Baker v. Roger ITO et al, No. 3:2019cv01156 - Document 4 (S.D. Cal. 2019)
Court Description: ORDER Granting 2 Motion for Leave to Proceed in Forma Pauperis; and Dismissing Complaint for Failing to State a Claim and for Seeking Monetary Relief Against Immune Defendant. The Court Grants Plaintiff thirty days leave from the date of t his Order in which to file an Amended Complaint. The Clerk of Court is directed to mail Plaintiff a civil rights form complaint for his use in amending. Signed by Judge Gonzalo P. Curiel on 7/15/19. (All non-registered users served via U.S. Mail Service including blank civil rights complaint)(dlg)
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Baker v. Roger ITO et al Doc. 4 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 TOMMIE LEE BAKER, Inmate #T-30691, 16 17 18 19 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM AND FOR SEEKING MONETARY RELIEF AGAINST IMMUNE DEFENDANT Plaintiff, 14 15 Case No.: 19-cv-1156-GPC-RBM v. ROGER ITO, Judge; S. HARDEN, Account Officer Specialist; B. SULLIVAN, Appeal Examiner; SECRETARY OF CDCR, Defendants. 20 21 22 Tommie Lee Baker III. (“Plaintiff”), a California state prisoner incarcerated at the 23 Richard J. Donovan Correctional Facility (“RJD”), and proceeding pro se, has filed a 24 civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff 25 did not prepay the civil filing fee required by 28 U.S.C. § 1914(a), but has filed a Motion 26 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 27 28 1 19-cv-1156-GPC-RBM Dockets.Justia.com 1 I. Plaintiff’s Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States must pay a filing fee. See 28 U.S.C. § 1914(a).1 An action may proceed 4 despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed 5 IFP pursuant to 28 U.S.C. § 1915(a). Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 6 1999). However, if the plaintiff is a prisoner, even if he is granted leave to proceed IFP, 7 he remains obligated to pay the full entire fee in “increments,” see Williams v. Paramo, 8 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately 9 dismissed. See 28 U.S.C. § 1915(b)(1) & (2). 10 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 11 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the 12 trust fund account statement (or institutional equivalent) for the . . . six-month period 13 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 14 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 15 the Court assesses an initial payment of 20 percent of (a) the average monthly deposits in 16 the account for the past six months, or (b) the average monthly balance in the account for 17 the past six months, whichever is greater, unless the prisoner has no assets. See 28 18 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 19 prisoner then collects subsequent payments, assessed at 20 percent of the preceding 20 month’s income, in any month in which the prisoner’s account exceeds $10, and forwards 21 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 22 In support of his IFP Motion, Plaintiff has submitted a prison certificate attesting to 23 his trust account balance and activity for the six-month period prior to the filing of his 24 Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. This 25 certificate shows that Plaintiff had only $0.15 in funds to his credit at the time of filing. 26 27 28 In addition to the $350 statutory fee for this action, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014)). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 1 2 19-cv-1156-GPC-RBM 1 [ECF No. 3 at 1.] Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP and 2 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). See 28 U.S.C. 3 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 4 civil action or appealing a civil action or criminal judgment for the reason that the 5 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 6 Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. 7 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 8 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 9 ordered.”) However, the entire $350 balance of the filing fee due for this case must be 10 forwarded to the Clerk of the Court pursuant to the installment payment provisions set 11 forth in 28 U.S.C. § 1915(b)(1). 12 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 13 A. 14 “The Court shall review, before docketing, if feasible or, in any event, as soon as Standard of Review 15 practicable after docketing,” complaints filed by all persons proceeding IFP, and by 16 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 17 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 18 conditions of parole, probation, pretrial release, or diversionary program.” See 28 U.S.C. 19 §§ 1915(e)(2) and 1915A(b). The Court must sua sponte dismiss complaints, or any 20 portions thereof, which are frivolous, malicious, fail to state a claim, or which seek 21 damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; 22 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 23 All complaints must contain “a short and plain statement of the claim showing that 24 the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are 25 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 26 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 27 citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether 28 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 3 19-cv-1156-GPC-RBM 1 the reviewing court to draw on its judicial experience and common sense.” Id. at 679. 2 The “mere possibility of misconduct” falls short of meeting the Iqbal plausibility 3 standard. Id.; see also Moss v. U. S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 4 “When there are well-pleaded factual allegations, a court should assume their 5 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 6 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 7 (“Under § 1983, when determining whether a complaint states a claim, a court must 8 accept as true all allegations of material fact and must construe those facts in the light 9 most favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 10 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil 11 Procedure 12(b)(6)”). However, while the court has an “obligation . . . where the 12 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally 13 and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 14 (9th Cir. 2010), citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en 15 banc), it may not, in so doing, “supply essential elements of the claim that were not 16 initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 17 (9th Cir. 1982). 18 “Section 1983 creates a private right of action against individuals who, acting 19 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 20 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 21 substantive rights, but merely provides a method for vindicating federal rights elsewhere 22 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989). “To establish § 1983 23 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution 24 and laws of the United States, and (2) that the deprivation was committed by a person 25 acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th 26 Cir. 2012). 27 /// 28 /// 4 19-cv-1156-GPC-RBM 1 B. 2 Plaintiff alleges that he is a “hearing impaired inmate that was at the EOP level of Plaintiff’s Allegations 3 care.” (Compl. at 3.) In 2001, Plaintiff claims he was “forced to contract and sign a 4 CDC 345 form.” (Id.) However, in June of 2018 he was “going over the 345 form” and 5 “noticed it was [his] choice to withdraw [his] power of attorney” and “close [his] trust 6 account at any time.” (Id.) Plaintiff alleges that he filed a grievance to “revoke the 7 Director of Corrections and Rehabilitation as [his] power of attorney and to close [his] 8 trust account.” (Id.) However, Plaintiff’s request was denied by B. Sullivan at the “third 9 level appeal decision.” (Id.) 10 On January 15, 2019, Plaintiff claims he was “denied an interpreter service during 11 the open/public court proceeding” by “Judge Roger Ito.” (Id. at 4.) Plaintiff alleges he 12 “could not hear the court or participate in the program because of [his] hearing 13 disability.” (Id.) Plaintiff further claims Defendant Ito was “well aware” of his disability 14 but he “refused to accommodate” his disability during Plaintiff’s “resentence hearing.” 15 (Id.) Plaintiff “talked to [his] appeal counsel” who informed him that they would “not 16 file [his] ADA issue on appeal because it would get Ito into trouble.” (Id.) 17 On October 16, 2007, Plaintiff was ordered “to pay a direct order of $29,238.60 18 plus 10 percent interest” in one of his criminal proceedings. (Id. at 5.) In July of 2018, 19 Plaintiff “was awarded $1000.00 for a settlement” in a civil matter. (Id.) Plaintiff alleges 20 that the CDCR “took all the settlement money for the direct order and administrative 21 fees.” (Id.) Plaintiff spoke with “S. Harden, the account officer specialist” and informed 22 her that he had “appropriate documentation from the court” proving that the “direct order 23 has been voided by the presiding court and she refused to honor it.” (Id.) 24 Plaintiff claims he then spoke with “CCI Masterson” who contacted the 25 “Correctional Case Records Analyst (“CCRA”) who confirmed that they (CDCR records) 26 in fact have a certified copy of the minute order” but they would “not honor it.” (Id.) 27 Plaintiff claims Harding has “violated the Fifth Amendment ban on taking of property 28 ($1000.00) for public use without just compensation and due process.” (Id.) 5 19-cv-1156-GPC-RBM 1 Plaintiff seeks an injunction preventing Defendant Ito “from committing treason 2 against the United States and its Constitution.” (Id. at 7.) Plaintiff also seeks $401,000 in 3 general damages, $210,000 in punitive damages, and $240,000 in compensatory 4 damages.” (Id.) 5 C. 6 7 Analysis 1. Due Process claims A state inmate has a property interest protected by federal due process in the funds 8 in his prison trust account. Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985). 9 However, a deduction from an inmate trust account to satisfy a restitution order does not 10 state a substantive or procedural due process claim if the deduction is authorized by state 11 law. See Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges 12 on inmates’ constitutional rights, the regulation is valid if it is reasonably related to 13 legitimate penological interests.”) The Ninth Circuit has held that “California Penal 14 Code § 2085.5, requiring the California Director of Corrections to make deductions from 15 the wages and trust account deposits of prisoners for payment of restitution obligations, is 16 rationally related to legitimate state interests in compensating crime victims.” Craft v. 17 Ahuja, 475 Fed.Appx. 649, 650 (9th Cir. 2012), citing Turner, 482 U.S. at 89; see also 18 Abney v. Alameida, 334 F.Supp.2d 1221, 1231-32 (S.D. Cal. 2004) (allegations of 19 deductions from a prisoner’s trust account to satisfy a restitution order, whether 20 authorized or unauthorized by state law, fail to state a claim for a violation of substantive 21 or procedural due process). Accordingly, to the extent the removal of funds from his 22 prison trust account to satisfy a restitution order was authorized by California law, 23 Plaintiff has not stated a substantive or procedural due process claim upon which relief 24 can be granted. 25 To the extent Plaintiff contends the deductions were not authorized by state law 26 because the restitution order had been voided or the deductions were inaccurate, he has 27 also failed to state a due process claim. He alleges that he informed Defendants that the 28 restitution order to which his settlement funds were being applied was “vacated and 6 19-cv-1156-GPC-RBM 1 nullified.” (Compl. at 5.) Where a prisoner alleges he was deprived of a property interest 2 caused by the unauthorized acts of state officials, either negligent or intentional, he 3 cannot state a constitutional claim where the state provides an adequate post-deprivation 4 remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 5 U.S. 517, 533 (1984) (holding that the unauthorized negligent or intentional deprivation 6 of property does not violate due process if a meaningful post-deprivation remedy is 7 available). The California Tort Claims Act (“CTCA”) provides an adequate post- 8 deprivation state remedy for the random and unauthorized taking of property. Barnett v. 9 Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (“California law provides an adequate post- 10 deprivation remedy for any property deprivations.”) Thus, to the extent Plaintiff 11 challenges the unauthorized or negligent taking of his money in contravention of a statute 12 or regulation authorizing it, the CTCA provides him with an adequate state post- 13 deprivation remedy, and his substantive and procedural due process claims challenging 14 the confiscation of and failure to return money taken from his inmate trust account are 15 not cognizable in a § 1983 action. 16 In addition, it appears that Plaintiff is seeking to hold Defendant Sullivan liable for 17 alleged due process violations based on how he responded to Plaintiff’s administrative 18 grievances. (See Compl. at 3.) A prison official’s allegedly improper processing of an 19 inmate’s grievances or appeals, without more, cannot serve as a basis for section 1983 20 liability. See generally Ramirez, 334 F.3d at 860 (prisoners do not have a “separate 21 constitutional entitlement to a specific prison grievance procedure.”) (citation omitted); 22 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply 23 because defendant fails properly to process grievances submitted for consideration); see 24 also Todd v. California Department of Corrections and Rehabilitation, 615 Fed. Appx. 25 415, 415 (9th Cir. 2015) (district court properly dismissed claim based on improper 26 “processing and handling of […] prison grievances,” since prisoners have no 27 “constitutional entitlement to a specific prison grievance procedure”) (citing Ramirez, 28 334 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545, 7 19-cv-1156-GPC-RBM 1 547 (9th Cir. 2014) (district court properly dismissed section 1983 claims against 2 defendants who “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at 3 860); Daniels v. Aguilera, No. 2:16-CV-00996-JAM-CKD P, 2018 WL 558658, at *1 4 (E.D. Cal. Jan. 24, 2018), report and recommendation adopted sub nom. Daniels v. 5 Aguillera, No. 2:16-CV-00996-JAM-CKD P, 2018 WL 1763311 (E.D. Cal. Apr. 12, 6 2018) (“Because there is no right to any particular grievance process, it is impossible for 7 due process to have been violated by ignoring or failing to properly process prison 8 grievances.”). 9 For these reasons, Plaintiff’s conclusory allegations are simply insufficient to state 10 a plausible due process claim upon which § 1983 relief may be granted. See Iqbal, 556 11 U.S. at 680-84 (citations omitted). 12 13 2. Judicial Immunity Plaintiff also seeks damages against Los Angeles Superior Court Judge Roger Ito 14 for denying him “an interpretive service” during his criminal proceedings. (Compl. at 4.) 15 Regardless of the constitutional or statutory basis upon which Plaintiff may intend to 16 challenge Judge Ito’s rulings, his Complaint must be dismissed insofar as he seeks 17 monetary damages from the Judge, who is absolutely immune. See 28 U.S.C. 18 § 1915(e)(2)(B)(iii); Chavez v. Robinson, 817 F.3d 1162, 1167-68 (9th Cir. 2016) (noting 19 § 1915(e)(2)(B)(iii) requires the court to dismiss an action “at any time” if it “seeks 20 monetary relief from a defendant who is immune from such relief.”). 21 Judges are absolutely immune from damage liability for acts which are judicial in 22 nature. Forrester v. White, 484 U.S. 219, 227-229 (1988); see also Stump v. Sparkman, 23 435 U.S. 349, 355-57 (1978); Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Judicial 24 immunity applies to actions brought under 42 U.S.C. § 1983 for acts committed within 25 the scope of judicial duties, “even when such acts are in excess of their jurisdiction, and 26 are alleged to have been done maliciously or corruptly.” Stump, 435 U.S. at 356. “[A] 27 judge will not be deprived of immunity because the action [s]he took was in error, was 28 done maliciously, or was in excess of his authority; rather, [s]he will be subject to 8 19-cv-1156-GPC-RBM 1 liability only when [s]he has acted in the clear absence of all jurisdiction.” Id. at 356-37; 2 see also Forrester, 484 U.S. at 227 (a judicial act “does not become less judicial by virtue 3 of an allegation of malice or corruption of motive”); Mireless v. Waco, 502 U.S. 9, 12 4 (1991). 5 Here, Plaintiff claims Judge Ito violated his rights during his resentencing hearing 6 by failing to accommodate his hearing disability. (See Compl. at 4.) Criminal 7 proceedings are clearly matters over which a trial judge has subject matter jurisdiction. 8 See Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (judges are 9 immune from damage actions for judicial acts taken within the jurisdiction of their 10 courts). Therefore, Plaintiff’s claims for money damages against Judge Ito must be 11 dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and § 1915A(b)(2) based 12 on his absolute immunity. See Pattillo v. White, 890 F.2d 420 at *1 (9th Cir. 1989) 13 (unpub.) (affirming dismissal of § 1983 claims against judge for decisions made during 14 bail proceedings on grounds of absolute judicial immunity); Chavez, 817 F.3d at 1167-68 15 (“Once a court has sufficient information to make a determination on immunity, 16 [§ 1915(e)(2)(B)(iii)] mandates dismissal.”). 17 3. Respondeat Superior 18 Plaintiff names the “Secretary of CDCR” as a Defendant. (Compl. at 1, 2.) 19 However, Plaintiff fails to state a plausible claim for relief under § 1983 because he fails 20 to include “further factual enhancement” which describes how or when this Defendant 21 was actually aware of a serious risk of harm to Plaintiff. Iqbal, 556 U.S. at 678 (citing 22 Twombly, 550 U.S. at 557). 23 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. 24 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is 25 inapplicable to ... § 1983 suits, [Plaintiff] must plead that each government-official 26 defendant, through the official’s own individual actions, has violated the Constitution.” 27 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los 28 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at 9 19-cv-1156-GPC-RBM 1 least me degree of particularity overt acts which defendants engaged in” in order to state 2 a claim). 3 As currently pleaded, Plaintiff’s Complaint offers no factual detail from which the 4 Court might reasonably infer a plausible claim for relief based on a violation of any 5 constitutional right on the part of the Secretary of the CDCR. Fed. R. Civ. P. 8 “demands 6 more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and in order 7 “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, 8 accepted as true, to ‘state a claim for relief that is plausible on its face.’” Iqbal, 662 U.S. 9 at 678 (quoting Twombly, 550 U.S. at 555, 570). And a supervisory official may only be 10 held liable under § 1983 if Plaintiff alleges his “personal involvement in the 11 constitutional deprivation, or … a sufficient causal connection between the supervisor’s 12 wrongful conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242- 13 43 (9th Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 14 Plaintiff makes no such allegations in his Complaint. Therefore, the Court sua 15 sponte dismisses Defendant Secretary of the CDCR based on Plaintiff’s failure to state a 16 plausible individual liability claim against him. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 17 § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 18 D. 19 Because he is proceeding pro se, however, the Court having now provided him Leave to Amend 20 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity 21 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 22 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). However, the claims against Defendant 23 Ito are DISMISSED without leave to amend. 24 III. Conclusion and Order 25 Good cause appearing, the Court: 26 1. 27 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 28 10 19-cv-1156-GPC-RBM 1 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 2 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 3 payments from the account in an amount equal to twenty percent (20%) of the preceding 4 month’s income and forwarding them to the Clerk of the Court each time the amount in 5 his account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 6 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 7 THIS ACTION. 8 3. 9 10 11 DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California, 94283-0001. 4. DISMISSES Plaintiff’s Complaint (ECF No. 1) for failing to state a claim 12 upon which § 1983 relief can be granted and for seeking monetary relief against an 13 immune defendant pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 14 5. GRANTS Plaintiff thirty (30) days leave from the date of this Order in 15 which to file an Amended Complaint that cures the deficiencies of pleading described 16 above. Plaintiff’s Amended Complaint must be complete by itself without reference to 17 his original complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 18 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 19 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 20 (noting that claims dismissed with leave to amend which are not re-alleged in an 21 amended pleading may be “considered waived if not repled.”). 22 23 24 25 26 6. The Clerk of Court is directed to mail Plaintiff a civil rights form complaint for his use in amending. IT IS SO ORDERED. Dated: July 15, 2019 27 28 11 19-cv-1156-GPC-RBM
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