Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN FLOURNOY, Case No.: 26-cv-0229-WQH-DEB CDCR #F-25814, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR v. FAILURE TO STATE A CLAIM 14 PURSUANT TO 28 U.S.C.

15 §§ 1915(e)(2)(B) & 1915A(b) R. ACEVEDO, Warden; A. RAYES, 16 Associate Warden; J. MARTINEZ, Facility Captain; A. REECE, Lieutenant; 17 D. EUSTAQUIO, Sergeant; B. LOUIE, 18 Sergeant; K. MANSFIELD, Sergeant; A. SOLANO, Sergeant; R. SEGOVIA, 19 Sergeant; A. CUEVAS, Peace Officer; R. 20 ROMO, Peace Officer; A. OLMOS, Peace Officer; O. YLV, Peace Officer; E. 21 VELASCO, Peace Officer; M. VILORIA, 22 Peace Officer; V. ROMERO, Peace Officer; O. GALINDO, Peace Officer; M. 23 BLAICDEL, Medical Doctor; and A. 24 HERNANDEZ, Registered Nurse, 25 Defendants.

26 Plaintiff Benjamin Flournoy (“Plaintiff”) is a state prisoner proceeding pro se with 27 this civil rights action pursuant to 42 U.S.C. § 1983. 28 1 On March 26, 2026, the Court granted Plaintiff leave to proceed in forma pauperis 2 (“IFP”) and dismissed his Complaint (ECF No. 1) with leave to amend for failure to state 3 a claim. (ECF No. 7.) 4 On April 15, 2026, Plaintiff filed the operative First Amended Complaint (“FAC”). 5 (ECF No. 8.) 6 I. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 7 A. Legal Standard 8 Because Plaintiff is a prisoner proceeding IFP, his FAC requires a pre-Answer 9 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, the Court 10 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 11 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 12 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 13 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 14 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets of frivolous or 15 malicious suits need not bear the expense of responding.” Nordstrom v. Ryan, 762 F.3d 16 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted). 17 “The standard for determining whether a plaintiff has failed to state a claim upon 18 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 19 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 20 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 21 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 22 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 23 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 24 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 25 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Detailed factual 26 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 27 supported by mere conclusory statements, do not suffice.” Id. “Determining whether a 28 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 1 reviewing court to draw on its judicial experience and common sense.” Id. at 679. The 2 “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 3 accusation[s]” fall short of meeting this plausibility standard. Id. at 678–79. Title 42 U.S.C. 4 § 1983 “creates a private right of action against individuals who, acting under color of state 5 law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 6 1074 (9th Cir. 2001). 7 B. Allegations in the FAC 8 Plaintiff alleges that, on April 13, 2025, while walking from his housing unit to the 9 medical clinic along a walking path created for that purpose by the California Department 10 of Corrections and Rehabilitation (“CDCR”) Facility Planning Construction and 11 Management Department, whose design criteria is required to be approved by officials 12 such as Defendants Warden Acevedo, Associate Warden Rayes, Facility Captain Martinez 13 and Sergeant Solano, he tripped “over an out of place ditch or trench,” which did not have 14 a warning or caution sign and where accessibility under the Americans with Disabilities 15 Act (“ADA”) “is supposed to be ensured in all places with regular foot traffic.” (FAC at 16 9–10.) 17 Plaintiff fell and sustained injuries “which bruised his elderly body in multiple places 18 including his face and scraping his shins and knees,” and which were sufficiently severe 19 “that he required medical attention beyond the institution’s medical clinical capacities.” Id. 20 at 10. Plaintiff alleges that Defendants’ failure to provide notice of the hazardous condition 21 or maintain the walkway with a heightened degree of care amounted to deliberate 22 indifference to a substantial risk to his health and safety. Id. at 10–11. 23 Plaintiff alleges that, on August 28, 2025, he was returning to his housing unit from 24 breakfast using his walker and was ordered to submit to restraints by Defendant Peace 25 Officer Viloria. Id. at 11–12. Plaintiff attempted to tell Viloria that medical staff had 26 determined and documented that he required waist chain restraints, but that Viloria grabbed 27 Plaintiff’s right arm, forced his body against the corridor wall, secured his left arm, and 28 placed him in handcuffs, causing agony. Id. at 12–13. Plaintiff, “an elderly mobility- 1 impaired ADA prisoner,” without resisting and in agony, continued to ask for waist chains 2 instead of handcuffs. Id. at 13. A yard down alarm sounded and Viloria used “various 3 techniques” typically used “to gain compliance from combative prisoners,” which caused 4 Plaintiff’s legs to give out. Id. at 13–14. Rather than try to hold Plaintiff up, Viloria yelled 5 “stop resisting,” and threw his body weight on top of Plaintiff, essentially tackling him. Id. 6 at 14. Defendants Correctional Sergeants Eustaquio, Louie, Mansfield, Solano and Segovia 7 responded to the alarm, and although they were not physically involved, they “failed to 8 protect Plaintiff from the ongoing agonizing detention” by Viloria, who called for leg 9 restraints. Id. at 15. Defendants Peace Officers Cuevas, Romo, Olmos, Ylv, Velasco, 10 Romero and Galindo also responded to the scene and witnessed Plaintiff’s condition. Id. at 11 15–16. 12 Plaintiff alleges that Defendant Registered Nurse Hernandez falsified or forged data 13 concerning the incident, which deprived Plaintiff of the ability to preserve evidence to 14 demonstrate the validity of the claims presented here and did not give Plaintiff “due 15 medical consideration” for his injuries. Id. at 17. Defendant Dr. Blaicdel, for months after 16 the incident, “refused to examine the extent of” Plaintiff’s pain and suffering. Id. On 17 October 30, 2025, Defendant Hearing Officer Lieutenant Reece rubber stamped a 115 rules 18 violation report hearing during which Plaintiff was not allowed to call witnesses or examine 19 evidence, resulting in a guilty finding on a false allegation. Id. at 17–18. 20 C. Discussion 21 1. Count One – Incident on April 13, 2025 22 With respect to the first incident, where Plaintiff tripped because of an unmarked 23 ditch while walking across the yard, the Court held in its prior dismissal order that Plaintiff 24 cannot state a federal constitutional claim arising solely from allegations of negligence or 25 lack of due care in maintaining a hazardous condition or failing to post a warning sign. 26 (ECF No. 7 at 8; Farmer v. Brennan, 511 U.S. 825, 835 (1994) (the standard for failure to 27 protect a prisoner from unsafe conditions “describes a state of mind more blameworthy 28 than negligence” and “more than ordinary lack of due care for the prisoner’s interests or 1 safety.”); see also e.g. Levy v. Department of Corrections of Washington, 2013 WL 2 1855854, at *2 (W.D. Wash. May 1, 2013) (finding no constitutional violation from trip 3 and fall in sprinkler hole on recreation yard); Coleman v. Sweetin, 745 F.3d 756, 764 & n.7 4 (5th Cir. 2014) (collecting cases and noting that “prisoner slip-and-fall claims almost never 5 serve as a predicate for constitutional violations.”).) A failure of prison officials to protect 6 an inmate from a dangerous prison condition rises to the level of a constitutional violation 7 when two requirements are met: (1) the alleged failure to maintain safe conditions is, 8 objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately 9 indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison official must know 10 of and disregard an excessive risk and fail to take reasonable steps to abate it. Id. at 837. 11 Plaintiff was instructed that if he wished to proceed with a 42 U.S.C. § 1983 claim 12 based on his fall as a result of a dangerous condition, he must set forth facts which plausibly 13 allege a Defendant was aware of facts from which they could draw an inference that the 14 trench posed a substantial risk of serious injury to Plaintiff and actually drew such an 15 inference, as opposed to simply alleging they knew or should have known it posed a danger. 16 (ECF No. 7 at 8, citing Farmer, 511 U.S. at 834–35.) Plaintiff was also instructed that he 17 must set forth facts showing he suffered a sufficiently serious injury, as opposed to a 18 conclusory allegation that he suffered injuries which “required him to go to an outside 19 hospital.” Id. (citing Farmer, 511 U.S. at 834–38; Iqbal, 556 U.S. at 678). 20 In the FAC, Plaintiff has not cured either of those pleading defects. Plaintiff presents 21 conclusory allegations regarding his injuries, alleging he was bruised “in multiple places 22 including his face and scraping his shins and knees” so severely “that he required medical 23 attention beyond the institution’s medical clinical capacities.” (ECF No. 8 at 10.) These 24 conclusory allegations are insufficient to plausibly allege a sufficiently serious injury. 25 Farmer, 511 U.S. at 834-35; Iqbal, 556 U.S. at 678. 26 Plaintiff also alleges that the design criteria for the path was required by CDCR 27 regulations to be approved by officials such as Defendants Acevedo, Rayes, Martinez and 28 Solano, and that they did so, or failed to maintain the path, in deliberate indifference to his 1 safety because it presented a trip and fall hazard in a location where ADA accessibility is 2 expected. (ECF No. 8 at 9–11.) Defendants’ alleged violation of a CDCR regulation cannot 3 form the basis of a § 1983 claim. See Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 4 2009) (allegations of violations of state prison regulations fail to plead a constitutional 5 claim). As individuals, Defendants also cannot be held liable for an ADA violation. See 6 Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (“[A] plaintiff cannot bring an 7 action under 42 U.S.C. § 1983 against a State official in [his] individual capacity to 8 vindicate rights created by Title II of the ADA.”) 9 Accordingly, Plaintiff fails to allege that any Defendant was aware of facts from 10 which they could draw an inference that the ditch he tripped over posed a substantial risk 11 of serious injury and that any Defendant actually drew such an inference. Plaintiff fails to 12 state an Eighth Amendment deliberate indifference claim. Farmer, 511 U.S. at 834–35. 13 2. Count Two – Incident on August 28, 2025 14 The Eighth Amendment “places restraints on prison officials, who may not [] use 15 excessive physical force against prisoners.” Farmer, 511 U.S. at 832. “To sustain [an] 16 excessive force claim,” a plaintiff must show that the prison official’s actions were “not a 17 good faith effort to maintain or restore discipline” but, instead, that the prison officer “acted 18 ‘maliciously and sadistically for the very purpose of causing harm.’” Simmons v. G. Arnett, 19 47 F.4th 927, 932 (9th Cir. 2022) (quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). 20 The Eighth Amendment also imposes a duty on prison officials to “‘take reasonable 21 measures to guarantee the safety of the inmates.’” Farmer, 511 U.S. at 832 (quoting 22 Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). Prison officials have a duty to intercede 23 when fellow officers violate the constitutional rights of a prisoner, but liability does not 24 attach when officers lack a “realistic opportunity” to intercede. Cunningham v. Gates, 229 25 F.3d 1271, 1289–90 (9th Cir. 2000). 26 “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments 27 necessarily excludes from constitutional recognition de minimis uses of physical force, 28 provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’” 1 Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Whitley, 475 U.S. at 327). “[N]ot every 2 malevolent touch by a prison guard gives rise to a federal cause of action,” and “[a]n inmate 3 who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails 4 to state a valid excessive force claim.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (quoting 5 Hudson, 503 U.S. at 9). However, “[w]hen prison officials maliciously and sadistically use 6 force to cause harm, contemporary standards of decency always are violated . . . whether 7 or not significant injury is evident. Otherwise, the Eighth Amendment would permit any 8 physical punishment, no matter how diabolic or inhuman, inflicting less than some 9 arbitrary quantity of injury.” Hudson, 503 U.S. at 9. The extent of an injury suffered by an 10 inmate is one factor that may determine “whether the use of force could plausibly have 11 been thought necessary” in the situation, “or instead evinced such wantonness with respect 12 to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” 13 Whitley, 475 U.S. at 321. 14 With respect to the incident on August 28, 2025, Plaintiff alleges he was “given a 15 direct order to ‘submit to restraints’” by Viloria while returning to his cell. (ECF No. 8 at 16 12.) Plaintiff alleges that Viloria then exercised “unnecessarily aggressive control” while 17 handcuffing Plaintiff, which caused “an exclamation of agony,” and that Viloria then 18 tackled Plaintiff “with force likely to cause serious bodily injury[,] especially to an elderly 19 person.” Id. at 13–14 (describing “the physical pain from the joint manipulation 20 techniques,” which “became unbearable to the Plaintiff[,] who was filled with terror”). The 21 FAC does not allege that Plaintiff was injured because of the encounter. The FAC also 22 lacks specific allegations regarding the circumstances of the encounter, other than that 23 Plaintiff was charged with a prison rules violation, which led to his being handcuffed and 24 taken to the ground. Plaintiff was previously informed, upon the Court’s review of the 25 Complaint, that such allegations are too vague and conclusory to plausibly allege that the 26 use of force Viloria applied to Plaintiff “evinced such wantonness with respect to the 27 unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” (ECF 28 No. 7 at 10 (citations omitted).) Although the “absence of serious injury” does not preclude 1 an excessive force claim, the “extent of injury may also provide some indication of the 2 amount of force applied.” Wilkins, 559 U.S. at 37. As alleged in the FAC, Plaintiff’s 3 description of Viloria handcuffing him, yelling for him to stop resisting, and falling on top 4 of him without causing injury may indicate that the amount of force applied was 5 unnecessary to control Plaintiff, but the facts do not plausibly allege that Viloria acted 6 “maliciously and sadistically for the very purpose of causing harm.” Simmons, 47 F.4th at 7 932; see Wilkins, 559 U.S. at 37 (“[N]ot every malevolent touch by a prison guard gives 8 rise to a federal cause of action.”). Accordingly, FAC fails to plausibly allege an Eighth 9 Amendment claim. Iqbal, 556 U.S. at 678 (noting that a complaint is subject to dismissal 10 for failure to state a claim if it does not “contain sufficient factual matter, accepted as true, 11 to state a claim to relief that is plausible on its face,” and the “mere possibility of 12 misconduct” falls short of meeting this plausibility standard). 13 The allegations in the FAC regarding Defendants Eustaquio, Cuevas, Romo, Olmos, 14 Ylv, Velasco, Romero, Segovia, Mansfield, Solano, Galindo and Louie failing to intervene 15 also do not adequately state a claim at this stage because Plaintiff has not plausibly alleged 16 an Eighth Amendment violation arising from his encounter with Viloria. If Plaintiff wishes 17 to proceed with an excessive use of force or failure to protect claim against these 18 Defendants, he must set forth non-conclusory factual allegations which plausibly allege 19 that their actions or failure to act “evinced such wantonness with respect to the unjustified 20 infliction of harm as is tantamount to a knowing willingness that it occur.” Whitley, 475 21 U.S. at 321. 22 3. Count Three – Denial of Medical Care and Due Process 23 Plaintiff alleges that Defendant Nurse Hernandez falsified or forged data concerning 24 the incident, which deprived Plaintiff of the ability to demonstrate the validity of his claims 25 and did not give Plaintiff “due medical consideration” for his injuries. (ECF No. 8 at 17.) 26 Plaintiff also alleges that Defendant Dr. Blaicdel, for months after the incident, “refused to 27 examine the extent of” his pain and suffering. Id. 28 The Eighth Amendment’s prohibition on the infliction of cruel and unusual 1 punishment creates an “obligation to provide medical care for those whom it is punishing 2 by incarceration.” Estelle v. Gamble, 429 U.S. 97, 101–03 (1976). A prison official can be 3 held liable only if he “knows of and disregards an excessive risk to inmate health and 4 safety;” he “must both be aware of facts from which the inference could be drawn that a 5 substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 6 U.S. at 837; Wilhelm, 680 F.3d at 1122 (holding that a prisoner plausibly alleges an Eighth 7 Amendment violation where a failure to treat a serious medical need “could result in further 8 significant injury or the unnecessary and wanton infliction of pain” and “the defendant’s 9 response to the need was deliberately indifferent.”) “[I]ndicia of a ‘serious’ medical need 10 include (1) the existence of an injury that a reasonable doctor would find important and 11 worthy of comment or treatment, (2) the presence of a medical condition that significantly 12 affects an individual’s daily activities, and (3) the existence of chronic or substantial pain.” 13 Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994). 14 “Deliberate indifference ‘may appear when prison officials deny, delay or 15 intentionally interfere with medical treatment.’” Colwell v. Bannister, 763 F.3d 1060, 1066 16 (9th Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 17 Deliberate indifference can also be shown where the chosen course of medical treatment 18 was “medically unacceptable under the circumstances” and chosen “in conscious disregard 19 of an excessive risk to the prisoner’s health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 20 Cir. 2004). However, allegations of inadequate medical treatment, medical malpractice, or 21 even gross negligence by themselves do not rise to the level of an Eighth Amendment 22 violation. Farmer, 511 U.S. at 835 (stating that “negligence in diagnosing or treating a 23 medical condition” does not amount to deliberate indifference) (quotation omitted). 24 The allegation that Nurse Hernandez falsified or forged data concerning the incident 25 and did not give Plaintiff “due medical consideration” for his injuries are too vague and 26 conclusory to plausibly allege a claim. The Court previously stated that, if Plaintiff wishes 27 to proceed with an Eighth Amendment claim for denial of medical care, he must set forth 28 specific factual allegations which plausibly suggest a Defendant knew of and disregarded 1 an excessive risk to his health by showing they were “aware of facts from which the 2 inference could be drawn” that Plaintiff faced “a substantial risk of serious harm” by the 3 treatment they provided, and actually drew that inference when allegedly denying him 4 medical care, including what care he needed but was refused. (ECF No. 7 at 13; Farmer, 5 511 U.S. at 837; Iqbal, 556 U.S. at 678 (the “mere possibility of misconduct” falls short of 6 the plausibility standard).) The FAC fails to cure that pleading defect and does not plausibly 7 allege an Eighth Amendment denial of medical care claim. 8 Finally, Plaintiff alleges that on October 30, 2025, Defendant Hearing Officer 9 Lieutenant Reese rubber stamped a 115 rules violation report hearing during which 10 Plaintiff was not allowed to call witnesses or examine evidence, resulting in a guilty finding 11 on a false allegation. (ECF No. 8 at 17–18.) A prisoner is entitled to procedural protections 12 when charged with a disciplinary violation, but only “when the disciplinary action 13 implicates a protected liberty interest in some ‘unexpected matter’ or imposes an ‘atypical 14 and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” 15 Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (quoting Sandin v. Connor, 515 16 U.S. 472, 484 (1995)). “Such protections include the rights to call witnesses, to present 17 documentary evidence and to have a written statement by the factfinder as to the evidence 18 relied upon and the reasons for the disciplinary action taken.” Id. at 1077–78. A prisoner 19 must show he was deprived of a liberty interest and that the procedures used were not 20 constitutionally sufficient. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 459–60 (1989). 21 Plaintiff has not plausibly alleged that he was deprived of a protected liberty interest 22 because he has not provided any factual allegations describing the disciplinary proceedings 23 or their consequences, other than he was found guilty on a false charge. Sandin, 515 U.S. 24 at 486–87. Plaintiff cannot state a due process claim arising solely from an allegedly false 25 disciplinary charge because a prisoner does not have a constitutionally guaranteed right to 26 be free of a disciplinary charge based on false allegations. Sprouse v. Babcock, 870 F.2d 27 450, 452 (8th Cir. 1989) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) 28 (allegation of false evidence planted by prison guard does not state a constitutional claim 1 where due process protections are provided)); Murschel v. Paramo, 2018 WL 539159, at 2 *5 (S.D. Cal. 2018) (allegations that an RVR included false information does not state a 3 claim under section 1983); see Hanrahan v. Lane, 747 F.2d 1137, 1140–41 (7th Cir. 1984) 4 (noting that, as long as a prisoner is afforded procedural due process in a hearing, 5 allegations of false or fabricated charges in a disciplinary proceeding fail to state a claim 6 under § 1983). 7 For all the foregoing reasons, Plaintiff’s FAC is dismissed without prejudice 8 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. 9 D. Leave to Amend 10 In light of Plaintiff’s pro se status, the Court grants Plaintiff an additional 11 opportunity to amend his Complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 12 2015) (“A district court should not dismiss a pro se complaint without leave to amend 13 unless it is absolutely clear that the deficiencies of the complaint could not be cured by 14 amendment.”) (internal quote marks omitted). 15 Defendants not named and any claims not re-alleged in the Second Amended 16 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 17 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 18 pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 19 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 20 amended pleading may be considered waived if not repled.) If Plaintiff fails to amend, the 21 Court will dismiss this action for failure to state a claim and failure to prosecute. Lira v. 22 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 23 the opportunity to fix his complaint, a district court may convert the dismissal of the 24 complaint into dismissal of the entire action.”). 25 II. CONCLUSION 26 Good cause appearing, the Court DISMISSES all claims against all Defendants in 27 the First Amended Complaint (ECF No. 8) without prejudice and with leave to amend 28 1 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) and GRANTS Plaintiff forty-five (45) 2 || days leave from the date of this Order in which to file a Second Amended Complaint. 3 Plaintiff's Second Amended Complaint must be complete by itself without reference 4 any prior version of his complaint. Defendants not named and any claims not re-alleged 5 the Second Amended Complaint will be considered waived. If Plaintiff fails to amend, 6 || the Court will dismiss this action for failure to state a claim and failure to prosecute. 7 8 Dated: June 23, 2026 BE: te Z. Ma 9 Hon, William Q. Hayes 10 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12