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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 AARON RAISER, Case No. EDCV 19-183-DSF (KK) 11 Plaintiff, 12 v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 13 CITY OF MURRIETA, ET AL.,

14 Defendant(s).

15 16 17 I. 18 INTRODUCTION 19 Plaintiff Aaron Raiser (“Raiser”), proceeding pro se and in forma pauperis, filed 20 a Third Amended Complaint (“TAC”) pursuant to

(“Section 1983”) 21 alleging violations of his Fourth and Fourteenth Amendment rights, Title II of the 22 Americans with Disabilities Act (“ADA”), and state law claims pursuant to the Unruh 23 Civil Rights Act,

, and the Tom Bane Civil Rights Act, Cal Civ. 24 Code § 52.1. ECF Docket No. (“Dkt.”) at 119. For the reasons discussed below, the 25 Court dismisses the TAC with leave to amend. 26 /// 27 /// 1 II. 2 PROCEDURAL HISTORY 3 On January 28, 2019,1 Raiser initiated the instant action by filing a Complaint 4 alleging violations of his First, Fourth, and Fourteenth Amendment rights against 5 defendants City of Murrieta, City of Murrieta Police Officer Michael Jacob (“Jacob”), 6 United States District Judge R. Gary Klausner, United States Magistrate Judge Rozella 7 Oliver, and Does 1-40. Dkt. 1. 8 On May 6, 2019, defendants City of Murrieta and Jacob filed a motion to 9 dismiss the Complaint. Dkt. 16. 10 On May 27, 2019, before the Court ruled on the motion to dismiss, Raiser filed 11 a First Amended Complaint (“FAC”) setting forth twenty-one claims against 12 defendants City of Murrieta, Jacob, former City of Murrieta mayor Rick Gibbs 13 (“Gibbs”), nine federal judges, and Does 1-50. Dkt. 21, FAC. 14 On June 10, 2019, defendants City of Murrieta and Jacob filed a motion to 15 dismiss the FAC. Dkt. 27. 16 On July 8, 2019, the Court sua sponte dismissed with prejudice the sole claim 17 in the FAC against the federal judges and Does 13-40, i.e. Claim Nineteen. Dkt. 48. 18 On July 13, 2020, the Court granted the motion to dismiss and dismissed some 19 claims with prejudice while granting Raiser leave to amend all other claims in the 20 FAC. Dkt. 98. 21 On September 8, 2020, Raiser filed a Second Amended Complaint (“SAC”). 22 Dkt. 110. 23 24 25

26 1 Raiser argues his FedEx receipt shows the Complaint was delivered to the Court on January 28, 2019 even though the Court did not stamp the Complaint received until 27 January 29, 2019. Dkt. 30 at 27. While Raiser is not entitled to the benefit of the 1 On September 30, 2020, before any response to the SAC was filed, Raiser filed 2 the operative TAC setting forth fifteen causes of action2 alleging violations of his 3 Fourth and Fourteenth Amendment rights, Title II of the ADA, and state law claims 4 pursuant to the Unruh Civil Rights Act and the Tom Bane Civil Rights Act. Dkt. 5 115. In the TAC, Raiser sues defendants City of Murrieta, Jacob, City of Murrieta 6 Police Officer Tino Abbate (“Abbate”), and Does 3, 4, 7, 8, 11, 12, and 20-403 7 (“Defendants”). Dkt. 115. 8 III. 9 ALLEGATIONS IN THE TAC 10 The Court herein summarizes Raiser’s allegations in the TAC as follows: 11 On January 27, 2017, at approximately 1 p.m., Raiser, who lives out of his car, 12 was sitting in his car parked on the street in front of a public park in the City of 13 Murrieta. Id. at 2–3. Defendant Jacob “approached [Raiser’s car] and asked [Raiser] 14 about whether he were homeless and/or expressed his belief that [Raiser] was 15 homeless.” Id. Defendant Jacob told Raiser it was illegal to live out of one’s vehicle 16 in the City of Murrieta and that he had to leave the city. Id. at 2. Defendant Jacob 17 also told Raiser that Raiser could leave but “indicated if [Raiser] stayed[,] he would 18 detain [Raiser] and issue [Raiser] a citation.” Id. Raiser alleges “[b]y Defendant’s 19 language, threatening appearance and demeanor, including having a gun and 20 handcuffs, a police badge, police car and police uniform, and with [Raiser] being 21 aware personally and on the news that police can act violently, hurt, and kill people 22 who do not obey police orders, [Raiser] felt threatened with detainment, citation, 23

24 2 Raiser maintains the numbering of the causes of action from his original complaint even though several causes of action have been dismissed with prejudice. For 25 purposes of this Order, the Court will use Raiser’s numbering as set forth in the TAC when referring to the causes of action. 26 3 Does 20-40 are not specifically listed as defendants in any Claim, nor does Raiser state any factual allegations against them. See Iqbal, 556 U.S. at 676 (holding plaintiff 27 must present facts showing how a particular defendant was directly and personally 1 arrest, jail and prosecution if [Raiser] . . . drove into Murrieta in a car he were living 2 out of.” Id. at 3. In addition, Raiser notes he is “a disabled person for purposes of 3 the ADA,” id. at 24, and his “bad knee and back” as well as “personal safety issue[s] 4 and personal reasons make walking into Murrieta prohibitive,” id. at 3. Further, his 5 physical conditions prevented him from using public transportation. Id. at 25. 6 In April 2017, Raiser was sitting in his car in Temecula, California 7 (“Temecula”) when two City of Murrieta police officers “detained [Raiser] simply 8 because they felt like ID’ing him.” Id. at 14. Raiser attempted to obtain information 9 from City of Murrieta regarding the detainment in April 2017, but the city refused to 10 provide any information. Id. at 15. 11 In November 2017, Raiser was walking in “an area of Murrieta which is owned 12 by the state or county” when Doe 3 “drove up” to Raiser and stated he was 13 authorized to “arrest anyone he wants on that property.” Id. at 17–18. Minutes 14 earlier, Doe 3 had spoken with Raiser when Raiser was parked in his car in Temecula, 15 and Doe 3, therefore, believed Raiser to be homeless. Id. at 18. Raiser alleges he was 16 “seized” because “he was forced to leave an area where he otherwise had the right to 17 be.” Id. 18 On December 1, 2017, Raiser sent a letter to the City of Murrieta police chief, 19 mayor, and each city council member regarding defendant Jacob’s conduct on January 20 27, 2017. Id. at 4. The City of Murrieta police chief, mayor, and each city council 21 member each “refused to take any action to resolve the matter or to allow [Raiser] to 22 return to Murrieta in his car.” Id. Raiser has, therefore, been precluded from seeing 23 his dentist for four years, obtaining a “brain MRI”, or patronizing businesses in the 24 City of Murrieta. Id. 25 On December 16, 2017, Raiser was sitting in his car on Borel Road near 26 Winchester Road when Doe 4, who is a City of Murrieta police officer, “pulled up 27 behind” Raiser and told him to turn off his car engine. Id. at 19. Doe 4 asked Raiser 1 Raiser’s driver’s license. Id. Raiser objected and Doe 4 returned to his vehicle and 2 ran a background check on Raiser and his license plate.4 Id. 3 On January 9, 2018, Raiser was sitting in his car on Borel Road near Winchester 4 Road when Does 7 and 8, who are City of Murrieta police officers “pulled up behind 5 [Raiser], said they were checking [Raiser] out, and asked [Raiser] if he were on 6 probation or parole[.]” Id. at 20. Raiser asked the officer to leave him alone and the 7 officers told Raiser he was not free to leave and that he was being detained. Id. Does 8 7 and 8 then ran a background check on Raiser and let him go. Id. 9 On July 1, 2018, Raiser was sitting in his car on Borel Road near Winchester 10 Road when defendant Abbate, who is City of Murrieta police officer, “pulled up 11 behind” Raiser and told him to turn off his car engine. Id. at 20. When Raiser asked 12 if he had broken any laws, defendant Abbate responded that “he didn’t know yet.” 13 Id. at 21. Defendant Abbate required Raiser to give him his driver’s license, asked 14 Raiser if he were on probation or parole, and then let Raiser go. Id. 15 On May 8, 2018, Raiser was driving on Sky Canyon Road when Doe 11, who is 16 a City of Murrieta police officer, pulled up behind Raiser and activated his police 17 lights, causing Raiser to pull off to the side of the road. Id. at 22. Doe 11 told Raiser 18 he was being detained and that his car “looked oddly suspicious, or suspiciously odd.” 19 Id. Doe 12, who is also a City of Murrieta police officer, pulled up to assist Doe 11. 20 Id. Raiser was required to give the officers his driver’s license and, after a background 21 check was completed, Raiser was free to leave. Id. at 23. 22 Finally, Raiser alleges he has been “unlawfully detained” by City of Murrieta 23 police officers eight times from 2015 to 2018 and has spoken with approximately 24 twelve homeless people who each were “unlawfully stopped, detained, and ID’d by 25 Murrieta police on at least three occasions.” Id. at 5. Accordingly, Raiser alleges the 26 27 1 City of Murrieta “has a custom, policy and/or practice of unlawfully detaining 2 homeless people to ID them without basis.” Id. at 6. 3 Based on these allegations, Raiser sets forth the following claims in the TAC: 4 • Claims One (Unruh Civil Rights Act,

), Four (Section 5 1983 Fourteenth Amendment Equal Protection), Six (Tom Bane Civil Rights 6 Act,

), Thirteen (Section 1983 Fourth Amendment), and 7 Twenty-Two (ADA) against defendants Jacob and City of Murrieta as well as 8 Claim Twenty-One (Section 1983 deliberate indifference) against City of 9 Murrieta arise out of January 27, 2017 incident with defendant Jacob. 10 • Claims Seventeen (Section 1983 Fourth and Fourteenth Amendment) against 11 defendants Abbate and City of Murrieta arise out of the July 1, 2018 incident 12 with defendant Abbate. 13 • Claims Fourteen, Fifteen, Sixteen, and Twenty against Does 3, 4, 7, 8, 11, 14 and 12, and defendant City of Murrieta are Section 1983 claims for violation 15 of Raiser’s Fourth and Fourteenth Amendment rights. 16 • Finally, Claims Twenty-Three and Twenty-Four are Section 1983 claims 17 against the City of Murrieta5 alleging liability based on Monell v. Dep’t. of 18 Soc. Servs.,

(1978) (“Monell”) for maintaining a policy to 19 “unlawfully detain citizens who are not suspected of violating any laws, 20 including homeless people, and to exclude homeless people from their city” 21 and failing to train or supervise its officers resulting in unlawfully detaining 22 citizens. 23 Raiser seeks monetary damages on all Claims except Claims One and Six, 24 where he seeks instead that defendant Jacob “be enjoined from detaining, citing, 25 arresting [Raiser] for the sole act of driving into Murrieta in a car which he lives out 26 5 The Court notes the heading of Claim Twenty-Four states it is against “County of 27 Riverside and City of Temecula”, but the body of the claim refers to City of Murrieta 1 of, or appears to live out of.”

at 29–31. In addition, as to Claim Twenty-Two, 2 Raiser seeks declaratory relief and injunctive relief enjoining defendants Jacob and 3 City of Murrieta from prohibiting Raiser “from legally driving into [the City of 4 Murrieta] in his car which he lives out of.” Id. at 31. 5 IV. 6 STANDARD OF REVIEW 7 Where, as here, a plaintiff is proceeding in forma pauperis, a court must screen 8 the complaint under

and is required to dismiss the case at any time if 9 it concludes the action is frivolous or malicious, fails to state a claim on which relief 10 may be granted, or seeks monetary relief against a defendant who is immune from 11 such relief.

(e)(2)(B); see Barren v. Harrington,

, 1194 12 (9th Cir. 1998). 13 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 14 “short and plain statement of the claim showing that the pleader is entitled to relief[.]” 15 FED. R. CIV. P. 8(a)(2). In determining whether a complaint fails to state a claim for 16 screening purposes, a court applies the same pleading standard as it would when 17 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 18 Watison v. Carter,

(9th Cir. 2012). 19 A complaint may be dismissed for failure to state a claim “where there is no 20 cognizable legal theory or an absence of sufficient facts alleged to support a 21 cognizable legal theory.” Zamani v. Carnes,

(9th Cir. 2007). In 22 considering whether a complaint states a claim, a court must accept as true all of the 23 material factual allegations in it. Hamilton v. Brown,

, 892–93 (9th Cir. 24 2011). However, the court need not accept as true “allegations that are merely 25 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 26 Gilead Scis. Sec. Litig.,

(9th Cir. 2008). Although a complaint 27 need not include detailed factual allegations, it “must contain sufficient factual matter, 1 Brewer,

(9th Cir. 2011) (quoting Ashcroft v. Iqbal,

, 2 678 (2009)). A claim is facially plausible when it “allows the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged.”

The 4 complaint “must contain sufficient allegations of underlying facts to give fair notice 5 and to enable the opposing party to defend itself effectively.” Starr v. Baca,

(9th Cir. 2011). 7 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 8 however inartfully pleaded, must be held to less stringent standards than formal 9 pleadings drafted by lawyers.’” Woods v. Carey,

, 889–90 (9th Cir. 2008). 10 However, liberal construction should only be afforded to “a plaintiff’s factual 11 allegations,” Neitzke v. Williams,

, 330 n.9 (1989), and a court need not 12 accept as true “unreasonable inferences or assume the truth of legal conclusions cast 13 in the form of factual allegations,” Ileto v. Glock Inc.,

(9th Cir. 14 2003). 15 If a court finds the complaint should be dismissed for failure to state a claim, 16 the court has discretion to dismiss with or without leave to amend. See Lopez v.

F.3d 1122, 1126–30 (9th Cir. 2000). Leave to amend should be granted if 18 it appears possible the defects in the complaint could be corrected, especially if the 19 plaintiff is pro se.

at 1130–31; see Cato v. United States,

(9th 20 Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot be 21 cured by amendment, the court may dismiss without leave to amend. See Cato, 70 22 F.3d at 1107–11; see also Moss v. U.S. Secret Serv.,

(9th Cir. 2009). 23 /// 24 /// 25 /// 26 /// 27 ///

DISCUSSION 3 A. THE TAC FAILS TO STATE A FOURTEENTH AMENDMENT 4 EQUAL PROTECTION CLAIM AGAINST DEFENDANTS JACOB, 5 DOE 3, AND CITY OF MURRIETA 6 In Claim Four, Raiser alleges he was denied equal protection of the laws under 7 the Fourteenth Amendment because defendants Jacob and City of Murrieta 8 intentionally treated him differently than other similarly situated in the City of 9 Murrieta “who can drive, park and sit in their cars on city streets without issue and 10 ONLY [Raiser] is ordered out due to [defendant] Jacob’s claimed appearance of 11 [Raiser’s] car or being someone without a home.” Dkt. 115 at 10. 12 In Claim Fourteen, Raiser alleges he was denied equal protection of the laws 13 under the Fourteenth Amendment because Doe 3 threatened him with “detainment, 14 citation, arrest and/or prosecution if he enters that area of Murrieta” because 15 “minutes earlier Doe 3 had talked to [Raiser] when he was parked in his car in 16 Temecula and believed [Raiser] to be homeless.” Id. at 18–19. 17 1. Applicable Law 18 “The Equal Protection Clause of the Fourteenth Amendment commands that 19 no State shall ‘deny to any person within its jurisdiction the equal protection of the 20 laws,’ which is essentially a direction that all persons similarly situated should be 21 treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr.,

, 439 22 (1985) (quoting Plyler v. Doe,

(1982)). In order to state a Section 23 1983 equal protection claim, a plaintiff must allege he was treated differently from 24 others who were similarly situated without a rational basis. See Village of 25 Willowbrook v. Olech,

(2000) (per curiam) (setting forth the 26 standard for a “class of one” equal protection claim). 27 /// 1 2. Analysis 2 To the extent Raiser is alleging the conduct of defendants Jacob or Doe 3 was 3 based on Raiser’s status as a homeless person, homeless individuals are not a 4 protected class. See Nails v. Haid, No. SACV 12-0439-GW (SS),

, 5 at *3 (C.D. Cal. Sept. 17, 2013); Garber v. Flores, No. CV 08-4208DDP (RNB), 2009

, at *10 (C.D. Cal. June 10, 2009) (denying equal protection claim based 7 on plaintiff’s status as a homeless person because “[h]omeless persons are not a 8 suspect class”). 9 In addition, to the extent Raiser alleges he was treated differently from other 10 similarly situated individuals, his “class-of-one” equal protection claim fails as well. 11 Raiser fails to identify any specific similarly situated persons. Raiser is admittedly not 12 similarly situated to all persons “who can drive, park and sit in their cars on city streets 13 without issue” because of the “appearance of [Raiser’s] car or being someone without 14 a home.” See dkt. 115 at 10. Throughout the TAC, Raiser repeatedly alleges he was 15 treated differently based on defendant Jacob’s perception that Raiser is a homeless 16 person living out of his car. See, e.g., dkt. 115 at 10 (alleging defendant Jacob’s 17 conduct “was driven by [Raiser] being homeless”);

(alleging Doe 3’s conduct 18 “was driven by [Raiser] being homeless”). Raiser’s claim, therefore, is not premised 19 on “unique treatment” but on a “classification” (i.e. being homeless) which is not a 20 protected class. See Lazy Y Ranch Ltd. v. Behrens,

(9th Cir. 2008) 21 (declining to analyze “class of one” argument because plaintiff repeatedly alleged 22 defendants treated it differently “based on its perceived association with 23 conservationists and because it was a newcomer to Idaho grazing markets” and 24 finding plaintiff’s claims were, therefore, not premised on “unique treatment” but on 25 “a classification”). 26 Finally, because Raiser’s equal protection claims against defendants Jacob and 27 Doe 3 are subject to dismissal, his equal protection claims against the City of Murrieta 1 Accordingly, Raiser’s Fourteenth Amendment Equal Protection claims set 2 forth in Claims Four and Fourteen are subject to dismissal for failure to state a claim. 3 B. THE TAC FAILS TO STATE A FOURTEENTH AMENDMENT 4 CLAIM AGAINST DOES 4, 7, 8, 11, AND 12 OR DEFENDANT 5 ABBATE 6 1. Applicable Law 7 Section 1983 prohibits persons acting under color of law from depriving 8 individuals of their constitutional rights.

. To state a claim against a 9 defendant for violation of civil rights under Section 1983, a plaintiff must allege the 10 defendant deprived him or her of a right guaranteed under the Constitution or a 11 federal statute. See West v. Atkins,

(1988); Karim-Panahi v. Los 12 Angeles Police Dep’t,

, 624 (9th Cir. 1998). A plaintiff must present 13 facts showing how a particular defendant was directly and personally involved in 14 inflicting the alleged injury. See Iqbal,

. Moreover, although a 15 complaint need not include detailed factual allegations, it “must contain sufficient 16 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 17 Cook,

(quoting Iqbal,

). 18 2. Analysis 19 Here, the allegations in the TAC are unclear as to how Does 4, 7, 8, 11, or 12, 20 or defendant Abbate violated Raiser’s Fourteenth Amendment due process or equal 21 protection rights. Raiser merely concludes at the end of Claims Fifteen, Sixteen, 22 Seventeen, and Twenty, that he “had his civil rights violated under the 4th and 14th 23 Amendments.” Dkt. 115 at 19–21, 23. The TAC, therefore, does not contain 24 “sufficient allegations of underlying facts to give fair notice and to enable the 25 opposing party to defend itself effectively” against a Fourteenth Amendment claim. 26 Starr,

. 27 /// 1 C. THE TAC FAILS TO STATE A CLAIM FOR VIOLATION OF THE 2 ADA AGAINST DEFENDANTS JACOB AND CITY OF MURRIETA 3 1. Applicable Law 4 Title II of the ADA prohibits discrimination on the basis of disability in the 5 programs, services or activities of a public entity.

et seq.; see also 6

. However, Title II of the ADA only affords causes of action against 7 public entities and does not encompass public officials sued in their individual 8 capacities.

; Roberts v. California Dep’t of Corr. & Rehab., No. 9 EDCV 16-1929 CJC (JC),

, at *9 (C.D. Cal. Aug. 22, 2017). The 10 proper defendant for an ADA claim is the public entity responsible for the alleged 11 discrimination. Conklin v. Espinda, No. CV 19-00087 JMS (RT),

, 12 at *14 (D. Haw. Dec. 23, 2019) (citing Everson v. Leis,

(6th 13 Cir. 2009) (collecting cases)). 14 To state a claim for violation of Title II of the ADA, a plaintiff must show that 15 (1) he is a qualified individual with a disability; (2) he is otherwise qualified to 16 participate in or receive the benefit of some public entity’s services, programs or 17 activities; (3) he was excluded or otherwise discriminated against by the public entity; 18 and (4) the exclusion or discrimination occurred solely by reason of his disability. 19 Martin v. Roche, No. EDCV 08-0827-SJO (JTL),

, at *11 (C.D. Cal. 20 Jan. 5, 2009). 21 To recover monetary damages under the ADA, a plaintiff must show 22 intentional discrimination on the part of state officials. Duvall v. County of Kitsap, 23

(9th Cir. 2001). The test for intentional discrimination is 24 deliberate indifference.

A defendant acts with deliberate indifference only if (1) 25 the defendant has knowledge from which an inference could be drawn that a harm to 26 a federally protected right is substantially likely, and (2) the defendant actually draws 27 that inference and fails to act upon the likelihood. See

at 1138–39. 1 2. Analysis 2 As an initial matter, defendant Jacob is not a proper defendant in his individual 3 capacity for Raiser’s ADA claim. See Roberts,

, at *9. 4 Moreover, Raiser fails to allege he was discriminated against solely by reason of 5 his disability. See Martin,

, at *11. Raiser alleges defendant Jacob’s 6 threat prohibited him from driving into the City of Murrieta in a car he lived out of 7 and that his disability, therefore, effectively prevented him from entering the City of 8 Murrieta at all. Dkt. 115 at 3, 24–25. Raiser, however, alleges defendant Jacob’s 9 conduct “was driven by [Raiser] being homeless”, rather than Raiser’s disability.

at 10 10. Hence, Raiser’s ADA claim is subject to dismissal. 11 VI. 12 LEAVE TO FILE A FOURTH AMENDED COMPLAINT 13 For the foregoing reasons, the TAC is subject to dismissal. As the Court is 14 unable to determine whether amendment would be futile, leave to amend is granted. 15 See Lucas v. Dep’t of Corr.,

(9th Cir. 1995) (per curiam). Plaintiff is 16 advised that the Court’s determination herein that the allegations in the TAC are 17 insufficient to state a particular claim should not be seen as dispositive of that claim. 18 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 19 matter in his pleading, accepted as true, to state a claim to relief that is viable on its 20 face, Plaintiff is not required to omit any claim to pursue this action. However, if 21 Plaintiff asserts a claim in his Fourth Amended Complaint that has been found to be 22 deficient without addressing the claim’s deficiencies, then the Court, pursuant to the 23 provisions of

, ultimately will submit to the assigned district judge a 24 recommendation that such claim be dismissed with prejudice for failure to state a 25 claim, subject to Plaintiff’s right at that time to file Objections with the district judge 26 as provided in the Local Rules Governing Duties of Magistrate Judges. 27 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 1 1. Plaintiff may file a Fourth Amended Complaint to attempt to cure the 2 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a blank 3 Central District civil rights complaint form to use for filing the Fourth Amended 4 Complaint, which the Court encourages Plaintiff to use. 5 If Plaintiff chooses to file a Fourth Amended Complaint, he must clearly 6 designate on the face of the document that it is the “Fourth Amended Complaint,” it 7 must bear the docket number assigned to this case, and it must be retyped or 8 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 9 include new defendants or allegations that are not reasonably related to the claims 10 asserted in the TAC. In addition, the Fourth Amended Complaint must be complete 11 without reference to the TAC, SAC, FAC, Complaint, or any other pleading, 12 attachment, or document. 13 An amended complaint supersedes the preceding complaint. Ferdik v. 14 Bonzelet,

(9th Cir. 1992). After amendment, the Court will treat 15 all preceding complaints as nonexistent. See

Because the Court grants Plaintiff 16 leave to amend as to all his claims raised here, any claim raised in a preceding 17 complaint is waived if it is not raised again in the Fourth Amended Complaint. 18 See Lacey v. Maricopa Cty.,

(9th Cir. 2012). 19 The Court advises Plaintiff that it generally will not be well-disposed toward 20 another dismissal with leave to amend if Plaintiff files a Fourth Amended Complaint 21 that continues to include claims on which relief cannot be granted. “[A] district 22 court’s discretion over amendments is especially broad where the court has already 23 given a plaintiff one or more opportunities to amend his complaint.” Ismail v. Cty. of 24 Orange,

(C.D. Cal. 2012) (internal citation and quotation 25 marks omitted); see also Ferdik,

. Thus, if Plaintiff files a Fourth 26 Amended Complaint with claims on which relief cannot be granted, the Fourth 27 Amended Complaint will be dismissed without leave to amend and with 1 2. Alternatively, Plaintiff may file a notice with the Court that he intends to 2 stand on the allegations in his TAC. If Plaintiff chooses to stand on the TAC despite 3 the deficiencies in the claims identified above, then the Court will submit a 4 recommendation to the assigned district judge that the deficient claims discussed 5 in this Order be dismissed with prejudice for failure to state a claim, subject to 6 Plaintiff’s right at that time to file Objections with the district judge as provided in the 7 Local Rules Governing Duties of Magistrate Judges. If the assigned district judge 8 accepts the findings and recommendations of the undersigned Magistrate Judge and 9 dismisses the deficient claims discussed in this Order, the Court will issue a separate 10 order regarding service of any claims remaining in the TAC at that time. 11 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, 12 pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to 13 mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff 14 to use if he chooses to voluntarily dismiss the action. 15 Plaintiff is explicitly cautioned that failure to timely respond to this 16 Order will result in this action being dismissed without prejudice for failure to 17 prosecute and/or obey Court orders pursuant to Federal Rule of Civil 18 Procedure 41(b). 19 20 Dated: November 2, 2020

21 HONORABLE KENLY KIYA KATO United States Magistrate Judge 22 23 24 25 26 27