Garcia v. Allison

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 FELIPE GARCIA, Case No.: 21-cv-1991-MMA (MSB) CDCR# H-74821, [11] ORDER DISMISSING CLAIMS AND Plaintiff, 12 DEFENDANTS PURSUANT TO 28 vs. U.S.C. § 1915(e)(2)(B) AND [13] 28 U.S.C. § 1915A(b) KATHLEEN ALLISON, Secretary of [14] CDCR; MARCUS POLLARD, Warden; 15 N, CASTRO; D. LEWIS; J. GOMEZ; J. GARCIA; A. DeLaVEGA, [16] Defendants. [19] 20 Felipe Garcia (“Plaintiff”), currently incarcerated at the Richard J. Donovan 21 Correctional Facility (“RJD”), and proceeding pro se, filed this civil action pursuant to 42 22 U.S.C. § 1983 on November 29, 2021. See Doc. No. 1 (“Compl.”). Plaintiff also filed a 23 Motion to Proceed in Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 (a). See Doc. 24 No. 2. On February 3, 2022, the Court granted Plaintiff’s IFP motion and dismissed the 25 action with leave to amend pursuant to 28 U.S.C. § 1915 (e)(2)(B) and 28 U.S.C. 26 § 1915A(b). Doc. No. 5. Plaintiff was given 45 days from the date of the Order within 27 which to file an amended complaint. Id. On February 16, 2022, Plaintiff filed a First 28 Amended Complaint pursuant to this Court’s Order. Doc. No. 6 (“FAC”). 1 I. SCREENING PURSUANT TO 28 U.S.C. § 1915 (E)(2)(B) & 1915A 2 A. Standard of Review 3 As with this original Complaint, because Plaintiff is a prisoner and is proceeding 4 IFP, his Complaint requires a preliminary screening pursuant to 28 U.S.C. § 1915 (e)(2) 5 and § 1915A(b). Under these statutes, the Court must review and sua sponte dismiss an 6 IFP complaint, and any complaint filed by a prisoner seeking redress from a 7 governmental entity, or officer or employee of a governmental entity, which is frivolous, 8 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 9 Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 10 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 11 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of 12 frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. 13 Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health 14 Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 15 “The standard for determining whether a plaintiff has failed to state a claim upon 16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 18 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 19 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 21 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 22 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, [23] 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 25 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 26 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for 27 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 28 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 1 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 2 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962 , 969 3 (9th Cir. 2009). 4 B. Plaintiff’s Allegations 5 The factual allegations Plaintiff makes in his FAC are essentially identical to those 6 he made in his original Complaint. Plaintiff alleges he filed a petition for writ of habeas 7 corpus that challenged the method by which he was criminally sentenced in Kern County 8 Superior Court and the rate at which he was accumulating worktime credits. See Compl. 9 at 6; FAC at 12; Doc. No. 6-2 at 3. According to Plaintiff, the state court agreed with 10 Plaintiff that the 15% worktime credit did not apply to him, but denied the petition 11 without prejudice to permit Plaintiff to seek relief from the Kern County Superior Court. 12 Compl. at 6; FAC at 12; Doc. No. 6-2 at 3–4. 13 Plaintiff followed the appellate court’s advice and filed a petition for writ of habeas 14 corpus in Kern County Superior Court. Doc. No. 6-2 at 2. On December 20, 2019, Kern 15 County Superior Court “issued an order granting petition for writ of habeas corpus and 16 order[ed] a resentencing.” Compl. at 6; FAC at 12; ECF No. 6-2 at 4. According to the 17 documents submitted by Plaintiff, the superior court noted that “Petitioner would be 18 eligible for good conduct credits pursuant to P.C. § 2933, and not restricted by the terms 19 of P.C. § 2933.1,” but “it did not specify the exact rate of accumulation of credits 20 Petitioner should receive, only that that the 15% limitation was not applicable.” Doc. 21 No. 6-2 at 4. 22 Plaintiff alleges he was resentenced on January 30, 2020.1 Compl. at 6; FAC at 12. 23 On February 24, 2020, Plaintiff informed prison officials of the resentencing and 24 “changes to the credit vested by the Court” and “lifting the 15% restriction.” Compl. at [26] 27 1 The Order from the Kern County Superior Court denying Plaintiff’s September 3, 2021 habeas corpus petition lists the date of Plaintiff’s resentencing as January 31, 2020. ECF [28] 1 6–7; FAC at 12–13. However, “no response was received.” Compl. at 7; FAC at 13. 2 Plaintiff alleges he submitted six additional inmate requests, which he claims also went 3 unanswered. Compl. at 7; FAC at 13. 4 Plaintiff filed grievances in March of 2020 notifying prison officials that despite 5 the resentencing, his earliest possible release date (“EPRD”) of February 13, 2025 had 6 not been changed. Compl. at 7; FAC at 13. On June 8, 2020, Plaintiff says he was 7 interviewed by Defendant Nancy Castro. See Compl. at 9; FAC at 13. According to 8 Plaintiff, Castro told him “Mr. Garcia, you seem to know the law; so go ahead and I’m 9 sure you’ll figure it out, I’ll make sure you don’t go home, and if you don’t like it, well 10 sue me, it seems like you know how, you’ve filed several lawsuits against our officers.” 11 Compl. at 10; FAC at 16. On January 12, 2021, Defendant Garcia informed Plaintiff that 12 his EPRD had been changed to October 15, 2023. See id. However, Plaintiff was later 13 notified by Defendant Gomez-Godinez that his new EPRD was changed to December 25, 14 2021. See Compl. at 8; FAC at 14. On October 28, 2021, Plaintiff was notified that his 15 EPRD was actually June 5, 2024. See Compl. at 8; FAC at 14. Plaintiff asked Defendant 16 Gomez-Godinez why was his EPRD had “abruptly changed” and requested a 17 computation review hearing. Compl. at 8; FAC at 14. He also filed three 602 appeals. 18 Compl. at 8; FAC at 14. According to Plaintiff, Defendant Pollard reviewed one of 19 Plaintiff’s appeals on June 24, 2020, and denied it incorrectly. FAC at 13. 20 Plaintiff filed a writ in the Kern County Superior Court, which was denied on 21 October 22, 2021. FAC at 14. He then filed an appeal in the Fifth Appellate District 22 which is pending. Id. On January 13, 2022, the Kern County Superior Court issued an 23 amended Abstract of Judgment which Plaintiff says is erroneous. Id. at 15. 24 Plaintiff seeks a declaratory judgment stating that the defendants violated his 25 federal constitutional rights, and Order directing Defendants Allison, Pollard, and Castro 26 to conduct a computation hearing and award correct work time credits, as well as 27 compensatory, and punitive damages against each named Defendant. FAC at 17–18. [28] 1 C. 42 U.S.C. § 1983 2 “Section 1983 creates a private right of action against individuals who, acting 3 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 4 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 5 substantive rights, but merely provides a method for vindicating federal rights elsewhere 6 conferred.” Graham v. Connor, 490 U.S. 386 , 393–94 (1989) (internal quotation marks 7 and citations omitted). “To establish § 1983 liability, a plaintiff must show both 8 (1) deprivation of a right secured by the Constitution and laws of the United States, and 9 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 10 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 11 D. Discussion 12 In Count One, Plaintiff contends that the Defendants retaliated against him in 13 violation of the First Amendment. FAC at 4. In Count Two, he claims the Defendants 14 his Eighth Amendment rights to be free of cruel and unusual punishment and that he is 15 currently a victim of “excessive confinement.” Id. at 5. And, in Count Three, Plaintiff 16 argues his Fourteenth Amendment rights have been violated. Id. at 6. 17 1. Retaliation (Count One) 18 Plaintiff claims Defendants Castro and De La Vega retaliated against him for filing 19 lawsuits against the CDCR by refusing to correct his EPRD to conform with Plaintiff’s 20 belief that he is entitled to a 50% work time credit. See FAC at 19. “Prisoners [do] have 21 a First Amendment right to file grievances against prison officials and to be free from 22 retaliation for doing so.” Watison, 668 F.3d at 1114 (citing Brodheim v. Cry, 584 F.3d 23 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of First 24 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 25 some adverse action against an inmate (2) because of (3) that prisoner’s protected 26 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 27 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 28 Rhodes v. Robinson, 408 F.3d 559 , 567–68 (9th Cir. 2005). 1 Plaintiff claims he was resentenced on January 31, 2020 and that an agreement was 2 reached regarding how to structure the resentencing. FAC at 15. On either June 8, 2020 3 or June 24, 2020, see id. at 15, 19, Plaintiff claims he was interviewed by Defendant 4 Castro who purportedly refused to correct his EPRD date and told him “if you don’t like 5 it sue me, you seem to know how, you have sued our officers in the past.” FAC at 19. 6 He also claims he notified Defendant De La Vega of the resentencing and its effect on his 7 EPRD on May 20, 2021, and De La Vega told him she “didn’t have time for this” and 8 that she did not know and did not care about the issue. Id. at 20. 9 Plaintiff’s allegations are insufficient to plausibly allege that either Castro or De La 10 Vega took adverse action against Plaintiff because of his protected conduct or that any 11 such action “did not reasonably advance a legitimate correctional goal.” Rhodes, 408 12 F.3d at 567–68. On November 10, 2021, Plaintiff filed a Petition for Writ of Habeas 13 Corpus in the Fifth District Court of Appeal. See FAC at 14–15. On February 8, 2022, 14 the court of appeal directed the Attorney General to file an informal response. Doc. 15 No. 6-4 at 2. The Attorney General filed his response on March 30, 2022.2 Plaintiff filed 16 his reply on April 11, 2022. Id. Given that the validity of Plaintiff’s sentence and the 17 rate at which he should be earning work time credits continues to be the subject of 18 litigation, Plaintiff has not plausibly alleged Castro or De La Vega refused to change 19 Plaintiff’s EPRD because of his “protected conduct” or that their actions “did not 20 reasonably advance a legitimate correctional goal” as opposed to either a good faith 21 mistake or an incorrect interpretation of the resentencing documentation. Rhodes, 408 22 F.3d at 567–68; see Watison, 668 F.3d at 1114‒15 (stating that a plaintiff must allege that 23 “in addition to a retaliatory motive, . . . the defendant’s actions were arbitrary and 24 capricious, or that they were ‘unnecessary to the maintenance of order in the institution’”) [26] 27 2 See https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=5&doc_id=2367063& doc_no=F083517&request_token=NiIwLSEmPkw7WyBZSCNdUEhJQFQ7UExbKyIuUztSQCAgCg% [28] 1 (quoting Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984)). He has therefore 2 failed to state a claim upon which § 1983 relief can be granted. See Watison, 668 F.3d at 3 1112; Iqbal, 556 U.S. at 678 ; see also 28 U.S.C. § 1915 (e)(2)(B)(ii) and § 1915A(b)(1). 4 2. Excessive Confinement/Eighth Amendment (Count Two) 5 In Count Two, Plaintiff argues his Eighth Amendment rights were violated by the 6 Defendants’ refusal to change his EPRD date, thereby subjecting him to excessive 7 punishment. FAC at 5, 21. To the extent Plaintiff seeks an earlier release from custody, 8 his suit may not proceed as a civil rights action. There are two methods for state 9 prisoners to raise complaints related to their imprisonment in federal court. See 10 Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Federal law opens two main avenues to 11 relief on complaints related to imprisonment . . . .”) (citing Preiser v. Rodriguez, 411 U.S. 12 475, 500 (1973)). In general, claims of constitutional violations related to the 13 “circumstances” of a prisoner’s confinement must be brought in a civil rights action 14 under § 1983, see id., while constitutional challenges to the validity or duration of a 15 prisoner’s confinement which seek either “immediate release from prison” or the 16 “shortening of [a state prison] term” must be raised in a petition for federal habeas corpus 17 under 28 U.S.C. § 2254 , or through appropriate state relief. Wilkinson v. Dotson, 544 18 U.S. 74 , 78–79 (2005) (citations and internal quotation marks omitted); Nettles v. 19 Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“The Court has long held that 20 habeas is the exclusive vehicle for claims brought by state prisoners that fall within the 21 core of habeas, and such claims may not be brought in a § 1983 action.”) (citing Dotson, 22 544 U.S. at 81–82). Here, Plaintiff’s claims of excessive confinement must be brought 23 via habeas corpus. 24 The Eighth Amendment prohibits the infliction of “cruel and unusual 25 punishments.” U.S. Const. Amend. VIII. In order to state a plausible Eighth Amendment 26 claim for relief, a Plaintiff must allege facts sufficient to show that Defendants acted with 27 “deliberate indifference.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 28 2016); Iqbal, 556 U.S. at 678 . “A prison official acts with ‘deliberate indifference . . . 1 only if the [prison official] knows of and disregards an excessive risk to inmate health 2 and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. 3 Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)), overruled on other grounds by 4 Castro, 833 F.3d at 1076 . “Under this standard, the prison official must not only ‘be 5 aware of facts from which the inference could be drawn that a substantial risk of serious 6 harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting Farmer v. 7 Brennan, 511 U.S. 825, 837 (1994)). 8 Plaintiff has not stated an Eighth Amendment claim against any Defendant because 9 he has not plausibly alleged they were “aware of facts from which the inference could be 10 drawn that a substantial risk of serious harm exists” and actually drew such an inference. 11 Toguchi, 391 F.3d at 1057 ; Iqbal, 556 U.S. at 678 . Indeed, Plaintiff has not alleged any 12 risk to his health or safety, only that he disagrees with Defendants’ calculation of his 13 work time credits. See generally FAC. He has therefore failed to state a claim upon 14 which § 1983 relief can be granted. See Watison, 668 F.3d at 1112; Iqbal, 556 U.S. at 15 678; see also 28 U.S.C. § 1915 (e)(2)(B)(ii) and § 1915A(b)(1). 16 3. Due Process (Count Three) 17 Plaintiff contends that by “continu[ing] to classify Plaintiff as a violent offender, 18 even [though] ample documentary evidence and court orders identify Plaintiff [as] 19 currently serving a sentence for 2 non-violent, in-prison sentences, and incorrectly 20 applying the 2933.1 violent offender credit restriction,” Defendants have violated his 21 federal due process rights. FAC at 15. “The Fourteenth Amendment’s Due Process 22 Clause protects persons against deprivations of life, liberty, or property; and those who 23 seek to invoke its procedural protection must establish that one of these interests is at 24 stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Liberty interests protected by the 25 Due Process Clause “will be generally limited to freedom from restraint which, while not 26 exceeding the sentence in such an unexpected manner as to give rise to protection by the 27 Due Process Clause of its own force, nonetheless imposes atypical and significant 28 hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. 1 Conner, 515 U.S. 472, 484 (1995). To state a procedural due process claim, [a plaintiff] 2 must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 3 deprivation of the interest by the government; (and) (3) lack of process.’” Wright v. 4 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, [5] 995 F.2d 898, 904 (9th Cir. 1993)). 6 “California has not created a protected liberty interest in earning credits for work.” 7 Vu v. Rackley, No. 2:16-cv-0217 TLN GGH P, 2016 WL 3181228 , at *3 (E.D. Cal. June 8 8, 2016) (first citing Cal. Penal Code § 2933 (c) (“Credit is a privilege, not a right”); and 9 then citing Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1989) (“section 2933 does not 10 create a constitutionally protected liberty interest”)); Touissant v. McCarthy, 801 F.2d 11 1080, 1095 (9th Cir. 1986) (under § 2933 “prisoners have no right to earn the one-for-one 12 worktime credits”). Further, Prisoners have “no constitutional right to a particular 13 classification or to earn credits.” Hernandez v. Adams, No. 1:08-cv-00254 LJO MJS HC, [14] 2010 WL 5071131 , at *4 (E.D. Cal. Dec. 7, 2010). Because Plaintiff has not plausibly 15 alleged he was deprived of “a liberty or property interest protected by the Constitution,” 16 Wright, 219 F.3d at 913, he has not stated a claim for which § 1983 relief can be granted. 17 Iqbal, 556 U.S. at 676 ; see also 28 U.S.C. § 1915 (e)(2)(B)(ii) and § 1915A(b)(1). 18 4. Defendants Kathleen Allison and Marcus Pollard 19 The also Court finds Plaintiff’s FAC fails to state any plausible claim for relief 20 against CDCR Secretary Allison. Because “vicarious liability is inapplicable to . . . 21 § 1983 suits, a plaintiff must plead that each Government-official defendant, through the 22 official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 ; 23 Palmer v. Sanderson, 9 F.3d 1433 , 1437–38 (9th Cir. 1993) (noting there is no 24 respondeat superior liability under 42 U.S.C. § 1983 ). Supervisory officials like Allison 25 may only be held liable under § 1983 if the plaintiff alleges their “personal involvement 26 in the constitutional deprivation, or . . . a sufficient causal connection between the 27 supervisor’s wrongful conduct and the constitutional violation.” Keates v. Koile, 883 28 F.3d 1228 , 1242‒43 (9th Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 1 In other words, “a supervisor is liable for the acts of his subordinates ‘if the supervisor 2 participated in or directed the violations, or knew of the violations of subordinates and 3 failed to act to prevent them.’” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) 4 (citations omitted). 5 Plaintiff’s Complaint “pleads no factual content that allows the court to draw the 6 reasonable inference that [Allison] is liable for the misconduct alleged.” Iqbal, 556 U.S. 7 at 678 . The only factual allegation Plaintiff makes with respect to Secretary Allison is 8 that she “approved the good conduct credit changes which replaced the 33% credit rate 9 [with the] 50% [rate].” FAC at 13. He does not describe what Allison did, or failed to 10 do, with respect to any of his claims. Id. at 679 (“Determining whether a complaint states 11 a plausible claim for relief [is] … a context-specific task.”). As currently pleaded, 12 nothing in Plaintiff’s FAC plausibly suggests or Allison “through [her] own individual 13 actions, . . . violated the Constitution.” Iqbal, 556 at 676; see also Jones v. Community 14 Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even 15 pro se plaintiffs must “allege with at least some degree of particularity overt acts which 16 defendants engaged in” in order to state a claim). Therefore, Plaintiff’s claims against 17 Secretary Allison must be dismissed sua sponte for failing to state a claim upon which 18 § 1983 relief can be granted pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii) and § 1915A(b)(1). 19 See Watison 668 F.3d at 1112; Iqbal, 556 U.S. at 676 . 20 In addition, Plaintiff has also not stated a plausible claim for relief pursuant to 21 §1983 against Defendant Pollard. The only factual allegation Plaintiff makes with 22 respect to Pollard is that he “reviewed 602 appeal, log no. RJD-C-20-02171 and 23 incorrectly denied appeal classifying Plaintiff as a violent offender.” FAC at 13. 24 Prisoners do not have a “separate constitutional entitlement to a specific prison grievance 25 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citation omitted); 26 Fairley v. Shelton, 664 F. App’x. 616, 617 (9th Cir. 2016) (“The district court properly 27 granted summary judgment for defendant Gower on Fairley’s claim arising out of the 28 allegedly improper denial of his grievances because prisoners do not have a 1 ‘constitutional entitlement to a specific grievance procedure.’”) (quoting Ramirez, 334 2 F.3d at 860); Shallowhorn v. Molina, 572 F. App’x. 545, 547 (9th Cir. 2014) (district 3 court properly dismissed § 1983 claims against defendants who “were only involved in 4 the appeals process”) (citing Ramirez, 334 F.3d at 860 ). Therefore, Plaintiff’s claims 5 against Pollard must be dismissed sua sponte for failing to state a claim upon which 6 § 1983 relief can be granted pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii) and § 1915A(b)(1). 7 See Watison 668 F.3d at 1112; Iqbal, 556 U.S. at 676 . 8 On February 3, 2021, the Court explained to Plaintiff what pleading deficiencies 9 were present in his original Complaint. See ECF No. 3. Despite having had this 10 opportunity, Plaintiff has still failed to adequately plead any constitutional claim for relief 11 against Defendants Allison and Pollard. Therefore, the Court finds further amendment as 12 to those Defendants would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 13 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial of 14 . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); 15 Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here 16 the plaintiff has previously been granted leave to amend and has subsequently failed to 17 add the requisite particularity to its claims, [t]he district court’s discretion to deny leave 18 to amend is particularly broad.” (internal quotation marks omitted) (second alteration in 19 original)). 20 II. CONCLUSION 21 Based on the foregoing, the Court DISMISSES Defendants Allison and Pollard 22 from this action and DIRECTS the Clerk of Court is directed to terminate these 23 Defendants from the Court’s docket. The Court GRANTS Plaintiff forty-five (45) days 24 leave from the date of this Order in which to file an Amended Complaint which cures the 25 deficiencies of pleading noted as to Defendants J. Gomez-Godinez, A. De La Vega, 26 Nancy Castro, J. Garcia and D. Lewis only. Plaintiff’s Amended Complaint must be 27 complete by itself without reference to his original pleading. Defendants not named and 28 any claim not re-alleged in his Amended Complaint will be considered waived. See S.D. 1 || CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 , 2 || 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”’); Lacey v. 3 || Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 4 || leave to amend which are not re-alleged in an amended pleading may be “considered 5 || waived if not repled.”). 6 Plaintiff's Amended Complaint, should he elect to file one, must be captioned as 7 || his “Second Amended Complaint,” contain $.D. Cal. Civil Case No. 21-cv-01991-MMA8 MSB in its caption, and comply both with FED. R. CIv. P. 8 and with S.D. CAL. CIVLR 9 ||8.2.a. The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy 10 its form Second Amended Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for 11 || Plaintiff's use and to assist him in complying with LR 8.2.a’s requirements. 12 IT IS SO ORDERED. 13 Dated: April 19, 2022 14 BWMihuk MU Linkter 15 HON. MICHAEL M. ANELLO 16 United States District Judge [28] 12 ao