant ‘in 21 relation to the ordinary incidents of prison life.’”) (quoting Sandin, 515 U.S. at 484), 22 report and recommendation adopted, 2016 WL 524438 (S.D. Cal. 2016); Randle v. 23 Melendrez, 2017 WL 1197864, at *4 (C.D. Cal. 2017) (finding “four months in 24 administrative segregation as a result of the false RVR,” during which plaintiff was 25 deprived of contact visits, “packages, canteen, unrestricted yard, phone calls and personal 26 property” insufficient to implicate a protected liberty interest under Sandin), report and 27 recommendation adopted, 2017 WL 1199719 (C.D. Cal. 2017)). 28 / / / 1 Therefore, the Court finds that Plaintiff has failed to allege a Fourteenth 2 Amendment due process claim upon which relief may be granted. 3 F. Personal Liability ‒ Defendants Owens & Pollard 4 Plaintiff alleges that Defendant Owens was the “Facility Program [Sergeant]” 5 whose duty is to “oversee and enforce the CDCR written rules by policy and procedures.” 6 (See Compl. at 9.) Plaintiff also names M. Pollard, RJD Warden “under CDCR post 7 order and responsibility.” (Id. at 6.) Plaintiff claims he filed an administrative grievance 8 regarding the claims in the Complaint, but Pollard denied his appeal at the second level of 9 review. (See id. at 11, 23-24.) 10 But simply “‘[r]uling against a prisoner on an administrative complaint does not 11 cause or contribute to the violation.’” Ellington v. Clark, 2010 WL 3001427, at *2 (E.D. 12 Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)). And a 13 prison official’s allegedly improper processing of grievances or appeals, without more, 14 does not provide an independent basis for section 1983 liability. See Ramirez, 334 F.3d at 15 860 (prisoners do not have a “separate constitutional entitlement to a specific prison 16 grievance procedure.”) (citation omitted); Davis v. Penzone, 2017 WL 8792541, at *5 (D. 17 Ariz. July 25, 2017) (prison administrators and other supervisors are not per se liable for 18 an alleged violation of a prisoner’s federal constitutional rights simply by failing to grant 19 his “grievances or grievance appeals.”). Thus, because Plaintiff alleges Defendants 20 Owens and Pollard’s only involvement was their failure to intervene or correct the 21 alleged due process violations, he fails to state a claim against them as well. See 28 22 U.S.C. § 1915(e)(2); § 1915A(b); Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each 23 Government official, his or her title notwithstanding, is only liable for his or her own 24 misconduct.”); Moreno v. Ryan, 2017 WL 2214703, at *3 (D. Ariz. May 19, 2017) 25 (failure to intervene on the prisoner’s behalf to remedy the allegedly unconstitutional 26 underlying behavior does not by itself amount to an independent or freestanding 27 constitutional violation for purposes of § 1983). 28 / / / 1 H. Heck Bar 2 Finally, the Court cautions Plaintiff that even if he can allege additional facts 3 sufficient to plausibly show Defendants violated his due process rights with respect to his 4 RVR and disciplinary conviction, he may not be able to proceed with these claims. 5 “Federal law opens two main avenues to relief on complaints related to 6 imprisonment: a petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint 7 under ... 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). 8 “Challenges to the validity of any confinement or to particulars affecting its duration are 9 the province of habeas corpus; requests for relief turning on circumstances of 10 confinement may be presented in a § 1983 action.” Id. (internal citation omitted). A 11 prisoner’s claims are within the core of habeas corpus if they challenge the fact or 12 duration of his conviction or sentence. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 13 2016) (en banc); Ramirez, 334 F.3d at 858. 14 In Heck v. Humphrey, the United States Supreme Court held that a section 1983 15 claim cannot proceed when “a judgment in favor of the plaintiff would necessarily imply 16 the invalidity of his conviction or sentence.” Heck, 512 U.S. at 486-87. Accordingly, “a 17 state prisoner’s [section] 1983 action is barred (absent prior invalidation)—no matter the 18 relief sought (damages or equitable relief), no matter the target of the prisoner’s suit 19 (state conduct leading to conviction or internal prison proceedings)—if success in that 20 action would necessarily demonstrate the invalidity of confinement or its duration.” 21 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Heck requires the plaintiff in a § 1983 22 action “first … to prove that his conviction had been invalidated in some way.” 23 McDonough v. Smith, 139 S. Ct. 2149, 2157 (2019) (citing Heck, 512 U.S. at 486). “This 24 favorable-termination requirement, the Court explained, applies whenever ‘a judgment in 25 favor of the plaintiff would necessarily imply’ that his prior conviction or sentence was 26 invalid.” Id. (quoting Heck, 512 U.S. at 487). 27 Heck’s bar applies in the prison disciplinary context if the “defect complained of 28 by [Plaintiff] would, if established, necessarily imply the invalidity of the deprivation of 1 [his] good-time credits[,]” Edwards v. Balisok, 520 U.S. 641, 646 (1997); Nonnette v. 2 Small, 316 F.3d 872, 875 (9th Cir. 2002), and if the restoration of those credits 3 “necessarily” would “affect the duration of time to be served.” Muhammed, 540 U.S. at 4 754; see also Nettles, 830 F.3d at 929 n.4 (“Heck applies only to administrative 5 determinations that ‘necessarily’ have an effect on ‘the duration of time to be served.’ ” 6 (citations omitted)); Ramirez, 334 F.3d at 856 (“[T]he applicability of [Heck’s] favorable 7 termination rule turns solely on whether a successful § 1983 action would necessarily 8 render invalid a conviction, sentence, or administrative sanction that affected the length 9 of the prisoner’s confinement.”). 10 Here, a judgment in Plaintiff’s favor would necessarily imply the invalidity of his 11 disciplinary conviction and his subsequent credit loss. See Edwards, 520 U.S. at 648 12 (finding prisoner’s claims for declaratory relief and money damages “based on 13 allegations of deceit and bias on the part of the decisionmaker … necessarily imply the 14 invalidity of the punishment imposed, [and are] not cognizable under § 1983.”). 15 Therefore, should Plaintiff chose to proceed by amending his complaint, he must 16 not only address the Fourteenth Amendment pleading deficiencies identified above, but 17 also allege that the disciplinary conviction which serves as the basis of this § 1983 suit 18 has already been “reversed on direct appeal, expunged by executive order, declared 19 invalid by a state tribunal authorized to make such determination, or called into question 20 by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 487. 21 F. Leave to Amend 22 Because the Court has determined that some of Plaintiff’s claims survive the sua 23 sponte screening process, the Court will give Plaintiff the opportunity to either: (1) 24 notify the Court of the intent to proceed with his Eighth Amendment claims against 25 Sanchez; or (2) file an amended pleading correcting all the deficiencies of pleading 26 identified by the Court in this Order. Plaintiff must choose one of these options within 27 forty-five (45) days from the date this Order is filed. If Plaintiff chooses to proceed as to 28 his claims against Sanchez only, the Court will issue an Order directing the U.S. Marshal 1 to effect service of his Complaint on Sanchez and dismiss the remaining claims and 2 defendants. 3 III. Conclusion and Orders 4 For the reasons explained, the Court: 5 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 6 (ECF No. 2). 7 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 8 Plaintiff’s trust account the $10.84 initial filing fee assessed, if those funds are available 9 at the time this Order is executed, and forward whatever balance remains of the full $350 10 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 11 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 12 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 13 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 14 ACTION. 15 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 16 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 17 4. The Court DISMISSES all claims against Defendants Owens, Silva, 18 Miranda, and Pollard for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 19 § 1915A(b). 20 5. The Court GRANTS Plaintiff forty-five (45) days leave from the date of this 21 Order in which to either: (1) notify the Court of the intention to proceed with the claims 22 against Sanchez only; or (2) file an Amended Complaint which cures all the deficiencies 23 of pleading noted. Plaintiff’s Amended Complaint must be complete in itself without 24 reference to his original pleading. Defendants not named and any claims not re-alleged in 25 the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal 26 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 27 (“[A]n amended pleading supersedes the original.”); Lacey, 693 F.3d at 928 (noting that 28 claims dismissed with leave to amend which are not re-alleged in an amended pleading 1 be “considered waived if not repled.”). 2 6. The Clerk of Court is directed to mail Plaintiff a court approved civil rights 3 ||complaint form to use if he chooses to file an amended pleading. 4 IT IS SO ORDERED. 5 || Dated: October 27, 2020 6 ns my. L4\ Hon. Dana M. Sabraw 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13