Rademaker v. Ganzekaufer

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 DAVID RADEMAKER, Case No.: 21-CV-1757 JLS (AHG) CDCR #P-01361, 13 ORDER DISMISSING FIRST Plaintiff, 14 AMENDED COMPLAINT WITH v. LEAVE TO AMEND PURSUANT 15 TO 28 U.S.C. § 1915A DR. GANZEKAUFER, Ph.D., CDCR 16 Psychologist; COVELLO, Warden; (ECF No. 12) 17 Q. JACKSON, Correctional Sergeant; P. GONZALEZ, Correctional Officer; 18 ZAMBRANO, Correctional Officer; and 19 STEADMAN, Associate Warden, 20 Defendants. 21 22 Plaintiff David Rademaker, a state prisoner incarcerated at Richard J. Donovan 23 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se with a First 24 Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983. ECF No. 12. Plaintiff alleges 25 an RJD psychologist, two RJD Wardens, and three RJD correctional officers violated his 26 First, Eighth, and Fourteenth Amendment rights when they (i) tampered with his legal mail 27 to frustrate his ability to litigate this case, and (ii) failed to protect him from assault by 28 other inmates in retaliation for complaining about the mail tampering. Id. at 14–23. 1 On April 25, 2022, the Court denied Plaintiff’s motions to proceed in forma pauperis 2 (“IFP”), for appointment of counsel and for a temporary restraining order and dismissed 3 this action without prejudice for failure to pay the civil filing fee. See ECF No. 14. Plaintiff 4 has now paid the filing fee. See ECF No. 15. 5 SCREENING PURSUANT TO 28 U.S.C. § 1915A 6 I. Standard of Review 7 The Court must conduct an initial review of Plaintiff’s FAC under 28 U.S.C. 8 § 1915A, which “mandates early review - ‘before docketing () or () as soon as practicable 9 after docketing’ - for all complaints ‘in which a prisoner seeks redress from a governmental 10 entity or officer or employee of a governmental entity.’” Chavez v. Robinson, 817 F.3d 11 1162, 1168 (9th Cir. 2016) (quoting 28 U.S.C. § 1915A(a)). “‘On review, the court shall 12 . . . dismiss the complaint, or any portion of the complaint,’ if it ‘(1) is frivolous, malicious, 13 or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from 14 a defendant who is immune from such relief.’” Olivas v. Nevada ex rel. Dep’t of Corr., 15 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 U.S.C. § 1915A(b)). 16 Screening pursuant to § 1915A “incorporates the familiar standard applied in the 17 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” 18 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “The Rule 12(b)(6) standard 19 requires a complaint to ‘contain sufficient factual matter, accepted as true, to state a claim 20 to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 21 (2009)). There must be more than “labels and conclusions” or “a formalistic recitation of 22 the elements of a cause of action,” to plausibly state a claim, because “[t]hreadbare recitals 23 of the elements of a cause of action, supported by mere conclusory statements, do not 24 suffice” to state a claim. Iqbal, 556 U.S. at 678. 25 “Under § 1915A, when determining whether a complaint states a claim, a court must 26 accept as true all allegations of material fact and must construe those facts in the light most 27 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). “When 28 there are well-pleaded factual allegations, a court should assume their veracity and then 1 determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 2 679. However, “where the well-pleaded facts do not permit the court to infer more than 3 the possibility of misconduct, the complaint has alleged - but it has not ‘show(n)’ - ‘that 4 the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). 5 “Section 1983 creates a private right of action against individuals who, acting under 6 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 7 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 8 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 9 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citation 10 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 11 right secured by the Constitution and laws of the United States, and (2) that the deprivation 12 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 13 698 F.3d 1128, 1138 (9th Cir. 2012). 14 II. Allegations in the FAC 15 Plaintiff describes himself as a disabled inmate participating in the Enhanced 16 Outpatient Program (“EOP”) at RJD and alleges that on July 16, 2019, he was told by two 17 fellow inmates that two other inmates were plotting to assault him. FAC at 14. He alleges 18 Defendant Dr. Ganzekaufer, Plaintiff’s primary mental healthcare professional, had 19 warned Defendant RJD Correctional Sergeant Jackson that there was a serious threat of 20 violence against several EOP inmates, with Plaintiff’s name used specifically. Id. at 8, 14. 21 Dr. Ganzekaufer gave such a warning to Plaintiff and about ten other inmates during a 22 therapy session on July 17, 2019, stating there was a “very serious situation” involving 23 Plaintiff, and Dr. Ganzekaufer told Plaintiff to be careful. Id. at 14. 24 Plaintiff asked Jackson later that day if he knew about the “ongoing plot to assault 25 him,” and Jackson told Plaintiff that “it’s not that serious - don’t worry about [it].” Id. at 26 14–15. When Plaintiff responded he was worried, Jackson replied: “I am hella busy here 27 - you either go to the hole or take your ass back to the unit - it’s your decision.” Id. at 15. 28 / / / 1 The next day, on July 18, 2019, Plaintiff was stabbed in the back over 11 times with 2 a nine-inch shank by an inmate named Goofy while another inmate named Montalvo stated: 3 “Die you fucking Jew!!” Id. After Plaintiff was stabbed, Defendant RJD Correctional 4 Officer Gonzalez placed Plaintiff in handcuffs and escorted him to the medical department 5 for treatment. Id. Plaintiff alleges Gonzalez had a smirk on his face when he told Plaintiff, 6 “You had your chance to leave,” and then told a nurse Plaintiff had stabbed himself in the 7 back. Id. 8 On July 21, 2019, Jackson informed Plaintiff he was being placed on suicide watch 9 in what Plaintiff alleges was an attempt to silence and discredit him. Id. Plaintiff alleges 10 that he was placed naked in a cell with only a smock and told he was suicidal because he 11 had stabbed himself in the back 11 times. Id. A few minutes later, Jackson gave Plaintiff 12 a copy of a CDCR 114-d lock up order and told Plaintiff: “I’m surprised you were never 13 stabbed sooner . . . You should have left.” Id. 14 Plaintiff alleges that the motive for Defendants’ deliberate indifference to his risk of 15 assault was Plaintiff’s civil lawsuit, Case No. 18-CV-1831 WQH (AGS) (S.D. Cal.), 16 involving tampering with Plaintiff’s prison legal mail. FAC at 16. Plaintiff lists eight 17 instances of mail tampering from October 2017 to June 2021 by psychologists at RJD. Id. 18 On September 7, 2021, Plaintiff had an outgoing legal mail letter he mailed a week earlier 19 returned to him opened and shredded, with documents missing. Id. Plaintiff filed a staff 20 misconduct complaint in which he stated he suspected Defendant RJD Correctional Officer 21 Zambrano of being the one who tampered with that piece of mail. Id. at 15–16. On or 22 about September 9, 2021, Plaintiff observed Zambrano being verbally reprimanded about 23 “something,” and he believes Zambrano had been caught destroying and tampering with 24 inmate mail. Id. at 16–17. Plaintiff claims that the mail tampering has “been adversely 25 affecting the plaintiff’s ability to effectively prosecute this case,” id. at 17, and he alleges 26 that RJD Associate Warden Steadman knew of the mail tampering and allowed it to 27 continue, id. at 23. 28 / / / 1 Plaintiff alleges Defendant RJD Warden Covello allowed two incompatible groups 2 of inmates, “STG gang inmates” and “sensitive need inmates-gang drop outs in need of 3 EOP placement,” to be housed together in Facility A, “despite over 33 attacks promulgated 4 discriminately against the E.O.P inmates.” Id. at 17. He alleges Covello knew or should 5 have known of the danger that Plaintiff would be assaulted but “did absolutely nothing to 6 circumvent the known intentions of the STG gang affiliates and members” to assault EOP 7 inmates and failed to remove them from the yard. Id. 8 III. Discussion 9 Under a liberal construction of the FAC, Plaintiff claims Defendants Correctional 10 Officer Zambrano and Associate Warden Steadman violated his First Amendment right of 11 access to the courts by tampering with his legal mail and failing to stop the tampering, 12 respectively. He claims Defendants Dr. Ganzekaufer, Warden Covello, and Correctional 13 Officers Jackson and Gonzalez failed to protect him from assault in violation of the Eighth 14 Amendment and did so in retaliation for his complaints about mail tampering. 15 The Court addresses the sufficiency of each of these claims in turn. 16 A. Denial of Access to the Courts 17 Plaintiff claims Defendants Zambrano and Steadman denied Plaintiff access to the 18 courts because Plaintiff suspects Zambrano tampered with his legal mail and he alleges 19 Steadman failed in his duty to stop the tampering, which has “been adversely affecting the 20 plaintiff’s ability to effectively prosecute this case, because every time he mailed legal mail 21 - it was being tampered with.” FAC at 17. Plaintiff also alleges he was placed on suicide 22 watch to silence and discredit him. Id. at 15. 23 To state a claim for denial of access to the courts, Plaintiff must allege “‘actual 24 injury’ - that is, ‘actual prejudice with respect to contemplated or existing litigation, such 25 as the inability to meet a filing deadline or to present a claim.’” Lewis v. Casey, 518 U.S. 26 343, 348–49 (1996); see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining 27 actual injury as an “inability to file a complaint or defend against a charge”). The nature 28 / / / 1 and description of the underlying claim must be set forth in a complaint “as if it were being 2 independently pursued.” Christopher v. Harbury, 536 U.S. 403, 417 (2002). 3 Plaintiff’s FAC fails to plausibly allege an “actual injury” because his allegation that 4 the tampering with his legal mail has impeded his ability to prosecute this case or his other 5 civil case is entirely conclusory and does not identify a non-frivolous claim Plaintiff has 6 lost or has been frustrated from bringing. See Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th 7 Cir. 2008) (“Failure to show that a ‘non-frivolous legal claim had been frustrated’ is fatal” 8 to an access to courts claim.) (quoting Lewis, 518 U.S. at 353 & n.4); see also Iqbal, 556 9 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice” to state a 42 U.S.C. § 1983 claim.). If Plaintiff 11 wishes to proceed with such a claim, he must set forth facts plausibly alleging, in a non- 12 conclusory manner, that he has suffered an “actual injury” as a result of the tampering with 13 his legal mail or his placement on suicide watch. See Harbury, 536 U.S. at 417 (holding 14 that the nature and description of the underlying non-frivolous claim that was lost or 15 frustrated must be set forth in the complaint “as if it were being independently pursued”). 16 B. Violations of the Eighth and Fourteenth Amendments 17 Plaintiff also claims he was subjected to cruel and unusual punishment in violation 18 of the Eighth Amendment by Defendants Dr. Ganzekaufer, Covello, Jackson, and Gonzalez 19 by their deliberate indifference to a known risk of assault by other inmates. 20 The prohibition on the infliction of cruel and unusual punishment embodied in the 21 Eighth Amendment, which is applicable to the states through the Fourteenth Amendment, 22 imposes a duty on prison officials to “‘take reasonable measures to guarantee the safety of 23 the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 24 468 U.S. 517, 526–27 (1984)). “[A] prison official violates the Eighth Amendment only 25 when two requirements are met. First, the deprivation alleged must be, objectively, 26 ‘sufficiently serious.’” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 27 298 (1991)). “The second requirement follows from the principle that ‘only the 28 unnecessary and wanton infliction of pain implicates the Eighth Amendment’” and requires 1 that “a prison official must have a ‘sufficiently culpable state of mind’”—that is, “one of 2 ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 297, 3 302–03). The prison official must “know[] of and disregard[] an excessive risk to inmate 4 health or safety; the official must both be aware of facts from which the inference could be 5 drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 6 Id. at 837. 7 Plaintiff alleges that Dr. Ganzekaufer provided a grossly negligent level of care by 8 failing to immediately, reasonably, and comprehensively prevent, discourage, or obstruct 9 an imminent threat to Plaintiff by alerting custody staff. FAC at 18. However, Plaintiff 10 alleges that Dr. Ganzekaufer told him and at least ten other inmates of a threat to Plaintiff 11 and other EOP inmates before Plaintiff was stabbed, and that Plaintiff heard Dr. 12 Ganzekaufer alerting a member of the custody staff, Jackson, of that threat. Id. at 14. A 13 prison official “who actually knew of a substantial risk to inmate health or safety may be 14 found free of liability if they responded reasonably to the risk, even if the harm ultimately 15 was not averted.” Farmer, 511 U.S. at 844. Plaintiff does not plausibly allege what more 16 Dr. Ganzekaufer could or should have done to fulfill his requirement to “take reasonable 17 measures to guarantee the safety of the inmates” other than to alert custody staff and the 18 inmates who he perceived to be at risk, as he is alleged to have done. Farmer, 511 U.S. at 19 832; Rizzo v. Goode, 423 U.S. 362, 371–72 (1976) (a plaintiff must prove an affirmative 20 link between an injury and a defendant’s conduct). 21 Plaintiff alleges that after Dr. Ganzekaufer told Jackson of the threat, Plaintiff asked 22 Jackson if he knew about the “ongoing plot to assault him,” and Jackson told Plaintiff, “it’s 23 not that serious - don’t worry about [it].” FAC at 14–15. When Plaintiff responded that 24 he was worried, Jackson replied: “I am hella busy here - you either go to the hole or take 25 your ass back to the unit - it’s your decision.” Id. Thus, Plaintiff alleges Jackson knew of 26 the threat but did not consider it serious, and that he advised Plaintiff that his options were 27 to return to his cell and take his chances or seek protective custody in administrative 28 segregation. 1 To plausibly allege deliberate indifference, “the prison official must not only ‘be 2 aware of the facts from which the inference could be drawn that a substantial risk of serious 3 harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d 4 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837). Plaintiff does not allege 5 Jackson drew an inference of a substantial risk of danger to Plaintiff before the assault; 6 indeed, he alleges the opposite—that Jackson knew of the threat and did not consider it to 7 be serious. However, Plaintiff also alleges that after the assault Jackson told him, “I’m 8 surprised you were never stabbed sooner . . . You should have left.” FAC at 15. A 9 defendant can be found to be aware of a risk by the fact that the risk was obvious. See 10 Farmer, 511 U.S. at 842 (noting that “a factfinder may conclude that a prison official knew 11 of a substantial risk from the very fact that the risk was obvious”); Berg v. Kincheloe, 794 12 F.2d 457, 460–61 (9th Cir. 1986) (allegation that guard ignored obvious risk to prisoner’s 13 safety stated a prima facie cause of action under the Eighth and Fourteenth Amendments). 14 However, even assuming Plaintiff plausibly has alleged Jackson knew of a serious risk to 15 Plaintiff’s safety before the assault, Plaintiff has not plausibly alleged that Jackson 16 responded unreasonably by informing Plaintiff of his option for protective custody. 17 Farmer, 511 U.S. at 844 (A prison official “who actually knew of a substantial risk to 18 inmate health or safety may be found free of liability if [he] responded reasonably to the 19 risk, even if the harm ultimately was not averted.”); Rizzo, 423 U.S. at 371–72 (holding 20 that a plaintiff must prove an affirmative link between an injury and a defendant’s conduct). 21 Plaintiff alleges Defendant RJD Correctional Officer Gonzalez escorted Plaintiff to 22 the medical department for treatment after he was attacked. FAC at 15. Gonzalez allegedly 23 smirked when he told Plaintiff: “You had your chance to leave,” and Gonzalez allegedly 24 told a nurse that Plaintiff had stabbed himself in the back. Id. These allegations do not 25 plausibly state a claim against Gonzalez. See Oltarzewski v. Ruggiero, 830 F.3d 136, 139 26 (9th Cir. 1987) (holding that verbal harassment or abuse alone does not state a § 1983 27 claim); Rizzo, 423 U.S. at 371–72 (holding that a plaintiff must prove an affirmative link 28 between an injury and a defendant’s conduct). 1 Plaintiff alleges Defendant Warden Covello allowed two incompatible groups of 2 inmates, “STG gang inmates” and “sensitive need inmates-gang drop outs in need of EOP 3 placement,” to be housed together in Facility A, “despite over 33 attacks promulgated 4 discriminately against the E.O.P. inmates” that had “increased in both severity/intensity in 5 2021.” FAC at 17. He alleges Covello knew or should have known of a danger that 6 Plaintiff would be one of the EOP inmates assaulted yet “did absolutely nothing to 7 circumvent the known intentions of the STG gang affiliates and members to ‘stab’ and 8 ‘assault’ all E.O.P inmates and ‘remove them’ from the yard.” Id. 9 “A supervisory official may be held liable under § 1983 only if ‘there exists either 10 (1) his or her personal involvement in the constitutional violation, or (2) a sufficient causal 11 connection between the supervisor’s wrongful conduct and the constitutional violation.’” 12 Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 13 1202, 1207 (9th Cir. 2011)). Plaintiff must allege facts showing that a supervisory 14 defendant (i) personally participated in the alleged violation of his constitutional rights, (ii) 15 knew of the violation and failed to prevent it, or (iii) “implement[ed] a policy so deficient 16 that the policy itself is a repudiation of constitutional rights and is the moving force of the 17 constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). 18 Plaintiff’s allegations that Covello is responsible for Plaintiff’s assault because 19 Covello knew that assaults between two groups of inmates had taken place in Facility A 20 yard and therefore should have removed one of the groups from the yard lacks specific 21 factual allegations that Covello was actually aware of a substantial risk of assault to 22 Plaintiff or that removing one group from the Facility A yard was the only reasonable 23 measure available to avoid such assaults, particularly in light of Plaintiff’s allegation that 24 he was assaulted the day after he declined protective custody. In order to state a claim 25 against Covello, Plaintiff must set forth specific factual allegations sufficient for the Court 26 to draw a reasonable conclusion that Covello knew Plaintiff faced a substantial risk of 27 assault and failed to take reasonable measures to avoid it or implemented a policy that was 28 the moving force of the alleged constitutional violation. See Iqbal, 556 U.S. at 678 1 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 2 statements, do not suffice” to state a 42 U.S.C. § 1983 claim). 3 C. Retaliation 4 Plaintiff claims Defendants failed to protect him from assault in retaliation for 5 Plaintiff’s complaints about mail tampering. FAC at 16. “Within the prison context, a 6 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion 7 that a state actor took some adverse action against an inmate (2) because of (3) that 8 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 9 First Amendment rights, and (5) the action did not reasonably advance a legitimate 10 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (2005). The adverse action 11 need not be an independent constitutional violation. Gomez v. Vernon, 255 F.3d 1118, 12 1127 (9th Cir. 2001) (“[A] retaliation claim may assert an injury no more tangible than a 13 chilling effect on First Amendment rights.”). However, a plaintiff must allege a retaliatory 14 motive—that is, a causal connection between the adverse action and his protected conduct. 15 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). 16 Here, Plaintiff has not plausibly alleged a retaliatory motive because the allegation 17 in the FAC that Defendants were motivated by his complaints regarding mail tampering is 18 entirely conclusory. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a 19 cause of action, supported by mere conclusory statements, do not suffice” to state a 42 20 U.S.C. § 1983 claim.); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (concluding that, 21 in the absence of factual allegations to the contrary, it would be “sheer speculation” to 22 assume that prison officials retaliated on the basis of an inmate’s First Amendment 23 activity). Although the timing of Defendants’ actions may “be considered as circumstantial 24 evidence of retaliatory intent,” timing alone is generally not enough to support an inference 25 or retaliatory intent. Id. Plaintiff must allege facts from which a plausible inference can 26 be drawn that Defendants took adverse actions against him in retaliation for his protected 27 activity. 28 / / / 1 D. Conclusion 2 In light of the foregoing, Plaintiff’s FAC is dismissed for failure to state a claim 3 upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1); Wilhelm, 680 F.3d at 4 1121. In light of his pro se status, however, the Court grants Plaintiff leave to amend to 5 attempt to address the pleading deficiencies identified in this Order. See Rosati v. Igbinoso, 6 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint 7 without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely 8 clear that the deficiencies of the complaint could not be cured by amendment.’”) (quoting 9 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 10 CONCLUSION 11 For the reasons provided above, the Court DISMISSES Plaintiff’s First Amended 12 Complaint (ECF No. 12) for failing to state a claim upon which relief may be granted 13 pursuant to 28 U.S.C. § 1915A(b) and GRANTS Plaintiff forty-five (45) days’ leave from 14 the date of this Order in which to file an Amended Complaint curing all the deficiencies of 15 pleading noted above. Plaintiff’s Amended Complaint must be complete by itself without 16 reference to his original Complaint and/or First Amended Complaint. Defendants not 17 named and any claims not realleged in the Amended Complaint will be considered waived. 18 See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 19 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 20 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave 21 to amend that are not realleged in an amended pleading may be “considered waived”). 22 If Plaintiff fails to timely file an Amended Complaint, the Court will enter a final 23 Order dismissing this civil action based both on Plaintiff’s failure to state a claim upon 24 which relief can be granted pursuant to 28 U.S.C. § 1915A(b) and his failure to prosecute 25 in compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 26 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix 27 / / / 28 / / / | || his complaint, a district court may convert the dismissal of the complaint into dismissal of 2 || the entire action.”). 3 IT IS SO ORDERED. 4 Dated: September 28, 2022 Mee tt \ f Ht . 5 on. Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 ee