1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 WILLIAM DAVID BUSH, Case No. 21-cv-07472-SI 6 Plaintiff, Related Case No. 21-cv-06055-SI

7 v. ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND 8 XAVIER BECERRA, Re: Dkt. No. 2 9 Defendant.

10

11 On September 24, 2021, plaintiff William David Bush filed this pro se lawsuit against Xavier 12 Becerra, Secretary of Health and Human Services. Plaintiff is proceeding in forma pauperis. 13 Where a plaintiff is found to be indigent under

(a)(1) and is granted leave 14 to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) 15 are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek 16 monetary relief from a defendant who is immune from such relief.

(e)(2)(B); see 17 Marks v. Solcum,

(9th Cir. 1996). 18 The complaint alleges one cause of action under the Administrative Procedure Act (“APA”), 19

, seeking declaratory and injunctive relief in the form of a court order directing 20 defendant to enforce the Filled Milk Act,

The complaint alleges that Mr. Bush 21 purchased Clover’s Stornetta milk “believing the product was Organic Grade A Milk as advertised” 22 but that the milk was an “imitation product of Filled Milk containing Red Palm Seed Oil” in 23 violation of the Filled Milk Act. Compl. ¶ 9. Plaintiff alleges he suffered injury from “resulting 24 stomach indigestion issues.”

. 25 The present complaint is virtually identical to another case filed by Mr. Bush earlier this 26

27 1 The Filled Milk Act “prohibits the shipment in interstate commerce of skimmed milk 1 year, William David Bush v. Xavier Becerra, Case No. 3:21-cv-06055-SI. In that case, Mr. Bush 2 || alleged that he drank Clover Stornetta milk that caused him stomach indigestion issues, and he 3 sought declaratory and injunctive relief under the APA in the form of an order directing Secretary 4 Becerra to enforce the Filled Milk Act. In an order filed September 21, 2021, the Court adopted a 5 Report and Recommendation issued by Chief Magistrate Judge Spero and dismissed the complaint 6 || without leave to amend. See Dkt. No. 14 in Case No. 3:21-cv-06055-SI. As Judge Spero explained 7 in the Order to Show Cause filed September 4, 2021, 8 The Supreme Court has held, as a matter of subject matter jurisdiction, that a claim based on agency inaction under

(1) [the section governing scope of 9 relief] “can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 10

(2004) (“SUWA”) (emphasis in original). Thus, Section 706(1) does not permit “broad programmatic attack[s].” Jd. The Court in SUWA explained the 11 reason for these limitations: 12 If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as 13 well, to determine whether compliance was achieved—which would mean that it would ultimately become the task of the supervising court, 14 rather than the agency, to work out compliance with the broad statutory © 5 mandate, injecting the judge into day-to-day agency management.

. 16 Order to Show Cause, Dkt. No. 8 in Case No. 3:21-cv-06055-SI. 17

Plaintiff is advised that the current complaint suffers from the same deficiencies as the Z 18 virtually identical complaint in the earlier case, and thus the Court DISMISSES this case without 19 leave to amend. Plaintiff may file a notice of appeal of the earlier case and/or this case if he wishes 20 to pursue his claim. Further, plaintiff is advised that any lawsuits he files in the Northern District 21 of California against defendant Becerra seeking enforcement of the Filled Milk Act will be related 22 to the undersigned judge pursuant to Northern District Civil Local Rule 3-12. 23 Accordingly, this case is DISMISSED. 24 IT IS SO ORDERED. Stn Ml ee 25 Dated: October 6, 2021 26 SUSAN ILLSTON 57 United States District Judge 28