Scally v. Flores

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 TONY EUGENE SCALLY, Case No.: 22cv0182-DMS (MDD) CDCR #G-7776, — 12 — ORDER: Plaintiff, — 13 — vs. (1) GRANTING MOTION TO — 14 — PROCEED IN FORMA PAUPERIS, A. FLORES and E. VEGA, 15 and Correctional Officers, 16 Defendants. (2) DISMISSING COMPLAINT FOR 17 FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. — 18 — §§ 1915(e)(2) & 1915A(b) — 19 — 20 On February 7, 2022, Plaintiff Tony Eugene Scally, a state prisoner proceeding pro 21 se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 . (ECF No. 1.) On February 22 14, 2022, the Court dismissed the Complaint because Plaintiff failed to pay the civil filing 23 fee or submit an application to proceed In Forma Pauperis (“IFP”). (ECF No. 3.) Plaintiff 24 submitted a copy of his inmate trust account statement on March 4, 2022, and filed a motion 25 to proceed IPF on March 7, 2022. (ECF Nos. 4-5.) 26 I. Motion to Proceed IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $402. See 28 U.S.C. § 1914 (a). The action may proceed despite a failure to prepay the 2 entire fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915 (a). See 3 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) also 4 requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund 5 account statement (or institutional equivalent) for . . . the 6-month period immediately 6 preceding the filing of the complaint.” 28 U.S.C. § 1915 (a)(2); Andrews v. King, 398 F.3d 7 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 8 an initial payment of 20% of (a) the average monthly deposits in the account for the past 9 six months, or (b) the average monthly balance in the account for the past six months, 10 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915 (b)(1) & (4). 11 The institution collects subsequent payments, assessed at 20% of the preceding month’s 12 income, in any month in which the account exceeds $10, and forwards those payments to 13 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2). Plaintiff remains 14 obligated to pay the entire fee in monthly installments regardless of whether their action is 15 ultimately dismissed. Bruce v. Samuels, 577 U.S. 82 , 84 (2016); 28 U.S.C. § 1915 (b)(1) 16 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 17 In support of his IFP Motion, Plaintiff has submitted two copies of his California 18 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report dated 19 February 23, 2022, and March 1, 2022. (ECF No. 4 at 1; ECF No. 5 at 6.) The first 20 statement, which is closer in time to the filing of the Complaint, indicates that during the 21 six months prior to filing suit Plaintiff had an average monthly balance of $188.46, average 22 monthly deposits of $61.67, and had an available balance of $147.62 in his account at the 23 time he filed suit. (ECF No. 4 at 1.) Plaintiff’s Motion to Proceed IFP is GRANTED. 24 The Court assesses an initial partial filing fee of $37.69. Plaintiff remains obligated to pay — 25 — — 26 — 27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914 (a) (Judicial — 28 — 1 the remaining $312.31 in monthly installments even if this action is ultimately dismissed. 2 Bruce, 577 U.S. at 84; 28 U.S.C. § 1915 (b)(1)&(2). 3 II. Screening pursuant to 28 U.S.C. §§ 1915 (e)(2) & 1915A(b) 4 A. Standard of Review 5 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre6 Answer screening pursuant to 28 U.S.C. §§ 1915 (e)(2) & 1915A(b). Under these statutes, 7 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 8 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 9 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing — 10 — 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 11 (discussing 28 U.S.C. § 1915A(b)). 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 16 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 17 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 18 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 19 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 20 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual 21 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 22 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 . 23 “Determining whether a complaint states a plausible claim for relief [is] . . . a context24 specific task that requires the reviewing court to draw on its judicial experience and 25 common sense.” Id. 26 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 27 acting under color of state law, violate federal constitutional or statutory rights.” 28 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 1 source of substantive rights, but merely provides a method for vindicating federal rights 2 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation 3 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 4 of a right secured by the Constitution and laws of the United States, and (2) that the 5 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 6 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 7 B. Plaintiff’s Allegations 8 Plaintiff alleges that on October 5, 2020, while he was out of his cell showering, 9 Defendants Correctional Officer Flores and her partner Correctional Officer Vega entered 10 his cell. (ECF No. 1 at 3.) Defendant Flores discovered an “altered razor” in Plaintiff’s 11 locker “that I was using to edge my head with, and she wrote me up for ‘possession of 12 deadly weapon.’” (Id.) Prior to Flores finding the razor, Defendant Vega, while doing his 13 2:00 p.m. security check, saw Plaintiff cutting his hair with the razor, which was attached 14 to a bright orange handle. (Id.) Plaintiff at that time asked Vega when he was going to 15 start the showers, and Vega responded that he had to ask the tower. (Id.) 16 Plaintiff claims Defendant Flores failed to follow California Department of 17 Corrections and Rehabilitation (“CDCR”) polices, rules and regulations regarding 18 “possession of contraband.” (Id.) He claims Flores falsely charged him with possession 19 of a deadly weapon even though there was no evidence he tried to use the razor as a weapon 20 to harm others. (Id.) Without such evidence, he contends, his possession of the razor could 21 be considered at most possession of contraband under CDCR policies, rules and 22 regulations. (Id.) Plaintiff claims Flores was deliberately indifferent in failing to look at 23 Plaintiff’s “C-file” to see he had no history of possessing weapons in his 13 years in prison. 24 (Id.) He claims Vega failed to tell Flores he saw Plaintiff using the razor to cut his hair 25 earlier that day, failed to report Flores’ misconduct of falsely reporting that the razor 26 constituted a deadly weapon, and failed to gather information or evidence to prove Plaintiff 27 was not using the razor as a weapon. (Id.) Plaintiff claims that prisoners are allowed to 28 have razors in their cell provided they do not use them as weapons. (Id.) 1 Plaintiff states that on October 5, 2020, he was sent to the Administrative 2 Segregation Unit (“Ad-Seg”) for “possession of a deadly weapon.” (Id. at 4.) He states 3 that due to Defendant Flores’ misconduct and falsification of charges: “I was given an 4 additional year in prison for simply altering a state issued razor. I am also currently being 5 prosecuted in Imperial County and facing life in prison.” (Id.) Plaintiff claims that he was 6 due to be released from custody on February 26, 2022, but as a result of Defendants’ actions 7 his release date has been changed to August 21, 2023. (Id.) He states that if he had been 8 charged with possession of contraband he would have lost at most 30 days of custody 9 credits, but instead lost one year of credits. (Id.) He alleges Defendants Flores and Vega 10 “are aware of these rules and they both knowingly overlooked the truth, violated the rules, 11 and falsified documents that subjected me to cruel and unusual punishment.” (Id.) 12 In addition to a state law claim for negligence, Plaintiff claims violations of his Fifth 13 Amendment right to due process, his Eighth Amendment right to be free from cruel and 14 unusual punishment, and his Fourteenth Amendment rights to due process and equal 15 protection. (Id. at 3-5.) He requests monetary damages and an injunction preventing 16 Defendants from retaliating against him or from falsifying documents in the future against 17 other inmates. (Id. at 7.) 18 C. Analysis 19 Plaintiff’s allegations that Defendants falsely charged him with possession of a 20 deadly weapon in violation of CDCR policies, rules and regulations, by itself, fails to state 21 a 42 U.S.C. § 1983 due process claim because “a prisoner does not have a constitutional 22 right to be free from wrongfully issued disciplinary reports.” Buckley v. Gomez, 36 23 F.Supp.2d 1216, 1222 (S.D. Cal. 1997), aff’d, 168 F.3d 498 (9th Cir. 1999); see also Ove 24 v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (holding that violations of prison rules and 25 regulations, without more, do not support a §1983 claim). This is because the procedural 26 protections available in disciplinary proceedings adequately protect a prisoner’s federal 27 constitutional right to due process. See e.g. Gadsden v. Gehris, No. 20cv0470-WQH 28 (DEB), 2020 WL 5748094 , at *8 (S.D. Cal. Sep. 25, 2020) (“The allegations of the filing 1 of false disciplinary charges by itself does not state a claim under 42 U.S.C. § 1983 because 2 federal due process protections are contained in the ensuing disciplinary proceedings 3 themselves.”) There are no allegations in the Complaint that Plaintiff was deprived of any 4 procedural due process protections in connection to the disciplinary charge. Thus, the 5 Complaint as drafted fails to plausibly allege a Fourteenth Amendment due process claim. 6 And because the only allegations in the Complaint involve state actors, Plaintiff also fails 7 to state a Fifth Amendment claim. See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th 8 Cir. 2001) (“The Due Process Clause of the Fifth Amendment and the equal protection 9 component thereof apply only to actions of the federal government - not to those of state 10 or local governments.”), citing Schweiker v. Wilson, 450 U.S. 221, 227 (1981). 11 Neither does the Complaint adequately allege an Eighth Amendment claim. “[A] 12 prison official violates the Eighth Amendment when two requirements are met. First, the 13 deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 14 U.S. 825 , 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). Second, Plaintiff 15 must allege the prison official he seeks to hold liable had a “sufficiently culpable state of 16 mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.” Id., quoting 17 Wilson, 501 U.S. at 302-03. A prison official can be held liable only if he “knows of and 18 disregards an excessive risk to inmate health or safety; the official must both be aware of 19 facts from which the inference could be drawn that a substantial risk of serious harm exists, 20 and he must also draw the inference.” Id. at 837 . 21 Although Plaintiff alleges he was placed in Ad-Seg as a result of the disciplinary 22 charge, the Complaint contains no allegations he was subjected to conditions of 23 confinement giving rise to an Eighth Amendment claim, such as, for example, harsh 24 conditions in Ad-Seg. “The circumstances, nature, and duration” of the conditions in Ad25 Seg must rise to the level of “extreme deprivations” as opposed to “routine discomfort 26 inherent in the prison setting” in order to violate the Eighth Amendment. Johnson v. Lewis, — 27 — 217 F.3d 726, 731 (9th Cir. 2000); see also Morgan v. Morgensen, 465 F.3d 1041 , 1045 28 (9th Cir. 2006) (“[W]hile conditions of confinement may be, and often are, restrictive and 1 harsh,” only conditions which are “devoid of legitimate penological purpose . . . or contrary 2 to evolving standards of decency that mark the progress of a maturing society violate the 3 Eighth Amendment.”), citing Hudson v. Palmer, 468 U.S. 517, 548 (1984); see Farmer, 4 511 U.S. at 834 (an Eighth Amendment violation occurs where a prisoner is denied “the 5 minimal civilized measure of life’s necessities.”); Hudson v. McMillian, 503 U.S. 1 , 9 6 (1992) (an Eighth Amendment violation requires an objectively grave deprivation of 7 humane conditions of confinement); Whitley v. Albers, 475 U.S. 312, 319 (1986) (“After 8 incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and 9 unusual punishment forbidden by the Eighth Amendment.”) In order to plausibly allege 10 an Eighth Amendment deliberate indifference claim, Plaintiff must allege facts which show 11 he was placed at risk of “objectively, sufficiently serious” harm by a prison official 12 Defendant who knew of and deliberately disregard that risk. Farmer, 511 U.S. at 834. 13 With respect to the allegation that Plaintiff was denied equal protection because he 14 was charged with possession of a deadly weapon for having an altered razor in his cell 15 whereas other prisoners who possessed altered razors were not charged or charged only 16 with possession of contraband, the Complaint fails to state an equal protection claim 17 because Plaintiff has not alleged Defendants intentionally discriminated against him based 18 on his membership in a protected class. Hartmann v. California Dep’t of Corr. & Rehab., — 19 — 707 F.3d 1114, 1123 (9th Cir. 2013); Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th 20 Cir. 1994) (“Intentional discrimination means that a defendant acted at least in part because 21 of a plaintiff’s protected status.”); United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 22 2011) (“[N]either prisoners nor ‘persons convicted of crimes’ constitute a suspect class for 23 equal protection purposes.”), quoting Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 24 1999). To the extent Plaintiff seeks to present a “class of one” equal protection claim, 25 “when it appears that an individual is being singled out by the government, the specter of 26 arbitrary classification is fairly raised, and the Equal Protection Clause requires a rational 27 basis for the difference in treatment.” Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 , 28 601-02 (2008). The allegations in the Complaint that Defendant Vega “violated my . . . 1 equal protection rights,” and that Defendant Flores “denied me equal protection that is 2 given to other inmates under the 14th Amendment” and “denied me equal protection of 3 CDCR’s rules, policies, and regulations when she falsified documents knowingly” (see 4 ECF No. 1 at 2, 5), are entirely conclusory and therefore fails to state a claim. Iqbal, 556 5 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice” to state a claim.) 7 In addition, because Plaintiff alleges his sentence was increased by one year as a 8 result of Defendants’ actions in connection to the false charge of possession of a deadly 9 weapon, to the extent success on the merits of any of his claims would necessarily 10 invalidate the disciplinary conviction and shorten the length of his sentence by one year, 11 Plaintiff must allege he has already successfully invalidated his prison disciplinary 12 conviction. “Federal law opens two main avenues to relief on complaints related to 13 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254 , and a complaint under the 14 Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983 .” Muhammad 15 v. Close, 540 U.S. 749, 750 (2004). In general, claims of constitutional violations related 16 to the “circumstances” of a prisoner’s confinement must be brought in a civil rights action 17 under § 1983, while constitutional challenges to the validity or duration of a prisoner’s 18 confinement must be raised in a petition for federal habeas corpus under § 2254. Id., citing 19 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Nettles v. Grounds, 830 F.3d 922 , 20 927 (9th Cir. 2016) (en banc) (“The Court has long held that habeas is the exclusive vehicle 21 for claims brought by state prisoners that fall within the core of habeas, and such claims 22 may not be brought in a § 1983 action.”), citing Wilkinson v. Dotson, 544 U.S. 74 , 81-82 23 (2005). A claim based on “harm caused by actions whose unlawfulness would render a 24 conviction or sentence invalid,” is not cognizable under § 1983 unless Plaintiff “prove[s] 25 that the conviction or sentence has been reversed on direct appeal, expunged by executive 26 order, declared invalid by a state tribunal authorized to make such determination, or called 27 into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254 .” 28 Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 1 The Heck favorable termination rule applies to prison disciplinary proceedings 2 which result in the loss of custody credits or otherwise extends a prisoner’s sentence. 3 Edwards v. Balisok, 520 U.S. 641, 646-48 (1997) (applying Heck bar where the “defect 4 complained of by [plaintiff] would, if established, necessarily imply the invalidity of the 5 deprivation of [his] good-time credits.”) “Suits challenging the validity of the prisoner’s 6 continued incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is 7 a proper remedy for a state prisoner who is making a constitutional challenge to the 8 conditions of his prison life, but not to the fact or length of his custody.’” Ramirez v. 9 Galaza, 334 F.3d 850, 856 (9th Cir. 2003), quoting Preiser, 411 U.S. at 498-99 (holding 10 that a writ of habeas corpus is “explicitly and historically designed” to provide a state 11 prisoner with the “exclusive” means to “attack the validity of his confinement” in federal 12 court). “By contrast, claims challenging a prison’s ‘procedures for depriving prisoners of 13 good-time credits’ and seeking damages or a prospective injunction - claims which would 14 not necessarily lead to an earlier release - could be brought in a § 1983 action.” Nettles, — 15 — 830 F.3d at 928 , quoting Wolff v. McDonnell, 418 U.S. 539, 554 (1974). Plaintiff’s Eighth 16 Amendment claim, to the extent it relies on a change in conditions of confinement arising 17 from the disciplinary action rather than a challenge to the disciplinary action itself, is likely 18 not barred by Heck. See Muhammad, 540 U.S. at 750 (“[R]equests for relief turning on 19 circumstances of confinement [as opposed to the validity of confinement or to particulars 20 affecting its duration] may be presented in a § 1983 action.”) 21 Because Plaintiff’s due process and equal protection claims are based on allegations 22 that Defendants’ actions in falsely charging him with possession of a deadly weapon have 23 required him to serve an additional year in custody, he may not proceed pursuant to § 1983 24 with those claims unless and until the increase in his sentence has been invalidated. Heck, — 25 — 512 U.S. at 486-87 ; Ramirez, 334 F.3d at 855-56 (“Absent such a showing, ‘[e]ven a 26 prisoner who has fully exhausted available state remedies has no cause of action under 27 § 1983.’”), quoting Heck, 512 U.S. at 489 . This is because success on his claim that he 28 was falsely charged and wrongly convicted of possession of a deadly weapon in violation 1 of equal protection and due process would necessarily imply the invalidity of his 2 disciplinary conviction on that charge and necessarily imply the invalidity of the resultant 3 extension of his sentence by one year, and consequently affect the duration of his 4 confinement. Heck, 512 U.S. at 487 ; Balisok, 520 U.S. at 646-48 . 5 Because Plaintiff does not allege he has invalidated his prison disciplinary 6 conviction or the resultant sentence extending the term of his detention by way of 7 administrative or direct appeal, executive order, or through the issuance of either a state or 8 federal court writ of habeas corpus, to the extent success on the merits of his equal 9 protection and due process claims would necessarily result in the shortening of his 10 sentence, those claims must be dismissed for failing to state a claim upon which § 1983 11 relief can be granted pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) & 1915A(b). With respect to 12 Plaintiff’s state law claim for negligence, the Court may “decline to exercise supplemental 13 jurisdiction” over any supplemental state law claim if it “has dismissed all claims over 14 which it has original jurisdiction.” 28 U.S.C. § 1367 (c); Sanford v. Member Works, Inc., — 15 — 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all federal-law claims are 16 eliminated before trial, the balance of factors to be considered under the pendent 17 jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the 18 remaining state-law claims.”) Because the Court has dismissed all of Plaintiff’s federal 19 claims, the Court declines to exercise supplemental jurisdiction over any state law claims 20 at this time. 21 D. Leave to Amend 22 In light of his pro se status, the Court grants Plaintiff leave to amend his Complaint 23 in order to attempt to address the pleading deficiencies identified in this Order. See Rosati 24 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 25 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii)] unless ‘it 26 is absolutely clear that the deficiencies of the complaint could not be cured by 27 amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 28 / / / 1 IV. Conclusion and Orders 2 Good cause appearing, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section 4 1915(a) (ECF No. 5). 5 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 6 Plaintiff’s prison trust account the initial filing fee of $37.69 and thereafter collect the 7 remaining $312.31 filing fee owed by collecting monthly payments from Plaintiff’s 8 account in an amount equal to twenty percent (20%) of the preceding month’s income and 9 forwarding those payments to the Clerk of the Court each time the amount in the account 10 exceeds $10 pursuant to 28 U.S.C. Section 1915 (b)(2). 11 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 12 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 13 942883, Sacramento, California 94283-0001. 14 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 15 relief may be granted pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii) & 1915A(b)(1) and 16 GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file 17 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 18 Amended Complaint must be complete by itself without reference to his original pleading. 19 Defendants not named and any claim not re-alleged in his Amended Complaint will be 20 considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 21 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 22 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 23 re-alleged in an amended pleading may be “considered waived if not repled.”) 24 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 25 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 26 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii) & 27 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring 28 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 1 take advantage of the opportunity to fix his complaint, a district court may convert the 2 || dismissal of the complaint into dismissal of the entire action.’’) 3 IT IS SO ORDERED. 4 Dated: March 30, 2022 5 ns my. L4\ Hon. Dana M. Sabraw 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 —