Kenneth W. Mills v. State of California

[6] UNITED STATES DISTRICT COURT [7] CENTRAL DISTRICT OF CALIFORNIA [9] 10 KENNETH W. MILLS, Case No. CV 20-2846-CBM (KK) 11 Plaintiff, 12 v. ORDER DISMISSING FIRST AMENDED COMPLAINT WITH 13 STATE OF CALIFORNIA, LEAVE TO AMEND 14 Defendants. [16] 17 I. 18 INTRODUCTION 19 Plaintiff Kenneth W. Mills (“Plaintiff”), proceeding pro se and in forma 20 pauperis, filed a First Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983 21 (“Section 1983”), Title II of the Americans with Disabilities Act (“ADA”), and 22 Section 504 of the Rehabilitation Act. For the reasons discussed below, the Court 23 dismisses the FAC with leave to amend. 24 /// 25 /// 26 /// 27 /// 1 II. 2 BACKGROUND 3 On March 16, 2020, Plaintiff, who is currently an inmate at California State 4 Prison – Los Angeles County in Lancaster, California (“CSP-LAC”), constructively 5 filed1 a Complaint naming the State of California as the sole defendant. ECF Docket 6 No. (“Dkt.”) 1 at 1-2, 6. Plaintiff set forth the following three claims for relief 7 pursuant to Section 1983, the ADA, and the Rehabilitation Act. Id. at 3-6 . First, 8 Plaintiff appeared to allege he was denied a “computation review hearing.” Id. at 3 . 9 Second, Plaintiff appeared to allege (1) moving him from a prison in Northern 10 California to CSP-LAC is causing “pain and suffering” because the move has 11 precluded family visits in violation of the Fifth, Eighth, and Fourteenth Amendments; 12 and (2) he is disabled but his mattress does not comply with ADA requirements and 13 he is “made to lie on [a] bed w[ith] no springs.” Id. at 3-4 . Third, Plaintiff alleged 14 correctional officers at CSP-LAC “go[] through [the] mail bag and throw[] away some 15 mail” such that Plaintiff’s mail “does not reach [his] family.” Id. at 5 . As a result, 16 Plaintiff requested $13,000,000 and “to be released from State of California Prison.” [17] Id. at 6 . 18 On April 9, 2020, the Court dismissed the Complaint with leave to amend for 19 failure to state a claim for relief under the ADA or Rehabilitation Act and because the 20 Eleventh Amendment bars all Section 1983 claims against the State of California. 21 Dkt. 8. 22 On April 14, 2020, Plaintiff constructively filed the FAC. Dkt. 11. In addition, 23 from April 8, 2020 through May 3, 2020, Plaintiff filed numerous documents seeking 24 to “add” attachments to his case.2 See dkts. 9, 10, 12, 13, 14, 15, 16, 18, 19. [25] 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading 26 to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768 , 770 n.1 (9th Cir. 2010) (citation omitted); 27 Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). 1 In the FAC, Plaintiff states his Fifth, Eighth, and Fourteenth Amendment 2 rights and the Rehabilitation Act have been violated; however, it is not clear whether 3 the FAC is suing the California Department of Corrections and Rehabilitation 4 (“CDCR”), the State of California, or both. See dkt. 11 at 1, 3, 5, 6. It is also unclear 5 what relief Plaintiff seeks beyond “tak[ing the] State of California to Court” and 6 having “immunity strip[p]ed.” Id. at 6. In one of the supplemental documents, 7 Plaintiff alleges he does not have an ADA mattress, is “made to sleep on ‘slab of 8 steel,’” and “cold air is blown in cell all night all because of lawsuit.” Dkt. 13 at 1. In 9 two of the other supplemental documents, Plaintiff explains he is disabled, uses a 10 wheelchair for mobility, and was transferred from a prison in Northern California to 11 Southern California, approximately eight hours from his family. Dkt. 16 at 2; Dkt. 19 12 at 10. 13 III. 14 STANDARD OF REVIEW 15 Where a plaintiff is a prisoner or proceeding in forma pauperis, a court must 16 screen the complaint under 28 U.S.C. §§ 1915 and 1915A and is required to dismiss 17 the case at any time if it concludes the action is frivolous or malicious, fails to state a 18 claim on which relief may be granted, or seeks monetary relief against a defendant 19 who is immune from such relief. 28 U.S.C. §§ 1915 (e)(2)(B), 1915A; see Barren v. 20 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 21 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 22 “short and plain statement of the claim showing that the pleader is entitled to relief.” 23 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for 24 screening purposes, a court applies the same pleading standard as it would when 25 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 26 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 27 A complaint may be dismissed for failure to state a claim “where there is no 1 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 2 considering whether a complaint states a claim, a court must accept as true all of the 3 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 4 2011). However, the court need not accept as true “allegations that are merely 5 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 6 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 7 need not include detailed factual allegations, it “must contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 9 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662 , 10 678, 129 S. Ct. 1937 , 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it 11 “allows the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” Id. The complaint “must contain sufficient allegations of 13 underlying facts to give fair notice and to enable the opposing party to defend itself 14 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 15 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 16 however inartfully pleaded, must be held to less stringent standards than formal 17 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). 18 However, liberal construction should only be afforded to “a plaintiff’s factual 19 allegations,” Neitzke v. Williams, 490 U.S. 319 , 330 n.9, 109 S. Ct. 1827 , 104 L. Ed. 2d 20 339 (1989), and a court need not accept as true “unreasonable inferences or assume 21 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 22 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 23 If a court finds the complaint should be dismissed for failure to state a claim, 24 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, [25] 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it 26 appears possible the defects in the complaint could be corrected, especially if the 27 plaintiff is pro se. Id. at 1130-31 ; see also Cato v. United States, 70 F.3d 1103 , 1106 1 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 2 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 3 IV. 4 DISCUSSION 5 A. THE FAC FAILS TO COMPLY WITH RULE 8 6 1. Applicable Law 7 Rule 8 requires a complaint contain “a short and plain statement of the claim 8 showing that the pleader is entitled to relief” and “a demand for the relief sought.” 9 Fed. R. Civ. P. 8. Rule 8(a) “requires a ‘showing,’ rather than a blanket assertion, of 10 entitlement to relief.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 555 n.3, 127 S. 11 Ct. 1955, 167 L. Ed. 2d 929 (2007). “[T]he ‘short and plain statement’ [required by 12 Rule 8] must provide the defendant with ‘fair notice of what the plaintiff’s claim is 13 and the grounds upon which it rests.’” Dura Pharms., Inc. v. Broudo, 544 U.S. 336 , 14 346, 125 S. Ct. 1627 , 161 L. Ed. 2d 577 (2005). “Experience teaches that, unless cases 15 are pled clearly and precisely, issues are not joined, discovery is not controlled, the 16 trial court’s docket becomes unmanageable, the litigants suffer, and society loses 17 confidence in the court’s ability to administer justice.” Bautista v. L.A. Cty., 216 F.3d 18 837, 841 (9th Cir. 2000). 19 Rule 8 “has been held to be violated by a pleading that was needlessly long, or a 20 complaint that was highly repetitious, or confused, or consisted of incomprehensible 21 rambling.” Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 22 2011) (citation and internal quotation marks omitted); see McHenry v. Renne, 84 F.3d 23 1172, 1177 (9th Cir. 1996) (affirming the dismissal of a complaint under Rule 8 for 24 being “argumentative, prolix, replete with redundancy, and largely irrelevant”). A 25 complaint may be dismissed for violating Rule 8 even if “a few possible claims” can 26 be identified and the complaint is not “wholly without merit.” Id. at 1179 (stating 27 Rule 8’s requirements apply “to good claims as well as bad”); see also Cafasso, 637 1 Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1130-31 (9th Cir. 2008) 2 (same). 3 Additionally, a complaint must contain “a demand for relief sought which may 4 include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a)(3). 5 2. Analysis 6 Here, the FAC prevents the Court, and any defendants, from deciphering the 7 factual and legal basis for each defendant’s alleged liability. See Clayburn v. Schirmer, [8] 2008 WL 564958 , at *4 (E.D. Cal. Feb. 28, 2008) (“The court (and any defendant) 9 should be able to read and understand Plaintiff’s pleading within minutes.” (citing 10 McHenry, 84 F.3d at 1177)). Although Plaintiff attaches numerous supporting 11 documents, the FAC itself leaves the Court with a barebones statement that his rights 12 have been violated and the Court cannot determine who the defendants are, what 13 specific law(s) each defendant is alleged to have violated, or what specific actions each 14 defendant took. See id. 15 While Plaintiff may be alluding to claims of retaliation, deliberate indifference, 16 and ADA violations, he fails to provide any specific facts regarding what alleged 17 actions taken by each defendant resulted in a violation of these rights. Absent specific 18 allegations identifying what actions each defendant took against Plaintiff and how 19 such actions violated Plaintiff’s rights, the FAC fails to provide any defendant with 20 fair notice of Plaintiff’s claims or the grounds upon which they rest. Ultimately, 21 unclear pleadings, like the FAC, that “leav[e] it to the Court to figure out what the full 22 array of [Plaintiff’s] claims is and upon what federal law, and upon what facts, each 23 claim is based,” are subject to dismissal. Little v. Baca, No. CV 13-0373-PA (RZ), [24] 2013 WL 436018 , at *3 (C.D. Cal. Feb. 1, 2013). Accordingly, Plaintiff’s FAC does 25 not set forth a “short and plain statement” of his claims as required by Rule 8. Dura 26 Pharms., Inc., 544 U.S. at 346 . [27] 1 Additionally, the page of the FAC titled “request for relief” fails to specify what 2 relief Plaintiff seeks. Hence, the FAC does not include “a demand for relief sought”, 3 as required by Federal Rule of Civil Procedure 8(a)(3). 4 As such, the FAC is subject to dismissal for failure to comply with Rule 8. See 5 McHenry, 84 F.3d at 1177. If Plaintiff chooses to file an amended complaint, he must 6 (1) identify the legal and factual basis for each defendants’ alleged liability, and (2) 7 identify his demand for relief. In addition, while Plaintiff may attach exhibits, the 8 statement of his claims, factual allegations against each defendant, and demand for 9 relief must all be included in the body of the amended complaint form. 10 B. THE FAC FAILS TO STATE A CLAIM FOR RELIEF UNDER THE 11 ADA OR REHABILITATION ACT 12 1. Applicable Law 13 Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et 14 seq., and Section 504 of the Rehabilitation Act of 1973, as amended and codified in 29 15 U.S.C. § 794 (a), prohibit discrimination on the basis of disability in the programs, 16 services or activities of a public entity. Title II of the ADA and Section 504 of the 17 Rehabilitation Act apply to inmates within state prisons. See Pennsylvania Dept. of 18 Corrections v. Yeskey, 524 U.S. 206, 210 , 118 S. Ct. 1952 , 141 L. Ed. 2d 215 (1998); 19 see also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997). However, Title II 20 of the ADA and Section 504 of the Rehabilitation Act only afford causes of action 21 against public entities, and do not encompass public officials sued in their individual 22 capacities.3 29 U.S.C. §§ 794 , 794a; 42 U.S.C. § 12132 ; Miranda B. V. Kitzhaber, 328 23 F.3d 1181, 1187 (9th Cir. 2003); Roberts v. California Dep’t of Corr. & Rehab., No. [25] 3 In the Ninth Circuit, state agencies are not entitled to Eleventh Amendment sovereign immunity from suit under Title II of the ADA. Phiffer v. Columbia River [26] Correctional Institute, 384 F.3d 791, 792 (9th Cir. 2004) (per curiam). As to the Rehabilitation Act, the Ninth Circuit has held that “[b]ecause California accepts [27] federal funds under the Rehabilitation Act, California has waived any immunity under 1 EDCV 16-1929 CJC (JC), 2017 WL 3635175 , at *9 (C.D. Cal. Aug. 22, 2017). The 2 proper defendant for an ADA claim is the public entity responsible for the alleged 3 discrimination. Conklin v. Espinda, No. CV 19-00087 JMS (RT), 2019 WL 7116351 , 4 at *14 (D. Haw. Dec. 23, 2019) (citing Everson v. Leis, 556 F.3d 484 , 501 & n.7 (6th 5 Cir. 2009) (collecting cases)). 6 To state a claim for violation of Title II of the ADA or Section 504 of the 7 Rehabilitation Act, a plaintiff must show that (1) he is a qualified individual with a 8 disability; (2) he is otherwise qualified to participate in or receive the benefit of some 9 public entity’s services, programs or activities; (3) he was excluded or otherwise 10 discriminated against by the public entity; and (4) the exclusion or discrimination 11 occurred solely by reason of his disability. Martin v. Roche, No. EDCV 08-0827-SJO 12 (JTL), 2009 WL 32635 , at *11 (C.D. Cal. Jan. 5, 2009). In addition, to state a 13 Rehabilitation Act claim, a plaintiff must also allege the public entity receives federal 14 financial assistance. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002), cert. 15 denied, 537 U.S. 1105 (2003). 16 To recover monetary damages under the ADA, Plaintiff must show intentional 17 discrimination on the part of state officials. Duvall v. County of Kitsap, 260 F.3d 18 1124, 1138 (9th Cir. 2001). The test for intentional discrimination is deliberate 19 indifference. Id. A defendant acts with deliberate indifference only if (1) the 20 defendant has knowledge from which an inference could be drawn that a harm to a 21 federally protected right is substantially likely, and (2) the defendant actually draws 22 that inference and fails to act upon the likelihood. See id. at 1138-39 . 23 2. Analysis 24 As an initial matter, Plaintiff fails to allege facts showing intentional 25 discrimination. Plaintiff cannot, therefore, recover monetary damages under the 26 ADA or Rehabilitation Act. See Duvall, 260 F.3d at 1138. In addition, the State of 27 California is not a proper defendant for Plaintiff’s ADA and Rehabilitation Act claims. 1 Mar. 3, 2020 ) (dismissing claims against the State of California because “the proper 2 defendant for an ADA action is the institution in which Plaintiff is incarcerated”). 3 Moreover, Plaintiff fails to allege he was discriminated against solely by reason 4 of his disability. Plaintiff alleges he is “disabled” and uses a wheelchair for mobility. 5 See, e.g., dkt. 19 at 10. Plaintiff, however, fails to explain how the denial of visits 6 from his family is related to his use of a wheelchair. In fact, Plaintiff appears to allege 7 it is the distance between his family and his new place of incarceration in Lancaster, 8 California that has resulted in his family not being able to visit him. Id. Plaintiff also 9 alleges he is “made to sleep on ‘slab of steel,’” and “cold air is blown in cell all night 10 all because of lawsuit.” Dkt. 13 at 1. Plaintiff, however, fails to explain how the 11 disability requiring him to use a wheelchair for mobility entitles him to an ADA 12 mattress. 13 Finally, to the extent Plaintiff seeks to sue for alleged inadequate healthcare 14 under the ADA or Rehabilitation Act, such a claim fails as a matter of law. See Gordy 15 v. Agamyan, No. CV 18-2590-GW (JPR), 2018 WL 3129779 , at *4 (C.D. Cal. June 22, 16 2018); Figueira ex rel. Castillo v. Cnty. of Sutter, No. 2:15-cv-00500-KJM (AC), 2015 17 WL 6449151 , at *8-9 (E.D. Cal. Oct. 23, 2015) (dismissing ADA/Rehabilitation Act 18 claims arising from suicide of mentally ill inmate following allegedly inadequate health 19 care in custody; noting that “[t]he defendants cannot have violated the ADA by failing 20 to attend to the medical needs of disabled prisoners”). 21 Hence, Plaintiff’s ADA and Rehabilitation Act claims are subject to dismissal. 22 C. THE ELEVENTH AMENDMENT BARS ALL SECTION 1983 23 CLAIMS AGAINST THE STATE OF CALIFORNIA AND CDCR 24 1. Applicable Law 25 “The Eleventh Amendment prohibits federal courts from hearing suits brought 26 against an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 27 F.2d 1050 , 1053 (9th Cir. 1991) (citing Pennhurst State School & Hosp. v. Halderman, 1 includes “suits naming state agencies and departments as defendants,” and it applies 2 whether a plaintiff “seek[s] damages or injunctive relief.” Id.; Pennhurst State School, 3 465 U.S. at 102. “[A]n entity with Eleventh Amendment immunity is not a ‘person’ 4 within the meaning of § 1983.” Howlett By & Through Howlett v. Rose, 496 U.S. 5 356, 365 , 110 S. Ct. 2430 , 110 L. Ed. 2d 332 (1990). 6 2. Analysis 7 Here, to the extent Plaintiff seeks to sue the State of California and/or CDCR 8 pursuant to Section 1983, such claims are barred because the State of California and 9 CDCR are protected by the Eleventh Amendment. See Brown v. California Dep’t of 10 Corr., 554 F.3d 747, 752 (9th Cir. 2009) (affirming district court holding that CDCR is 11 entitled to Eleventh Amendment immunity). Thus, Plaintiff’s Section 1983 claims 12 against the State of California and/or CDCR are subject to dismissal.4 13 V. 14 LEAVE TO FILE A SECOND AMENDED COMPLAINT 15 For the foregoing reasons, the FAC is subject to dismissal. As the Court is 16 unable to determine whether amendment would be futile, leave to amend is granted.5 [17] 4 Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant be 18 named in the caption of the complaint. A complaint is subject to dismissal if “one cannot determine from the complaint who is being sued, [and] for what relief . . . .” 19 McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). In the caption of the FAC, Plaintiff lists the State of California as the sole defendant. See dkt. 11. Later in the 20 body of the FAC, however, Plaintiff identifies CDCR as the sole defendant. Id. at 3. Then, in the request for relief, Plaintiff seeks to have the State of California’s 21 Eleventh Amendment immunity “strip[p]ed.” Id. at 6. As a result of these inconsistencies, it is unclear who Plaintiff is suing. In an amended complaint, Plaintiff 22 should name each defendant who caused his alleged injuries. 5 Plaintiff is cautioned a basic lawsuit is a single claim against a single defendant. See [23] Muric-Dorado v. LVMPD, No. 2:18-CV-01184-JCM (GWF), 2018 WL 3350387 , at *2 (D. Nev. July 9, 2018). Federal Rule of Civil Procedure 18(a) allows a plaintiff to [24] add multiple claims to the lawsuit when they are against the same defendant. Federal Rule of Civil Procedure 20(a)(2) allows a plaintiff to join multiple defendants to a [25] lawsuit where the right to relief arises out of the same “transaction, occurrence, or series of transactions” and “any question of law or fact common to all defendants will [26] arise in the action.” Fed. R. Civ. P. 20(a)(2). 27 In contrast to the joinder of claims and defendants permitted by Rule 18(a) and 20(a)(2), unrelated claims against different defendants must be brought in separate 1 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 2 advised that the Court’s determination herein that the allegations in the FAC are 3 insufficient to state a particular claim should not be seen as dispositive of that claim. 4 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 5 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 6 face, Plaintiff is not required to omit any claim in order to pursue this action. 7 However, if Plaintiff asserts a claim in his Second Amended Complaint that has been 8 found to be deficient without addressing the claim’s deficiencies, then the Court, 9 pursuant to the provisions of 28 U.S.C. § 636 , ultimately will submit to the assigned 10 district judge a recommendation that such claim be dismissed with prejudice for 11 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 12 the district judge as provided in the Local Rules Governing Duties of Magistrate 13 Judges. 14 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 15 service date of this Order, Plaintiff choose one of the following three options: 16 1. Plaintiff may file a Second Amended Complaint to attempt to cure the 17 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank 18 Central District civil rights complaint form to use for filing the Second Amended 19 Complaint, which the Court encourages Plaintiff to use. 20 If Plaintiff chooses to file a Second Amended Complaint, he must clearly 21 designate on the face of the document that it is the “Second Amended Complaint,” it 22 must bear the docket number assigned to this case, and it must be retyped or 23 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 24 include new defendants or allegations that are not reasonably related to the claims [26] 2007) (noting that unrelated claims against different defendants should be brought in different lawsuits, in part to prevent prisoners from circumventing filing-fee [27] requirements and three-strikes rule under Prison Litigation Reform Act); Gonzalez v. 1 asserted in the FAC or Complaint. In addition, the Second Amended Complaint 2 must be complete without reference to the FAC, Complaint, or any other pleading, 3 attachment, or document. 4 An amended complaint supersedes the preceding complaint. Ferdik v. 5 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 6 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 7 leave to amend as to all his claims raised here, any claim raised in a preceding 8 complaint is waived if it is not raised again in the Second Amended Complaint. 9 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 10 The Court advises Plaintiff that it generally will not be well-disposed toward 11 another dismissal with leave to amend if Plaintiff files a Second Amended Complaint 12 that continues to include claims on which relief cannot be granted. “[A] district 13 court’s discretion over amendments is especially broad ‘where the court has already 14 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 15 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 16 1261. Thus, if Plaintiff files a Second Amended Complaint with claims on 17 which relief cannot be granted, the Second Amended Complaint will be 18 dismissed without leave to amend and with prejudice. 19 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 20 stand on the allegations in his FAC. If Plaintiff chooses to stand on the FAC despite 21 the deficiencies in all of Plaintiff’s claims identified above, then the Court will submit 22 a recommendation to the assigned district judge that the entire action be dismissed 23 with prejudice for failure to state a claim, subject to Plaintiff’s right at that time to 24 file Objections with the district judge as provided in the Local Rules Governing 25 Duties of Magistrate Judges. 26 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 27 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 1 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 2 to use if he chooses to voluntarily dismiss the action. 3 Plaintiff is explicitly cautioned that failure to timely respond to this 4 Order will result in this action being dismissed without prejudice for failure to 5 prosecute and/or obey Court orders pursuant to Federal Rule of Civil 6 Procedure 41(b). [7] 8 Dated: May 14, 2020 9 HONORABLE KENLY KIYA KATO United States Magistrate Judge