DEADLINE: AUGUST 22, 2022

ORDER SCREENING COMPLAINT

(ECF NO. 1)

Plaintiff Fernando Gastelum (“Plaintiff”) is proceeding pro se in this accessibility litigation pursuant to the Americans with Disabilities Act (ADA) and state law against Defendant Five Below, Inc. (“Defendant” or “Five Below”). (ECF No. 1.) The Court issues the following sua sponte screening order pursuant to its independent obligation under Federal Rule of Civil Procedure 12(h)(3) to determine whether it has subject-matter jurisdiction over this matter. For the reasons discussed herein, the Court finds it lacks subject-matter jurisdiction and shall dismiss the complaint with leave to amend.

I.

LEGAL AUTHORITY

The Court has an independent obligation to determine whether it has subject-matter jurisdiction. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.”); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived”); Wilson v. Lynch, 835 F.3d 1083, 1091 (9th Cir. 2016). Consequently, “[f]ederal courts are required sua sponte to examine jurisdictional issues such as standing.” Bernhardt v. Cnty. of L.A., 279 F.3d 862, 868 (9th Cir. 2002) (internal quotation marks omitted and citations omitted); accord U.S. v. Hays, 515 U.S. 737, 742 (1995).

The existence of Article III standing is not subject to waiver. Hays, 515 U.S. at 742. Rather, it must be demonstrated “at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Finally, as set forth by Federal Rule of Civil Procedure (“Rule”) 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3); see also Arbaugh, 546 U.S. at 514 (“when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety”); see also Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004) (the court is obligated to evaluate its subject matter jurisdiction in each case and to dismiss a case when such jurisdiction is lacking).

Where, as here, the Court evaluates the jurisdictional issue facially, the court must accept the complaint's factual allegations as true. Comm. for Immigrant Rts. of Sonoma Cnty. v. Cnty. of Sonoma, 644 F.Supp.2d 1177, 1189 (N.D. Cal. 2009); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)) (“where the petitioner is pro se, particularly in civil rights cases, [courts should] construe the pleadings liberally and . . . afford the petitioner the benefit of any doubt.”); U.S. v. Qazi, 975 F.3d 989, 992-93 (9th Cir. 2020) (“It is an entrenched principle that pro se filings however inartfully pleaded are held to less stringent standards than formal pleadings drafted by lawyers.”) (citations and internal quotations omitted). Nonetheless, while factual allegations are accepted as true, legal conclusions are not. Bell Atlantic Corp. v. Twombly (Twombly), 550 U.S. 544, 555 (2007). Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995).

II.

COMPLAINT ALLEGATIONS

The Court accepts Plaintiff's factual allegations in the complaint as true only for the purpose of the instant sua sponte screening order.

Plaintiff alleges that he is a senior citizen and is missing a leg; sometimes he uses a wheelchair for mobility, whereas at other times, he uses a prosthetic leg and a cane. (Compl. ¶¶ 1, 3-4, ECF No. 1.) Plaintiff resides in Casa Grande, Arizona. (See id. at 1 (caption); see also ECF No. 1-1 (“Civil Cover Sheet”).) Plaintiff alleges that Defendant Five Below owns a “public accommodation” located at 6467 Riverside Drive, Suite 112, Fresno, California 93722 (the “Store”). (Compl. ¶ 5.) Plaintiff never specifically alleges that Five Below is a store (or what kind of store it is), or other facts to establish it constitutes a “public accommodation”; however, the Court concludes Five Below is a store, based on Plaintiff's, albeit unspecified and generic, allegation that he attempted to shop for “goods or services” there. (See Compl. ¶¶ 10-11.)

Plaintiff visited the Store on January 26, 2022, at which time he discovered it was not compliant with either the ADA or state law. (Id.) Specifically, (1) the Store's clear width of accessible routes was less than 36” between displays of merchandise, purportedly making it more difficult for Plaintiff to shop between displays of merchandise; and (2) the operable part of the public restroom door required the twisting of the wrist, which Plaintiff alleges makes it more difficult to open the door. (Id. at ¶ 11.) Plaintiff contends these “barriers” violate accessibility standards 403.5.1 and 309.4, respectively. (Id.) He also contends the barriers “relate to and impact Plaintiff's disability and denied Plaintiff full and equal access.” (Id. at ¶ 12.) Plaintiff also alleges the identified barriers “are easily removed without much difficulty or expense . . . [or that] there are numerous alternative accommodations that could be made to provide a greater level of access if complete removal were not achievable.” (Id. at ¶ 13.) Plaintiff notes he “visits the geographical area where the Store is located on a regular basis two to four times per year, and has been visiting the geographical area for many years in the past”; that he “intends to continue visiting the geographical area where the Store is located on a regular basis at the rate of two to four times per year for the near future”; that he “has conducted business at the Store numerous times in the past and desires to conduct business there in the future . . . because it is reasonably priced and within Plaintiff's budgetary limits” and “[t]he style, price and location of the Store are convenient to Plaintiff when visiting or traveling in the geographical area where the Store is located. (Id. at ¶¶ 16-20.) Finally, Plaintiff states he “has a desire to revisit the Store during his regular visits to the geographical area where the Store is located but only if the Store is made accessible.” (Id. at ¶ 21.)

Plaintiff asserts claims under the ADA and California's Unruh Civil Rights Act and Disabled Persons Act (DPA). (See generally id.) He requests an injunction requiring Defendant to close its store until the Store has fully complied with the ADA, his “costs and expenses and lawyer's fees should Plaintiff hire a lawyer,” damages under California law for “$4,000 per violation [of the Unruh Act] per encounter,” treble damages pursuant to California Civil Code § 3345(b), and at least $1,000 in monetary costs and damages “per violation per encounter” pursuant to the DPA. (Id. at ¶¶ 22, 26, 31-32.)

III.

DISCUSSION

A. Jurisdiction: Article III Standing

“A party invoking federal jurisdiction has the burden of establishing that it has satisfied the ‘case-or-controversy' requirement of Article III of the Constitution, Lujan, 504 U.S. at 561; standing is a ‘core component' of that requirement.” D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008) (citation omitted); see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990); Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S. at 47778) (“This case-or-controversy requirement subsists through all stages of federal judicial proceedings.”).

To establish standing, Plaintiff “must demonstrate that he has suffered an injury-in-fact, that the injury is traceable to the [defendant's] action, and that the injury can be redressed by a favorable decision.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en banc) (citing Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). Additionally, to establish standing for a claim of injunctive relief, as here, Plaintiff “must demonstrate a ‘real and immediate threat of repeated injury' in the future.” Chapman, 631 F.3d at 946 (quoting Fortyune, 364 F.3d at 1081). An ADA plaintiff sufficiently demonstrates such threat of future injury “when he intends to return to a noncompliant place of public accommodation where he will likely suffer repeated injury.” Id. at 948.

In sum, the Ninth Circuit has held “an ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.” Id. at 944, 949.

1. Deterrence

“Title III explicitly provides that it does not require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization . . . does not intend to comply with the ADA.”) (quotation omitted)). Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136 (9th Cir. 2002) (quoting Teamsters v. U.S., 431 U.S. 324, 366 (1977) (internal quotations omitted)). Rather, “a plaintiff who is deterred from patronizing a store suffers the ongoing ‘actual injury' of lack of access to the store.” Chapman, 631 F.3d at 950 (citing Pickern, 293 F.3d at 1138). Thus, an ADA plaintiff may establish standing based on deterrence if he “demonstrate[s] that he would return but for the barrier.” Feezor v. Sears, Roebuck & Co., 608 Fed. App'x 476, 477 (9th Cir. 2015); see also Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (2008) (“Allegations that a plaintiff has visited a public accommodation on a prior occasion and is currently deterred from visiting that accommodation by accessibility barriers establish that a plaintiff's injury is actual or imminent.”).

However, conclusory allegations of deterrence are insufficient. Feezor, 608 Fed.Appx. at 477; Chapman, 631 F.3d at 954 (commenting on the essential elements of Article III standing, “While we are mindful of the generous pleading standards that apply to civil rights plaintiffs, a liberal interpretation of a . . . civil rights complaint may not supply essential elements of the claim that were not initially pled.”) (internal quotations and citation omitted); see also Strojnik v. Bakersfield Convention Hotel I, LLC, 436 F.Supp.3d 1332, 1343 (E.D. Cal. 2020) (“Plaintiff's implicit suggestion that CREEC [Civ. Rts. Educ. & Enft Ctr. v. Hosp. Props. Tr., 867 F.3d 1093 (9th Cir. 2017)] somehow undid decades of Ninth Circuit and Supreme Court precedents to hold for the first time that conclusory allegations of one's intent to return and deterrence from returning to a place to be sufficient to establish imminent future harm is neither logical nor rooted in the four corners of the case.”); Gastelum v. Canyon Hosp. LLC, No. CV-17-02792-PHX-GMS, 2018 WL 2388047, at *6 (D. Ariz. May 25, 2018) (similarly stating that CREEC “did not relax the requirement that the Plaintiff demonstrate real and immediate threat of repeated injury by showing a legitimate intent to visit again the public accommodation in question.”). Where the plaintiff is “indifferent to returning” or if his “alleged intent to return is not genuine,” no imminent threat exists. Chapman, 631 F.3d at 953; see also Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014) (finding that ADA plaintiff who encountered a barrier at a hospital but alleged no reason or intent to return to the hospital in the future lacked standing for injunctive relief). Similarly, a general intent to return to a public accommodation is “insufficient to confer standing in an action for injunctive relief.” Molski v. Kahn Winery (Kahn Winery), 405 F.Supp.2d 1160, 1164 (C.D. Cal. 2005) (citing Lujan, 504 U.S. at 564).

With respect to the elements of deterrence and intent to return, Plaintiff relies on the following assertions:

Plaintiff visits the geographical area where the Store is located on a regular basis two to four times per year, and has been visiting the geographical area for many years in the past[;] intends to continue visiting the geographical area where the Store is located[;] has conducted business at the Store numerous times in the past and desires to conduct business there in the future . . . because it is reasonably priced and within Plaintiff's budgetary limits [and t]he style, price and location of the Store are convenient to Plaintiff when visiting or traveling in the geographical area where the Store is located[; and] Plaintiff has a desire to revisit the Store during his regular visits to the geographical area where the Store is located but only if the Store is made accessible . . .”

For example, Plaintiff never describes what kind of store Defendant owns; Plaintiff states he likes the prices of the items in Five Below, but he does not describe what kinds of “goods or services” are offered there, or what such goods or services he has availed himself of in the past or the intended future. Nor does Plaintiff provide any reason whatsoever as to why he must avail himself of unspecified goods and services at the Five Below located in Fresno, California, when several other Five Below stores are located in much closer proximity to Plaintiff's residence in Casa Grande, Arizona. Nor does Plaintiff provide any reason for his unspecified two to four annual trips to the “geographical area.” Nor does Plaintiff identify what “business” he wishes to conduct at the Store. This complete lack of factual detail is insufficient to support Plaintiff's conclusory statement that he desires to revisit the Five Below located in Fresno, California in order to “conduct business there in the future.”

Similarly, other than a single paragraph in the complaint in which Plaintiff identifies the address of Defendant Five Below, Inc.'s “public accommodation,” Plaintiff does not identify with any particularity what “geographical area” he is referring to. This is problematic because it is unclear whether Plaintiff is referring to, for example, the “geographical area” of Fresno, the greater Central California region, the specific “geographical area” located within the jurisdiction of the Eastern District of California, the entire state of California, or the west coast, in general. See, e.g., Strojnik v. Four Sisters Inns, Inc., No. 2:19-CV-02991-ODW (JEMx), 2019 WL 6700939, at *4 (C.D. Cal. Dec. 9, 2019) (plaintiff's “regular” visits to California but not the Santa Monica area in particular was insufficient to support an intent to return to the defendant's hotel); Brooke v. CSP Hosp. LLC, No. EDCV 20-2202 JGB (SHKx), 2021 WL 401990, at *5 (C.D. Cal. Feb. 2, 2021) (“Plaintiff fails to allege the frequency of her travel or ‘specific ties' to the Desert Cities area in general, or the Hotel in particular.”) (citing Johnson v. Overlook at Blue Ravine, LLC, No. 2:10-CV-02387 JAM-DAD, 2012 WL 2993890, at *3 (E.D. Cal. Jul. 20, 2012)).

It is also problematic that Plaintiff states he has visited the Store in the past, but does not identify any such instances or provide any reason for his past or intended future visits. Moreover, Plaintiff alleges he intends to visit the “geographical area” in which the Store is located “two to four times” within the year, but otherwise provides no specific date or timeframe. See CSP Hosp. LLC, 2021 WL 401990, at *4 (plaintiff's purported intent to re-visit defendant's hotel “later this year” was too speculative to establish intent to return). Perhaps most importantly, Plaintiff alleges-again, only vaguely-his intent to return to the “geographical area” in which the Store is located, but he does not allege that he intends to actually visit the Store during one of those future trips. Indeed, the Ninth Circuit, applying the standard set forth by the Supreme Court in Lujan, explained that mere conclusory assertions that an ADA plaintiff intends to return to a place are insufficient:

A plaintiff's “profession of an ‘inten[t]' to return to the places [he] had visited before” is not sufficient to establish standing because “[s]uch ‘some day' intentions - without any description of concrete plans, or indeed even any specification of when the some day will be - do not support a finding of the ‘actual or imminent' injury that our cases require.

In sum, Plaintiff's conclusory allegations are insufficient to establish deterrence.

2. Injury-In-Fact Coupled with an Intent to Return

a. Injury-In-Fact

An injury-in-fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent' not ‘conjectural' or ‘hypothetical.' ” Lujan, 504 U.S. at 560 (citations omitted). A “particularized” injury is one that “ ‘affect[s] the plaintiff in a personal and individual way.' ” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560 n.1). A “concrete” injury “must actually exist” and must be “real, and not abstract.” Id. at 340.

An ADA plaintiff has suffered an injury-in-fact when he “encounter[s] a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability.” Chapman, 631 F.3d at 944. More specifically, he must show that he “personally suffered discrimination as defined by the ADA as to encountered barriers on account of his disability.” See Id. Discrimination under the ADA is defined to include a failure to remove architectural barriers where such removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). Thus, where the plaintiff seeks to establish discrimination based on an architectural barrier, he “must also prove that: (1) the existing facility at the defendant's place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable.” Parr v. L & L Drive-Inn Rest., 96 F.Supp.2d 1065, 1085 (D. Haw. 2000); see also Chapman, 631 F.3d at 952 (quoting 42 U.S.C. § 12182(a)); Doran, 524 F.3d at 1041; Wyatt v. Ralphs Grocery Co., 65 Fed. App'x 589, 590 (9th Cir. 2003).

i. Architectural Barriers

The ADA Accessibility Guidelines (“ADAAG”) “establish[ ] the technical standards required for ‘full and equal enjoyment.' ” Chapman, 631 F.3d at 945 (citing 28 C.F.R. § 36.406(a); 28 C.F.R. Pt. 36, App. A; Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1024-25 (9th Cir. 2008) (describing the ADA's regulatory framework), cert. denied, 555 U.S. 1208 (2009)).

As noted, Plaintiff identifies two purported barriers at the Store: (1) the Store's clear width of accessible routes was less than 36” between displays of merchandise, in violation of 403.5.1;and (2) the operable part of the public restroom door required the twisting of the wrist, in violation of 309.4. (Compl. ¶ 11.) Accepting Plaintiff's allegations as true, the identified areas in the Store are in violation of the ADAAG and are therefore not “readily accessible,” but constitute architectural barriers. See Chapman, 631 F.3d at 945-46.

ii. Readily Achievable Removal of Barriers

Plaintiff has alleged that the barriers are readily removable. At this stage of the litigation and the Court's facial review of the complaint, the Court finds this element is sufficiently met.

iii. Personal Injury Due to Particular Disability

As the Ninth Circuit has commented, while “the ADAAG's requirements ... are thorough, . . . its purpose is ‘sweeping,' . . . and its mandate ‘comprehensive,' . . . the ADA's reach is not unlimited.” Chapman, 631 F.3d at 945-46 (internal citations omitted). As noted, a barrier violating the ADAAG's standards will only support an ADA claim “so long as [the plaintiff's] suit is limited to barriers related to that person's particular disability.” Id. at 947. Accordingly, a plaintiff “lacks standing if. . . the barriers he seeks to enjoin do not pose a real and immediate threat to him due to his particular disability.” Id. at 953.

Here, the Court cannot conclude Plaintiff has alleged facts sufficient to meet this requirement. Plaintiff alleges, in wholly conclusory fashion, that the barriers “relate to and impact Plaintiff's disability and denied Plaintiff full and equal access.” (Compl. ¶ 12.) But Plaintiff does not allege how such barriers relate to his disability. For example, Plaintiff indicates he may use either a wheelchair or a prosthetic leg and a cane to ambulate at the various public establishments he visits. Certainly, the ADAAG violations appear to pertain to accessibility standards for a person in a wheelchair. But Plaintiff does not indicate which accommodation he was utilizing on January 26, 2022, when he visited Defendant's Store; therefore, Plaintiff has not established that the identified barriers actually affected him due to his disability.

Specifically regarding the alleged bathroom door barrier, Plaintiff does not allege any facts linking this barrier to his particular disability. That is, Plaintiff does not explain why he is unable to twist open a bathroom door while ambulating in a wheelchair or with his prosthetic leg; nor does Plaintiff allege any facts showing that he attempted to utilize the bathroom while availing himself of the goods and services at the Store.

Simply put, without more, Plaintiff's conclusory allegations are insufficient to establish the identified barriers related to his particular disability. Chapman, 631 F.3d at 947.

b. Intent to Return

Finally, the Court finds Plaintiff has failed to allege an intent to return to the Store. As noted, an ADA plaintiff can show a likelihood of future injury when he intends to return to a noncompliant accommodation and is therefore likely to re-encounter a discriminatory architectural barrier. Id. at 950; see also Ervine, 753 F.3d at 867 (internal citation omitted); Fortyune, 364 F.3d at 1081; O'Shea v. Littleton, 414 U.S. 488, 496 (1974); City of L.A. v. Lyons, 461 U.S. 95, 111 (1983). However, as previously noted with respect to the element of deterrence, a “general intent to return” to a public accommodation is insufficient, as are allegations demonstrating “indifference” to returning, or an intent to return that is “not genuine.” Kahn Winery, 405 F.Supp.2d at 1164; Chapman, 631 F.3d at 953.

Particularly with respect to determining whether a plaintiff's likelihood of returning to a defendant's place of public accommodation is sufficient to confer standing, courts generally consider four factors: (1) the proximity of the place of public accommodation to the plaintiff's residence; (2) the plaintiff's past patronage of the defendant's business; (3) the definitiveness of the plaintiff's plans to return; and (4) the plaintiff's frequency of travel near the defendant. Harris v. Del Taco, 396 F.Supp.2d 1107, 1113, (C.D. Cal. 2005) (citing Molski v. Arby's Huntington Beach, 359 F.Supp.2d 938, 947 (C.D. Cal. 2005)); see also Crandall v. Starbucks Corp., 249 F.Supp.3d 1087, 1106 (N.D. Cal. 2017).

The first factor does not support intent to return: Plaintiff's residence in Casa Grande, Arizona is approximately 647 miles (an approximately ten-hour drive) away from Defendant's Five Below store in Fresno, California. The second, third, and fourth factors are based on the same vague and conclusory allegations discussed supra, and are insufficient to establish intent to return for the same reasons. For all of these reasons, the Court finds Plaintiff fails to allege sufficient facts to establish an intent to return in support of his ADA claim. Chapman, 631 F.3d at 953.

Because Plaintiff fails to sufficiently allege either deterrence or “injury-in-fact coupled with an intent to return,” he lacks Article III standing and this Court lacks jurisdiction over the action. This deficiency warrants dismissal. See Fed.R.Civ.P. 12(h)(3); Arbaugh, 546 U.S. at 514; Valdez, 372 F.3d at 1116; see also Langer v. YM Holdings, LLC, No. 18-CV-1114 JLS (KSC), 2020 WL 3498165, at *4 (S.D. Cal. Jun. 29, 2020) (dismissing ADA complaint for lack of subject-matter jurisdiction premised on lack of standing).

B. State Law Claims

Having found that Plaintiff lacks standing to pursue his ADA claim, which is Plaintiff's sole federal law claim, the only claims remaining are Plaintiff's state law claims. The Court typically has discretion to refuse to exercise supplemental jurisdiction over state claims when all federal claims have been dismissed. See 28 U.S.C. § 1367(c)(3). Indeed, the Ninth Circuit has stated that “state law claims ‘should' be dismissed if federal claims are dismissed before trial.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir.), supplemented, 121 F.3d 714 (9th Cir. 1997), as amended (Oct. 1, 1997) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)) (emphasis omitted).

However, where, as here, a district court “dismisses for lack of subject matter jurisdiction, it has no discretion and must dismiss all claims.” Herman Fam. Revocable Tr. v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001). In light of this controlling authority, Plaintiff's remaining state law claims must also be dismissed.

C. Leave to Amend

Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when justice so requires,” because “the court must remain guided by the underlying purpose of Rule 15 . . . to facilitate decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks omitted). “The decision of whether to grant leave to amend nevertheless remains within the discretion of the district court,” which may deny leave to amend if allowing amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the party seeking amendment has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

On this record, the Court cannot rule out the possibility that Plaintiff can plausibly allege facts supporting Article III standing if given leave to amend. For this reason, he may amend his complaint to plead specific facts to address the deficiencies described in this order. Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Absent Court approval, Plaintiff's first amended complaint must be “complete in itself without reference to the prior or superseded pleading.” E.D. Cal. L.R. 220. “If [Plaintiff] does not take advantage of the opportunity to fix his complaint, [the Court] may convert the dismissal of the complaint into dismissal of the entire action.”). Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005).

IV.

CONCLUSION AND ORDER

Based on the foregoing, the Court finds Plaintiff has failed to establish Article III standing exists; therefore, the Court lacks jurisdiction over the instant matter.

Accordingly, IT IS HEREBY ORDERED that:

1. The complaint (ECF No. 1) is DISMISSED in its entirety as frivolous due to lack of subject-matter jurisdiction;

2. Plaintiff shall file a first amended complaint curing the deficiencies identified by the Court in this order no later than August 22, 2022;

3. The first amended complaint, including attachments, shall not exceed twenty-five (25) pages in length; and

4. If Plaintiff fails to file a first amended complaint in compliance with this order, the Court will recommend to a District Judge that this action be dismissed consistent with the reasons stated in this order.

IT IS SO ORDERED.