Reed v. Buckel ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYCHAL REED, Case No.: 24-cv-0179-MMA (AHG) CDCR #AE-9821 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA PAUPERIS [Doc. No. 7] 14 vs. 15 (2) DENYING IFP MOTIONS Doc. Nos. 4, 9 AS MOOT; 16 A. BUCKEL, S. STEADMAN, T. 17 (3) DENYING REQUESTS FOR MARTINEZ, B. COLON, B. CATES, JUDICIAL NOTICE [Doc. No. 6] 18 CHRISTIAN PHIFFER, R. NICKLES, H. AND EXTENSION OF TIME [Doc. ARREOLA, K. TAMEZ, H. MOSELEY, 19 No. 8] AS MOOT Defendants. 20 (2) DISMISSING COMPLAINT 21 WITHOUT PREJUDICE PER FRCP 8(a) AND 28 U.S.C. 22 §§ 1915(e)(2)(B)(ii), 1915A(b)(1) 23 24 INTRODUCTION 25 On January 25, 2024, Mychal Reed (“Plaintiff” or “Reed”), an inmate proceeding 26 pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Doc. No. 1. On January 27 29, 2024, the Court denied Reed’s request to proceed in forma pauperis (“IFP”) and 28 dismissed the action because Reed failed to adequately support his IFP motion as required 1 under 28 U.S.C. § 1915(a). See Doc. No. 3. The Court notified Plaintiff that to have his 2 case reopened he must submit a properly supported IFP motion or pay the filing fee within 3 45 days. Id. at 2–3. 4 On February 20, 2024, Reed filed an IFP motion. Doc. No. 4. He subsequently filed 5 two more IFP applications on March 14, 2022 and April 1, 2024, respectively. Doc. Nos. 6 7, 9. Reed has also filed a request for judicial notice and a motion for extension of time. 7 Doc. Nos. 6, 8. For the reasons discussed below the Court GRANTS Plaintiff’s March 14, 8 2024 application to proceed IFP, DENIES the other IFP motions as moot, DENIES the 9 requests for judicial notice and an extension of time as MOOT, and DISMISSES the 10 Complaint without prejudice and with leave to amend. 11 MOTIONS TO PROCEED IFP 12 All parties instituting any civil action, suit or proceeding in a district court of the 13 United States, except an application for writ of habeas corpus, must pay a filing fee of 14 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 15 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 16 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 17 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, all prisoners who proceed IFP must 18 pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 19 (2016), and regardless of whether their action is ultimately dismissed. See 28 U.S.C. 20 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 21 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 22 of fees to file an affidavit that includes a statement of all assets possessed and demonstrates 23 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In 24 support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of 25 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 26 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 27 King, 398 F.3d 1113, 1119 (9th Cir. 2005). 28 / / / 1 Reed has three IFP Motions pending before the Court. Doc. Nos. 4, 7, 9. The motion 2 filed on February 20, 2024 lacks the support required under § 1915(a)(2); however, the 3 motion filed on March 14, 2024 includes a copy of Reed’s trust account statement and 4 prison certificate. Doc. No. 7 at 4, 6. Based on those documents, Reed has an average 5 monthly balance of $0.00, average monthly deposits of $0.00, and an available account 6 balance of $0. Id. Therefore, the Court finds Plaintiff has established an inability to pay 7 the required $350 filing fee and GRANTS his March 14, 2024 IFP motion (Doc. No. 7). 8 While the Court assesses no initial payment, Plaintiff will be required to pay the full $350 9 filing fee in installments to be collected from his trust account as set forth in 28 U.S.C. 10 § 1915(b)(2). Plaintiff’s other two IFP motions (Doc. Nos. 4, 9) are DENIED as moot. 11 MOTIONS FOR JUDICIAL NOTICE AND EXTENSION OF TIME 12 On March 13, 2024, requested the Court take judicial notice of his attempts to obtain 13 his prison certificate and a copy of his trust account statement. Doc. No. 6. On March 20, 14 2024 he filed a request for an extension of time to obtain those documents. Doc. No. 8. 15 Because the Court has granted IFP, both requests are DENIED as moot. 16 SCREENING PURSUANT TO 28 U.S.C. § 1915(E) AND § 1915A(B) 17 A. Legal Standards 18 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a 19 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 20 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 21 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 22 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 23 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 24 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 25 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 26 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible 27 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 28 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements 1 of a cause of action, supported by mere conclusory statements, do not suffice” to state a 2 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully- 3 harmed me accusation[s]” fall short of meeting this plausibility standard. Id. 4 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 5 acting under color of state law, violate federal constitutional or statutory rights.” 6 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 7 source of substantive rights, but merely provides a method for vindicating federal rights 8 elsewhere conferred.” Graham v. Connor, 40 U.S. 386 U.S. 386, 393–94 (1989) (internal 9 quotation marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) 10 deprivation of a right secured by the Constitution and laws of the United States, and (2) 11 that the deprivation was committed by a person acting under color of state law.” Tsao v. 12 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 13 B. Plaintiff’s Allegations 14 Reed is a hearing-impaired inmate. Doc. No. 1 at 4. He alleges that while confined 15 at Richard J. Donovan Correctional Facility “(RJD”), “RJD officials retaliate[ed] . . . 16 against him” for filing a civil rights lawsuit in this Court (No. 18cv0361-JLS-DEB) by 17 finding him guilty of a “false” Rule Violation Report (“RVR”). Id. The RJD investigator 18 assigned to assist Reed in preparing for the RVR hearing “refused to communicate [with] 19 him” with written notes or American Sign Language (“ASL”), as required under an “ADA 20 Remedial Plan.” Id. Reed states RJD officials did not permit him to attend the November 21 4, 2021 RVR hearing and did not inform him it took place until December 2021. Id. 22 Reed alleges the “final results” of the RVR hearing are “filled with false statements.” 23 Id. Specifically, Reed was found guilty of causing serious injuries to another inmate 24 despite those purported injuries not being “substantiated” by a doctor or the victim. Id. As 25 a result of the RVR, Plaintiff received “32 bad credits” and was transferred to California 26 Correctional Institution (“CCI”), a “level 4 prison.” Id. Once at CCI, Reed was attacked 27 by gang members, and suffered an eye injury and fractured cheek bone as a result. After 28 his transfer to CCI, Plaintiff alleges RJD officials “conspire[ed]” with California 1 Department of Corrections and Rehabilitation (“CDCR”) officials to retaliate against him 2 via “additional charges, write ups, abuse, no TTY1 phone access usage and etc.” Id. 3 At some point, Plaintiff was transferred to Kern Valley State Prison (“KVSP”). Id. 4 at 5. Reed “protested” the transfer because he had “prior knowledge” based on spending 5 “a few months” at KVSP in 2013, that the facility lacked “ADA accommodations for deaf 6 inmates.” Id. While at KVSP, Reed “requested his communication chrono be changed to 7 primary ASL and written notes.” Id. Reed met with an ASL interpreter, who subsequently 8 prepared a “fraudulent” evaluation document that “question[ed] the validity of [Reed’s] 9 ASL skills.” As a result, Reed’s “communication chrono” was changed to “falsely” state 10 that Plaintiff reads lips. Id. 11 On May 9, 2023, Reed went to the program office a KVSP to use the TTY-telephone 12 to call his attorney. Id. When he refused to let staff view the lawyer/client communication 13 teletype, he was found guilty of a Rule Violation. Id. at 6. KVSP staff have not allowed 14 Reed to use TTY-phone since then and Reed has stopped requesting it. Reed has also 15 stopped filing grievances “due to increased harassment” by KVSP staff. Id. He states staff 16 cut off his cell lights for almost three weeks and correctional officers “constantly mock 17 him” by flashing their flashlights in his face. Id. He alleges KVSP officials are conspiring 18 to retaliate against him for his pending civil rights lawsuits. Id. 19 C. Discussion 20 In his Complaint, Reed names 10 defendants from at least four different institutions.2 21 He alleges two general causes of action, each referencing several bases for relief. In his 22 first cause of action, Reed references violations of the First Amendment, the Due Process 23 Clause, the Americans with Disabilities Act (“ADA”) and conspiracy related to the events 24 25 26 1 TTY appears to be a reference to “teletypewriter,” used by the hearing impaired to communicate over the telephone. 27 2 Reed fails to state which facility employs Defendants Buckel, Steadman, Martinez and Colon 28 1 taking place at RJD. Id. at 4. In his second cause of action, he cites violations of the Eighth 2 Amendment, the ADA and conspiracy related to events taking place at KVSP. Id. at 5. 3 1. Rule 8 4 Federal Rule of Civil Procedure 8 requires “a short and plain statement of the claim 5 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While the federal 6 rules require brevity in pleading, a complaint nevertheless must be sufficient to give the 7 defendants “fair notice” of the claim and the “grounds upon which it rests.” Erickson v. 8 Pardus, 551 U.S. 89, 98 (2007) (quotation and citation omitted). A complaint that fails to 9 state the specific acts of the defendant that violated the plaintiff’s rights fails to meet the 10 notice requirements of Rule 8(a). See Hutchinson v. United States, 677 F.2d 1322, 1328 11 n.5 (9th Cir. 1982). Under section 1983, liability may be imposed on an individual 12 defendant only if the plaintiff can show that the defendant proximately caused the 13 deprivation of a federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 14 1988). 15 Here, Reed fails to allege any facts related to specific conduct as to Defendants 16 Buckel, Steadman, Martinez, Colon, Cates, Phiffer, Nickles, Arreola, and Moseley. He 17 simply does not reference any of them in the body of the Complaint, instead referencing 18 conduct by “RJD officials” or “KVSP officials.” Doc. No. 1 at 4, 5. And while Plaintiff 19 generally references violations of his First, Eighth and Fourteenth Amendments as well as 20 the Americans with Disabilities Act (Doc. No. 1 at 4–5), he fails to tie his factual 21 allegations to specific legal claims against individual defendants.3 22 Reed attaches over 40 pages of “exhibits” to his Complaint, which include medical 23 records, disciplinary hearing results, and administrative grievances and responses. See 24 generally, Doc. No. 1 at 7–49. But Plaintiff may not use exhibits as a substitute for 25 presenting factual allegations in the body of an amended complaint. See Thomas v. 26 27 3 Some of the named Defendants appear to be supervisory officials. There is no respondeat 28 1 Donovan, No. 19cv2181-JAH-RBB, 2020 WL 5106663, at *5 (S.D. Cal. Aug. 28, 2020) 2 (“[A] pro se litigant cannot simply dump a stack of exhibits on the court and expect the 3 court to sift through them to determine if some nugget is buried somewhere in that 4 mountain of papers, waiting to be unearthed and refined into a cognizable claim.’”) 5 (quoting Samtani v. City of Laredo, 274 F. Supp. 3d 695, at *2 (S.D. Texas 2017)); see also 6 Woods v. Health Care Specialty Servs., No. 22-CV-1055-MMA-AGS, 2022 WL 7 17419360, at *6 (S.D. Cal. Dec. 5, 2022) (noting a plaintiff may not “simply attach and 8 reference exhibits as a substitute for presenting factual allegations in the body of an 9 amended complaint”) 10 In sum, Plaintiff has failed to allege with at least some degree of particularity what 11 overt acts each defendant engaged in to support his claims. Jones v. Cmty. Redev. Agency, 12 733 F.2d 646, 649 (9th Cir. 1984). Therefore, the Complaint is DISMISSED without 13 prejudice and with leave to amend. See Fed. R. Civ. P. 8(a)(2); 28 U.S.C. 14 §§1915(e)(2)(B)(ii), 1915A(b)(1). 15 2. Improper Joinder and Venue 16 In addition, the Count notes the Complaint appears to include claims against multiple 17 defendants that are improperly joined and arose in different venues. Rule 20(a)(2) allows 18 joinder of defendants only if the following two requirements are met: (1) any right to relief 19 is asserted against them jointly, severally, or in the alternative with respect to or arising out 20 of the same transaction, occurrence, or series of transactions or occurrences; and (2) any 21 question of law or fact common to all defendants will arise in the action. See Fed. R. Civ. 22 P. 20(a)(2)(A)–(B); Rush v. Sport Chalet, Inc., 779 F.3d 973, 974 (9th Cir. 2015). 23 “Unrelated claims involving different defendants belong in different suits.” What v. 24 Honolulu Police Dep’t, 2014 WL 176610, at *4–5 (D. Haw. Jan. 13, 2014); see also 25 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“[M]ultiple claims against a single 26 party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim 27 B against Defendant 2.”). As such, claims involving different parties cannot be joined 28 together in one complaint if the facts giving rise to the claims were not factually related in 1 some way—that is, if there was not “similarity in the factual background.” Coughlin v. 2 Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). General allegations are not sufficient to 3 constitute similarity when the specifics are different. Id. 4 Here, the Complaint contains claims against several defendants which are not 5 properly joined under Rule 20(a) because they concern, separate, unrelated events. While 6 somewhat vague, Reed’s allegations stemming from events at RJD concern a Rule 7 Violation Report hearing and allegations of retaliation. See Doc. No. 1 at 4. The claims 8 concerning matters at KVSP relate to Reed’s communication evaluation/classification and 9 the purported harassment by KVSP staff. Id. at 5–6. Thus, these unrelated claims are 10 subject to severance or dismissal. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) 11 (federal joinder rules prohibit prisoner filing “buckshot complaint” that joins unrelated 12 claims against different defendants, e.g. “a suit complaining that A defrauded plaintiff, B 13 defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in 14 different transactions”). 15 Furthermore, while Plaintiff’s claims arising from events at RJD are proper in this 16 district, venue for any claims arising out of events at KVSP are not proper in this Court 17 and those claims may not be pursued in this action. See Costlow v. Weeks, 790 F.2d 1486, 18 1488 (9th Cir. 1986) (court may raise defective venue sua sponte); see also Davis v. Mason 19 County, 927 F.2d 1473, 1479 (9th Cir. 1991) (courts have broad discretion regarding 20 severance). While Plaintiff is granted an opportunity to file an amended complaint, he 21 should omit any claims for relief no arising out of events occurring RJD. If Plaintiff wishes 22 to pursue any claims arising at KVSP he may file a new action in the Eastern District of 23 California. 24 3. Plaintiff’s Claims 25 While the Complaint must be dismissed for failure to comply with Rule 8(a), the 26 court sets forth the legal standards that appear to apply to Plaintiff’s claims arising in RJD. 27 / / / 28 / / / 1 a. Retaliation 2 Plaintiff alleges “RJD officials” retaliated against him in violation of his First 3 Amendment rights. Doc. No. 1 at 4. “Within the prison context, a viable claim of First 4 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 5 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, 6 and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 7 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 8 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). 9 b. Due Process 10 Plaintiff appears to allege his right to due process was violated when he was found 11 guilty of a rule violation at RJD and as a result, lost good time credits and was transferred 12 to another prison. Doc. No. 1 at 4. The Due Process Clause of the Fourteenth Amendment 13 protects prisoners from being deprived of life, liberty, or property without due process of 14 law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Wilkinson v. Austin, 545 U.S. 209, 15 221 (2005). “A due process claim is cognizable only if there is a recognized liberty or 16 property interest at stake.” Coakley v. Murphy, 884 F.2d 1218, 1220 (9th Cir.1989). A 17 liberty interest may arise from the Constitution itself, or from an expectation or interest 18 created by state law or prison regulations. See Wilkinson, 545 U.S. at 221; Sandin v. 19 Conner, 515 U.S. 472, 484 (1995). With respect to liberty interests arising from state law, 20 the existence of a liberty interest created by prison regulations is determined by focusing 21 on the nature of the deprivation. Sandin, 515 U.S. at 481–84. Liberty interests created by 22 prison regulations are limited to freedom from restraint which “imposes atypical and 23 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. 24 at 484. 25 i. Loss of Good Time Credits 26 When a prisoner challenges the legality or duration of his custody, or raises a 27 constitutional challenge which could entitle him to an earlier release, his sole federal 28 remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. 1 Kenny, 907 F.2d 874 (9th Cir. 1990). Moreover, when seeking damages for an allegedly 2 unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the 3 conviction or sentence has been reversed on direct appeal, expunged by executive order, 4 declared invalid by a state tribunal authorized to make such determination, or called into 5 question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck 6 v. Humphrey, 512 U.S. 477, 487–88 (1994). “A claim for damages bearing that 7 relationship to a conviction or sentence that has not been so invalidated is not cognizable 8 under § 1983.” Id. at 488. This “favorable termination” requirement has been extended to 9 actions under § 1983 that, if successful, would imply the invalidity of prison administrative 10 decisions which result in a forfeiture of good-time credits. Edwards v. Balisok, 520 U.S. 11 641, 643–647 (1997). 12 ii. Transfer to Another Prison 13 Prisoners have no constitutionally-protected interest under the Due Process Clause 14 of the Fourteenth Amendment in avoiding being transferred to another prison. See Olim v. 15 Wakinekona, 461 U.S. 238 (1983); see Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) 16 (finding that due process procedural protections were not triggered where prisoner was 17 reassigned out of a vocational course and transferred to a different prison). “[T]he 18 Constitution itself does not give rise to a liberty interest in avoiding transfer to more 19 adverse conditions of confinement.” Wilkinson, 545 U.S. at 221. Plaintiff also has no 20 constitutional right to be housed at a particular prison facility, even one with more 21 favorable conditions of confinement. 22 c. Americans with Disabilities Act 23 Plaintiff appears to allege he was denied accommodations for his hearing 24 impairment. Doc. No. 1 at 4. To state an ADA claim, a plaintiff must allege: “(1) he is an 25 individual with a disability; (2) he is otherwise qualified to participate in or receive the 26 benefit of some public entity’s services, programs, or activities; (3) he was either excluded 27 from participation in or denied the benefits of the public entity’s services, programs, or 28 activities, or was otherwise discriminated against by the public entity; and (4) such 1 exclusion, denial of benefits, or discrimination was by reason of [his] disability.” Guinn v. 2 Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007). 3 d. Conspiracy 4 Finally, Plaintiff appears to contend “RJD officials” conspired against him. Doc. No. 5 1 at 4. “Conspiracy is not itself a constitutional tort under § 1983,” and it “does not enlarge 6 the nature of the claims asserted by the plaintiff, as there must always be an underlying 7 constitutional violation.” Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012); 8 Quiroz v. Horel, 85 F. Supp. 3d 1115, 1147 (N.D. Cal. 2015). Thus, to establish a 9 conspiracy to violate one’s rights under § 1983, a plaintiff must plead facts to plausibly 10 show: “(1) the existence of an express or implied agreement among the defendant officers 11 to deprive him of his constitutional rights, and (2) an actual deprivation of those rights 12 resulting from that agreement.” See Avalos v. Bacca, 596 F.3d 583, 592 (9th Cir. 2010). 13 4. Leave to Amend 14 Based on the above, the Court GRANTS Plaintiff leave to file an amended 15 complaint. In doing so, Plaintiff should write short, plain statements telling the Court: (1) 16 the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who 17 violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or 18 inaction of that Defendant is connected to the violation of Plaintiff’s constitutional right; 19 and (5) what specific injury Plaintiff suffered because of that Defendant’s conduct. See 20 Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976). There can be no liability under 42 21 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s 22 actions and the claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 23 1980). 24 In addition, if Plaintiff chooses to amend the complaint, he may join multiple claims 25 if they are all against a single defendant. Fed. R. Civ. P. 18(a). As discussed above, 26 however, unrelated claims against different defendants must be pursued in separate 27 lawsuits. See Fed. R. Civ. P. 20(a). Thus, Plaintiff must select what claims he wants to 28 / / / 1 pursue that meet the joinder requirements; if he asserts improperly joined claims in his 2 amended complaint, they will be dismissed. 3 CONCLUSION AND ORDER 4 For the above reasons, the Court: 5 (1) GRANTS Plaintiff’s March 14, 2024 Motion to Proceed IFP (Doc. No. 7), 6 and DENIES Plaintiff’s February 20, 2024 (Doc. No. 4) and April 1, 2024 (Doc. No. 9) 7 IFP motions as moot. 8 (2) ORDERS the Secretary of the CDCR, or his designee, to collect from 9 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 10 payments from the account in an amount equal to twenty percent (20%) of the preceding 11 month’s income and forward payments to the Clerk of the Court each time the amount in 12 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 13 MUST CLEARLY IDENTIFY THE NAME AND CASE NUMBER ASSIGNED TO 14 THIS ACTION. 15 (3) DENIES Plaintiff’s Request for Judicial Notice (Doc. No. 6) and Motion for 16 an Extension of Time (Doc. No. 8) as moot. 17 (4) DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 18 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by 19 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 20 (5) DISMISSES Plaintiff’s Complaint in its entirety for failing to comply with 21 the Federal Rule of Civil Procedure 8(a) and for failing to state a claim upon which relief 22 may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 23 (6) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 24 which to file an Amended Complaint which cures the deficiencies of pleading noted above. 25 The Amended Complaint must be complete by itself without reference to his original 26 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 27 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 28 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 1 || supersedes the original.”’); Lacey, 693 F.3d at 928 (noting that claims dismissed with leave 2 ||to amend which are not re-alleged in an amended pleading may be “considered waived if 3 repled.”). 4 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 5 || will enter a final Order dismissing this civil action based both on Plaintiffs failure to 6 ||comply with Rule 8(a), failure to state a claim upon which relief can be granted pursuant 7 ||to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure to prosecute in compliance 8 || with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th 9 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, 10 district court may convert the dismissal of the complaint into dismissal of the entire 11 |} action.’’). 12 IT IS SO ORDERED. 13 || Dated: May 14, 2024 14 Maik, Fu - ay U5 15 HON. MICHAEL M. ELLO 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 13