Alonso v. Imperial County Sheriff Office et al, No. 3:2023cv00005 - Document 25 (S.D. Cal. 2023)
Court Description: ORDER Granting Defendants' Motion to Dismiss Plaintiff's Complaint and Dismissing Complaint without Prejudice and with Leave to Amend: Plaintiff's Amended Complaint due by 9/25/2023. Signed by Magistrate Judge Lupe Rodriguez, Jr on 8/9/2023. (All non-registered users served via U.S. Mail Service)(exs)
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Alonso v. Imperial County Sheriff Office et al Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER K. ALONSO, Plaintiff, 12 13 v. 14 IMPERIAL COUNTY SHERIFF OFFICE, et al., 15 Case No.: 23cv5-LR ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND DISMISSING COMPLAINT WITHOUT PREJUDICE AND WITH LEAVE TO AMEND Defendants. 16 17 [ECF NO. 5] 18 19 Pending before the Court is Defendants’ “Motion to Dismiss Plaintiff’s 20 21 Complaint” [ECF No. 5, ECF No. 5-1 (“Mot. Dismiss”)], Plaintiff’s Opposition [ECF 22 No. 13 (“Opp’n”)], Defendants’ Reply [ECF No. 17 (“Reply”)], and Plaintiff’s 23 “Revise[d] Response” to Defendants’ Motion to Dismiss [ECF No. 20 (“Sur-Reply”)]. 24 After careful review and consideration of the allegations in Plaintiff’s Complaint, and for 25 the reasons discussed in this order, the Court GRANTS Defendants’ Motion to Dismiss, 26 and dismisses Plaintiff’s Complaint without prejudice and with leave to amend. 27 /// 28 /// 1 23cv5-LR Dockets.Justia.com 1 I. PROCEDURAL BACKGROUND 2 On January 3, 2023, Plaintiff Christopher Alonso, proceeding pro se, filed a 3 Complaint against the Imperial County Sheriff’s Office and Sheriff Deputies J. Mendoza, 4 Soto, R. Lizzarga, J. Guzman, Soria, Castro, M. Muniga, and Torres (“Defendants”), 5 alleging violations of his civil rights under 42 U.S.C. § 1983. (ECF No. 1 (“Compl.”).) 6 On January 26, 2023, Defendants named in Plaintiff’s Complaint “by and through their 7 attorneys” filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil 8 Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (See 9 Mot. Dismiss.) Plaintiff did not oppose the Motion to Dismiss, and Defendants filed a 10 11 Reply in support of their motion on February 23, 2023. (ECF No. 7.) On March 6, 2023, District Judge Bencivengo dismissed Plaintiff’s Complaint 12 without prejudice. (ECF No. 8.) Judge Bencivengo’s order stated that if Plaintiff’s 13 failure to oppose the Motion to Dismiss was inadvertent, Plaintiff was to file a motion for 14 relief from the order pursuant to Federal Rule of Civil Procedure 60, and an opposition to 15 the Motion to Dismiss by April 3, 2023. (Id. at 2 n.1.) 16 On March 15, 2023, Plaintiff filed a “Motion to Reinstate Dismissed Case” stating 17 that he was not abandoning his Complaint. (ECF No. 9.) Plaintiff, however, did not 18 submit an opposition as directed by the District Judge’s March 6, 2023 Order. (See id.; 19 see also ECF No. 8.) On March 20, 2023, District Judge Bencivengo issued an order 20 requiring Plaintiff to respond to Defendants’ Motion to Dismiss by April 10, 2023. (ECF 21 No. 10.) The order further stated that if Plaintiff did not file an opposition by April 10, 22 2023, his motion to reopen the case would be denied, and the case would remain 23 dismissed. (Id. at 2.) 24 On April 3, 2023, the case was transferred from Magistrate Judge Bernard G. 25 Skomal to Magistrate Judge Lupe Rodriguez, Jr. (ECF No. 11.) Plaintiff did not file an 26 opposition to Defendants’ Motion to Dismiss, and on April 18, 2023, District Judge 27 Bencivengo denied Plaintiff’s motion to reopen the case. (ECF No. 12 at 2.) 28 2 23cv5-LR 1 On April 26, 2023, Plaintiff filed a document, which District Judge Bencivengo 2 construed as a Response in Opposition to Defendants’ Motion to Dismiss. (See Opp’n; 3 ECF No. 14.) District Judge Bencivengo accepted Plaintiff’s filing and allowed 4 Defendants to file a reply in support of their Motion to Dismiss by May 5, 2023. (ECF 5 No. 14 at 2.) On May 1, 2023, District Judge Bencivengo referred the Motion to Dismiss 6 to this Court for a Report and Recommendation. (See Docket.) On May 5, 2023, 7 Defendants timely filed a Reply in support of their Motion to Dismiss. (See Reply.) 8 On June 7, 2023, this Court held a hearing on Defendants’ Motion to Dismiss 9 during which pro se Plaintiff and defense counsel on behalf of his clients consented to 10 this Court’s jurisdiction. (See ECF No. 19.) On June 13, 2023, Plaintiff filed a 11 “Revise[d] Response” to the Motion to Dismiss, which the Court construes as Plaintiff’s 12 Sur-Reply. (See Sur-Reply.) On June 26, 2023, District Judge Bencivengo signed the 13 “Consent to Jurisdiction by a United States Magistrate Judge” form, and the case was 14 transferred to this Court. (See ECF No. 21; see also ECF No. 22 (containing executed 15 “Consent to Jurisdiction by a United States Magistrate Judge” forms).) 16 17 II. ALLEGATIONS IN PLAINTIFF’S COMPLAINT Plaintiff’s Complaint names the Imperial County Sheriff’s Office and Sheriff 18 Deputies Mendoza, Soto, Lizzarga, Guzman, Soria, Castro, Muniga, and Torres as 19 Defendants. (Compl. at 1–3, 7–9.) The Complaint lists “statute 1983” and “14th 20 amendment” as causes of action, and provides the following description: “Excessive 21 force, False Reports, inhuman-unsanitary Conditions, Medical Neglect Malpractice.” (Id. 22 at 12.) Plaintiff alleges that the events giving rise to his claims occurred at the Imperial 23 Valley Jail in El Centro, CA, and Brawley Superior Court in Brawley, CA, between 24 October 1 and November 8, 2022. (Id. at 4.) Plaintiff claims that he experienced 25 excessive force, verbal and sexual harassment by staff, deprivation of clean clothing and 26 meals, medical neglect and malpractice, inhumane and unsanitary conditions, and 27 problems with ventilation. (Id. at 5.) 28 3 23cv5-LR 1 In a separate document entitled “Statement of Claim” attached to the Complaint, 2 Plaintiff describes in a narrative manner the “variety of issues” he experienced and 3 “concerns” he had during his pretrial detention. (See ECF No. 1-2 at 1–4.) Plaintiff 4 alleges that he was not provided clean “orange apparel” for seventeen days after his 5 arrival at the Imperial Valley Jail on October 1, 2022, but states that he received clean 6 underwear, socks, and a T-shirt four days after his arrival, and then again seven days 7 later. (Id. at 1.) 8 Plaintiff further alleges that he was “deprived” of a meal in retaliation. (See id.; 9 Compl. at 5.) Plaintiff alleges that he spoke to officer Lizzarga “regarding some 10 concerns,” and requested to speak to a supervisor because Lizzarga disregarded 11 Plaintiff’s concerns. (ECF No. 1-2 at 1.) Lizzarga grabbed Plaintiff’s lunch bag, and 12 closed and locked Plaintiff’s cell door’s window slot. (Id.) Hours later during mealtime 13 Plaintiff’s lunch was placed on the window ledge of his cell door, but he was not able to 14 get the food because his cell door’s window slot was locked. (Id.) Several minutes later, 15 “the officer” returned and reopened Plaintiff’s window slot so that Plaintiff could get his 16 meal. (Id.) Plaintiff states that “the officer” acted in retaliation. (Id.) 17 Plaintiff also alleges that he was housed in unsanitary conditions in cells that 18 contained feces, dried urine, food crumbs, and black stains, and the jail’s shower pods 19 had insects and dried urine marks. (Id. at 2, 5.) One cell had a very strong odor, no 20 toilet, and no running water. (Id. at 2.) Plaintiff was also placed in an “extremely cold” 21 cell, where he “was left naked with no socks, shoes or any bodily clothing for about 4 22 days.” (Id.) He did not have a mattress or blanket and complained about “hypothermia 23 conditions.” (Id.) On a different occasion, the AC was turned off during the night, 24 running water was hot, and room temperature water was not available. (Id.) Plaintiff’s 25 request to Sergeant Muniga for “emergency services” was denied. (Id.) 26 Additionally, Plaintiff was embarrassed and harassed when female officers walked 27 inside the pods in front of jail cells while he was naked or in route to open shower 28 areas. (Id.) Plaintiff was “body shamed” by several officers when they told him to 4 23cv5-LR 1 remove clothing and would only give him a set of clean clothing in exchange for dirty 2 laundry. (Id.) 3 Further, Plaintiff was deprived of sleep with “lighting torment techniques & 4 random wake ups.” (Compl. at 5.) Correctional officers came to Plaintiff’s cell during 5 walk throughs with beaming flashlights, and Plaintiff noticed “patterns of sleep 6 deprivation as the lights started to go off later in the day past the bedtime hours and lights 7 started to be turned off earlier than the expected time.” (ECF No. 1-2 at 3–4.) 8 Plaintiff “felt” he “was in solitary confinement and was not allowed to leave [his] 9 cell.” (Id. at 4.) Plaintiff’s educational efforts were “obstructed” despite his requests for 10 library access. (Id.) Further, most of time, the phones did not work and were “tampered 11 with.” (Id.) Additionally, Plaintiff’s lunch had “fewer eatable items inside,” milk was 12 frequently spoiled, and his requests for extra food were not addressed. (Id. at 2.) 13 Plaintiff also “observed many officers impersonate other officers by placing 14 different name titles” on their vests. (Id. at 3.) Officer Guzman impersonated three 15 different officers, officer Zuniga impersonated another officer, officer Soto impersonated 16 officer Ortiz, and officer Chavarin impersonated officer Cervantes. (Id.) Additionally, 17 several nurses impersonated doctors. (Id.) 18 Plaintiff was “assaulted” by officer Mendoza who reached in through the jail door 19 window slot and threw a lunch bag with food at Plaintiff while he was asleep on the 20 bottom bunk. (See ECF No. 1-2 at 1; Compl. at 5.) Plaintiff became “very upset,” 21 cussed the officer, and requested a supervisor, but a supervisor did not respond. (ECF 22 No. 1-2 at 1.) 23 Plaintiff was also assaulted while awaiting trial at the Brawley Superior Court. (Id. 24 at 4.) He was fully restrained with wrist and ankle cuffs, and was placed in a cell with 25 three inmates. (Id.) Two unrestrained inmates assaulted Plaintiff with their fists, but “the 26 officers” did not take any action with respect to “the aggressors.” (Id.) 27 28 During another visit to the Brawley Superior Court, Plaintiff was “wrongfully touched by officers on duty without [his] consent.” (Id.) Plaintiff rolled his pants to his 5 23cv5-LR 1 knees, and an officer told Plaintiff to roll down his pants if he wanted to enter the 2 courtroom. (Id.) After Plaintiff refused to roll down his pants, seven officers surrounded 3 him and rolled down his pants. (Id.) 4 Further, at the Brawley Superior Court, an unidentified officer “who wore khaki 5 pants and black polo shirt that had a Cinemark on the left chest area” and was armed with 6 a gun, escorted Plaintiff to the medic room after Plaintiff was “assaulted at the [B]rawley 7 jail.” (Id. at 1–2.) The officer questioned Plaintiff, and Plaintiff asked the officer to stop 8 because he “felt harassed.” (Id. at 2.) The officer pulled Plaintiff’s arm and shirt, 9 choking him. (Id.) The assisting officer, officer Mendoza, was also “very brutal” while 10 escorting Plaintiff to his cell. (Id.) The officers pinched Plaintiff’s arms, pushed him 11 down the hallway and into the wall, and tried to twist Plaintiff’s wrist behind his back 12 while he was still fully restrained. (Id.) During the removal of Plaintiff’s handcuffs, 13 officer Mendoza injured Plaintiff’s right inner wrist, but Plaintiff did not receive any 14 medical care for his injury. (Id.) 15 Plaintiff had two other encounters with the unidentified officer several days 16 later. (Id.) On one occasion, the officer walked in Plaintiff’s cell and asked if he wanted 17 his meal, and Plaintiff told the officer that he did not want the meal without knowing who 18 the officer was. (Id.) The officer asked Plaintiff whether he should leave the meal on the 19 floor. (Id.) Plaintiff answered in the negative, asked the officer to leave his cell, and 20 stated that the officer was “harassing” him. (Id.) On another occasion, Officer Lizzarga 21 and an unidentified officer came inside Plaintiff’s cell, and Plaintiff asked them to leave, 22 claiming that the officers were too close and “invaded” his “personal space.” (Id.) 23 Plaintiff was prescribed Tylenol for bruising and pain, and was told during intake 24 that he would see a doctor, get x-rays, and undergo a medical evaluation for his injuries, 25 but he did not receive any evaluations or testing. (Id. at 3.) Plaintiff received “two round 26 pills which seemed to b[e] Tylenol” and blood pressure medication. (Id.) Several days 27 later, a prescription medication Pharmaflex was added to Plaintiff’s medication list. (Id.) 28 6 23cv5-LR 1 Plaintiff took Tylenol once, but subsequently refused to take the medications he was 2 provided because he had not been seen by any doctor or practitioner. (Id.) Plaintiff “had severe stomach problems,” was constipated for over fifteen days, 3 4 requested “magnesium milk,” and alerted “medical staff and correctional staff via tablet 5 through classification reports and medical reports” that he had an upcoming colonoscopy 6 appointment, but his reports and requests were disregarded. (Id.) The staff “attempted” 7 to give Plaintiff a TB test, which he refused. (Id.) Several days later, a female officer 8 tried moving Plaintiff to a different cell to quarantine because he tested positive for 9 Covid-19, but Plaintiff refused to move. (Id.) 10 Finally, Plaintiff alleges that his booking statement was falsified with “[f]ake CA 11 ID number and other false articulations,” and he is “being defamed as a terrorist.” (Id.) 12 Plaintiff suffered mental trauma and emotional distress, and seeks $6,500,000 in 13 damages. (Id. at 4–5, 12.) 14 15 16 III. LEGAL STANDARD A. Motion to Dismiss for Failure to State a Claim Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint 17 for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A 18 court evaluates whether a complaint states a cognizable legal theory and sufficient facts 19 in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain 20 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 21 8(a)(2). To survive a motion to dismiss, a “complaint must contain sufficient factual 22 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 23 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 24 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that 25 allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A 27 complaint “must contain sufficient allegations of underlying facts to give fair notice and 28 7 23cv5-LR 1 to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 2 1216 (9th Cir. 2011). A court accepts as true a plaintiff’s well-pleaded factual allegations and construes 3 4 all factual inferences in the light most favorable to the plaintiff. See Manzarek v. St. Paul 5 Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A court, however, is not 6 required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 7 U.S. at 678. When resolving a motion to dismiss for failure to state a claim, a court 8 considers the contents of the complaint and material properly submitted with it. Van 9 Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Schneider v. 10 Cal. Dept. of Corr., 151 F.3d 1194, 1197 (9th Cir. 1998) (internal citations and internal 11 quotation marks omitted) (“Ordinarily, the face of the . . . complaint, and the exhibits 12 attached thereto, would control the Rule 12(b)(6) inquiry.”). 13 B. Standards Applicable to Pro Se Litigants 14 When a plaintiff appears pro se, a court must liberally construe the pleadings. See 15 Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th 16 Cir. 2002). The rule of liberal construction is “particularly important” in civil rights 17 cases. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Ferdik v. Bonzelet, 963 18 F.2d 1258, 1261 (9th Cir. 1992). When liberally construing a pro se civil rights 19 complaint, a court is not permitted to “supply essential elements of the claim that were 20 not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th 21 Cir. 1982). “The plaintiff must allege with at least some degree of particularity overt acts 22 which defendants engaged in that support the plaintiff’s claim.” Jones v. Cmty. Redev. 23 Agency, 733 F.2d 646, 649 (9th Cir. 1984) (citations and internal quotation marks 24 omitted). 25 A court should allow a pro se litigant to amend his complaint, “unless the pleading 26 ‘could not possibly be cured by the allegation of other facts.’” Ramirez v. Galaza, 334 27 F.3d 850, 861 (9th Cir. 2003) (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 28 2000)). “[B]efore dismissing a pro se complaint the district court must provide the 8 23cv5-LR 1 litigant with notice of the deficiencies in his complaint in order to ensure that the litigant 2 uses the opportunity to amend effectively.” Ferdik, 963 F.2d at 1261. A court “should 3 not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that 4 the deficiencies of the complaint could not be cured by amendment.’” Rosati v. Igbinoso, 5 791 F.3d 1037, 1039 (9th Cir. 2015) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 6 Cir. 2012)). However, where an amendment of a pro se litigant’s complaint would be 7 futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 8 (9th Cir. 2000). 9 C. 10 Stating a Claim Under 42 U.S.C. § 1983 To state a claim under 42 U.S.C. § 1983, a plaintiff must plausibly allege that 11 (1) the acts of defendants (2) taken under color of state law (3) deprived him of his 12 federal rights, privileges or immunities and (4) caused him damage. 42 U.S.C. § 1983; 13 Thornton v. City of St. Helens, 425 F.3d 1158, 1163–64 (9th Cir. 2005). To prevail on a 14 § 1983 claim, “a plaintiff must demonstrate that he suffered a specific injury as a result of 15 specific conduct of a defendant and show an affirmative link between the injury and the 16 conduct of the defendant.” Harris v. Schriro, 652 F. Supp. 2d 1024, 1034 (D. Ariz. 2009) 17 (citing Rizzo v. Goode, 423 U.S. 362, 371–72 (1976)). 18 IV. DISCUSSION 19 Defendants move the Court to dismiss Plaintiff’s Complaint without leave to 20 amend. (Mot. Dismiss at 2, 10.) They argue that Defendant Imperial County Sheriff’s 21 Office is not a “person” under 42 U.S.C. § 1983 and should be dismissed with prejudice, 22 and Plaintiff failed to adequately plead a claim against individual Defendants. (Id. at 7– 23 10.) Defendants maintain that Plaintiff’s Complaint fails to state a claim upon which 24 relief can be granted and fails to state a legal cognizable theory. (Id. at 10.) 25 In his Opposition, Plaintiff lists the following issues: (1) “Deprivation of [his] 26 Liberty [in] violation of [his] 14th amendment right medical negligence”; (2) “Excessive 27 Force Statute 1983”; and (3) “Report Error. Automatic dismissal. (booking statement is 28 also falsified with fake CA ID number and other false articulations.).” (Opp’n at 1.) 9 23cv5-LR 1 Plaintiff states that he “agree[s] with the Superior Court’s decision, but he “disagrees” 2 with the law enforcement decision to arrest him in violation of his First Amendment 3 rights.1 (Id. at 6.) Plaintiff also asks the Court to “affirm and keep the dismissal 4 order” of the Imperial County Superior Court Case No. JCF006186, in which 5 “[H]onorable Bermudez dropped allegation counts due to false arrest and false 6 allegations as video evidence showed no threats were made by audio footage 7 review.” (Id.) 8 9 Defendants reply that Plaintiff conflates issues from his criminal proceeding in state court with issues raised in the instant civil action filed in federal court. (Reply at 4– 10 5.) Defendants further assert that the Opposition contains facts not pled in Plaintiff’s 11 Complaint and ask the Court to disregard those facts, including “all facts asserted on 12 pages 6–7 of Plaintiff’s Opposition.” (Id. at 5.) Defendants also maintain that Plaintiff’s 13 Fourteenth Amendment claims are not well-pled and move the Court to dismiss 14 Plaintiff’s Complaint without leave to amend. (Id. at 5–6.) Plaintiff’s Sur-Reply restates the facts listed in his Opposition. (See Sur-Reply at 15 16 2–5; see also Opp’n at 1–6.) Plaintiff states that the instant action is brought under 42 17 U.S.C. § 1983 and he “[c]laims that defendants’ actions deprived him of Fourteenth 18 Amendment due process and equal protection of the law.” (Sur-Reply at 5.) Plaintiff 19 asks the Court to “affirm & keep the Superior Court’s final judgement.” (Id. at 6.) 20 /// 21 /// 22 23 24 25 26 27 28 Plaintiff explains that El Centro Police Department “ma[de] contact” with him at his residence regarding an incident at Seven Eleven store, during which he “was refused service” and exchanged profanities with the store clerk. (Opp’n at 6.) Plaintiff states that police officers identified themselves, but did not state what crime he had committed, and, as a result, he “chose not to cooperate.” (Id.) Plaintiff claims that, contrary to Defendants’ contentions, he did not make terrorist threats; rather, he exercised his First Amendment right to advise the store clerk that she provided poor service. (Id.) 1 10 23cv5-LR 1 A. Facts Raised in Plaintiff’s Opposition and Sur-Reply 2 The Court initially addresses Defendants’ argument that because Plaintiff’s 3 Opposition contains facts that Plaintiff did not plead in his Complaint, the Court should 4 disregard those facts, including “all facts asserted on pages 6–7 of Plaintiff’s 5 Opposition.” (See Reply at 5.) Plaintiff’s Opposition and Sur-Reply contain additional 6 facts, which were not alleged in Plaintiff’s Complaint. (See Opp’n at 6–7; Sur-Reply at 7 5.) “In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look 8 beyond the complaint to a plaintiff’s moving papers, such as a memorandum in 9 opposition to a defendant’s motion to dismiss.” Broam v. Bogan, 320 F.3d 1023, 1026 10 n.2 (9th Cir. 2003) (quoting Schneider, 151 F.3d at 1197 (9th Cir. 1998)); see also Turner 11 v. Cty. of San Diego, Case No.: 17cv285-WQH-MDD, 2017 WL 2908807, at *3 (S.D. 12 Cal. July 7, 2017) (“[A] court cannot consider as allegations facts [p]laintiff asserts for 13 the first time in his opposition.”). However, a court may consider “[f]acts raised for the 14 first time in plaintiff’s opposition papers . . . in determining whether to grant leave to 15 amend or to dismiss the complaint with or without prejudice.” Broam, 320 F.3d at 1026 16 n.2 (quoting Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137–38 17 (9th Cir. 2001)). Accordingly, although the Court cannot consider new facts listed in 18 Plaintiff’s Opposition in determining whether Plaintiff’s Complaint states a claim against 19 Defendants, the Court will consider those facts in determining whether to grant leave to 20 amend or to dismiss the Complaint with or without prejudice. See id. 21 B. 22 Monell Municipal Liability Defendants argue that to the extent Plaintiff is attempting to establish municipal 23 liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978), his Complaint 24 fails to state a claim upon which relief can be granted. (Mot. Dismiss at 8.) Defendants 25 assert that Plaintiff fails to mention any policy that amounted to deliberate indifference to 26 his rights and merely lists facts related to his incarceration. (Id. at 8–9.) Defendants 27 argue that the Imperial County Sheriff’s Office is “not a correct party to a § 1983 action” 28 and should be dismissed with prejudice. (Id. at 9.) Plaintiff does not make any 11 23cv5-LR 1 arguments regarding municipal liability in his Opposition and Sur-Reply. (See Opp’n; 2 Sur-Reply.) 3 Plaintiff’s Complaint names the Imperial County Sheriff’s Office. (See Compl.) 4 In its recent decision, the Ninth Circuit clarified that municipal police departments and 5 sheriff’s departments are “persons” within the meaning of 42 U.S.C. § 1983, and are 6 therefore proper defendants. See Duarte v. City of Stockton, 60 F.4th 566, 574 (9th Cir. 7 2023); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (“To 8 establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by 9 the Constitution and laws of the United States, and (2) that the deprivation was 10 committed by a person acting under color of state law.”). Therefore, the Imperial County 11 Sheriff’s Office is a “person” within the meaning of 42 U.S.C. § 1983, and a proper 12 Defendant in this action. See id.; see also Crossley v. Tulare Cnty. Sheriff, 1:21-cv- 13 01758-GSA-PC, 2023 WL 3794868, at *4 (E.D. Cal. June 2, 2023) (citing Duarte, 60 14 F.4th at 574, and concluding that Tulare County Sheriff’s Department was a proper 15 defendant); Johnson v. Solano Cnty. Sherriff, No. 2:22-cv-02061-DAD-CKD PS, 2023 16 WL 2278409, at *4 (E.D. Cal. Feb. 28, 2023) (citing Duarte, 60 F.4th at 574, and 17 concluding that Solano County Sheriff’s Department was proper defendant). 18 A municipality or local government unit can be held liable under 42 U.S.C. § 1983 19 if the allegedly unconstitutional actions of its employees were taken pursuant to a “policy 20 statement, ordinance, regulation, or decision officially adopted and promulgated by that 21 body’s officers.” Monell, 436 U.S. at 690. A municipality can also be liable for adopting 22 an unconstitutional custom, even if such custom has not received formal approval 23 through the “body’s official decision-making channels.” Id. at 690–91. However, a 24 municipal entity cannot be held liable under 42 U.S.C. § 1983 simply because it employs 25 someone who has allegedly acted unlawfully. Id. at 691, 694. A plaintiff must show 26 that: (1) he was deprived of a constitutional right; (2) the municipality has a policy, 27 custom or practice which amounted to deliberate indifference to that constitutional right; 28 and (3) the policy, custom, or practice was the moving force behind the constitutional 12 23cv5-LR 1 violation. Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011) (citing 2 Monell, 436 U.S. at 694). A “policy” is a “deliberate choice to follow a course of 3 action . . . made from among various alternatives by the official or officials responsible 4 for establishing final policy with respect to the subject matter in question.” Fogel v. 5 Collins, 531 F.3d 824, 834 (9th Cir. 2008). A “custom” for purposes of municipal 6 liability is a “widespread practice that, although not authorized by written law or express 7 municipal policy, is so permanent and well-settled as to constitute a custom or usage with 8 the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (citation and internal 9 quotation marks omitted). “[P]roof of a single incident of unconstitutional activity” or 10 even a series of “isolated or sporadic incidents” will not give rise to § 1983 municipal 11 liability. Grant v. Cnty. of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014). 12 In this case, Plaintiff has not alleged or identified in his Complaint any policy, 13 custom, or practice by the Imperial County’s Sheriff’s Office that amounted to deliberate 14 indifference to his constitutional rights. See Dougherty, 654 F.3d at 900–01; Monell, 436 15 U.S. at 694. Further, the Complaint does not allege that any policy, custom or practice 16 was the “moving force” behind the constitutional violation. See id. The Court therefore 17 dismisses Plaintiff’s Monell claim for failure to state a claim upon which relief may be 18 granted. 19 C. 20 Fourteenth Amendment Claims Plaintiff’s Complaint appears to allege that Defendants violated his Fourteenth 21 Amendment rights by (1) using excessive force and failing to protect him from violence, 22 (2) providing inadequate medical care, and (3) providing inadequate conditions of 23 confinement. (See Compl.; ECF No. 1-2.) “Inmates who sue prison officials for injuries 24 suffered while in custody may do so under the Eighth Amendment’s Cruel and Unusual 25 Punishment Clause or, if not yet convicted, under the Fourteenth Amendment’s Due 26 Process Clause.” Castro v. Cnty. of L.A., 833 F.3d 1060, 1067–68 (9th Cir. 2016); see 27 also Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016) (“Eighth 28 Amendment protections apply only once a prisoner has been convicted of a crime, while 13 23cv5-LR 1 pretrial detainees are entitled to the potentially more expansive protections of the Due 2 Process Clause of the Fourteenth Amendment.”); Pierce v. Cnty. of Orange, 526 F.3d 3 1190, 1205 (9th Cir. 2008) (providing that pretrial detainees are protected against jail 4 conditions or restrictions that “amount to punishment” by the Fourteenth Amendment’s 5 Due Process Clause). 6 The Fourteenth Amendment “prohibits all punishment of pretrial detainees.” 7 Norbert v. City & Cnty. of S.F., 10 F.4th 918, 928 (9th Cir. 2021) (quoting Vazquez v. 8 Cnty. of Kern, 949 F.3d 1153, 1163–64 (9th Cir. 2020)). For a “particular governmental 9 action to constitute punishment, (1) that action must cause the detainee to suffer some 10 harm or ‘disability,’ and (2) the purpose of the governmental action must be to punish the 11 detainee.” Id. (quoting Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004)). 12 “Harm” under the first prong must “significantly exceed, or be independent of, the 13 inherent discomforts of confinement.” Demery, 378 F.3d at 1030 (citing Bell, 441 U.S. 14 at 537). 15 During the events at issue in this action, Plaintiff was awaiting trial in his 16 underlying state court proceedings. (See Compl.) Because Plaintiff was a pretrial 17 detainee, and not a convicted inmate, the Fourteenth Amendment governs his claims. 18 1. Excessive force/failure to protect 19 To the extent Plaintiff alleges that Defendants violated his Fourteenth Amendment 20 rights by using excessive force, “the Due Process Clause protects a pretrial detainee from 21 the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 576 22 U.S. 389, 397–98 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). 23 To state an excessive force claim, “a pretrial detainee must show only that the force 24 purposely or knowingly used against him was objectively unreasonable.” Id. at 396–97. 25 Objective reasonableness turns on the “facts and circumstances of the particular case.” 26 See id. at 397 (quoting Graham, 490 U.S. at 396). A court must consider “legitimate 27 interests that stem from [the government’s] need to manage the facility in which the 28 individual is detained, appropriately deferring to policies and practices that in th[e] 14 23cv5-LR 1 judgment of jail officials are needed to preserve internal order and discipline and to 2 maintain institutional security.” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540, 547 3 (1979) (internal quotation marks omitted)). Relevant considerations also include “the 4 relationship between the need for the use of force and the amount of force used; the 5 extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the 6 amount of force; the severity of the security problem at issue; the threat reasonably 7 perceived by the officer; and whether the plaintiff was actively resisting.” Id. at 397. 8 9 In this case, Plaintiff alleges that during his pretrial detention at the Imperial Valley Jail, officer Mendoza “assaulted” him when he threw a lunch bag with food at 10 Plaintiff. (See ECF No. 1-2 at 1; Compl. at 5.) Plaintiff further alleges that he was 11 “wrongfully touched by officers on duty without [his] consent” at the Brawley Superior 12 Court when the officers rolled down Plaintiff’s pants. (See ECF No. 1-2 at 4.) 13 Additionally, Plaintiff’s Complaint alleges that an unidentified officer and officer 14 Mendoza used excessive force when they transported Plaintiff from the Brawley Superior 15 Court back to his cell. (See id. at 2.) Plaintiff’s Complaint only identifies Defendant 16 Mendoza and generally claims that correctional officers used excessive force against him. 17 The Complaint also does not describe the extent of Plaintiff’s injuries and does not allege 18 any other facts relevant to his excessive force claim. See Kingsley, 576 U.S. at 397 19 (providing that relevant considerations include “the relationship between the need for the 20 use of force and the amount of force used; the extent of the plaintiff’s injury; any effort 21 made by the officer to temper or to limit the amount of force; the severity of the security 22 problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff 23 was actively resisting.”); see also Plunk v. Tulare Cnty., Case No.: 1:15-cv-01820-SAB 24 (PC), 2016 WL 8731360, at *3 (E.D. Cal. Feb. 5, 2016) (dismissing plaintiff’s excessive 25 force claim under the Fourteenth Amendment where plaintiff’s complaint “d[id] not 26 explain what led to the incident [at issue], where the incident took place, what if any 27 reasons were given by defendants for their actions, whether defendants engaged in other 28 15 23cv5-LR 1 conduct to defuse the use of force, or why [p]laintiff believe[d] the use of force was 2 objectively unreasonable.”). 3 Plaintiff also alleges that he was assaulted by two inmates at the Brawley Superior 4 Court, and “the officers” did not take any action with respect to “the aggressors.” (ECF 5 No. 1-2 at 4.) Pretrial detained have a due process right to be free from violence from 6 other inmates. See Castro, 833 F.3d at 1067. The elements of a Fourteenth Amendment 7 failure-to-protect claim against an individual officer are: 8 9 10 11 12 13 14 15 16 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff’s injuries. 17 18 Id. at 1071. To satisfy the third element, “defendant’s conduct must be objectively 19 unreasonable.” Id. (quoting Kingsley, 576 U.S. at 397). 20 As currently pled, Plaintiff’s Complaint does not identify any Defendant who 21 allegedly failed to protect Plaintiff from the inmate attack at the Brawley Superior Court. 22 The Complaint also does not allege that Defendants were aware that the unrestrained 23 inmates might attack Plaintiff, yet made an intentional decision to place Plaintiff in the 24 same cell with those inmates. Further, the Complaint fails to sufficiently allege facts 25 showing that that by being temporarily placed in the cell with other inmates at the 26 Brawley Superior court, Plaintiff was subjected to a substantial risk of suffering serious 27 harm, that Defendants failed to take reasonable steps to abate that risk, that a reasonable 28 deputy in Defendants’ position would have appreciated a high risk of harm under the 16 23cv5-LR 1 circumstances, and that by not taking such measures, Defendants caused Plaintiff’s 2 injuries. See Castro, 833 F.3d at 1071. Plaintiff’s conclusory allegations are not 3 sufficient to state a plausible Fourteenth Amendment claim. See Iqbal, 556 U.S. at 679 4 (“While legal conclusions can provide the framework of a complaint, they must be 5 supported by factual allegations.”). Therefore, Plaintiff has failed to state a cognizable 6 claim against Defendants for excessive force and failure to protect in violation of the 7 Fourteenth Amendment. 8 2. Inadequate medical care 9 To the extent Plaintiff is attempting to allege that Defendants failed to provide 10 adequate medical care, “claims for violations of the right to adequate medical care 11 ‘brought by pretrial detainees against individual defendants under the Fourteenth 12 Amendment’ must be evaluated under an objective deliberate indifference standard.” 13 Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (emphasis added) 14 (quoting Castro, 833F.3d at 1070)). In Gordon, the Ninth Circuit identified the following 15 elements of a pretrial detainee’s medical care claim against an individual defendant under 16 the Due Process Clause of the Fourteenth Amendment: 17 18 19 20 21 22 23 24 (i) the defendant made an intentional decision with respect to the conditions under which [plaintiff] was confined; (ii) those conditions put [plaintiff] at substantial risk of suffering serious harm; (iii) [each] defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, [each] defendant caused [plaintiff’s] injuries. Id. at 1125. Plaintiff alleges in his Complaint that during his pretrial detention he was 25 prescribed Tylenol for pain and bruising, blood pressure medication, and Pharmaplex, but 26 questions whether those medications were appropriate, and states that he refused to take 27 the medications. (See ECF No. 1-2 at 3.) Plaintiff also alleges that he refused to take a 28 TB test and to be moved to a different cell for Covid-19 quarantine purposes. (See id.) 17 23cv5-LR 1 Further, Plaintiff appears to allege that he should have received medical evaluations and 2 diagnostic testing while in pretrial custody. (See id.) “[A]llegations of differences of 3 opinion over proper medical care, inadequate medical treatment, medical malpractice, or 4 even gross negligence by themselves do not rise to the level of . . . Fourteenth 5 Amendment violation.” Patton v. Rey, Case No.: 3:22-cv-02028-CAB-MDD, 2023 WL 6 218973, at *5 (S.D. Cal. Jan. 17, 2023) (citing Farmer v. Brennan, 511 U.S. 825, 835 7 (1994)) (“[N]egligen[ce] in diagnosing or treating a medical condition” does not amount 8 to deliberate indifference)); see also Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 9 2004) (a disagreement over the necessity or extent of medical treatment does not show 10 deliberate indifference). 11 Plaintiff’s Complaint does not describe with sufficient specificity any facts 12 establishing that Plaintiff had a serious medical need, injury or illness. The Complaint 13 also does not identify any individual Defendant who knew of and deliberately ignored 14 such medical condition or need for treatment. Further, Plaintiff does not sufficiently 15 allege that his medical need, injury or condition put him at substantial risk of suffering 16 serious harm, that Defendants did not take reasonable available measures to abate that 17 risk, even though a reasonable official in the circumstances would have appreciated the 18 high degree of risk involved, and that by not taking such measures, each Defendant 19 caused Plaintiff’s injuries. See Gordon, 888 F.3d at 1125. Additionally, although 20 Plaintiff generally alleges that he submitted complaints concerning injuries to his wrists 21 due to improper handcuffing, as well as improper temperature in his cell, (see ECF No. 1- 22 2 at 2–3), there are no factual allegations in his Complaint regarding who those requests 23 were directed to or any other facts plausibly alleging that any individual Defendant was 24 aware of his medical needs. Based on these facts, the Court finds that the Complaint does 25 not state a claim for denial of medical care in violation of Plaintiff’s Fourteenth 26 Amendment Due Process rights. 27 /// 28 /// 18 23cv5-LR 1 3. Conditions of confinement 2 Finally, to the extent Plaintiff is attempting to allege that Defendants violated his 3 Fourteenth Amendment rights by providing inadequate conditions of confinement, to 4 state a claim for unconstitutional conditions of confinement, a pre-trial detainee must 5 plausibly allege that: 6 7 8 9 10 11 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 12 Gordon, 888 F.3d at 1125 (quoting Castro, 833 F.3d at 1071); see also Carroll v. San 13 Diego Cnty. Jail Sheriff, Case No.: 3:19-cv-02073-AJB-NLS, 2020 WL 4336091, at *6–7 14 (S.D. Cal. July 28, 2020) (stating that the Ninth Circuit’s reasoning in Gordon applies to 15 conditions of confinement claims). 16 Plaintiff’s Complaint alleges that he was housed in unsanitary conditions in cells 17 that contained feces, dried urine, food crumbs, and black stains, the temperature in some 18 of the cells was too cold or too hot, and the jail’s shower pods had insects and dried urine 19 marks. (See ECF No. 1-2 at 1–3.) Additionally, Plaintiff claims that he was not provided 20 clean clothing and access to showers on a regular basis, experienced delays in receiving 21 meals and the meals lacked in quality and variety, had limited access to phones, and was 22 sleep-deprived. (See id. at 1, 4.) As currently drafted, the Complaint does not plausibly 23 allege that any Defendants named in the Complaint were responsible for, or aware of, the 24 conditions in the cells where Plaintiff was housed, the conditions in the showers, or that 25 Plaintiff was not provided clean clothing. Further, the allegations in the Complaint lack 26 detail with respect to how the conditions affected Plaintiff. Plaintiff does not allege that 27 any named Defendant made an intentional decision to place him in a cell with the alleged 28 conditions, nor explains how Defendants subjected him to a substantial risk of serious 19 23cv5-LR 1 harm. The Complaint also fails to allege that any Defendant did not take reasonable 2 available measures to abate any alleged risk to Plaintiff, and that by not taking such 3 measures, each Defendant caused Plaintiff’s injuries. See Gordon, 888 F.3d at 1125. 4 Finally, to the extent Plaintiff alleges that he was deprived access to law library, 5 prisoners do not have a constitutional right to access a law library. See Lewis v. Casey, 6 518 U.S. 343, 351 (1996) (stating that inmates lack “an abstract, freestanding right to a 7 law library or legal assistance”). Further, Plaintiff has failed to allege facts sufficient to 8 describe how any action by any Defendant impaired his ability to visit the law library, or 9 how he was harmed. Accordingly, Plaintiff’s Complaint fails to allege sufficient facts to establish that 10 11 he was subjected to conditions of confinement that rise to the level of a constitutional 12 violation. See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570 (“[t]o survive a 13 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 14 ‘state a claim to relief that is plausible on its face.’”). The Court therefore finds that 15 Plaintiff’s Complaint does not state a claim that Defendants violated his Fourteenth 16 Amendment right by providing inadequate conditions of confinement. 17 D. 18 First Amendment Retaliation Claim Plaintiff’s Complaint also appears to allege that officer Lizzarga delayed providing 19 a meal to Plaintiff in retaliation. (See ECF No. 1-2 at 1.) Pretrial detainees have a 20 constitutional right to file grievances against prison officials and to be free from 21 retaliation for doing so. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing 22 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a 23 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion 24 that a state actor took some adverse action against an inmate (2) because of (3) that 25 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 26 First Amendment rights, and (5) the action did not reasonably advance a legitimate 27 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (2005). “The adverse 28 action need not be an independent constitutional violation.” Id. (citing Pratt v. Rowland, 20 23cv5-LR 1 65 F.3d 802, 806 (9th Cir. 1995)); see also Gomez v. Vernon, 255 F.3d 1118, 1127 (9th 2 Cir. 2001) (“[A] retaliation claim may assert an injury no more tangible than a chilling 3 effect on First Amendment rights.”). A plaintiff, however, must allege a retaliatory 4 motive—that is, a causal connection between the adverse action and his protected 5 conduct. Watison, 668 F.3d at 1114. In this case, Plaintiff alleges that he spoke to officer Lizzarga “regarding some 6 7 concerns,” and requested to speak to a supervisor because Lizzarga disregarded 8 Plaintiff’s complaints. (See id.) Plaintiff then makes vague and conclusory allegations 9 that Defendant Lizzarga retaliated against Plaintiff. The Complaint does not mention the 10 First Amendment, and does not allege that Plaintiff’s First Amendment rights were 11 chilled. The Complaint also fails to allege that Defendant Lizzarga’s actions did not 12 reasonably advance a legitimate correctional goal. Plaintiff’s Complaint fails to allege 13 the elements of a First Amendment retaliation claim and fails to state a retaliation claim 14 against Defendant Lizzarga. See Rhodes, 408 F.3d at 567–68; see also Hentz v. Ceniga, 15 402 F. App’x 214, 215 (9th Cir. 2010) (holding conclusory allegations of retaliation are 16 insufficient to state a claim). 17 E. 18 Leave to Amend Because it is not clear that Plaintiff cannot allege facts to support his claim, and 19 because Plaintiff is proceeding pro se, the Court GRANTS Plaintiff leave to amend his 20 pleading. See Ramirez, 334 F.3d at 861 (court must grant a pro se plaintiff leave to 21 amend his complaint “unless the pleading ‘could not possibly be cured by the allegation 22 of other facts’”) (quoting Lopez, 203 F.3d at 1130); Ferdik, 963 F.2d at 1261 (“[B]efore 23 dismissing a pro se complaint the district court must provide the litigant with notice of 24 the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to 25 amend effectively.”). In the amended complaint, Plaintiff must describe the 26 constitutional right he believes was violated, name the person who violated the right, 27 state exactly what that individual did or failed to do, state how the action or inaction of 28 that person is connected to the violation of Plaintiff’s constitutional rights, as well as 21 23cv5-LR 1 what specific injury Plaintiff suffered because of that person’s conduct. See Hinkley v. 2 Vail, No. C12–5969 RBL/KLS, 2012 WL 6012800, at *2 (W.D. Wash. Dec. 3, 2012); 3 see also Harris, 652 F. Supp. 2d at 1034 (to prevail on a § 1983 claim, “a plaintiff must 4 demonstrate that he suffered a specific injury as a result of specific conduct of a 5 defendant and show an affirmative link between the injury and the conduct of the 6 defendant.”). Plaintiff must repeat this process for each person he names as a defendant. 7 Plaintiff should carefully review the standards set forth in this order and amend only 8 those claims that he believes, in good faith, are cognizable. 9 V. CONCLUSION For the foregoing reasons, the Court DISMISSES Plaintiff’s Complaint for failing 10 11 to state a claim upon which relief may be granted pursuant to Federal Rule of Civil 12 Procedure 12(b)(6). The Court further GRANTS Plaintiff leave to file an amended 13 complaint that cures all noted pleading deficiencies on or before September 25, 2023. If 14 Plaintiff chooses to file an amended complaint, the amended complaint must be complete 15 by itself without reference to Plaintiff’s original Complaint. Any defendants not named 16 and claims not re-alleged in Plaintiff’s amended complaint will be considered waived. 17 See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 18 F.2d 1542, 1546 (9th Cir. 1989) (providing that “an amended pleading supersedes the 19 original”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 20 claims dismissed with leave to amend which are not re-alleged in an amended pleading 21 may be considered “waived if not repled”). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 22 23cv5-LR 1 If Plaintiff fails to file an amended complaint within the time provided, the Court 2 will enter a final order dismissing this civil action based both on Plaintiff’s failure to state 3 a claim upon which relief can be granted and his failure to prosecute in compliance with a 4 court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 5 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 6 district court may convert the dismissal of the complaint into dismissal of the entire 7 action.”). 8 9 IT IS SO ORDERED. Dated: August 9, 2023 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 23cv5-LR
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