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VENEGAS v. GIURBINO

United States District Court, S.D. California


October 5, 2005.

SALVADOR VENEGAS, CDC #P-92548, Plaintiff,
v.
G. GIURBINO, et al., Defendants.

The opinion of the court was delivered by: IRMA GONZALEZ, District Judge

ORDER:

(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $250 FROM PRISONER'S TRUST ACCOUNT [Doc. Nos. 2, 3];
(2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
Plaintiff, Salvador Venegas, a state prisoner currently incarcerated at Centinela State Prison ("Centinela") and proceeding pro se, has filed a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $250 filing fee mandated by 28 U.S.C. § 1914(a); instead, he has filed two Motions to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. Nos. 2, 3]. I. Motions to Proceed IFP [Doc. Nos. 2, 3]

Effective February 7, 2005, all parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

  Section 1915, as amended by the Prison Litigation Reform Act ("PLRA"), further requires that each prisoner seeking leave to proceed IFP submit a "certified copy of [his] trust fund account statement (or institutional equivalent) . . . for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2). Using these certified trust account statements, the Court must assess an initial payment of 20% of (a) the average monthly deposit, or (b) the average monthly balance in the account for the past six months, whichever is greater, and collect that amount as the prisoner's initial partial filing fee, unless he has no current assets with which to pay. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4); Taylor, 281 F.3d at 850. Thereafter, the institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Taylor, 281 F.3d at 847.

  The Court finds that Plaintiff has submitted an affidavit that complies with 28 U.S.C. § 1915(a)(1) [Doc. Nos. 2, 3] as well as a certified copy of his prison trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2. Plaintiff's trust account statement shows an average monthly balance of zero, and an average monthly deposit of zero for the 6-month period immediately preceding the filing of his Complaint. In addition, Plaintiff has a negative account balance of $2.72 due to holds. Accordingly, the Court hereby GRANTS Plaintiff's Motions to Proceed IFP [Doc. Nos. 2, 3], and assesses no initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(1) (court shall assess initial partial filing fee only "when funds exist"); 28 U.S.C. § 1915(b)(4) ("In no event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay . . . due to the lack of funds available to him when payment is ordered."). However, Plaintiff is required to pay the full $250 filing fee mandated by 28 U.S.C. §§ 1914(a) and 1915(b)(1), by subjecting any future funds credited to his prison trust account to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2).

  II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A

  The PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).*fn1 Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 28 U.S.C. § 1915A).

  "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

  A. Constitutional Claims

  Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

  1. Personal Liability & Causation

  As an initial matter, the Court finds that while Plaintiff names nine Defendants in this matter, he fails to specify what a majority of these Defendants did to violate Plaintiff's constitutional rights. However, a person may be said to deprive another "of a constitutional right, within the meaning of section 1983, [only] if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). "Causation is, of course, a required element of a § 1983 claim." Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). "The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). Section 1983 provides for relief only against those who, through their personal involvement as evidenced by affirmative acts, participation in another's affirmative acts, or failure to perform legally required duties, cause the deprivation of Plaintiff's constitutionally protected rights. Johnson, 588 F.2d at 743.

  Thus, to the extent that Plaintiff wishes to state any constitutional claim against any of the individual persons he simply includes on a separate list of Defendants, he must amend his pleading to allege facts which explain what each of these individuals did, or failed to do, and why he believes those acts or omissions amounted a violation of the specific constitutional rights discussed below. Id.; see also Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) ("In order for a person acting under color of state law to be liable under § 1983, there must be a showing of personal participation in the alleged rights deprivation.").

  2. Eighth Amendment Conditions Claims

  The Eighth Amendment "does not mandate comfortable prisons," and conditions imposed may be "restrictive and even harsh." Rhodes v. Chapman, 452 U.S. 347, 349 (1982). Like failure to protect claims, Eighth Amendment humane conditions of confinement claims also require the prisoner to satisfy two requirements: one objective and one subjective. Farmer, 511 U.S. at 834; Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994). Under the objective requirement, the plaintiff must allege facts sufficient to show that "a prison official's acts or omissions must result in the denial of the `minimal civilized measure of life's necessities.'" Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347). This objective component is satisfied so long as the institution "furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit, 682 F.2d at 1246; Farmer, 511 U.S. at 534; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981). The subjective requirement, relating to the defendant's state of mind, requires the plaintiff to allege facts sufficient to show "deliberate indifference." Allen, 48 F.3d at 1087. "Deliberate indifference" in this context also exists only if the prison official "knows of and disregards an excessive risk to inmate health and safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.

  Plaintiff claims that Defendants have violated his Eighth Amendment rights by their "deliberate indifference to Plaintiff's physical and mental well-being" by exposing Plaintiff to "inhumane conditions" for the last twenty months while he has been in Administrative Segregation "Ad-Seg." See Compl. at 16.

  As noted above, the objective component of an Eighth Amendment conditions of confinement claim is satisfied so long as the institution "furnishes [Plaintiff] with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit, 682 F.2d at 1246; Farmer, 511 U.S. at 534. The subjective requirement again requires Plaintiff to allege facts sufficient to show "deliberate indifference." Allen, 48 F.3d at 1087.

  First, Plaintiff's Complaint includes no facts which show how or to what extent he personally has been deprived of any of "life's necessities." Rhodes, 352 U.S. at 357. Second, while the Eighth Amendment does protect an inmate from an official's "deliberate indifference to [a] serious illness or injury," Estelle v. Gamble, 429 U.S. 97, 105 (1976), and extends to "physical, dental and mental health," Hopowit, 682 F.2d at 1253; Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998), Plaintiff has alleged absolutely no facts to show that he personally had objectively "serious" medical needs, see McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (1997) (en banc); Lopez, 203 F.3d at 1131-32, or how any individual named as a Defendant in this suit acted with "deliberate indifference" to those needs. Estelle, 429 U.S. at 106. For these reasons, Plaintiff's Eighth Amendment claims related to his medical and emotional needs are also dismissed for failing to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

  4. Conspiracy, Retaliation and Equal Protection Claims

  Plaintiff's Complaint also alleges that Defendants Maldonado, Hill, Giurbino, Romero and Vela conspired, discriminated and retaliated against him for exercising his right to petition for redress through the CDC's inmate grievance procedures. See Compl. at 4, 15. Plaintiff claims that he has been denied privileges visits from family and phone privileges in reprisal for "utilization of administrative remedies." Id. at 4.

  First, to allege a claim of conspiracy under § 1983, Plaintiff must allege facts with sufficient particularity to show an agreement or a meeting of the minds to violate his constitutional rights. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). Thus, pleading a conspiracy requires more than a conclusory allegation that Defendants conspired to deprive Plaintiff's civil rights. The Ninth Circuit applies a heightened pleading standard to conspiracy claims under Section 1983 and has held that mere conclusory allegations of conspiracy (i.e. bare allegations that a defendant "conspired" with another) are insufficient to state a claim.*fn2 See Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997); Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). Rather, "[t]o state a claim for a conspiracy to violate one's constitutional rights under section 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy." Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989); see also Lee v. City of Los Angeles, 250 F.3d 668, 679 n. 6 (9th Cir. 2001) (holding that plaintiffs must allege facts which are "specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity."); Buckey, 968 F.2d at 794. A plaintiff can meet the heightened pleading standard by alleging "which defendants conspired, how they conspired and how the conspiracy led to a deprivation of his constitutional rights." Harris, 126 F.3d at 1196. As currently pleaded, however, Plaintiff's conspiracy claims amount to no more than "vague and conclusory allegations of official participation in civil rights violations," therefore, they fail to state a claim. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (conclusory allegations of conspiracy insufficient to support a claim under section 1983 or 1985).

  Second, to the extent Plaintiff suggests generally that he is being "discriminated" against or being treated differently than other prisoners, the "Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Shaw v. Reno, 509 U.S. 630 (1993). "The guarantee of equal protection [under the Fifth Amendment] is not a source of substantive rights or liberties, but rather a right to be free from invidious discrimination in statutory classifications and other governmental activity." Harris v. McRae, 448 U.S. 297, 322 (1980) (citations omitted). However, like claims of conspiracy, conclusory allegations of discrimination are insufficient to state a claim, unless Plaintiff alleges facts which may prove invidious discriminatory intent. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Therefore, to allege an equal protection violation, Plaintiff must plead facts to show that each Defendant "acted in a discriminatory manner and that the discrimination was intentional." FDIC. v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (citations omitted); Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). "`Discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). "[P]urely conclusory allegations of alleged discrimination, with no concrete, relevant particulars," are simply insufficient. Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988). Here, while Plaintiff alleges that he is a member of a protected class; he has failed to allege any "concrete, relevant" facts to show that he was treated differently with a "discriminatory purpose." City of Cleburne, 473 U.S. at 439; Forsberg, 840 F.3d at 1419; Feeney, 442 U.S. at 279. Thus, Plaintiff's equal protection allegations fail to state a claim upon which relief can be granted. See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

  Third, to the extent Plaintiff claims "all officials" have retaliated against him, he must allege facts sufficient to show that: (1) he was retaliated against for exercising his constitutional rights, (2) the alleged retaliatory action "does not advance legitimate penological goals, such as preserving institutional order and discipline," Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam), and (3) the defendants' actions harmed him.*fn3 See Rhodes v. Robinson, 380 F.3d 1183, 1131 (9th Cir. 2004) ("Our cases, in short, are clear that any retribution visited upon a prisoner due to his decision to engage in protected conduct is sufficient to ground a claim of unlawful First Amendment retaliation — whether such detriment "chills" the plaintiff's exercise of his First Amendment rights or not."); see also Resnick, 213 F.3d at 449; Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997).

  Here, Plaintiff has not only failed to state which individual correctional officials retaliated against him, but also how their alleged acts of retaliation were in any way related to or "caused" by the exercise of his constitutional rights. Soranno's Gasco, 874 F.2d at 1314. In addition, Plaintiff has failed to allege that Defendants' actions failed to "advance legitimate penological goals," Barnett, 31 F.3d at 815-16, that he was harmed as a result of exercising his First Amendment rights, Rhodes, 380 F.3d at 1131, or has been otherwise `chilled' in relation to the exercise of his rights. Resnick, 213 F.3d at 449; Hines, 108 F.3d at 269. Therefore, the Court must also sua sponte dismiss Plaintiff's retaliation claims for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

  5. Respondeat Superior

  Plaintiff seeks to hold "supervisory" Defendants liable for a "failure to administer, train and supervise." Id. at 18. Plaintiff claims that the unidentified "supervisory" Defendants "breached their duties to legally administer the prison, and to train and supervise subordinates." Idi However, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As a supervisor, a Defendant may only be held liable for the allegedly unconstitutional violations of his subordinates if Plaintiff alleges specific facts which show: (1) how or to what extent this supervisor personally participated in or directed Defendants' actions, and (2) in either acting or failing to act, the supervisor was an actual and proximate cause of the deprivation of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however, Plaintiff's Complaint in no way sets forth facts which might be liberally construed to support an individualized constitutional claim against any named Defendant. Therefore, the Court must also sua sponte dismiss Plaintiff's respondeat superior claims for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

  6. Heck Bar

  Plaintiff also claims that Defendants have violated California Penal Code § 2932 by placing and retaining Plaintiff in Ad-Seg. See Compl. at 17. California Penal Code § 2932 involves the decision by prison officials to deny or revoke a prisoner "good-time" credits and the notice that prison officials are required to give a prisoner when that decision is made.

  If Plaintiff is claiming that prison officials revoked his good-time credits when he was placed in Ad-Seg, Plaintiff's claims must be dismissed because they are premature under the doctrine set forth in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Constitutional claims involving a prison's disciplinary or administrative decisions to revoke good-time credits are subject to sua sponte dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) since habeas corpus is the exclusive federal remedy whenever the claim for damages depends on a determination that a disciplinary judgment is invalid or the sentence currently being served is unconstitutionally long. Edwards v. Balisok, 520 U.S. 641, 643-44 (1997); Heck, 512 U.S. at 486-87; Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

  Constitutional claims involving a prison's disciplinary or administrative decisions involving good-time credits are subject to sua sponte dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) since habeas corpus is the exclusive federal remedy whenever the claim for damages depends on a determination that a disciplinary judgment is invalid or the sentence currently being served is unconstitutionally long. Heck v. Humphrey, 512 U.S. 475, 486-87 (1994); Edwards v. Balisok, 520 U.S. 641, 643-44 (1997) (applying Heck to prison disciplinary proceedings which effect the duration of confinement); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

  In order to state a claim for damages under section 1983 based on these allegations under Heck and Edwards, however, Plaintiff must allege facts in his Complaint sufficient to show that Defendants' decision to remove his credits has already been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a writ of habeas corpus." Heck, 512 U.S. at 486-87. Plaintiff has failed to do so; therefore, he must sufficiently amend his Complaint to provide such a showing before any cause of action for damages accrues under the Civil Rights Act. Heck, 512 U.S. at 487; Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).

  Therefore, the Court finds that Plaintiff's Complaint must be DISMISSED without prejudice for failing to state a claim upon which relief can be granted. See 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).

  III. Conclusion and Order

  Good cause appearing therefor, IT IS HEREBY ORDERED that:

  1. Plaintiff's Motions to proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. Nos. 2, 3] are GRANTED.

  2. The Director of the California Department of Corrections, or her designee, shall collect from Plaintiff's prison trust account the $250 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding month's income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

  3. The Clerk of the Court is directed to serve a copy of this Order on Jeanne Woodford, Director, California Department of Corrections, Post Office Box 942883, Sacramento, California 94283-0001.

  IT IS FURTHER ORDERED that:

  4. Plaintiff's Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) and (iii) and 1915A(b)(1) and (2). However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is stamped "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L.R. 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted, it may be dismissed without further leave to amend and may hereafter be counted as a "strike" under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

  IT IS SO ORDERED.

20051005

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