Blacher v. Diaz

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MARLON BLACHER, Case No.: 3:20-cv-01270-LAB-MDD

CDCR #G50077,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

RALPH DIAZ, et al.,

15 [ECF No. 3]

Defendants.

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2) DISMISSING FRIVOLOUS

17 CLAIMS PURSUANT TO 28 U.S.C.

§ 1915(e)(2) & 28 U.S.C. § 1915A(b)

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19 3) DENYING MOTION FOR

TEMPORARY RESTRAINING

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ORDER [ECF No. 2]

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4) DIRECTING U.S. MARSHAL TO

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EFFECT SERVICE OF SUMMONS

23 AND COMPLAINT PURSUANT

TO 28 U.S.C. § 1915(d) &

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Fed. R. Civ. P. 4(c)(3)

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26 Plaintiff Marlon Blacher, currently incarcerated at Richard J. Donovan State Prison

27 (“RJD”) located in San Diego, California, and proceeding pro se, has filed a civil rights

28 complaint pursuant to 42 U.S.C. § 1983 and Exhibits in support of his Complaint. See

1 Compl., ECF Nos. 1, 1-1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C.

2 § 1914(a), but did file a CDCR Inmate Statement Report and Prison Certificate, which the

3 Court liberally construes as his Motion to Proceed In Forma Pauperis (“IFP”). See ECF

4 No. 3. Plaintiff has also filed a Motion for a Temporary Restraining Order (“TRO”). See

5 ECF No. 2.

6 I. Motion to Proceed IFP

7 “The Prison Litigation Reform Act (PLRA) instituted a ‘three-strikes’ rule in an

8 effort to disincentivize frivolous prisoner litigation.” Hoffmann v. Pulido, 928 F.3d 1147,

9 1148‒49 (9th Cir. 2019). “Pursuant to the PLRA, once a prisoner has had three actions

10 dismissed as frivolous or malicious, or for failure to state a claim upon which relief may

11 be granted, that prisoner is no longer permitted to file an action in forma pauperis unless

12 the prisoner is in imminent danger of serious physical injury.” Id. (citing 28 U.S.C.

13 § 1915(g)). This “broad language covers all such dismissals: It applies to those issued both

14 with and without prejudice to a plaintiff’s ability to reassert his claim in a later action.”

15 Lomax v. Ortiz-Marquez, __ U.S. __, No. 18-8369, 2020 WL 3038282, at *3 (U.S. June 8,

16 2020).

17 A court “‘may take notice of proceedings in other courts, both within and without

18 the federal judicial system, if those proceedings have a direct relation to matters at issue.’”

19 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (citation omitted). The Court takes

20 judicial notice that Plaintiff has accumulated at least three strike dismissals pursuant to 28

21 U.S.C. § 1915(g). Those cases are: (1) Blacher v. Diaz, No. 1:11-cv-1993-SKO (E.D. Cal.),

22 ECF No. 12 (Sept. 24, 2012 order dismissing action for failure to state a claim); (2) Blacher

23 v. Dieball, No. 2:14-cv-7985 (C.D. Cal.), ECF No. 7 (Dec. 2, 2014 order dismissing action

24 as frivolous, malicious, or failing to state a claim upon which relief could be granted); (3)

25 Blacher v. Villamarin, No. 2:15-cv-3061 (C.D. Cal.), ECF No. 68 (Aug. 11, 2017 order

26 dismissing action after plaintiff failed to amend pursuant to court’s June 23, 2017 order,

27 granting defendants’ motion to dismiss for failure to state a claim upon which relief could

28 be granted); and (4) Blacher v. Talley, No. 2:16-cv-3680 (C.D. Cal.), ECF No. 74 (July 26,

1 2017 order granting defendants’ motion to dismiss for failure to state a claim upon which

2 relief could be granted).

3 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit

4 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent

5 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493

6 F.3d 1047, 1051-52 (9th Cir. 2007) (“Cervantes”) (noting § 1915(g)’s exception for IFP

7 complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger

8 of serious physical injury’ at the time of filing”). Although the bulk of Plaintiff’s

9 allegations are both implausible and delusional, Plaintiff’s allegations that prison staff have

10 falsely identified him to fellow inmates as a rapist or child rapist, thereby putting his life

11 at risk, are sufficient, when considered as a “threshold procedural question” to plausibly

12 suggest he faced “imminent” or “ongoing danger” of physical injury at the time of filing.

13 See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1057 (distinguishing plausible allegations

14 of “imminent danger” exception under § 1915(g) at the “threshold stage” as distinct from

15 the court’s duty to “evaluate the merits of the suit.”); see also Williams v. Paramo, 775

16 F.3d 1182, 1190 (9th Cir. 2015) (finding allegations that prison official defendants had

17 falsely “reveal[ed] to other inmates” and started “rumors” that plaintiff was a “convicted

18 sex offender and child molester,” and had “erroneous[ly] assign[ed] . . . an ‘R’ suffix to

19 her prison file,” sufficient to satisfy § 1915(g)’s imminent danger exception). Accordingly,

20 the Court concludes Plaintiff has satisfied § 1915(g)’s imminent danger exception.

21 All parties instituting any civil action, suit or proceeding in a district court of the

22 United States, except an application for writ of habeas corpus, must pay a filing fee of

23 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative

27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court

Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does

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1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

2 § 1915(a). See Cervantes, 493 F.3d at 1051. However, prisoners who are granted leave to

3 proceed IFP remain obligated to pay the entire fee in “increments” or “installments,” Bruce

4 v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams, 775 F.3d at 1185, and

5 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) &

6 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

7 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a

8 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-

9 month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

10 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005) (“King”). From the certified trust

11 account statement, the Court assesses an initial payment of 20% of (a) the average monthly

12 deposits in the account for the past six months, or (b) the average monthly balance in the

13 account for the past six months, whichever is greater, unless the prisoner has no assets. See

14 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the

15 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s

16 income, in any month in which his account exceeds $10, and forwards those payments to

17 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct.

18 at 629.

19 Plaintiff’s CDCR Statement and Prison Certificate show that he has carried an

20 average monthly balance of $0.00, had $0.00 in average monthly deposits to his account

21 over the 6-month period immediately preceding the filing of his Complaint and had an

22 available balance of $0.00 on the books at the time of filing. See ECF No. 3 at 1; 28 U.S.C.

23 § 1915(a)(2); King, 398 F.3d at 1119. Based on this accounting, the Court GRANTS

24 Plaintiff leave to proceed IFP and will not assess an initial partial filing fee pursuant to 28

25 U.S.C. § 1915(b)(1). The full $350 fee owed in this case must be collected by the agency

26 having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28

27 U.S.C. § 1915(b)(2).

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1 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

2 A. Standard of Review

3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a

4 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it,

6 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who

7 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

8 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

9 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

10 the targets of frivolous or malicious suits need not bear the expense of responding.’”

11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).

12 “The standard for determining whether a plaintiff has failed to state a claim upon

13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

16 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

18 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

19 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

20 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

22 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

23 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

24 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

25 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

26 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

27 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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1 B. Plaintiff’s Factual Allegations

2 Plaintiff’s Complaint and Exhibits detail what he believes to be a far reaching

3 conspiracy within the California Department of Corrections and Rehabilitation (“CDCR”)

4 to falsely identify him as a rapist or child rapist as a means to incite fellow inmates to kill

5 him. See Compl. at 22-40; Exhs. at 1-42. He alleges that various corrections officers at both

6 Calipatria State Prison (“CSP”) and RJD, prison medical staff, medical staff of the Pioneer

7 Medical Center, a superior court judge, one of his former attorneys, the San Diego County

8 District Attorney’s Office, owners of companies named “Predator Alert” and “Baby Alert”

9 (sued as “John or Jane Doe”), and Mark Zuckerberg are members of this conspiracy and

10 have committed various acts to further the conspiracy. Id. These acts include: falsely

11 communicating to Plaintiff’s fellow inmates, through personal communication and

12 loudspeaker announcements, that Plaintiff is a rapist/child rapist, placing specific inmates

13 in Plaintiff’s cell to kill or attack him, and plotting to stage an escape attempt by Plaintiff

14 during which Defendants would kill him. Id. Defendants allegedly told inmates they would

15 not be prosecuted if they killed Plaintiff. See Compl. at 38; Exhs. A-F.

16 Plaintiff also alleges that medical staff at Pioneer Medical Center, where Plaintiff

17 was taken for treatment, performed needless blood tests, retained his urine for unknown

18 purposes, and tricked him into signing a document that purportedly “signed his life away.”

19 Compl. at 26-28. In addition, Plaintiff alleges that prison staff placed a camera inside his

20 cell in the Administrative Segregation Unit (“ASU”) at RJD which was then broadcast on

21 Facebook Live. Id. at 29-31. Female prison staff also watched the camera feed, and

22 according to Plaintiff, viewed him while he was urinating and ridiculed his penis size. Id.

23 The camera feed was also linked to websites named “Predator Alert” and “Baby Alert”

24 which broadcast false allegations that Plaintiff is a rapist or child rapist and put out a

25 multimillion dollar bounty for him. Id.

26 Finally, Plaintiff also alleges that prison staff have urinated into his food and blocked

27 his radio from receiving a signal. Id. at 31-37. He further claims that medical staff at

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1 Pioneer Medical Center placed implants in his head which monitor his brainwaves

2 broadcast his thoughts on Facebook Live. Id.

3 C. 42 U.S.C. § 1983

4 “Section 1983 creates a private right of action against individuals who, acting under

5 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

6 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

7 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

8 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations

9 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

10 secured by the Constitution and laws of the United States, and (2) that the deprivation was

11 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

12 F.3d 1128, 1138 (9th Cir. 2012).

13 D. Rule 8

14 Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a claim

15 for relief in a pleading it must contain “a short and plain statement of the grounds for the

16 court’s jurisdiction” and “a short and plain statement of the claim showing that the pleader

17 is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2); see McHenry v. Renne, 84 F.3d 1172,

18 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was

19 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso, United

20 States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011)

21 (citing cases upholding Rule 8 dismissals where pleadings were “verbose,” “confusing,”

22 “distracting, ambiguous, and unintelligible,” “highly repetitious,” and comprised of

23 “incomprehensible rambling”). As such, the Court concludes that the bulk of Plaintiff’s

24 Complaint fails to comply with Rule 8.

25 E. Discussion

26 Plaintiff’s forty-seven (47) page Complaint and forty-two (42) pages of Exhibits are

27 a litany of delusional allegations against twenty-nine (29) Defendants who he believes to

28 be involved in a conspiracy to kill him. With the exception of the Eighth Amendment and

1 First Amendment retaliation claims discussed below, his allegations are mostly implausible

2 and delusional. A pleading is “factual[ly] frivolous[]” if “the facts alleged rise to the level

3 of the irrational or the wholly incredible, whether or not there are judicially noticeable facts

4 available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 25-26 (1992). “[A]

5 complaint, containing as it does both factual allegations and legal conclusions, is frivolous

6 where it lacks an arguable basis either in law or in fact. . . . [The] term ‘frivolous,’ when

7 applied to a complaint, embraces not only the inarguable legal conclusion, but also the

8 fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). When

9 determining whether a complaint is frivolous, the court need not accept the allegations as

10 true, but must “pierce the veil of the complaint’s factual allegations,” id. at 327, to

11 determine whether they are “‘fanciful,’ ‘fantastic,’ [or] ‘delusional.’” Denton, 504 U.S. at

12 33 (quoting Neitzke, 490 U.S. at 328).

13 Thus, to the extent Plaintiff claims that the CDCR, wardens, prison staff, medical

14 center staff, the Attorney General of California, Deputy Attorneys General, a superior court

15 judge, a private attorney, Mark Zuckerberg, the District Attorney of San Diego, and owners

16 of websites are involved in a conspiracy to kill him, broadcast a livestream of his cell on

17 Facebook Live and on websites, place a bounty on him, and insert implants in his head to

18 monitor his brainwaves and thoughts, these allegations “rise to the level of the irrational or

19 the wholly incredible.” Denton, 504 U.S. at 33. Because these claims are factually

20 frivolous, they must be dismissed as to the Defendants involved pursuant to 28 U.S.C.

21 § 1915(e)(2)(B)(i) and 19195A(b) without leave to amend. See Lopez v. Smith, 203 F.3d

22 1122, 1127 n.8 (9th Cir. 2000) (en banc) (noting that if a claim is classified as frivolous,

23 “there is by definition no merit to the underlying action and so no reason to grant leave to

24 amend).

25 1. Eighth Amendment Claims

26 Plaintiff does, however, make some specific allegations about several individual

27 prison officials’ actions. For example, Plaintiff alleges that in August of 2019, unnamed

28 correctional peace officers at CSP began “introducing publications” that falsely identified

1 Plaintiff as a rapist and child rapist with the intent to incite inmates to attack him. Compl.

2 at 21. Plaintiff further claims that “on or about the 20th day of March 2020,” Defendant

3 Villa “falsely assert[ed] the Plaintiff is a ‘rapist” and ‘child molester’ . . . [and] a ‘baby

4 rapist’ and ‘kid rapist.’” Id. at 22. According to Plaintiff, Villa spoke to Defendants

5 Rohotas, Goodson and Cowey “and various inmates, which Defendant Villa direct[ed] . . .

6 to ‘remove’ and otherwise physically harm Plaintiff.” Id. Plaintiff further alleges that “[o]n

7 or about the 22nd day of March, 2020,” Defendants Villa, Rohotas, and Allegre were

8 talking with each other when “an inmate in or about cell 104-107 summed[ed] Defendant

9 Allegre” and told him “of a plot to seriously injure or even kill the Plaintiff.” Id. Allegre

10 responded that he wanted to see Plaintiff “get fucked up or killed.” Id. Defendants Goodson

11 and Cowey arrived at the same location and were told of the threat to Plaintiff. Id. at 23.

12 They responded by “laugh[ing] and jok[ing] and agreed with Allegre that they also wanted

13 to see Plaintiff injured. Id. Defendant Rohotas told Allegre and Cowey not to intervene and

14 to permit inmates to “roll him [the Plaintiff] up.” Id.

15 On March 26, 2020, Plaintiff told an unnamed correctional peace officer about the

16 threats to his life and was taken to the program office. Id. He was placed in CSP’s ASU on

17 that same date by Defendant Cowey because “confidential information was received

18 indicat[ing] [Plaintiff has] been targeted for assault on Facility D.” See Exh. D. According

19 to Plaintiff, Defendant Cowey told him he did not believe there was a threat to Plaintiff’s

20 life but rather that Plaintiff was trying to “roll up” because he “ran up a debt on the yard

21 and is trying to avoid paying it.” Compl. at 23.

22 On April 2, 2020, Plaintiff was in CSP’s ASU. Id. at 24; Exh. A at 10. While there,

23 Plaintiff alleges he heard unnamed correctional officers on 2nd and 3rd watch discussing

24 placing specific inmates in Plaintiff’s cell in order to kill him. Compl. at 25; Exh. A. at 10.

25 He alleges he also heard these individuals discuss their plans to raid Plaintiff’s ASU cell

26 and kill him. Compl. at 25. Plaintiff claims the stress of the threats made by Defendants

27 Villa, Rohotas, Goodson, Allegre, Cowey and the ASU correctional officers on 2nd and

28 3rd watch “[took] a toll on the Plaintiff’s health,” and when officers entered his cell they

1 found Plaintiff “sprawled out on the floor of the cell unable to feel [his] legs and

2 experiencing chest pains.” Id. at 26. After being examined at the Correctional Treatment

3 Center (“CTC”), staff determined Plaintiff would need to be treated by an outside medical

4 facility; Plaintiff was taken by wheelchair to Pioneer Medical Center and later released. Id.

5 Threats to both Plaintiff’s safety and health are subject to the Eighth Amendment’s

6 demanding deliberate indifference standard. See Farmer v. Brennan, 511 U.S. 825, 834,

7 837 (1994); Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016). “A prison official

8 acts with ‘deliberate indifference . . . only if the [official] knows of and disregards an

9 excessive risk to inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

10 Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002),

11 overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th

12 Cir. 2016)). “Under this standard, the prison official must not only ‘be aware of facts from

13 which the inference could be drawn that a substantial risk of serious harm exists,’ but that

14 person ‘must also draw the inference.’” Id. (quoting Farmer, 511 U.S. at 837). In addition,

15 a Plaintiff must allege he suffered a physical injury which is more than de minimus. Oliver

16 v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); Fournerat v. Fleck, No. EDCV 19-0961 AB

17 (AS), 2020 WL 4495483, at *6 (C.D. Cal. July 7, 2020).

18 “California’s . . . prisoners may be murderers, rapists, drug dealers, and child

19 molesters, but California is responsible for protecting even those sorts of people from

20 murder by other prisoners. Indeed, the Eighth Amendment requires that prison officials

21 ‘must take reasonable measures to guarantee the safety of the inmates.’” United States v.

22 Williams, 842 F.3d 1143, 1153 (9th Cir. 2016) (quoting Farmer, 511 U.S. at 833 (“[P]rison

23 officials have a duty [under the Eighth Amendment] . . . to protect prisoners from violence

24 at the hands of other prisoners.”)). Under these standards, the Court concludes that, when

25 liberally construed, Plaintiff’s allegations are serious and specific enough to plausibly state

26 an Eighth Amendment claim for relief as to Defendants Villa, Rohotas, Goodson, Allegre

27 and Cowey. See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Valandingham v.

28 Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989) (labeling prisoner a “snitch” in the

1 presence of other inmates is sufficient to state a claim of deliberate indifference to an

2 inmate’s safety); Crane v. Gonzales, No. CV-F-03-6339 OWW WMW P, 2008 WL

3 2168927, at *2 (E.D. Cal. May 23, 2008) (calling a prisoner a “child molester” in presence

4 of fellow inmates stated Eighth Amendment claim), report and recommendation adopted,

5 No. CV-F-03-6339 LJO WMW PC, 2008 WL 2676780 (E.D. Cal. June 30, 2008); Adams

6 v. Tilton, No. 1:07-CV-00791 GSA PC, 2009 WL 2915100, at *13 (E.D. Cal. Sept. 9, 2009)

7 (calling plaintiff a “Chester” in front of other inmates is akin to calling him a “snitch”).

8 The claims against unnamed ASU correctional officers on 2nd and 3rd watch, whom

9 Plaintiff merely describes as “All Calipatria State Prison Administrative Segregation

10 Corrections Officers and Medical Department Staffing Persons,” however, must be

11 dismissed pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) because Plaintiff has made

12 no specific allegations against any individual ASU correctional officer in relation to his

13 Eighth Amendment claims. “A plaintiff may refer to unknown defendants as Defendant

14 John Doe 1, John Doe 2, John Doe 3, and so on, but he must allege specific facts showing

15 how each particular doe defendant violated his rights.” Cuda v.

16 Employees/Contractors/Agents at or OCCC, 2019 WL 2062945, at *3-4 (D. Haw. May 9,

17 2019). A plaintiff may seek discovery to obtain the names of the Does and later amend his

18 pleading in order to substitute the true names of those defendants, unless it is clear that

19 discovery will not uncover their identities, or that his complaint is subject to dismissal on

20 other grounds. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (emphasis

21 added) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Here, with respect

22 to the unnamed 2nd and 3rd Watch ASU Officers, Plaintiff has failed to link any particular

23 constitutional violation to any specific individual state actor. Plaintiff must, at a minimum,

24 allege some factual content to describe how each individual person he seeks to sue violated

25 the Constitution. Iqbal, 556 U.S. at 676-77; Ewing v. City of Stockton, 588 F.3d 1218, 1235

26 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). He may not attribute

27 liability to a group of unidentified defendants, but must “set forth specific facts” as to each

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1 individual defendant’s wrong. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also

2 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

3 2. Retaliation Claim

4 Plaintiff also alleges that “on or about the 20th day of March 2020,” Defendant Villa

5 “falsely assert[ed] the Plaintiff is a ‘rapist” and ‘child molester’ . . . [and] a ‘baby rapist’

6 and ‘kid rapist,’” and that this action was “seemingly in retaliation for the Plaintiff having

7 petition[ed] the government for the redress of grievances re: mail crimes . . . .” Compl. at

8 22. To state a valid First Amendment retaliation claim, Plaintiff must assert: (1) a state

9 actor took some adverse action against him, (2) the adverse action was taken because he

10 engaged in some protected conduct, (3) the state actor’s acts “would chill or silence a

11 person of ordinary firmness from future First Amendment activities,” and (4) the adverse

12 action “did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson,

13 408 F.3d 559, 567-68 (9th Cir. 2005) (internal quotation marks and emphasis omitted).

14 “[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he

15 suffered some other harm,” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), that is

16 “more than minimal.” Rhodes, 408 F.3d at 568 n.11.

17 Plaintiff’s March 20, 2020 allegations against Defendant Villa suggest he seeks to

18 bring both an Eighth Amendment as well as a First Amendment retaliation claim against

19 him. Plaintiff has alleged sufficient facts to establish that Villa (a state actor) took some

20 adverse action against him (falsely asserted Plaintiff was a rapist, child molester, baby

21 rapist and kid rapist), and that Villa’s actions “would chill or silence a person of ordinary

22 firmness from future First Amendment activities.” Rhodes, 408 F.3d at 567-78. Further,

23 there is no “legitimate correctional goal” served by falsely labeling Plaintiff as a rapist or

24 child rapist. Whether Plaintiff has alleged sufficient facts to show Villa took this action

25 because Plaintiff engaged in protected conduct, however, is not as evident. Plaintiff states

26 Villa made the false accusations against him “seemingly” because Plaintiff “petitioned the

27 government for the redress of grievances.” Compl. at 22. Plaintiff has not explained exactly

28 what grievances he filed or when he filed them, but he does claim that Villa interfered with

1 his mail in some manner and that the grievances he filed were regarding “mail crimes.” Id.

2 Thus, at this stage of the proceedings, the Court concludes that Plaintiff has also pled

3 sufficient facts to plausibly state a retaliation claim against Defendant Villa regarding the

4 March 20, 2020 incident. Iqbal, 556 U.S. at 678.

5 III. Motion for a Preliminary Injunction and a Temporary Restraining

6 Order [ECF No. 2]

7 Plaintiff also seeks immediate injunctive relief. See Mot. for TRO, ECF No. 2. In his

8 motion, Plaintiff makes the same basic allegations as he does in his Complaint. Id. He asks

9 the Court to enjoin the Defendants from imposing “the domestic terrorism and conspiracy

10 against rights . . . upon the neutral, presently peaceful Plaintiff,” and asks that an order

11 issue “restraining such Defendants from perpetrating such domestic terrorism and

12 conspiracy against rights, that transpire on a continuous basis, against the Plaintiff. Id. at

13 2.

14 To the extent Plaintiff seeks a TRO without notice upon an adverse party, he cannot

15 prevail because his submission fails to set out “specific facts in an affidavit or a verified

16 complaint . . . [which] clearly show that immediate and irreparable injury, loss, or damage

17 will result . . . before the adverse party can be heard in opposition.” Fed. R. Civ. P.

18 65(b)(1)(A); Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (“[I]njunctive relief is

19 ‘to be used sparingly, and only in a clear and plain case,’” especially when the court is

20 asked to enjoin the conduct of a state agency) (quoting Rizzo v. Goode, 423 U.S. 362, 378

21 (1976)).

22 Second, a plaintiff seeking a preliminary injunction must establish: (1) a likelihood

23 of succeed on the merits; (2) a likelihood that plaintiff will suffer irreparable harm in the

24 absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that

25 an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20

26 (2008). “The standard for issuing a temporary restraining order is identical to the standard

27 for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. v. Hughes

28 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg Intern. Sales

1 Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (standards

2 for issuing a TRO are “substantially identical” to those for issuing a preliminary

3 injunction). As the movant, Plaintiff “must do more than merely allege imminent harm

4 sufficient to establish standing; [he] must demonstrate immediate threatened injury as a

5 prerequisite to preliminary injunctive relief.” Caribbean Marine Servs. Co., Inc. v.

6 Baldrige, 844 F.2d 668, 674-675 (9th Cir. 1988) (speculative injury does not constitute

7 irreparable harm sufficient to warrant granting a preliminary injunction) (internal citations

8 omitted).

9 Plaintiff’s allegations do not meet these standards. The bulk of his claims are

10 frivolous, therefore he has not and cannot show any likelihood of success on the merits of

11 those claims. See Pimental v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (stating that

12 “at an irreducible minimum,” the party seeking immediate injunctive relief “must

13 demonstrate a fair chance of success on the merits, or questions serious enough to require

14 litigation”). And while a few of his allegations are sufficient to survive initial screening,

15 he has not established that he will “suffer irreparable harm in the absence of preliminary

16 relief,” nor has he “demonstrated immediate threatened injury.” Winter, 555 U.S. at 20;

17 Caribbean Marine Servs. Co., Inc., 844 F.2d at 674-675. For these reasons, Plaintiff’s

18 Motion for TRO and Preliminary Injunction (ECF No. 2) is DENIED.

19 IV. Conclusion and Order

20 For the reasons explained, the Court:

21 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

22 (ECF No. 3).

23 2. DIRECTS the Secretary of the CDCR, or his designee, to forward whatever

24 the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of

25 the preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s

26 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

27 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

28 ACTION.

1 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz,

2 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

3 4. DENIES Plaintiff’s Motion for TRO (ECF No. 2).

4 5. DISMISSES Plaintiff’s claims as to the following Defendants as frivolous

5 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and DIRECTS the Clerk of Court

6 to terminate them as parties in this case:

7 • Ralph Diaz

• W.L. Montgomery

8

• All Calipatria State Prison Administrative Segregation Correctional

9 Officers and Medical Department Staffing Persons

10 • Weschel, CCII, Fac. D, Calipatria

• All Calipatria State Prison Correctional Peace Officers

11

• All Pioneer’s Medical Center Staffing Persons

12 • All RJD Correctional Facility, Fac. D, Bldg. 7 Staffing Persons,

Correctional Peace Officers, Medical Dept. Staffing Persons, and

13

Mental Health Staffing Persons

14 • Warden, RJD Correctional Facility

• M. Guevera Ortega, PERN #121759

15

• R. Covert, Correctional Facility Inmate Appeals Office

16 • All RJD Correctional Facility, Fac. A, Bldg. 5 2nd and 3rd Watch

17 Correctional Peace Officers

• Deborah B. Wadleigh, Supervising Deputy Attorney General

18 • Jeremy Doernberger, Deputy Attorney General

19 • Xavier Becerra, Attorney General

• John or Jane Doe I

20

• John or Jane Doe II

21 • CCPOA

• CDCR

22

• State of California

23 • Theresa Canepa, Judge of the Superior Court

24 • Linda Fullerton

• Mark Zuckerberg, Facebook, CEO/Chairman/President

25

• District Attorney, County of San Diego

26 • E. Frijas, CCII at RJD

27 / / /

28 / / /

1 6. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No.

2 1) upon Defendants VILLA, ROHOTAS, GOODSON, ALLEGRE and COWEY and

3 forward it to Plaintiff along with a blank U.S. Marshal Form 285. In addition, the Clerk

4 will provide Plaintiff with a certified copy of this Order, a certified copy of his Complaint

5 and the summons so that he may serve them upon Defendants VILLA, ROHOTAS,

6 GOODSON, ALLEGRE and COWEY.

7 7. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285s as

8 completely and accurately as possible, include an address where each named Defendant

9 may be found and/or subject to service, and return them to the United States Marshal

10 according to the instructions the Clerk provides in the letter accompanying his IFP package.

11 8. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

12 upon the named Defendants as directed by Plaintiff on the USM Form 285s provided to

13 him. All costs of that service will be advanced by the United States. See 28 U.S.C.

14 § 1915(d); Fed. R. Civ. P. 4(c)(3).

15 9. ORDERS Defendants, once they have been served, to reply to Plaintiff’s

16 Complaint within the time provided by the applicable provisions of Federal Rule of Civil

17 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

18 permitted to “waive the right to reply to any action brought by a prisoner confined in any

19 jail, prison, or other correctional facility under section 1983,” once the Court has

20 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and

21 thus, has made a preliminary determination based on the face on the pleading alone that

22 Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is required

23 to respond); and

24 10. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

25 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’

26 counsel, a copy of every further pleading, motion, or other document submitted for the

27 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every

28 original document he seeks to file with the Clerk of the Court, a certificate stating the

1 |}manner in which a true and correct copy of that document has been was served on

2 ||Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any

3 document received by the Court which has not been properly filed with the Clerk or which

4 || fails to include a Certificate of Service upon Defendants may be disregarded.

5 IT IS SO ORDERED.

6

7 || DATED: September 23, 2020 ( bef Af “4 Zuni

8 Hon. Larry Alan Burns

9 Chief United States District Judge

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