Woods v. Health Care Specialty Services et al, No. 3:2022cv01055 - Document 8 (S.D. Cal. 2022)
Court Description: ORDER Granting Motion to Proceed in forma pauperis [Doc. No. 5 ] ; Denying Motion to Appoint Counsel [Doc. No. 7 ]; and Dismissing Complaint with leave to Amend Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). The Court GRANTS Pl aintiff forty-five (45) days leave from the date of this Order in which to file a First Amended Complaint which cures the deficiencies of pleading noted. Signed by Judge Michael M. Anello on 9/29/2022. (All non-registered users served via U.S. Mail Service and order mailed to Kathleen Allison) (tcf)
Download PDF
<![CDATA[
Woods v. Health Care Specialty Services et al Doc. 8 Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.53 Page 1 of 12 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 MICHAEL PHILLIP WOODS, CDCR #BG-8263, 15 16 17 18 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; Plaintiff, 13 14 Case No.: 22-cv-1055-MMA (AGS) vs. [Doc. No. 5] HEALTH CARE SPECIALTY SERVICES and CENTINELA STATE PRISON, DENYING MOTION TO APPOINT COUNSEL; AND Defendants. [Doc. No. 7] 19 DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 20 21 22 Plaintiff Michael Phillip Woods, a state prisoner incarcerated at Centinela State 23 Prison in San Diego, California, is proceeding pro se with a civil rights Complaint 24 pursuant to 42 U.S.C. § 1983. Doc. No. 4. Plaintiff claims his rights to medical care and 25 to be free from cruel and unusual punishment were violated when he received inadequate 26 medical treatment for a broken wrist. Id. at 3–4. 27 28 Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a) and has instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. -1- 22-cv-1055-MMA (AGS) Dockets.Justia.com Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.54 Page 2 of 12 1 § 1915(a), along with a separately-filed copy of his inmate trust account statement. Doc. 2 Nos. 5–6. He has also filed a Motion to Appoint Counsel. Doc. No. 7. 3 I. MOTION TO PROCEED IFP 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $402. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the 7 entire fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). See 8 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) also 9 requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust 10 fund account statement (or institutional equivalent) for . . . the 6-month period 11 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 12 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 13 the Court assesses an initial payment of 20% of (a) the average monthly deposits in the 14 account for the past six months, or (b) the average monthly balance in the account for the 15 past six months, whichever is greater, unless the prisoner has no assets. See 28 16 U.S.C. 1915(b)(1) & (4). The institution collects subsequent payments, assessed at 20% 17 of the preceding month’s income, in any month in which the account exceeds $10, and 18 forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 19 § 1915(b)(2). Plaintiff remains obligated to pay the entire fee in monthly installments 20 regardless of whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 21 84 (2016); 28 U.S.C. § 1915(b)(1) & (2). 22 Plaintiff’s prison certificate shows he had an average monthly balance of $188.86 23 and average monthly deposits of $106.42 for the 6-months preceding the filing of this 24 action, and an available balance of $104.00. See Doc. No. 6 at 1. The Court therefore 25 26 27 28 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 Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). -2- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.55 Page 3 of 12 1 GRANTS Plaintiff’s Motion to Proceed IFP and assesses an initial partial filing fee of 2 $23.77. Plaintiff remains obligated to pay the remaining $326.23 in monthly 3 installments. 4 5 6 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) A. Standard of Review Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 7 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these 8 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 9 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 10 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 11 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 12 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the 13 targets of frivolous or malicious suits need not bear the expense of responding.” 14 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted). 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 § 1915A screening “incorporates the familiar standard applied in 20 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) 21 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, 22 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 23 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Detailed 24 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 25 of action, supported by mere conclusory statements, do not suffice.” Id. “Determining 26 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 27 requires the reviewing court to draw on its judicial experience and common sense.” Id. 28 The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed -3- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.56 Page 4 of 12 1 me accusation[s]” fall short of meeting this plausibility standard. Id. 2 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 3 acting under color of state law, violate federal constitutional or statutory rights.” 4 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 5 source of substantive rights, but merely provides a method for vindicating federal rights 6 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal 7 quotation marks omitted). 8 B. 9 Allegations in the Complaint In count one of the Complaint Plaintiff alleges that on or around December 6, 10 2019, he fractured his right wrist and “requested to be seen and treated by ‘D-Yard 11 Medical.’” Doc. No. 4 at 3. Plaintiff was diagnosed with “right wrist tendonitis” and 12 provided a treatment plan of “home therapy, including moist heat, massage, [and] range 13 of motion stretching exercises,” and received a prescription for 600 mg Ibuprofen for 60 14 days. Id. However, after several days the pain and swelling worsened under the 15 treatment plan and he requested to be seen again. Id. “I was told by the physician of D- 16 Yard Medical that the swelling will go down, it was just inflamed.” Id. 17 On January 15, 2020, Plaintiff was “transported to San Diego to see Dr. Forester,” 18 who “informed me that I have a right wrist lunate fracture and that it needed to be put 19 into a cast.” Id. Plaintiff claims: “‘D-Yard Medical’ did not take the proper procedure or 20 protocol before giving me a diagnosis of ‘right wrist tendonitis’ which caused me to 21 endure unnecessary pain and discomfort.” Id. 22 Plaintiff alleges in count two that on or around July 1, 2021, he “started having 23 problems with my right hand going numb causing me pain and discomfort. I requested 24 multiple visits to ‘D-Yard Medical’ for diagnosis and treatment, with negative results.” 25 Id. at 4. He states he is still suffering pain and discomfort and that “the pain got so bad 26 that [I] could barely hold a pen to write, brush my teeth, or complete tasks with my right 27 hand” and the pain “even wakes me up during sleeping.” Id. Plaintiff submitted a 28 Healthcare Grievance form 602 “against Specialty Service” in order to obtain proper -4- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.57 Page 5 of 12 1 medical care, which was denied “with ‘no intervention.’” Id. 2 Plaintiff names as Defendants “Health Care Specialty Services” and “Centinela 3 State Prison.” Id. at 2. He seeks compensatory and punitive damages. Id. at 7. 4 C. 5 Analysis Prisoner medical care may amount to cruel and unusual punishment in violation of 6 the Eighth Amendment when medical professionals are “deliberately indifferent” to an 7 inmate’s “serious” medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). 8 “Deliberate indifference ‘may appear when prison officials deny, delay or intentionally 9 interfere with medical treatment, or it may be shown by the way in which prison 10 physicians provide medical care.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 11 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 12 “[A] prison official violates the Eighth Amendment when two requirements are 13 met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer 14 v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 15 (1991)). Second, Plaintiff must allege the prison official he seeks to hold liable had a 16 “sufficiently culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate 17 health or safety.” Id. (quoting Wilson, 501 U.S. at 302–03). “A difference of opinion 18 between a physician and the prisoner - or between medical professionals - concerning 19 what medical care is appropriate does not amount to deliberate indifference.” Colwell, 20 763 F.3d at 1068. Negligence or malpractice in diagnosing or treating a medical 21 condition does not violate the Eighth Amendment. Farmer, 511 U.S. at 835; Estelle, 429 22 U.S. at 106. A prison official must “know[] of and disregard[] an excessive risk to 23 inmate health or safety; the official must both be aware of facts from which the inference 24 could be drawn that a substantial risk of serious harm exists, and he must also draw the 25 inference.” Id. at 837. 26 With respect to the serious medical need prong of an Eighth Amendment claim, the 27 allegations in the Complaint that the lack of adequate medical care has resulted in 28 Plaintiff experiencing ongoing pain and discomfort as well as difficulty sleeping, holding -5- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.58 Page 6 of 12 1 a pen and brushing his teeth, are sufficient to survive the “low threshold” of screening 2 required by 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Wilhelm, 680 F.3d at 1123; Iqbal, 556 3 U.S. at 678; Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (“[I]ndicia of 4 a ‘serious’ medical need include (1) the existence of an injury that a reasonable doctor 5 would find important and worthy of comment or treatment, (2) the presence of a medical 6 condition that significantly affects an individual’s daily activities, and (3) the existence of 7 chronic or substantial pain.”). 8 9 However, the Complaint fails to plausibly allege Defendants were deliberately indifferent to that serious medical need for two reasons. First, Plaintiff has not identified 10 a proper Defendant, as he names only Centinela State Prison and Health Care Specialty 11 Services as Defendants. “To establish § 1983 liability, a plaintiff must show both 12 (1) deprivation of a right secured by the Constitution and laws of the United States, and 13 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 14 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). Centinela State Prison is not 15 a “person” within the meaning of § 1983. See Allsion v. Cal. Adult Auth., 419 F.2d 822, 16 822-23 (9th Cir. 1969) (concluding that state prison was not a “person” for purposes of 17 § 1983). Plaintiff does not identify in any way the only other Defendant named in the 18 Complaint, “Health Care Specialty Services,” but merely contends it was acting under 19 color of state law because it was under direction of the CDCR. Doc. No. 4 at 2. To the 20 extent this Defendant is Centinela’s medical department, it too is not a “person” within 21 the meaning of § 1983. See Walker v. Scott, 10cv5629-VAP (PJW), 2014 WL 346539, at 22 *5 (C.D. Cal. Jan. 23, 2014) (“Defendant Prison Administrative Health Care is not a 23 person and, therefore, is not amenable to suit under 42 U.S.C. § 1983.”) (citing Flint v. 24 Dennison, 488 F.3d 816, 824 (9th Cir. 2007) (noting that governmental entities are 25 considered arms of the state and not “persons” withing the meaning of 42 U.S.C. § 26 1983)). 27 Second, even if Plaintiff could identify a proper Defendant, he has not alleged 28 deliberate indifference. The deliberate indifference prong of an Eighth Amendment -6- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.59 Page 7 of 12 1 violation “is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s 2 pain or possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 3 439 F.3d 1091, 1096 (9th Cir. 2006). In count one of the Complaint Plaintiff alleges his 4 fractured wrist was misdiagnosed as tendonitis on December 6, 2019, by “D-Yard 5 Medical” at Centinela State Prison, that it was not properly diagnosed as a broken wrist 6 until January 15, 2020, by Dr. Forester at a different location, and that he suffered 7 unnecessary pain and discomfort during that six-week period as a result of the incorrect 8 diagnosis. Doc. No. 4 at 3. 9 A prison official can be held liable only if he “knows of and disregards an 10 excessive risk to inmate health or safety; the official must both be aware of facts from 11 which the inference could be drawn that a substantial risk of serious harm exists, and he 12 must also draw the inference.” Id. at 837. In other words, the Eighth Amendment is 13 violated when a prison official, acting with deliberate indifference, exposed Plaintiff to a 14 sufficiently “substantial risk of serious harm” to his health. Id. at 843. Count one 15 includes at best only an allegation of a misdiagnosis of Plaintiff’s wrist which does not 16 rise to the level of an Eighth Amendment violation. See Farmer, 511 U.S. at 835 17 (“[N]egligen(ce) in diagnosing or treating a medical condition” does not amount to 18 deliberate indifference) (quoting Estelle, 429 U.S. at 106) (holding that inadvertent 19 failure to provide medical care, mere negligence or medical malpractice and differences 20 of opinion over what medical treatment is proper, do not state an Eighth Amendment 21 claim). 22 There are no facts alleged in the Complaint which plausibly allege a prison official 23 was actually aware that a substantial risk to Plaintiff existed as a result of his wrist 24 needing different treatment and deliberately disregarded that risk. Plaintiff alleges he 25 complained of swelling and pain a few days after his December 6, 2019, diagnosis of 26 tendonitis, and was sent to an outside doctor for examination on January 15, 2020, but the 27 Complaint contains no allegations that Plaintiff made any Defendant aware during that 28 six-week period that he needed further treatment or diagnosis, or why he was eventually -7- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.60 Page 8 of 12 1 sent to an outside doctor. “A defendant must purposely ignore or fail to respond to a 2 prisoner’s pain or possible medical need in order for deliberate indifference to be 3 established.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on 4 other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). 5 Although “[p]rison officials are deliberately indifferent to a prisoner’s serious medical 6 needs with they deny, delay, or intentionally interfere with medical treatment,” Hallett v. 7 Morgan, 296 F.3d 732, 744 (9th Cir. 2002), with respect to the six-week delay in 8 properly diagnosing Plaintiff’s wrist injury during which he alleges he suffered 9 unnecessary pain, he can only establish deliberate indifference from such a delay where 10 there is a purposeful act or failure to act by the prison official that results in harm to the 11 plaintiff. Jett, 439 F.3d at 1096; Castro v. County of Los Angeles, 833 F.3d 1060, 1068 12 (9th Cir. 2016) (“A prison official cannot be found liable under the Cruel and Unusual 13 Punishment Clause [of the Eighth Amendment] . . . ‘unless the official knows of and 14 disregards an excessive risk to inmate health or safety; the official must both be aware of 15 facts from which the inference could be drawn that a substantial risk of serious harm 16 exists, and he must also draw the inference.’”) (quoting Farmer, 511 U.S. at 837). 17 Without factual allegations that a Defendant was aware during that six-week delay that 18 Plaintiff was seeking medical attention and aware of facts from which an inference could 19 be drawn that he needed medical attention, and actually drew that inference but 20 deliberately disregarded Plaintiff’s need for medical attention, count one does not state an 21 Eighth Amendment claim. 22 The Complaint alleges in count two that on or about July 1, 2021, about one- and 23 one-half years after surgery, Plaintiff began experiencing numbness, pain and discomfort, 24 and he “requested multiple visits to ‘D-Yard Medical’ for diagnosis and treatment, with 25 negative results.” Doc. No. 4 at 4. He states that his inmate healthcare 602 grievance 26 was denied marked “no intervention.” Id. These allegations are not entirely clear 27 whether Plaintiff’s requests to be seen were refused by the medical department or if his 28 visits there resulted in a determination that no further treatment of his condition was -8- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.61 Page 9 of 12 1 medically necessary. Either way, deliberate indifference can be shown where the chosen 2 course of medical treatment was “medically unacceptable under the circumstances” and 3 chosen “in conscious disregard of an excessive risk to the prisoner’s health.” See 4 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). A prison official can be found 5 liable for an Eighth Amendment violation where, knowing of a substantial risk to 6 Plaintiff’s health in declining to provide such treatment, deliberately disregarded that risk 7 when choosing the course of treatment which caused substantial harm. See Wood v. 8 Housewright, 900 F.2d 1332, 1334–35 (9th Cir. 1990) (a defendant must purposefully 9 ignore or fail to respond to pain or medical needs and the delay must have “caused 10 substantial harm”). Even assuming the allegations in count two that Plaintiff’s medical 11 condition of numbness and pain in his wrist making it difficult to sleep and engage in 12 daily activities plausibly allege that an inference could be drawn that a substantial risk of 13 serious harm existed without further or different treatment, count two fails to identify a 14 prison official who was aware, either through his requests for visits to D-Yard Medical or 15 his 602 healthcare grievance, of those facts, and who then drew that inference but failed 16 to act. Farmer, 511 U.S. at 837. 17 If Plaintiff wishes to proceed with a claim that he experienced six weeks of 18 unnecessary pain and discomfort as a result of a broken wrist being misdiagnosed as 19 tendonitis, or a claim based on the denial of follow-up medical treatment after complaints 20 of pain, numbness and inability to use his hand for daily activities, he must set forth facts 21 which plausibly allege a Defendant knew of and purposefully ignored or failed to respond 22 to his pain or medical needs, and that the delays caused him substantial harm. See 23 Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of mind more 24 blameworthy than negligence” and “more than ordinary lack of due care for the 25 prisoner’s interests or safety.”); Castro, 833 F.3d at 1068 (“A prison official cannot be 26 found liable under the Cruel and Unusual Punishment Clause [of the Eighth Amendment] 27 . . . ‘unless the official knows of and disregards an excessive risk to inmate health or 28 safety; the official must both be aware of facts from which the inference could be drawn -9- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.62 Page 10 of 12 1 that a substantial risk of serious harm exists, and he must also draw the inference.’”) 2 (quoting Farmer, 511 U.S. at 837). 3 Accordingly, Plaintiff’s Complaint is dismissed sua sponte for failure to state a 4 claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Watison, 668 F.3d at 1112; 5 Wilhelm, 680 F.3d at 1121. 6 D. 7 Leave to Amend In light of Plaintiff’s pro se status, the Court grants him leave to amend his 8 pleading to attempt to sufficiently allege a § 1983 claim if he can and if he wishes to 9 attempt to do so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district 10 court should not dismiss a pro se complaint without leave to amend [pursuant to 28 11 U.S.C. § 1915(e)(2)] unless ‘it is absolutely clear that the deficiencies of the complaint 12 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 13 Cir. 2012)). 14 E. Motion to Appoint Counsel 15 Plaintiff requests appointment of counsel because he is unable to afford counsel, 16 his imprisonment limits his ability to research and investigate, he has limited access to 17 the prison law library and limited legal knowledge, and because this case will likely 18 involve the type of conflicting testimony only counsel can competently handle. Doc. No. 19 7 at 1–2. All documents filed pro se are liberally construed, and “a pro se complaint, 20 however inartfully pleaded, must be held to less stringent standards than formal pleadings 21 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle, 429 22 U.S. at 106). There is no constitutional right to counsel in a civil case, and the decision to 23 appoint counsel under 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial 24 court and is granted only in exception circumstances.” Agyeman v. Corr. Corp. of 25 America, 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 26 (9th Cir. 1991) (noting that only “exceptional circumstances” support such a 27 discretionary appointment). Exceptional circumstances exist where there is cumulative 28 showing of both a likelihood of success on the merits and an inability of the pro se -10- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.63 Page 11 of 12 1 litigant to articulate his claims in light of their legal complexity. Palmer v. Valdez, 560 2 F.3d 965, 970 (9th Cir. 2009). 3 Plaintiff’s Complaint demonstrates he is capable of legibly articulating the facts 4 and circumstances relevant to his claims, and he has yet to show he is likely to succeed 5 on the merits. The Court therefore DENIES the motion for appointment of counsel 6 without prejudice. 7 III. CONCLUSION 8 Good cause appearing, the Court GRANTS Plaintiff’s Motion to Proceed IFP and 9 ORDERS the Secretary of the CDCR, or her designee, to collect from Plaintiff’s prison 10 trust account the initial filing fee of $23.77 and thereafter collect the remaining $326.23 11 filing fee owed by collecting monthly payments from Plaintiff’s account in an amount 12 equal to twenty percent (20%) of the preceding month’s income and forwarding those 13 payments to the Clerk of the Court each time the amount in the account exceeds $10 14 pursuant to 28 U.S.C. § 1915(b)(2). The Court DIRECTS the Clerk of the Court to serve 15 a copy of this Order on Kathleen Allison, Secretary, California Department of 16 Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California 94283-0001. 17 Further, the Court DENIES Plaintiff’s Motion to Appoint Counsel and 18 DISMISSES all claims against all Defendants in the Complaint without prejudice and 19 with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court 20 GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file 21 a First Amended Complaint which cures the deficiencies of pleading noted in this Order 22 with respect to any or all other Defendants. Plaintiff’s First Amended Complaint must be 23 complete by itself without reference to his original Complaint. Defendants not named 24 and any claims not re-alleged in the First Amended Complaint will be considered waived. 25 See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 26 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); 27 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 28 dismissed with leave to amend which are not re-alleged in an amended pleading may be -11- 22-cv-1055-MMA (AGS) Case 3:22-cv-01055-MMA-AGS Document 8 Filed 09/29/22 PageID.64 Page 12 of 12 1 “considered waived if not repled”). If Plaintiff fails to amend, the Court will dismiss this 2 action for failure to state a claim and failure to prosecute. See Lira v. Herrera, 427 F.3d 3 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to 4 fix his complaint, a district court may convert the dismissal of the complaint into 5 dismissal of the entire action.”). 6 7 IT IS SO ORDERED. Dated: September 29, 2022 8 _____________________________ 9 HON. MICHAEL M. ANELLO United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- 22-cv-1055-MMA (AGS)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
